P.K. Achankunju (deceased) v. Ganga & Ponnachan – RFA Nos. 170/2012, 231/2012, 513/2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941** ## **RFA.No.170 OF 2012** **AGAINST THE JUDGMENT IN OS 307/2008 OF PRINCIPAL SUB COURT,KOTTAYAM** ## **APPELLANTS/PLAINTIFF:** **1 P.K.ACHENKUNJU (DIED) S/O.KESAVAN, PARAMBIL HOUSE, KUMARAKOM KARA AND VILLAGE, KOTTAYAM TALUK.** **2* P.A.SANTHOSH, S/O.LATE P.K.ACHENKUNJU, PARAMBIL HOUSE,KUMARAKOM KARA AND VILLAGE,KUMARAKOM NORTH POST, KOTTAYAM TALUK 686 563.** - **3* P.A.MONACHAN, S/O.LATE P.K.ACHENKUNJU, PARAMBIL HOUSE, KUMARAKOM KARA AND VILLAGE,KUMARAKOM NORTH POST, KOTTAYAM TALUK- 686 563.** - **4* MINIMOL, W/O.ANIYAN, D/O.LATE ACHENKUNJU, PUTHENPARAMBIL HOUSE, THURUTHI POST, CHANGANACHERRY 686 535.** ***(LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 VIDE ORDER DARTED 9/8/12 IN IA 1765/12)** **BY ADVS.** **A2 TO A4 BY SRI.MATHEW JOHN (K) A2 TO A4 BY SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENT/DEFENDANT:** **A.K.PONNACHAN S/O.KESAVAN, CHIRAYIL HOUSE, KUMARAKOM KARA & VILLAGE; KOTTAYAM TALUK - 686 563.** **R1 BY ADV. SRI.ALEX GEORGE** **R1 BY ADV. SRI.GEORGE ZACHARIAH ERUTHICKEL** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03.03.2020, ALONG WITH RFA.231/2012, RFA.513/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RFA.No.170/2012 & Con. Cases** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941** ## **RFA.No.231 OF 2012** **AGAINST THE JUDGMENT IN OS 452/2008 OF ADDITIONAL SUB COURT,KOTTAYAM** ## **APPELLANTS/PLAINTIFFS:** - **1 P.K.ACHENKUNJU S/O.KESAVAN, PARAMBIL HOUSE, KUMARAKOM KARA AND VILLAGE, KOTTAYAM TALUK. (DIED)** - **2* P.A.SANTHOSH S/O.LATE P.K.ACHENKUNJU, PARAMBIL HOUSE, KUMARAKOM KARA AND VILLAGE,KUMARAKOM NORTH POST, KOTTAYAM TALUK - 686 563.** - **3* P.A.MONACHAN, S/O.LATE P.K.ACHENKUNJU, PARAMBIL HOUSE, KUMARAKOM KARA AND VILLAGE,KUMARAKOM NORTH POST, KOTTAYAM TALUK - 686 563.** - **4* MINIMOL, W/O.ANIYAN, D/O.LATE ACHENKUNJU, PUTHENPARAMBIL HOUSE, THURUTHI POST, CHANGANACHERRY- 686 535.** - ***(LRS OF THE DECEASED APPELLANT IMPLEADED AS ADDL. APPELLANTS 2 TO 4 AS PER ORDER DATED 8.8.2012 IN IA.1776/2012.** **BY ADVS.** - **A2 TO A4 BY SRI.MATHEW JOHN (K) A2 TO A4 BY SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENTS/DEFENDANTS:** - **1 GANGA W/O.PONNACHAN, CHIRAYIL HOUSE, KUMARAKOM KARA & VILLAGE; KOTTAYAM TALUK, PIN-686563.** - **2 PONNACHAN S/O.KESAVAN, CHIRAYIL HOUSE, KUMARAKOM KARA &** **RFA.No.170/2012 & Con. Cases** **3** ## **VILLAGE; KOTTAYAM TALUK-686563.** **R1 & R2 BY ADV. SRI.ALEX GEORGE R1 & R2 BY ADV. SRI.GEORGE ZACHARIAH ERUTHICKEL** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03.03.2020, ALONG WITH RFA.170/2012, RFA.513/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RFA.No.170/2012 & Con. Cases** **4** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941** ## **RFA.No.513 OF 2019** **AGAINST THE JUDGMENT IN OS 563/2010 OF PRINCIPAL SUB COURT,KOTTAYAM** ## **APPELLANTS:** - **1 P.K. ACHAN KUNJU (DIED) S/O KESAVAN, PARAMBIL HOUSE, KUMARAKOM VILLAGE, KOTTAYAM TALUK** **2* SANTHOSH S/O LATE ACHAN KUNJU, PARAMBIL VEEDU, KUMARAKOM KARA, KUMARAKOM VILLAGE, KOTTAYAM TALUK.** ***(ADDITIONAL APPELLANT IMPLEADED AS THE LEGAL HEIR OF DECEASED APPELLANT AS PER ORDER IN I.A.NO.1699 OF 2012 DATED 26.9.2019)** ## **BY ADV.G. JAYASANKAR.** ## **RESPONDENTS:** - **1 A.K. PONNACHAN, AGED 50, S/O KESAVAN,CHIRAYIL HOUSE, PALLICHIRA P.O, VADAKKUM BHAGAM, KUMARAKOM KARA, KUMARAKOM VILLAGE, KOTTAYAM TALUK.** **2. V.K.GANGA, AGED 38, W/O. PONNACHAN, -DO- -DO-** **3. PENNAMMA, AGED 65 YEARS, W/O. P.K.ACHENKUNJU, CHIRAYIL HOUSE, PALLICHIRA P.O., KUMARAKOM VILLAGE (DIED)** - **4.