IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR
TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933
RSA.No. 331 of 2011() --------------------AS.105/2001 of SUB COURT, PAYYANNUR OS.372/1998 of MUNSIFF COURT, PAYYANNUR ....................
## APPELLANT/APPELLANT/PLAINTIFF.
M.V.KUNHIKANNAN, AGED 50, S/O. PARU, RESIDING AT KANAYIL, KORAM AMSOM, KANARI DESOM, TALIPARAMBA TALUK.
BY ADV. SRI.O.V.MANIPRASAD SRI.SAJU J PANICKER SRI.LIJO KURIAN JOSE
RESPONDENT/ RESPONDENT/DEFENDANT.
KURUVAT MOHAN, AGED 43, S/O. KUNHIKANNAN MENON, KANDANKULANGARA, KUNHIMANGALAM AMSOM DESOM, PIN - 670 309.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/03/2011, THE COURT ON THE SAME DAY PASSED THE
## M.SASIDHARAN NAMBIAR,J.
--------------------------------------------- `R.S.A.NO.331 OF 2011` --------------------------------------------- `Dated 29[th] March, 2011`
## JUDGMENT
Plaintiff in O.S.372/1998 on the
file of Munsiff court, Payyannur is the appellant. Defendant is the rsepondent. The suit was instituted for a declaration that Ext.A5 (Ext.B2 being one its original) sale deed executed on 5/6/1998 and registered as document No.948/1998 of
S.R.O, Mathamangalam is null and void and
a consequential permanent prohibitory injunction. Case of the appellant is that plaint schedule property along with other properties originally belonged jointly to his mother Paru and brother Raman. They applied for purchase of jenm right before Land Tribunal and purchase certificate was
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obtained in 1997. In 1985 properties were divided and A schedule properties in the partition deed were allotted to the share of the mother of the appellant. She executed a gift deed in favour of the appellant and appellant has been the absolute owner in possession of the property since then. On 3/3/1998 he was suffering from acute rheumatism and was undergoing treatment of Dr.A.R.Pai and on his advise the appellant took Ayurvedic treatment on 5/6/1998 and had gone to Government Ayurvedic Hospital, Kandoth and the doctor advised him to get admitted in the hospital as inpatient. It is alleged that on 6/6/1998 respondent took him to the office of the Sub Registrar, Mathamangalam falsely representing that he is being taken to the hospital and from the Sub
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Registrar's Office, respondent obtained signatures of the appellant in some papers. As the appellant could not speak or respond he was unaware of the transaction. It is alleged that on 7/6/1998 he was taken to the hospital by his wife and relatives and was treated there till 7/7/1998 for Sarvanga Vatham. On return from the hospital appellant found changes in the attitude of his sister, niece and the respondent. When the appellant
searched for the document pertaining to title
of the property, it was found missing. On 3/10/1998 appellant could re-collect his memory and then remembered that he was taken to Sub Registrar's office on 5/10/1998. He enquired in the Sub Registrar's Office and then realised that Ext.A2 sale deed was got executed showing a consideration of Rs.4,000/-. Appellant would
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contend that the property would fetch a value of Rs.5,000/- per cent at that time and total consideration should have been minimum Rs.50,000/- and the value of Rs.4,000/- shown in the sale deed is inadequate. It is also contended that witnesses to the sale deed are the henchmen of the respondent and even though sale deed was executed by the appellant, it is null and void and in such
circumstances, it is to be declared void.
2. Respondent resisted the suit
contending that by Ext.B1 sale deed, appellant sold the property for adequate consideration and it was executed out of his free will and volition an when the mother of the appellant gifted the plaint schedule property to the appellant in 1997, there was a liability to Payyannur Co-operative Rural Bank and when the
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bank had proceeded for realisation of the amount neither the appellant nor the mother had sufficient amount to discharge the liability. Appellant approached the respondent and requested to repay the debt and promised that in that event plaint schedule property would be assigned to the respondent. On 2/2/1998 total consideration for Rs.4,000/- was fixed and appellant received Rs.1,000/- as advance. On enquiry with the bank, appellant understood that outstanding debt is Rs.10,000/-.
