Philomina Joseph v. Rev. Fr. Abraham Kaniampady, S/o. Joseph Vicar, Holy Cross Ferenae Church, Cherpunkal, Puliyanoor Village, Meenachil Taluk, Kottayam District

RFA.392/2007 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 21ST DAY OF JULY 2020 / 30TH ASHADHA, 1942** ## **RFA.No.392 OF 2007** **AGAINST THE JUDGMENT IN OS 27/2006 DATED 15-02-2007 OF SUB COURT, PALA** ## **APPELLANT/DEFENDANT:** **PHILOMINA JOSEPH, W/O. LATE JOSEPH, AGED 62 YEARS, ARACKAPARAMBIL HOUSE, OMALLOOR KARA, KOTHANALLOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT.** **BY ADV. SRI.K.K.CHANDRAN PILLAI (SR.)** ## **RESPONDENT/PLAINTIFF:** **REV.FR.ABRAHAM KANIAMPADY S/O.JOSEPH VICAR, HOLY CROSS FORENAE CHURCH,, CHERPUNKAL P.O., PULIYANNOOR VILLAGE,, MEENACHIL TALUK, KOTTAYAM DISTRICT.** **R1 BY ADV. KURIAN MATHEW (MEDIATOR) R1 BY ADV. SRI.G.S.REGHUNATH** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 30-06-2020, THE COURT ON 21-07-2020 DELIVERED THE FOLLOWING:** RFA.392/2007 2 ## **JUDGMENT** ## **Dated this the 21st day of July 2020** The present appeal arises out of a judgment and decree passed by the learned Subordinate Judge, Pala in O.S. No.27/2006, a suit for specific performance of contract, by the defendant. 2. For the sake of convenience the parties are referred to in accordance with their status in the original proceedings, as the plaintiff and the defendant. 3. The facts emerging from the pleadings are as follows:The plaintiff is a church represented by its' Vicar. An extent of 68.50 ares of land in Puthiyannoor Village, Meenachil Taluk originally belonged to the defendant. On 16.07.2005 the defendant entered into an agreement with the respondent/plaintiff to sell the property for a sum of Rs.19,000/- per cent. An advance amount of Rs.5 lakhs was also received by the defendant on the date of execution of the sale agreement. The time fixed for execution of the sale deed was three months. After execution of the said agreement on 16.07.2005 as per Sale Deed No.713/2005, an extent of 10.12 ares (25 cent ) out of the total extent was alienated by the defendant to the plaintiff. Thereafter, another sale deed was executed for 12.54 ares (31 cents) as per sale deed No. 1016/2005. The defendant as RFA.392/2007 3 the power of attorney holder of her eldest son Sanu alias Scaria, had also executed sale deed No. 1015/2005 for an extent of 46 ares (1 acre 14 cents) of land owned by him which was not covered by the agreement dated 16.7.2005. The plaintiff was put in possession of the entire property on the basis of the sale deeds and the agreement. Later the defendant retracted from the contract and refused to execute sale deed for the balance property, when she came to know that another property was purchased by the plaintiff for a higher price. The intention of the plaintiff to purchase the property was for establishment of a super specialty hospital under the auspices of a charitable trust constituted by Pala diocese and for that properties were purchased from various persons. The plaintiff was always ready and willing to perform his part of the contract as per the agreement dated 16.07.2002. But the defendant failed to perform her part of the contract and was dragging the matter. Hence, he was constrained to file the suit for specific performance of contract with an alternative relief to recover the amount of Rs.5,00,000/advanced with an amount of Rs.2,00,000/- as compensation for breach of contract. 4. The defendant though admitted the execution of the agreement dated 16.07.2005 denied the allegations in the plaint. It was contended that only 56 cents of land in total on the basis of the RFA.392/2007 4 sale agreement, was transferred as the remaining property was substituted with an equal extent of land. After execution of sale deed No. 713/2005 for 25 cents (10.12 ares) the plaintiff requested for substitution of the remaining property involved in the agreement with an equal extent of property situated almost middle, on the northwestern corner of the contracted property for convenience of the plaintiff to effect the proposed construction. Actually, that property belonged to her son Sanu, employed abroad but due to the extreme respect and loyalty towards the plaintiff and his institution, and also due to his compulsion she agreed to substitute the agreement dated 16.07.2005 with a new agreement. So, as per the new agreement, an extent of 46 ares of land owned by the son of the defendant was alienated as the power of attorney holder of her son Sanu in substitution with equivalent extent of her property covered under Ext.A1.She had also executed another sale deed for the balance extent of 31 cents to adjust the total extent included in Ext.A1. Thus the defendant on 15.10.2005 executed sale deed Nos. 1015/2005 and 1016/2005 of Kozhuvanad SRO in favour of the plaintiff pursuant to the new contract. The plaintiff had also paid the sale consideration at the agreed rate of consideration i.e. 19,000/-per cent by way of a cheque for Rs.32,30,000/- with an additional amount of Rs.50,000/- as the value of 3 jack trees standing in the RFA.392/2007 5 substituted property. Thus the entire financial transaction was fully and finally settled by 15.10.2005. However, the plaintiff did not return the original agreement to the defendant as agreed to by the parties and hence she insisted for the same before registration of deeds and thus the registration of the documents have not taken place on the very same day of its' execution. On 29.10.2005 the plaintiff entrusted the original agreements to his subordinate staff for onward transmission to her on completion of the formalities of registration of the deeds before the S.R.O, Kozhuvanad. But his subordinates did not hand over the agreements to the defendant and they tactfully left the place and so she filed a complaint before the Sub Registrar and then before the Dy.S.P. of Pala. The plaintiff after getting the property as per the novated contract, is attempting to cheat the defendant. He along with his henchmen had trespassed into the property of the defendant and attempted to commit waste. The plaintiff is fully aware of the fact that the agreement dated 16.07.2005 was substituted with a new contract. But the suit was filed for specific performance of a non-existing contract, which is not maintainable. The total amount received by the defendant was Rs.32,80,000/- out of which Rs.50,000/- was paid as the value of jack trees in the property involved in sale deed No. 1015/2005 of SRO Kozhuvanad, which belonged to her son. Therefore, it is vehemently contended RFA.392/2007 6 that the plaintiff is not entitled to get a decree as sought for. 5. On the basis of the pleadings of the parties, the trial court framed the relevant issues. In support of the suit claim the plaintiff was examined as PW1 and Exts.A1 to A12 were marked. For the defendants DWs1 to 3 were examined and Exts.B1 to B9 were marked. Exts.X1 and X2 were also marked. The court below after evaluation of the entire evidence came to the conclusion that the plaintiff is entitled to get a decree for specific performance of contract and thereby directed the defendant to execute the sale deed in respect of the plaint schedule property in favour of the plaintiff after receiving the balance sale consideration within a period of three months. 