* MONICHAN, PARAMBIL HOUSE, PALLICHIRA P.O., KUMARAKOM KARA, KUMARAKOM VILLAGE** - **5.* SANTHOSH, -DO- -DO- (DELETED)** - **6.* MANI @ MOLAMMA, W/O. ANIYAN, PUTHENPARAMBIL HOUSE,** **RFA.No.170/2012 & Con. Cases** **5** **MULACKAMTHURUTHY, THURUTHY P.O., CHANGANASSERY.** ***(LEGAL HEIRS OF DECEASED R3 ARE ALREADY INCORPORATED IN PARTY ARRAY AS R4 TO R6) (R5 DELETED FROM THE PARTY ARRAY AND IMPLEADED AS LEGAL HEIR OF APPELLANT AS PER ORDER IN I.A.NO.1699 OF 2012 DATED 26.9.2019)** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03.03.2020, ALONG WITH RFA.170/2012, RFA.231/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RFA.No.170/2012 & Con. Cases** **6** ## **JUDGMENT** The disputes in these three appeals, which are being disposed of together on account of the entwined factual circumstances are between Shri.P.K.Achankunju (now deceased) on one side and Smt.Ganga and Shri.Ponnachan on the other. **==> picture [344 x 12] intentionally omitted <==** Achankunju died and his children have been brought on record as additional appellants in all these three appeals. 3. The afore mentioned Smt.Ganga and Shri.Ponnachan are husband and wife and they together own 7 cents 820 sq.links of property, along with a residential building thereon, of the Kumarakom Village; while Smt.Ganga own another 8 cents of land adjacent to the former in the same Village. 4. Shri.P.K.Achankunju alleges that he had entered into two sale agreements to **RFA.No.170/2012 & Con. Cases** **7** purchase the afore properties, but that since Smt.Ganga and Shri.Ponnachan refused to execute the sale deed pursuant thereto, he was constrained to approach the Additional Sub Court, Kottayam by filing O.S.No.452 of 2008, seeking specific performance of the agreement relating to 7 cents 820 sq.links and the building owned by Smt.Ganga and Shri.Ponnachan; and O.S.No.307 of 2008 before the Principal Sub Court, Kottayam, seeking specific performance of the agreement relating to 8 cents of land owned by Smt.Ganga. 5. That being so, Smt.Ganga and Shri.Ponnachan alleges that on account of the close relationship that Shri.Ponnachan has with the wife of Shri.Achankunju, they were allowed to stay in their residential house situated in the afore mentioned 7 cents 820 sq.links, because the wife of Shri.Achankunju was suffering from Cancer and they requested **RFA.No.170/2012 & Con. Cases** **8** for an accommodation at Kottayam, so as to treat her at the Medical College Hospital, Kottayam. They say that, however, even though the period for which the such permission had been granted expired, Shri.Achankunju and his wife refused to evict themselves from the house; and that they were consequently constrained to file O.S.No.563 of 2010 originally numbered as O.S.No.110 of 2009 before the Munsiff's Court, Kottayam, and later transferred to the Principal Sub Court, Kottayam, seeking a mandatory injunction against Shri.Achankunju to evict himself and his family from the said property. 6. The records reveal that out of the afore three suits, O.S.No.452 of 2008 was tried and disposed of by the Additional Sub Court, Kottayam; while O.S.No.563 of 2010 tried and disposed of along with O.S.No.307 of 2008 by the Principal Sub Court, Kottayam. There are thus two different judgments by the **RFA.No.170/2012 & Con. Cases** **9** afore two Courts, which are assailed before this Court in the above three appeals filed by Shri.Achankunju. 