Therefore, appellant approached the respondent
and received Rs.5,000/- and Rs.5,873/- on
different dates. Even after discharge of the liability, appellant did not fulfill the promise and failed to assign the plaint schedule property. On 4/6/1998 there was a mediation and in that mediation it was agreed
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that respondent has to pay Rs.4,000/- and the appellant would execute the sale deed. It was also agreed that Rs.7,873/- payable by the respondent to the appellant to the respondent is to be paid within six months. Thereafter the sale deed was executed. Though respondent demanded Rs.7,873/- appellant did not so far oblige it. It is contended that execution of sale deed is valid and it was acted upon and appellant is not entitled to the decree sought for.
3. Learned Munsiff on the evidence of Pws.1 and 2, Dws.1 to 3, Exts.A1 to A8, Exts.B1 to B4 and Exts.X1 and X2 dismissed the suit finding that appellant failed to establish that Ext.A4 sale deed was not voluntarily executed or is vitiated by fraud as alleged. Appellant challenged the judgment before Sub Court,
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Payyannur in A.S.105/2001. Learned Sub Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal.
4. Learned counsel appearing for the
appellant was heard.
5. Argument of the learned counsel
is that courts below did not properly appreciate the evidence and erred in properly appreciating Ext.X2 and ignoring the evidence
on the ground that entries in Ext.X2 are manipulated by the appellant. It was argued that Ext.X2 is the record maintained at
Government Ayurvedic Hospital and it cannot be
manipulated by the appellant and it establishes that appellant was treated as an inpatient immediately after execution of Ext.A4 and in
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such circumstances, courts below should have found that Ext.A4 was not voluntarily executed.
Learned counsel argued that when the evidence show that value of the property during the relevant period is more than Rs.5,000/- per cent sale consideration should have been minimum of Rs. 50,000/- and courts below should have been found that consideration of Rs.4,000/- shown therein is insufficient. Learned counsel relied on the decision of
the Honourable Supreme Court in **Chacko v. Mahadevan (2007 (4) KLT 753 (SC))** and argued
that insufficiency of the consideration itself is sufficient ground to grant the decree
sought for.
6. Facts of the case in Chacko's case
(supra) relied on by the learned counsel were different. It shows that based on the evidence
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of the trial court, first appellate court entered a factual finding that Chacko, the executant of the document was not having sound mind when the disputed document was executed. Honourable Supreme Court held that, that factual finding could not have been reversed by the High Court in exercise of the powers under Section 100 of Code of Civil Procedure. Honourable Supreme Court also found that earlier sale deed was executed by the executant whereunder 1 cent being part of the very same property was sold for a consideration of Rs.18,000/-. It was found that disputed sale deed was executed ten months thereafter and the sale consideration shown is for Rs.1,000/-. It is for this reason their Lordships found that no one would sell the property for Rs.1,000/-, when as per the
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consideration shown in the earlier sale deed, the minimum consideration should be Rs.54,000/-. Apart from the interested version that plaint schedule property would have fetched not less than Rs.5,000/- per cent, appellant did not produce any document whereunder similar properties were assigned for more than the consideration shown in Ext.A1. Therefore, the decision in Chacko's case has no application to the facts of the case.
7. Appellant had sought to declare Ext.A4 void alleging that it was got executed by fraud and consideration shown is inadequate, on the allegation that consideration should have been a minimum of Rs.5,000/- and appellant had no capacity to execute the document on the date of its execution and witnesses to the
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execution and registration are hired witnesses and the sale deed was not acted upon. The trial court and the first appellate court considered all these grounds on the evidence and entered the factual finding that appellant did not establish any of these grounds. Though learned counsel argued that the appreciation of evidence is not proper. On going through the judgments of the courts below, I cannot agree. Factual finding rendered by the trial court as confirmed by the first appellate court cannot be interfered in exercise of the powers under Section 100 of Code of Civil Procedure. In
such circumstances, I find no substantial question of law involved in the appeal.
It is dismissed.
M.SASIDHARAN NAMBIAR, JUDGE.
uj.