6. Deeply aggrieved by the said judgment and decree, the defendant approached this Court with this appeal contending that the court below without considering the fact that the original sale agreement was substituted by a subsequent agreement and that the actual extent of property agreed to be transferred to the plaintiff had already been transferred, wrongly decreed the suit as prayed for. 7. Heard Adv. K.K Chandran Pillai, the learned Senior Counsel for the appellant/defendant and Adv. G.S Reghunath, the learned counsel for the respondent/plaintiff. RFA.392/2007 7 8. The plaintiff is a Church by name 'Holy Cross Ferenae Church' represented by its Vicar. The defendant is a widow and a parishioner of the said church aged 61 years at the time of filing of the suit. 9. As first appeal is a continuation of the proceedings of the trial court, the appellate court has to address all the issues involved by re-appreciating the evidence. The grievance of the defendant /appellant is that the learned trial judge had overlooked the material piece of evidence regarding the substitution/novation of contract by the parties and wrongly passed the decree in favour of the plaintiff/respondent. Ext.A1 agreement dated 16.07.2005 is not in dispute. The property involved in Ext.A1 sale agreement is 68.50 ares (1 acre 70 cents) comprised in Sy.No.30/2 of Puliyannoor Village. The price fixed was Rs.19,000/- per cent. Admittedly, the advance paid was Rs.5,00,000/- and the time fixed for execution of the document was three months from 16.07.2005. It is also admitted that after execution of the sale agreement, on the very same day as per Ext.A3 (Sale Deed No.713 of 2005) 25 cents of land (10.12 ares) out of the total extent was conveyed to the plaintiff. Thereafter, as per sale deed No. 1016/2005 (Ext.A4) 31 cents of property(12.54 ares) was also alienated in favour of the plaintiff. Therefore, the extent alienated was 56 cents of property. According to the plaintiff the balance extent of RFA.392/2007 8 land has not been transferred by the defendant in terms of Ext.A1 agreement. Sri .G.S. Reghunath, the learned counsel for the plaintiff submitted that the intention of the trust/church was to buy 25 acres of land to construct a Medical College and a multi specialty hospital and for that properties were purchased from various persons including the plaintiff. Per contra, the defendant refuted the claim and contended that Sanu, his son who was working abroad was having 1 acre 14 cents of land near the plaint schedule property. When the plaintiff requested her to convey her son's property for the convenient use of the land as that property was lying in the middle of the total extent proposed to be purchased by the plaintiff from various persons including the defendant, Ext.A1 property was substituted with the property of Sanu. Sri. K.K.Chandran Pillai, the learned Senior Counsel for the defendant submits that by the time of entering into the agreement with the defendant a major portion of the property out of 25 acres of land was purchased by the plaintiff and then requested the defendant to have the property of his son also after execution of 25 cents out of the property covered under Ext.A1 for the convenient use of the entire extent of land. The learned counsel for the defendant further submits that she being a member of the parish, who is having great respect and loyalty towards the church and its 'Vicar, contacted Sanu her son at Canada and obtained his consent RFA.392/2007 9 and transferred his property in favour of the plaintiff as per his power of attorney and that was only in substitution of the balance extent in Ext.A1 sale agreement, as she wanted to give equal extent of property to her son from her property. Thus on the strength of the power of attorney the defendant executed Ext.A5 (Sale Deed No.1015/2005) for 1 acre 14 cents of land owned by her son Sanu in lieu of equal extent covered under Ext.A1 at the very same rate. It was only as agreed to by both the parties in substitution of the property owned by the defendant, is the definite stand taken by her throughout. 10. As DW1 defendant had deposed that the demand was made by the plaintiff as the said property was lying in the middle, and the substitution of the earlier agreement was for the convenient use of the property for effecting construction of the hospital. Therefore, by Ext. A5 the property owned by her son was alienated retaining equal extent with her to give to him in lieu of his property transferred to the plaintiff and for the balance Ext.A4 was executed. Therefore, there is nothing more to be transferred as per Ext.A1 is the definite case of the defendant. Ext.A2 is the plan for the entire extent of the property purchased by the plaintiff. This plan would reveal that A5 property in Sy.No. 86/1 is lying on the north of Exts. A3 and A4 property in Sy.No.86/5 close to the plots purchased by the plaintiff from others RFA.392/2007 10 and the balance property of the plaintiff is lying towards the eastern side. 11. According to the learned counsel for the defendant the total extent is 68.50 ares (1 acre 69.195 cents ). As per Ext.A3 10.12 Ares was conveyed and as per Ext.A4 it is 12.54 Ares. Ext. A5 is for 46 Ares. So, the actual extent transferred is 68.66 ares which is equal to 1 acre 69.590 cents and therefore the entire extent was alienated to the plaintiff. 