7. In R.F.A.No.231 of 2012, the judgment and decree in O.S.No.452 of 2008 issued by the Additional Sub Court, Kottayam, has been assailed; while in R.F.A.No.170 of 2012 the decree and judgment of the Principal Sub Court, Kottayam in O.S.No.307 of 2008 has been challenged; and finally in R.F.A.No.513 of 2019, the judgment and decree of the Principal Sub Court, Kottayam in O.S.No.563 of 2010 has been called into question. 8. With the essential details of the afore three appeals being recorded as above, I will now turn to the facts as pleaded by the parties and which are available in their pleadings. 9. Shri.P.K.Achankunju alleges that, on 25/08/2005, he entered into an agreement of **RFA.No.170/2012 & Con. Cases** **10** sale with Smt.Ganga and Shri.Ponnachan to buy their property comprised of 7 cents 820 sq.links, along with the building thereon, for a total sale price of Rs.3,80,000/-, out of which an amount of Rs.2 lakhs had been paid as advance, in consideration of which, possession of the said property had been given to him. He says that the period fixed for execution of the sale deed under the said agreement was six months, but that since there was a loan obtained by the vendors from the Service Co-operative Bank, Kumarakom, there was also a condition therein that they will clear the said liability before executing the sale deed. 10. Shri.P.K.Achankunju says that even though he was fully ready and willing to pay the balance sale consideration, Smt.Ganga and Shri.Ponnachan refused to abide by their obligations under the agreement, including to have the property measured, the loan **RFA.No.170/2012 & Con. Cases** **11** liquidated and the sale deed prepared; and that he, therefore, paid Rs.1 lakh into the afore mentioned loan account with the Service Co-operative Bank, Kumarakom, followed by a further amount of Rs.85,547/- on 19/04/2008, thus liquidating the entire liability and issued a lawyer's notice, dated 21/04/2008, to Smt.Ganga and Shri.Ponnachan to appear before the concerned Sub Registrar's Office for the purpose of execution of the sale deed on 25/04/2008. He further stated that since Smt.Ganga and Shri.Ponnachan refused to come to the Registrar's Office on that day, it was clear that they had no intention to execute the sale deed and therefore, that he was constrained to file O.S.No.452 of 2008. 11. Shri.P.K.Achankunju thereafter says that he had entered into a subsequent agreement with Smt.Ganga on 01/06/2006 for purchasing her extent of 8 cents of property, which is lying adjacent to the earlier **RFA.No.170/2012 & Con. Cases** ## **12** mentioned extent, for a total sale consideration of Rs.4,80,000/- and that he had paid an advance of Rs.3,50,000/-, thus that he was handed over possession of that property also by Smt.Ganga. He says that the agreement clearly states that the vendor Smt.Ganga had an existing liability with the Service Co-operative Bank, Vadakkumbhagom, and that the balance sale consideration of Rs.1,30,000/- was to be used to discharge the said liability. He avers that even though he had sufficient funds in his account, which is evident from Exts.A5 and A6 documents produced in O.S.No.307 of 2008, Smt.Ganga refused to execute the sale deed and therefore, that he had issued a legal notice to her dated 25/04/2008, asking her to appear before the Sub Registrar's Office on 30/04/2008 but that she refused to do so, thus constraining him to file this suit. **==> picture [344 x 13] intentionally omitted <==** **RFA.No.170/2012 & Con. Cases** **13** made by Shri.Achankunju, a written statement was filed by Smt.Ganga and Shri.Ponnachan in O.S.No.452 of 2008 stating that the true transaction between them was not relating to the sale of the properties, but was a simplicitor loan transaction and they concede that they had taken an amount of Rs.3,80,000/from Shri.Achankunju on 25/08/2005 on account of their pecuniary constraints. They say that since the wife of Shri.Achankunju was closely related to Shri.Ponnachan and since she was suffering from Cancer, requiring treatment at Kottayam, they voluntarily allowed Shri.Achankunju and his wife to reside in the building situated in the property in question and they vehemently oppose the statement in the plaint that this was done pursuant to the agreements of sale. According to them, since the agreement of sale was not intended to be acted upon, no action was taken by either **RFA.No.170/2012 & Con. Cases** **14** side thereafter and that when they required more money, Shri.Achankunju offered to pay them an additional amount of Rs.3,50,000/-, which they accepted on 01/06/2006, leading to the execution of the 2[nd] agreement of sale with respect to 8 cents of land owned by Smt.Ganga, which is the subject matter of O.S.307 of 2008. They say that even in this case, the agreement was not intended to be acted upon and therefore, that there was no question of any sale deed being executed. They thus prayed that O.S.No.452 of 2008 and O.S.No.307 of 2008 be dismissed. 13. As seen earlier, Smt.Ganga and Shri.Ponnachan thereupon filed O.S.No.563 of 2010 on the files of the Principal Sub Court, Kottayam, (which was originally filed before the Munsiff's Court, Kottayam, before it was transferred to the Sub Court), alleging that even though the period for which Shri.Achankunju and his wife were allowed to **RFA.No.170/2012 & Con. Cases** **15** stay in the residential house, comprised of in 7 cents 820 sq.links, had long expired, they refused to evict themselves; and therefore, sought a decree of mandatory injunction seeking their eviction. **==> picture [344 x 12] intentionally omitted <==** Shri.Achankunju by filing a written statement asserting that the allegations of Smt.Ganga and Shri.Ponnachan, that he and his wife were allowed to stay in the house in question permissively, was factually incorrect, since he obtained possession of the same on the strength of the agreements of sale entered into by him with Smt.Ganga and Shri.Ponnachan as stated above. 15. As I have already noticed above, O.S.No.452 of 2008 was tried and disposed of by the Additional Sub Court, Kottayam, while O.S.307 of 2008 and O.S.No.563 of 2010 were jointly disposed of through a single judgment **RFA.No.170/2012 & Con. Cases** ## **16** of the Principal Sub Court, Kottayam. 16. I see from the records that the Additional Sub Court, Kottayam, took O.S.No.452 of 2008 to trial and marked Exts.A1 to A6 on the side of the plaintiff (late Sri.Achankunju) and Exts.B1 to B4 on the side of the defendants (Smt.Ganga and Sri.Ponnachan); while the deposition of PW1 and PW2 were recorded on the side of the plaintiff and that of DW1 and DW2 on the side of the defendants. After an evaluation of the materials and evidence on record, the said Court dismissed the Suit holding that the claim put forward by Achankunju is untenable and that the defence of Smt.Ganga and Sri.Ponnachan was factually justified. Pertinently, the impugned decree in this Suit did not order return of the advance of sale consideration, holding that no such prayer had been sought for by Late Sri. Achankunju in the plaint. **RFA.No.170/2012 & Con. Cases** ## **17** 17. As regard O.S.No.307 of 2008 and O.S.No.563 of 2010 are concerned, the Principal Sub Court, Kottayam, tried them jointly and marked Exts.A1 to A7 on the side of the plaintiff (Sri.Achankunju) and Exts.B1 to B21 on the side of the defendants (Smt.Ganga and Ponnachan) as also Exts.C1 and C2 as Court exhibits and Ext.X1 as a third party exhibit. The Court also recorded the testimony of PW1 and PW2 on the side of the plaintiff; and that of DW1 to DW6 on the side of the defendants. The said Court, thereafter, dismissed O.S.307 of 2008 following the views of the Additional Sub Court, Kottayam, in O.S.No.452 of 2008, and allowed O.S.No.563 of 2010 granting a decree of mandatory injunction, thus ordering eviction of Sri.Achankunju and his family from the residential house - comprised of 7 cents and 820 square links - owned by Smt.Ganga and Sri.Ponnachan. Interestingly, **RFA.No.170/2012 & Con. Cases** ## **18** this Court allowed Sri.Achankunju to recover the amount of Rs.3,80,000/-, being the admitted amounts received in advance, with 9% interest per annum from the date of Suit till realization, along with costs. 18. The afore judgments and decrees of the Trial Court have been impugned by Sri.Achankunju in these Appeals. 19. I have heard Sri.Mathew John, learned counsel appearing for the appellants in all the three cases and Sri.George Zachariah Eruthickal, learned counsel appearing for the respondents in these Appeals. 20. When I analyze the pleadings and evidence available on record, it is without doubt that an agreement, dated 25.8.2005, was initially entered into by Sri.Achankunju with Smt.Ganga and Sri.Ponnachan. This agreement has been marked as Ext.A1 in O.S.No.452 of 2008 and **RFA.No.170/2012 & Con. Cases** **19** that a subsequent agreement was entered into by the same parties on 1.6.20006, the original of which has been marked as Ext.A1 in O.S.No.307 of 2008. It is the contention of Sri.Mathew John, learned counsel – appearing for the appellant Sri.Achankunju, that on the dates on which these agreements were entered into, the respective properties were also given possession to his client. 21. For the sake of convenience and clarity, I will first deal with the specific facts involved in FRA.231/2012 before I deal with those in the other two. 22. As far as Ext.A1 agreement in O.S.No.452/2008 which R.F.A.No.231/2012 arises is concerned, it is with respect to 7 cents and 820 square links of property in the names of Smt.Ganga and Sri.Ponnachan in which a residential property is situated and the total consideration shown for it is **RFA.No.170/2012 & Con. Cases** ## **20** Rs.3,80,000/-, out of which an amount of Rs.2,00,000/- was concededly paid as advance. Of course, the contention of the learned counsel appearing for the respondent is that this does not represent the sale advance but only a loan transaction but admits that this amount was received by his clients. The agreement further shows that the term for its performance was six months from its date and also that a loan from the Service Co- operative Bank, Kumarakom, was outstanding against the names of Smt.Ganga and Sri.Ponnachan, which they were to clear off, before executing the same. 23. Pertinently, Sri.Achankunju does not say that during the period of six months fixed in the agreement, any attempt was made by him to pay the balance sale consideration or that any request was made to Smt.Ganga and Sri.Ponnachan to comply **RFA.No.170/2012 & Con. Cases** **21** with their obligations therein, except that while he deposed as PW1, he stated that a notice to such effect had been caused to be issued by him within that period. However, he did not produce a copy of the said notice on record; nor was he able to substantiate the issuance of any such notice. However, his specific contention is that much later, on 19.4.2008, he paid Rs.85,547/- into the loan account with the Sevice Co-operative Bank, