Parameswaran Namboodiri v. Sajith S/o Kunjuvareed, in RFA No. 163 of 2006 (E) against OS No. 335 of 2001 (Sub Court, Irinjalakuda)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 13TH DAY OF NOVEMBER 2020 / 22ND KARTHIKA, 1942** ## **RFA.No.163 OF 2006(E)** **AGAINST THE JUDGMENT IN OS 335/2001 DATED 26-11-2003 OF SUB COURT,IRINJALAKUDA** ## **APPELLANT/DEFENDANT:** **PARAMESWARAN NAMBOODIRI, AGED 65 YEARS, S/O.NARAYANAN NAMBOODIRI, THEKKE PLAVELI MARATHOMPILLY MANA, NEAR KUTTANELLUR MUNDOLI TEMPLE, KOODAPUZHA DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADVS. SRI.K.RAMAKUMAR (SR.) SMT.ASHA BABU SMT.SMITHA GEORGE** ## **RESPONDENT/PLAINTIFF:** **SAJITH S/O.KUNJUVAREED, CHELAKKATTUPARAMBIL HOUSE, KOODAPUZHA DESOM, EAST CHALAKUDY VILLAGE, THRISSUR DISTRICT.** **BY ADV. SRI.K.G.BALASUBRAMANIAN** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11-11-2020, THE COURT ON 13-11-2020 DELIVERED THE FOLLOWING:** ## **R.F.A.NO.163 of 2006** ## **:-2-:** ## **Dated this the 13[th] day of November, 2020** ## **J U D G M E N T** Plaintiff in O.S.No.335/2001 before Sub Court, Irinjalakkuda, obtained a decree for specific performance of contract of sale in respect of plaint schedule 22½ cents of land belonging to the defendant in the suit. The aggrieved defendant challenges the judgment and decree, denying execution of Ext.A1 agreement dated 13.3.2001. 2. The respondent contended before the court below that appellant executed Ext.A1 sale agreement after receiving an advance amount of Rs.50,000/- on 13.3.2001 agreeing to execute sale deed within a period of three months free of all encumbrances, on accepting the balance purchase amount. As per Ext.A1 agreement, appellant is stated to have agreed for sale at the rate of Rs.24,000/- per cent and further agreed to shift a three-phase electric ## **R.F.A.NO.163 of 2006** ## **:-3-:** line passing through the property within the agreed term of contract. The respondent has also a case that appellant demanded Rs.2,000/- more per cent during the currency of Ext.A1 and sought extension period for another two months for performing his part of the contract. He was ready and willing to perform his part of the contract always and since the appellant failed in the promise made, he filed the suit for specific performance of contract on 30.7.2001 with alternative prayer for refund of advance amount after sending Ext.A2 suit notice on 9.7.2001. 3. The appellant denied execution of agreement for sale contending that he had no reason to agree for sale of the property. His case is that his cosister, Parvathy was in need of money for discharging a debt incurred by her with Kuttanelloor Service Co-operative Bank during March, 2000 and in order to help her, he approached ## **R.F.A.NO.163 of 2006** **:-4-:** the respondent and received Rs.30,000/- as loan and agreed to return the amount with interest also within time. But under the insistence of the respondent, he executed a blank stamp paper along with other blank papers. He did not receive any advance amount or agree to sell the property which was having a high market value at the rate of Rs.35,000/- per cent during the relevant time. On two more occasions also, namely, on 29.3.2000 and 13.3.2001, the respondent approached him and took blank stamp and other papers as security for repayment of the loan amount. According to the appellant, the only liability outstanding in favour of the respondent is a debt incurred by him for Rs.30,000/- with interest and nothing more. 4. The court below raised necessary issues which included the disputed execution of Ext.A1 agreement for sale. On the side of the respondent, himself, an attesting witness and scribe were ## **R.F.A.NO.163 of 2006** ## **:-5-:** examined respectively as Pws.1 to 3. Exts. A1 to A8 were admitted as evidence from his side. The appellant gave evidence as DW1 and tendered Exts.B1 and B2 on his side. 5. On consideration of entire evidence, the court below was satisfied that the appellant executed agreement for sale in respect of suit property on 13.3.2001 and execution was proved by the attesting witness as well as the scribe who prepared the document. According to the court below, the conduct of the appellant indicated that he agreed to sell the property for the price stipulated in Ext.A1. The contrary contention that the document was issued as security for discharge of a loan liability of the appellant was rejected. It was also found that evidence proved that respondent was ready and willing to perform his part of the contract. The contention of appellant that respondent was not having adequate finance to ## **R.F.A.NO.163 of 2006** ## **:-6-:** meet the balance purchase amount was also not accepted by the court below. On the whole, the court below exercised discretion under Section 20 of the Specific Relief Act, 1963 (for short, 'the Act') in favour of respondent and granted the impugned decree for specific performance. 6. I heard the learned counsel for the appellant and respondent. 7. The issues which were considered by the trial court arise for consideration in this appeal also on reappreciation of evidence, facts and law. 8. The appellant does not dispute his signatures appearing in any of the pages in Ext.A1. According to him, he signed blank papers, one of which included a stamp paper and entrusted them with the respondent as a security for a loan transaction which transpired in the month of March, 2000. In the written statement appellant's contention was that his co-sister was in need of ## **R.F.A.NO.163 of 2006** ## **:-7-:** money in connection with discharge of loan taken by her from Kuttanelloor Service Co-operative Bank. Ext.B2 deed issued by the Co-operative Bank shows that Parvathy had loan liability and it was closed on 22.3.2000. But DW1 in his cross examination said that the loan was taken for helping his own wife. This is a contradiction which cannot be lost sight of in appreciating the probability of the case put forwarded by the appellant. 9. One of the pages in Ext.A1 consists of a printed matter which reveals terms of agreement which every purchaser and seller would normally agree upon for sale of the property. The appellant is a poojari and he has no case that he did not know reading and writing. Necessarily therefore it ought to be taken that he signed page No.2 only after understanding the contents. This circumstance alone is enough to uphold the case of the respondent that appellant signed agreement for sale ## **R.F.A.NO.163 of 2006** ## **:-8-:** after accepting advance amount and promised to sell the suit property for the value agreed upon. 10. PW1 who is the respondent also spoke that there were deliberations between parties before the terms of agreement for sale were reduced to writing in Ext.A1. PW2 the attesting witness proved that the document was prepared at the office of PW3 scribe where the appellant received advance amount of Rs.50,000/-. This was corroborated by PW3 also. The scribe's evidence shows that after taking instructions from both parties, he executed agreement for sale. I have no reason to disbelieve the testimonies of Pws.1 to 3 and DW1's evidence shows that PWs.2 and 3 are not enemical to him nor have special reasons to give false evidence against him. The assertion made by DW1 in his testimony that he signed blank papers and they were offered as security for securing repayment of loan taken for his co-sister is not probabilised by evidence ## **R.F.A.NO.163 of 2006** ## **:-9-:** or broad circumstances of the case. 11. In order to strengthen the plea that Ext.A1 was manipulated in blank papers, the appellant relied on Ext.B1. Ext.B1 is dated 29.3.2000 and it is also an agreement for sale. PW1 denied his signature as well as execution of this document. But at the same time, it is seen signed by the appellant as well as PW2. According to PW3, it was prepared under his own handwriting. Even if it is assumed that Ext.B1 was executed on 29.3.2000, I fail to understand as to how this could support the case of the appellant that blank papers were taken from him in connection with securing repayment of debt incurred by him in the month of March, 2000. Ext.B1 is not a blank document. It was admitted to be prepared by PW3, whether it contained the signature of respondent or not. The position would have been some times different if a blank paper containing the signatures of parties was produced ## **R.F.A.NO.163 of 2006** ## **:-10-:** and it would have then supported the case of the appellant. In my view, therefore, the court below rightly refused to accept the contention based on Ext.B1. Even otherwise also, nobody has a case that there were two agreements for sale executed in respect of suit property. In the written statement of appellant, he did not have a case based on Ext.B1 at all. 12. Ext.A1 agreement proves that appellant received Rs.50,000/- as advance on the date of agreement. PW1 testified that he was ready and willing to perform his part of the contract and making his intention clear in that respect, Ext.A2 suit notice was also sent. Suit was filed on 30.7.2001 immediately after four months of the agreement for sale. The term of agreement was agreed for three months. PW1 has a case that appellant demanded two months' time for performing his part of the contract and also sought more value ## **R.F.A.NO.163 of 2006** **:-11-:** claiming Rs.2,000/- per cent. An endorsement is seen made on the reverse page to this effect but any way appellant is not a signatory thereto. In so far as the nature of contention raised by the appellant, there is no reason to disbelieve the respondent's case that he was ready and willing to perform his part of contract right from the date of execution of Ext.A1. This is also the view taken by the court below. 13. PW1 said that he had capacity to raise balance purchase money though he did not have the entire amount at his disposal. His brother-in-law had promised to give him necessary fund also. There is no reason to disbelieve this testimony especially when the respondent has shown that he has produced Exts.A7 and A8 passbooks issued from his banks. A decision reported in **Venkatesh C.S. v. A.S.C.Murthy (D) by Lrs. & ors (2020 KHC 6123)** was relied on by the learned counsel for the appellant ## **R.F.A.NO.163 of 2006** ## **:-12-:** to contend for the position that plaintiff seeking decree for performing specific performance should prove his capacity to raise the amount. According to me respondent's capacity has been sufficiently proved. 14. The learned counsel for the appellant submitted that this is not a fit case where the discretion under Section 20 of the Act could have been exercised in favour of the respondent. Referring to the testimony given by PW1 in cross examination, the learned counsel for the appellant submitted that the suit property was being purchased by the respondent in his name for the benefit of his brother-in-law employed in Gulf. In other words, the contention is that since the respondent is acting as benamidar of his brotherin-law, Ext.A1 agreement cannot be allowed to be enforced against public policy which prohibits benami transactions. ## **R.F.A.NO.163 of 2006** ## **:-13-:** 15. It is true that PW1 said that the purchase of the property was for the benefit of his brotherin- law. But his mere statement that the purchase was for the benefit of his brother-in-law, will not constitute the transaction to be benami. Whether transaction in question is benami or not is not an issue arising in the suit and therefore the context in which the answer came to be made by PW1 is very significant. It is relevant to note that when PW1 was questioned as to his capacity to raise balance purchase price, he answered that his brother-in-law had promised to help him. In this context he also added that the purchase was being made for the benefit of his brother-in-law. On consideration of entire testimony of PW1 in this context, there is nothing to indicate that he was acting as benamidar of his brother and had entered into a prohibited transaction under law. 16. Ext.A1 agreement for sale discloses that ## **R.F.A.NO.163 of 2006** ## **:-14-:** the respondent himself paid advance amount. There is no case for any of the parties that the consideration was raised from the brother-in-law of PW1. The terms and stipulations made in Ext.A1 further disclose that the appellant has agreed to transfer the property in the name of PW1. Ext.A1 as a whole indicates that the transaction is exclusively as between the respondent and the appellant. The statement that the purchase was for the benefit of brother-in-law requires to be further probed into and without the respondent getting a clear opportunity to explain what he in fact intended, it is unfair to infer that he was acting as benamidar of his brother-in-law. There is no challenge also raised by the appellant in the appeal memorandum that Ext.A1 was for that reason void as being opposed to public policy. For all these reasons, I hold that the answer, which came out in the cross examination of PW1, cannot be ## **R.F.A.NO.163 of 2006** **:-15-:** taken advantage of by the appellant to contend Ext.A1 was a benami transaction. 17. The learned counsel for the appellant submitted that during the pendency of the proceeding, the market value of the property escalated and if in any event decree for specific performance is sustained by the court, the market value may be refixed. In support of his submission, he relied on a Division Bench decision of this Court reported in **Wellingdon B. & ors. v. D.Shyama Prasad & ors. (2014(3) KHC 560)** . I am unable to accept this argument since the decision relied on was rendered in a different fact situation. The facts on hand do not compel me to resort to refix the market value simply on the ground that there may be fluctuations in the market price during the pendency of _lis_ . 18. At the same time, I notice that on the reverse side of Ext.A1 agreement, an endorsement ## **R.F.A.NO.163 of 2006** **:-16-:** attested by PW2 and signed by the respondent was made on 13.6.2001 in which, the respondent had undertaken to increase the market value per cent by Rs.2,000/-. PW1 has not disowned this endorsement even though the appellant is not a party to the endorsement. The appellant has not subscribed the signature accepting the endorsement. His whole case is one of denial of the agreement itself, which the court below as well this Court has declined to accept. 19. So long as the respondent has undertaken to pay the enhanced market value at the rate of Rs.2,000/- per cent, the balance purchase price payable by him has to be fixed on that basis. The court below failed to take notice of this material aspect. Therefore, the impugned decree has to be modified suitably. The total sale consideration in view of endorsement dated 13.6.2001 comes to Rs.5,85,000/-. The balance purchase amount payable ## **R.F.A.NO.163 of 2006** ## **:-17-:** on deducting the advance amount, has to be fixed as Rs.5,35,000/-. In view of the foregoing discussion made, I hold that there is nothing at all which justifies the interference with the impugned judgment and decree, except to the extent mentioned above. In the result, appeal is disposed of modifying the decree for specific performance as follows; The respondent shall deposit balance sale consideration of Rs.5,35,000/- within a period of one month from today. The appellant will execute and register the sale deed in respect of the plaint property forthwith on respondent depositing the balance sale consideration. In case there is any failure, the respondent will execute the decree through court invoking Section 28 of the Act. Parties will suffer costs in both courts. The appellant is directed to pay ## **R.F.A.NO.163 of 2006** **==> picture [44 x 9] intentionally omitted <==** court fee chargeable under law and the Registry will forward a copy of the decree to the District Collector concerned for the purpose. All pending interlocutory applications are closed. Sd/- ## **T.V.ANILKUMAR JUDGE** ami/