12. It is pertinent to note that as per the terms of the agreement, the time fixed was three months from the date of Ext. A1, so it was on 16.10.2005. Execution of Ext.A5 was on the basis of a power of attorney of Sanu, the son of the plaintiff. It is most significant to note that at no point of time an agreement was executed for the said transaction between the parties. Of-course sale deeds can be executed without any sale agreement. But the defendant vehemently asserts that the request of the plaintiff for that property was accepted by her as an obedient parishioner, only as substitution of equal extent that was remaining to be alienated and that was honoring the request of the plaintiff, the vicar of the church to avoid his difficulty in using the whole extent of 25 Acres for construction of the hospital. Here, the main question for consideration is whether the original agreement was substituted by a subsequent agreement as RFA.392/2007 11 contended by the defendant or the performance of contract has not reached finality as claimed by the plaintiff? In the light of the controversy in the case at hand, the question whether the plaintiff was and is ready and willing to perform his part of contract, and whether the execution of the sale deed was not materialized because of the failure of the defendant to perform her part of contract, need be considered only at a later stage. In fact the plaintiff had denied the contention of substitution of contract vociferously and contended that the purchase of 1 acre 14 cents as per Ext.A5 which belonged to Sanu, the son of the defendant was a separate and independent transaction and had nothing to do with Ext.A1 agreement entered between the plaintiff and the defendant. On the other hand, the agreement dated 16.07.2005 was substituted by another agreement appears to be a valid defence adduced by the defendant to refute the claim of the plaintiff for specific performance of contract. At the outset it is to be noted that apart from Ext.A1 agreement no agreement is seen produced in the case and the plaintiff had absolutely no case that an agreement was executed for the purchase of the property from Sanu who was abroad. But on the other hand the defendant contended that for substitution of contract an agreement was executed and Ext.B1 is the draft for the same but as the original was kept by the plaintiff and he did not return the original agreement as RFA.392/2007 12 well the substituted one, she was unable to produce the same before the court to substantiate her case. In absence of an agreement before the court it is apparent that the crucial question to be determined in the instant case is, whether the contention raised by the defendant that the original agreement was substituted by another agreement is a probable and believable contention or defence? Whether the plaintiff had failed to hand over the original and thereafter denied the substitution of the contract are the important questions to be answered. The totality of the circumstances and conduct of the parties have to be meticulously evaluated in the instant case to ascertain whether there was novation of contract as contended by the defendant, in the absence of an original document before the court. 13. It would be useful to begin by referring to Section 62 of the Indian Contract Act which relates to substitution of contract. "62. Effect of novation, rescission, and alteration of contract – If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed." 14. Black's Law Dictionary has explained the word 'novation' 'as the act of substituting for an old obligation a new one that either replaces an existing obligation with a new obligation or replaces an original party with a new party'. Apparently, when there RFA.392/2007 13 is novation of contract, the existing contract stands extinguished. ## 15. In **M/s Hindustan Petroleum Corporation Ltd v** **University of Hyderaba** d (AIR 2003 NOC 448 (A.P)), it was observed that when the contract is in writing novation has also to be in writing. Mere disclaimer is not sufficient to plead novation. ## 16. In **Chrisomar Corporation v. MJR Steels Private** **Limited** (AIR 2017 SC 5530) in para 33, it was observed by the Supreme Court as follows : " 33. It is clear that where parties to a contract agree to substitute a completely different contract for the first, or to rescind a contract, the performance under the original contract and/or rescinded contract comes to an end. When parties to a contract “alter” a contract, the question that has to be answered is as to whether the original contract is altered in such a manner that performance under it is at an end." ## 17. The Apex Court in **Lata Construction and Others v.** ## **Dr. Rameshchandra Ramniklal Shah and Another** (2000 KHC ## 916), has observed as follows: " 10. One of the essential requirements of “Novation”, as contemplated by S.62, is that there should be complete substitution of a new contract in place of the old. It is in that situation that the original contract need not be performed. Substitution of a new contract in place of the old contract which would have the effect of rescinding or completely altering the terms of the original contract, has to be by agreement between the parties. A substituted contract should rescind or alter or extinguish the previous contract. But if the terms of the two contracts are RFA.392/2007 14 inconsistent and they cannot stand together, the subsequent contract cannot be said to be in substitution of the earlier contract.” 18. In the light of the above proposition of law as outlined in the above said decisions, the factum of the case has to be evaluated. In the instant case the definite contention of the defendant was that after execution of Ext.A1 agreement, Ext.A3 was executed on the very same day for 10.12 Ares of land. Thereafter the plaintiff requested the defendant to convey the property of his son which was lying almost middle of the entire extent of her property so as to avoid the difficulties for effecting construction of the proposed Medical College. The learned counsel for the defendant submits that as she was amenable for a substitution of property she agreed to substitute the original contract and she contacted her son who was away at Canada and obtained his power of attorney and thereby Ext.A5 document for 46 Ares of land as per document No.1015/2005 was executed. Thereafter, on the very same day for the balance extent of 12.54 Ares of land Ext.A4 (Sale deed No. 1016/2005) was also executed. But according to her though both the documents were executed which would cover the entire extent proposed to be sold as per Ext.A1 the plaintiff failed to hand over Ext.A1 and so she insisted for the same and consequently the registration of the documents RFA.392/2007 15 was postponed from the date of execution on 15.10.2005. According to her, the draft agreement (B1) incorporating the new conditions was handed over to the plaintiff for preparation of the original in stamp paper and he agreed to hand over the original also on 29.10.2005 and in fact the plaintiff signed the agreement in her presence and sent it to handover the same to her through his men to the office of the Sub registrar but they left the office after registration on 29.10.2005, without handing over it to her. Admittedly, the registration of Exts.A4 and A5 was on 29.10.2005 though execution was on 15.10.2005 and according to the defendant she refused to sign it only because of the failure to return the original of the first agreement as agreed to by the parties. 19. Before going into that details it is significant to note that the plaintiff has vehemently denied the contention of substitution of contract mainly on the following grounds; - 1) There was no written agreement of substitution for Ext.A1. 2) Ext.A5 sale deed is silent regarding the substitution, of the remaining property in Ext.A1. 3) Ext.A5 appears to be an independent sale deed in favour of the plaintiff executed by the defendant as the power of attorney holder of the owner/seller of the property. - 4) Absence of a written agreement on 15.10.2005. RFA.392/2007 16 5) Ext.A1 is substituted by another oral agreement is not a defence under Section 20(1) and 20(2) of the Specific Relief Act. 6) Ext.A5 is the earlier document and Ext.A4 is the later document. 7)Ext.A1 continued in force even when Ext.A5 was executed. So Ext.A1 is substituted by another document is barred by estoppel. 8)The deposition of DW1 that substitution took place on 15.10.2005 and 29.10.2005 is against the pleadings. 9)Ext.B1 is a false document created subsequently after Ext.B2 in a piece of paper without the signature of the parties. So it is a false document. 10) Ext.A5 is for a different property in Sy.No.86/1 11) The advance of Rs.50,000/- kept with the defendant when Ext.A4 was executed will show that she undertook her liability to execute sale deed for balance property by keeping Ext.A1 alive. 12) No case of jack tree in Exts.B1, B2, B3 or in B4. 13) No petition was filed to direct the plaintiff for production of a document written in stamp paper. 20. The plaintiff further contended that registration of Ext A4 and A5 was postponed because the entire sale consideration could not be paid on the same day of the execution of the document though the defendant insisted for the entire amount to be credited in her account and as it was not credited the registration was postponed. RFA.392/2007 17 But the defendant's contention is that it was because of the novation of the contract and failure to return Ext.A1 to her. Such being the case the onus is on the defendant to substantiate the case regarding substitution of contract. The defendant firstly relies on the payment of sale consideration by the plaintiff. Admittedly, the payment was effected by way of cheques. The consideration fixed for Ext.A1 property was at the rate of Rs.19,000/- per cent. The sale consideration fixed for Ext.A5 property was also at the rate of Rs.19,000/- per cent. Ext.X2 series are the cheques issued by the plaintiff as the total sale consideration for the entire extent of 1 acre 69.590 cents (1 Acre 70 cents) of land. The advance paid by way of cheque was Rs.5,00,000/- on 15.07.2005. On a perusal of Ext.X2 series it could be seen that by 15.10.2005 itself, a total sum of Rs.32,80,000/- had been paid by the plaintiff and credited to the account of the defendant though the total consideration was Rs.32,30,000/- 21. In order to substantiate the case of the defendant and to repudiate the case of the plaintiff, the defendant had also produced the original passbook of the account maintained by her with South Indian Bank Ltd ie; SB Account No.3716. This passbook when examined justify the defendant's case that by 15.10.2005 she received the full amount from the plaintiff before execution or at the RFA.392/2007 18 time of execution of Exts.A4 and A5. Admittedly, the advance was Rs.5,00,000/-. The total consideration for 1 acre 69.590/1 acre 70 cents at the rate of Rs.19,000/- per cent would come to Rs.32,30,000/-. Apart from that an excess amount of Rs.50,000/- is also there as the total amount received was Rs.32,80,000/-. According to her, the excess amount of Rs.50,000/- was the value of jack trees standing in the property of her son. The plaintiff had admittedly effected payments by way cheques and the amount were credited in her account by 15.10.2005. It is to be noted that the bank passbook was not produced by the defendant in the suit. But in the appeal the pass book was produced under Order XLI Rule 27 of the Code of Civil Procedure with an affidavit narrating in detail the reason for the non-production of the same before the trial court. A perusal of the affidavit would show that she is having valid reasons for producing certain documents in the appeal as per I.A. No.2812 of 2007. This document appears to be quite necessary to enable this court to decide the actual controversy and the real issue between the parties and to render a verdict. As this document and other two documents produced regarding the complaint lodged by the plaintiff against the defendant and the case registered pursuant to complaint are relevant and very material to decide the real issue, and at the same time appears to be as not to fill in lacuna, I think that this RFA.392/2007 19 application filed by the defendant can be allowed in the interest of justice and the documents can be accepted in evidence. Therefore, this passbook is marked as Ext.B10. On hearing the appeal, I am also convinced that other two documents produced in the appeal are quite necessary and relevant to decide the controversy,and therefore the same are admitted as additional documents and marked as Exts. B11 and B12. (See **Neldon Company v. Radhakrishnan** (1990 (1) KLT SN 9 Case No.9) and **ICICI Lombard General Insurance Co. Ltd. v. Amith Varghese (Minor)** (2017 (2) KLJ 359). Therefore, Ext.X2 series of cheques and the relevant entries in Ext.B10 indicate that by 15.10.2005 the entire sale consideration was credited in the account of the defendant. These documents would falsify the contention raised by the plaintiff that registration did not take place on 15.10.2005 because the entire sale consideration was not credited in her account. The case of the plaintiff that the defendant refused to sign the documents as she insisted for the entire amount appears to be absolutely incorrect, as the entire amount had been credited in her account by 15.10.2005. This crucial evidence would point at the truth of the case to a considerable extent to the existence of a substituted contract. 22. It is significant to note that Exts.A4 and A5 were prepared on 15.10.2005 just on the previous day of expiry of the cut- RFA.392/2007 20 off date fixed as per Ext.A1. It is also pertinent to note that Ext.A5 is the sale deed bearing No.1015/2005 executed by the defendant as the power of attorney holder of her son Sanu to alienate the property owned by him. But there is no scrap of paper or any kind of evidence to show that the plaintiff ever contacted Sanu or had any kind of discussion with him at any point of time regarding the sale of his property. When this sale had taken place without any discussion or negotiation by the plaintiff with Sanu, in all probability the transaction could only be by the involvement of the defendant for substitution of her property honoring the request of the plaintiff. This fact appears to be another glaring circumstance to prove the case of the defendant that substitution of the contract was the reason for the non registration of Exts. A4 and A5 on the very same day of its' execution. Both the documents were executed on the same day before the expiry of the cut-off date as per Ext.A1. It appears that stamp papers were purchased together and used for preparation of Exts. A4 and A5. The contention of the plaintiff that even after execution of Ext.A5, Ext.A1 continued to be in force and that is reason for execution of Ext.A4 subsequently, has no force at all and such an interpretation is not possible as the execution appears as simultaneous using the stamp papers numbered continuously. Therefore, by no stretch of imagination, it can be said that Ext.A1 was treated as in force when RFA.392/2007 21 Ext.A5 was executed and that is why Ext.A4 was executed after Ext.A5. 23. It is also clear that the power of attorney was given on 07.09.2005 by Sanu just few days prior to the execution of the document. Ext.A4 is the document ie; 1016/2005 for the balance 12.54 Ares of land. In fact the defendant had contended that on the date of execution of Exts. A4 and A5 she had insisted to have the new agreement prepared in a stamp paper incorporating the new terms and conditions and there was also an understanding between the parties to hand over the earlier agreement ie; the original agreement (Ext.A1) to the defendant by the plaintiff. Ext.B1 is the draft produced by the defendant to show that such an agreement was executed between the parties and the original was with the plaintiff and the plaintiff agreed to bring the substituted agreement drafted in stamp paper to the office of the Sub Registrar and hand over to her at the time of the registration of the document before the Sub Registrar. Since the entire sale consideration was paid to the defendant the reason not to affix her signature on 15.10.2005 could only be the delay to draft the novated contract in stamp paper and hand over the same to the defendant along with the original agreement. Normally stamp paper to prepare the agreement have to be purchased by the purchaser. Admittedly Ext.A1 was prepared by the plaintiff on his RFA.392/2007 22 instructions. The defendant has raised a plea that on 29.10.2005 though the agents of the plaintiff were present on behalf of the plaintiff, after registration of Exts.A4 and A5, they failed to hand over the new agreement along with Ext.A1 which was substituted , as agreed to, and then she went to the Church and told the plaintiff about the incident to which his response was that she should execute document for the balance property in her possession against the understanding or agreement between them. Then immediately she preferred a complaint (Ext.B2, the copy of the complaint) before the Sub Registrar raising protest against the registration of Exts.A4 and A5 and requested him not to hand over the documents registered to the plaintiff as the terms and conditions of the agreements have not been complied with. It is curious to note that Ext. B2 was given by the defendant on the very same day of the registration of the sale deeds. This conduct of filing such a complaint before the Sub Registrar in fact appears as something strange and goes as another strong circumstance to believe the story of the defendant. Thereafter, immediately after the holidays on the next day that is on 1.11.2005 itself she had lodged a complaint before the Dy.SP, Pala and the same was accepted by the Dy.SP Pala. Ext.B3 is the copy of the complaint to the Dy.SP. In Ext.B3 she had specifically referred about the preparation of the substituted contract, affixture of signature by RFA.392/2007 23 the parties to the contract. By Ext.B3 (dated I.11.2005, received on 2.11.2005 as evident by the endorsement of the Dy.S.P) she had requested the Dy.S.P to intervene in the issue and help her to get back the agreements from the plaintiff. In Ext.B4 complaint to the Sub Registrar, there is reference about the novated contract and it is seen received by Ext.B6 acknowledgment card signed by him. She has also preferred a complaint before the Puliyannoor Village Officer requesting him not to effect mutation of the property. Exts. B2, B3, B4 and B5 are complaints submitted by the defendant alleging that she had been cheated by the plaintiff by not handing over the original of the substituted agreement as well Ext.A1 agreement executed on 16.07.2005. These facts clearly indicate that the defendant raised her protest immediately on registration of Ext A4 and A5. Ext.B7 is the copy of the complaint lodged by her before the Judicial First Class Magistrate Court on 23.11.2005 narrating all the details and complaining about the high-handed action of the plaintiff by attempting to trespass into her property. Though, the complaint was forwarded to the police for investigation, it appears that no action was taken by the police. Thereafter the suit filed as O.S No. 263 of 2005 was withdrawn by her with liberty to file fresh suit and then Ext.B8 and B9 suits were preferred by the defendant. It is evident by all these documents that she was running from pillar to post to save her RFA.392/2007 24 property. It must not be forgotten that the complaint was by a widow against a Church. Somehow or other it remained unattended. It appears that the plaintiff remained silent and Ext.A6 notice was sent only after filing of the complaint by the defendant. All these facts support the case of the defendant. 24. To buttress the case of the defendant, DW3 the Village Officer, Puliyannoor was examined. He deposed that Ext.X1 complaint dated 01.11.2005 was received from the defendant and thereby after registration of the documents the property was not mutated in the name of the plaintiff and it still stands in the name of the defendant because of the issues pending between the parties. It is significant to note that subsequently on 07.11.2005 a complaint as CMP No.9537/2005 (Ext.B11) was filed by the plaintiff against the defendant before the Judicial First Class Magistrate to prosecute her alleging that she committed offences punishable under Sections 415, 417, 418, 420 of the Indian Penal Code and the same was forwarded to the police and consequently Crime No.625 of 2005 (Ext.B12) was registered against the defendant though no action was taken pursuant to her complaint. But Exts.B11 and B12 would reveal that after investigation, the case registered against her was referred as one of civil nature. RFA.392/2007 25 25. As referred above the defendant to substantiate her case of substitution of agreement further contended that the property of Sanu was lying almost middle of the property proposed to be purchased by the plaintiff and for the convenient use of the proposed construction the demand for Sanu's property of 1 acre 14 cents was made by the plaintiff and she agreed to alienate it instead of equal extent of property included in Ext.A1. According to the defendant her Son Sanu wanted to construct a residential house when he returns from Canada and so to keep similar extent for him and also in view of sentimental attachment to the family property, she agreed for substitution of the agreement. Admittedly, the defendant and her family had no other property in that locality. It is most significant to note that in Exts.A4 and A5, a right of way is seen reserved by the defendant while executing the sale deeds. The property was alienated to the plaintiff excluding the pathway and it appears as a glaring circumstance which favours the case of substitution of contract. Specific and clear recital had been made in both the documents and it is quite understandable from the recitals in the documents that the right of way is reserved by the defendant . It is obvious that if there was no substitution of contract and in fact the agreement was to alienate the entire extent to plaintiff, then what RFA.392/2007 26 was the necessity to retain right over the pathway for the use of the defendant when the defendant and her family members had other property in that area? The recitals in Ext A4 and A5 are so clear and definite that the way used as access to Ext.A1 property, was left back and the entire right over the way was retained by the defendant/vendor and that the property excluding the way alone was conveyed to the plaintiff. The recitals would also appear as subsequent insertions, as included in the space provided for writing the name of the vendor and affixing signature. The existence of the pathway and its exclusion from alienation are fairly admitted by the plaintiff. As referred above, it is clear that the defendant or her family members have no property other than the property included in Exts.A1 and A5 and that be so there was absolutely no necessity to retain and reserve right over the pathway by the defendant if the agreement was to alienate the entire extent without substitution of ExtA1. This fact is a clear indication for substitution of the contract. It is doubtless that the pathway, which give access to the property of the defendant was retained by her, from alienation, only to make it convenient for her son to use the property retained by her after alienation to the plaintiff. Otherwise, there was absolutely no valid and justifiable explanation for excluding the pathway used as access to the plaint schedule property. RFA.392/2007 27 26. A closer look to the case of the defendant shows that she wanted to retain equal extent included in Ext.A1 for her son on substitution of the agreement and that could only be the reason for the insertion of specific recitals in both Exts.A4 and A5, especially when the defendant or her family members have no other property anywhere in that area. Admittedly, Exts. A4 and A5 were prepared under the instructions of the plaintiff and he admitted it before the court in cross-examination. So insertion of the additional clause could only be because of the substitution of the contract, whereby the defendant could keep the balance property covered under Ext.A1 for Sanu and use the pathway retained, as access to the property. Such a clause in both the documents remain as a very strong circumstance to establish the case of the defendant that the substitution of the Sanu's property was in lieu of the balance property in A1 property. This fact will remain as a strong circumstance to probablise the case of the defendant regarding the substitution of contract. Significantly, the plaintiff has not offered any satisfactory explanation for retaining, such a right of way by the defendant if there was no substitution of contract. It would, therefore, appear that, upon the understanding between the parties on substitution of the contract such a provision was made in both the documents. Though, the plaintiff had contended that the way was RFA.392/2007 28 retained as the defendant had to alienate the remaining property to him, does not appears to be well grounded or acceptable. Therefore, it is amply clear that such clauses are included in the documents only as a result of the discussion which arose on substitution of contract and that alone could only be the reason to include such a clause in the documents inserting it in the limited space available in the documents before its' registration. 27. The payment effected by the plaintiff would indicate that there was an extra payment of Rs.50,000/- as the total consideration was only Rs.32,30,000/ - but what was paid was Rs.32,80,000/-. According to the learned counsel for the plaintiff Rs.50,000/- was kept as advance for the balance after execution of Ext.A4 but the case of the defendant was that it was the value of the jack trees in Ext.A5 property. Of-course, no document was available to show that the value of the trees were separately counted and it was not stated in Ext.A5, but the plaintiff admitted that there were jack trees in Sanu's property. If the aforesaid payment of Rs.50,000/- was advance payment for the rest of the property then why the plaintiff had sought for to return of Rs.5,00,000/- as an alternative relief and compensation of Rs.2,00,000/-. It can never be a mistake. Therefore, I find merit in the plea of the learned counsel for the defendant that the value of the jack trees standing in the property RFA.392/2007 29 was considered and it was paid separately as evidence is lacking to presume that it was treated as the advance sale consideration for the remaining property. It is also to be noted there was no effective cross-examination on behalf of the plaintiff to discard the evidence of the defendant on that aspect. This is yet another reason to substantiate the case of the defendant that there was substitution of contract. 28. Filing of complaints before the Sub Registrar's Office, before the Dy.S.P., Pala and the Village Officer and the other authorities (B2 to B7) are also circumstances to substantiate the case of the defendant to a great extent. Of course nothing has happened on the basis of her complaint before the police however Ext B12 would show that though a case was registered against the defendant on the complaint of the plaintiff it was referred after investigation by the police. 29. The defendant has a definite case that Ext.B1 is the draft which was handed over to the plaintiff to prepare the original as in the case of Ext.A1. It is pertinent to note that the plaintiff as PW1 had admitted that Ext.A1 was prepared by him by purchasing the required stamp paper. So, the case of the defendant was that the draft prepared by her Advocate was handed over to prepare the substituted agreement in stamp paper appears to be true in the light RFA.392/2007 30 of the circumstances narrated above. In Ext.B3 complaint dated 1.11.2005, she had specifically stated that, the plaintiff signed the new agreement on 29.10.2005, while all of them were present in the Church. The evidence would clearly shows that the substitution of the agreement was with mutual consent. 30. The transaction was by an old lady, a parishioner to the church. The evidence on records indicate that subsequently the defendant learnt that she was cheated by not handing over the original of the substituted agreement at the time of registration of the sale deeds. As the first response she submitted her complaint to the Sub registrar. It was specifically written that she had complaints as the terms of the agreement were not fulfilled and so, she requested not to hand over the deeds registered to anybody. It is admitted by PW1 that he has not gone to the office of the Sub registrar for registration of Exts. A4 and A5. It is significant to note that his subordinates who represented him before the Sub Registrar were not examined before the court to falsify or rebut the allegation raised by the defendant. 31. Another argument raised by the plaintiff is that Ext A1 was in force when Ext.A5 was executed and therefore the contention that Ext.A1 is substituted by Ext.A5 is barred by estoppel. The Apex Court in **R.S.Maddanappa v Chandramma and another** RFA.392/2007 31 (AIR 1965 SC 1812 ) held that the object of estoppel is to prevent fraud and secure justice between the parties by promotion of honesty and good faith and therefore where one person makes a misrepresentation to the other about a fact, he would not be shut out by the rule of estoppel if that other person knew the true state of facts and must consequently not have been misled by misrepresentation. In the instant case what is reflected is that there was no misrepresentation from the side of defendant and Ext.A1 was substituted by a new one as the plaintiff requested/demanded the property covered by Ext. A5 especially in the absence of any agreement or negotiation with Sonu for purchase of his property . So also to adjust the total extent of 1 acre 70 cents covered by Ext.A1, Ext.A4 was also executed in favour of the plaintiff and thus equal extent was transferred. Both transaction took place simultaneously and the stand taken by the plaintiff that Ext. A5 is the earlier document and A4 is the later one and Ext A1 was subsisting when Ext.A4 was executed in the absence cogent materials on record. It is curious to note that on 15.10.2005 Ext A4 was executed only for 31 cents. Why the sale deed was not executed for the balance property covered under Ext A1 if the understanding was to alienate the entire property to the plaintiff, was not explained by him. The plaintiff had no case that the balance sale consideration was not RFA.392/2007 32 ready with the Church or there was paucity of funds. No satisfactory or plausible explanation is forthcoming for not including the entire extent in Ext.A4 document or for not executing another document in favour of the plaintiff on the same day. Ext.A4 was for 31 cents only which would cover the balance extent agreed to, remain as another strong circumstance for substitution of contract. All the facts would indicate that to adjust the total extent in Ext.A1, Ext A4 was executed and transactions were effected simultaneously. Therefore, there is no scope and applicability for doctrine of estoppel. 32. Another point argued by the learned counsel for the plaintiff relying on **Kashi Nath v. Jaganath** (2003) 8 SCC 740 ) is that there are variance to the pleadings and evidence adduced by defendant. It is well settled that evidence as a whole has to be taken into consideration while appreciating the evidence adduced by the parties. In fact the evidence adduced by the defendant was in tune with the averments in the written statement without variation. DW2, Sabu another son of the defendant, who was a bank employee was also examined to support the defendant's case and he deposed that he approached the plaintiff to get the original of the substituted contract, but the plaintiff did not handover the same to him. It is most significant to note that the plaintiff also admitted that the defendant's son and her son-in-law approached him with such a RFA.392/2007 33 request. If such a document was not in existence of-course they have no reason to approach him with such a request . 33. At this stage, I may advert to the averments made in the plaint regarding the possession of the property. It was alleged that the plaintiff was put in possession of the property. But the filing of O.S.192/2006 before the Munsiff Court, Pala subsequently without much delay for fixation of boundary of the property owned by the defendant as well claiming right over the pathway retained by Ext.A4 and A5 prove it otherwise. In A.S. No.2/2014, the appeal preferred by the defendant her property was identified as per Ext.C2(b) plan therein and the boundary was fixed and right of the pathway was also confirmed. Further, the plaintiff herein and his men were restrained from doing any act detrimental to the peaceful possession and enjoyment of the pathway (B schedule pathway therein is the pathway detailed in Exts. A4 and A5) by this defendant. The filing of the other suits referred earlier would also reveal that possession of the disputed property was never handed over to the plaintiff. 34. When the totality of the facts and circumstances is judged in the light of proposition of law as expounded above, it is clearly revealed that after execution of Ext. A2, Ext. A1 was substituted by another agreement for the property covered by Ext.A5 and for the balance property, Ext.A4 was executed. Therefore, RFA.392/2007 34 nothing more is there to be performed as per the contract. 35. Though grant of relief of decree of specific performance is a discretionary relief, here the question of exercise of discretionary power under Section 20 of the Specific Relief Act, 1963 does not arise for consideration. Still the argument of the learned counsel for the plaintiff relying on **Seema Arshad Zaheer v. Municipal Corporation** (2006 (4) KLT 65 (SC) has to be looked into as he has submitted that when the court below exercised the discretion and granted an order in favour of a party, the appellate court cannot interfere in exercise of discretion and substitute the discretion exercised by the trial court. But it is significant to note that the discretion exercised in that case was for granting injunction in favour of a party. The discretion to be exercised by a civil court while dealing with the relief of injunction is entirely different from the exercise of discretion under Section 20 of Specific Relief Act, 1963 in a suit for specific performance of contract. In a suit for specific performance of contract, it is well settled that the Court is not bound to grant the relief of specific performance merely because it is lawful to do so, if the court is satisfied that it will cause hardship to the defendant which he did not foresee while entering into the contract and when unfair advantage is obtained by the plaintiff over the defendant. (Clause(a) and (b) to sub section (2) of Section 20 of the RFA.392/2007 35 Specific Relief Act, 1963). But in an injunction suit the exercise of discretion are essentially different whether it is temporary injunction, preventive injunction or mandatory injunction. Prima facie case, Balance of convenience, irreparable injury or injustice etc are the main ingredients for consideration. In short, the totality of the circumstances involved in this case would show that the question of exercise of discretion or hardship does not arise for consideration. It is to be borne in mind that here, the situation is quite different as it has come out in evidence that the original agreement was substituted by a new agreement and that the performance of the contract was effected by the defendant in toto and most importantly it further indicates that there is nothing more to be performed. So the absence of the original agreement before the court or the failure on the side of the defendant to take steps to call for the document from the plaintiff especially when the stand of the plaintiff is bald denial of the same and exhibit it before the Court, are not justifiable grounds to discard the case of the defendant. Though the original of the new agreement is not available on record, the circumstances projected in the case would clearly indicate that there was such an agreement between the parties and on mutual agreement by free consent of parties it was executed and eventually the terms have been fulfilled. Therefore, the defendant is not liable to execute a sale deed for the RFA.392/2007 36 property which has been retained by her for her son on the basis of the substituted contract executed between the parties. The contention of the plaintiff that the case put forth by the defendant regarding substitution of contract, was her attempt to extract more money as sale consideration, from him stands disproved and the said case has to be rejected in toto, in the given set of facts. 36. To sum up, I conclude that the question whether there is novated contract, executed with free consent of the parties is to be answered in the affirmative, but the same could not be produced before the court by the defendant due to the reasons explained by her. The overwhelming evidence, supported by the sequence of events, attendant facts and circumstances would establish the case of the defendant. In a civil case, it is not expected to pick and choose one or two sentences in the evidence of the witness, when examined before the court to discard the evidence in toto. In the instant case, an old lady having no experience in a property transaction that too with the Church, when faced the piercing cross-examination in the court, might have given evidence with slight variation in her deposition here and there, but it is not necessary to delve into minute and insignificant differences or variation to throw away her case, when on all material and crucial points she deposed her case with clarity. Therefore, even though the novated contract executed by the RFA.392/2007 37 parties had not been produced and marked before the court, it is not possible to conclude that the there was no novated contract or the defendant had only performed the contract in piecemeal. But, in fact, the record clearly reveals that the contract was performed in its entirety, in terms of Ext.A1 and the subsequent novated contract as the original contract was substituted by the new one. Thus, on a careful scrutiny and analysis of the evidence and by judging the facts of the case in the interests of justice, I am fortified in taking a view that there are sufficient and more pivotal circumstances to the satisfaction of judicial conscience, regarding the existence of the Novated Contract, though not exhibited as a document in the case. Denial of its existence vexatiously, could not shake the admissible and reliable evidence on record. 37. It is unfortunate to note that in the complaint filed by the plaintiff against the defendant (B11 and B12) she had to approach the Court concerned for anticipatory bail apprehending arrest, in this property transaction. But as referred above, the case was referred by the police after investigation observing that the entire property agreed to be sold by the defendant to the plaintiff had already been transferred by her. 38. In view of the above observations, I find that the plaintiff is not entitled to get a decree for specific performance of the RFA.392/2007 38 contract as claimed. Hence, the judgment and decree passed by the court below are liable to be set aside as prayed for by the defendant. Therefore, this appeal is only to be allowed. In the result, this appeal is allowed consequently the suit stands dismissed. The impugned judgment and decree are set aside. The parties are directed to bear their respective costs. **Sd/-** **SHIRCY V.** **JUDGE** **smm/sb** RFA.392/2007 39 ## **APPENDIX** **DOCUMENTS PRODUCED BY THE PETITIONER/APPELLANT/DEFENDANT** **EXT.B10 : PASS BOOK OF THE PETITIONER WITH THE SOUTH INDIAN BANK LIMITED, CHERPUNKAL BRANCH S.B.A/C NO.3716. EXT. B11 : CERTIFIED COPY OF CRIMINAL COMPLAINT FILED BY THE RESPONDENT AGAINST THE PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PALA, NO. C.M.P. 9537/05 DATED 7.11.2005. EXT. B12 : CERTIFIED COPY OF THE FINAL REPORT FILED BY THE SUB INSPECTOR OF POLICE, PALA, DATED 20.2.2006 IN CRIME NO.625/05.**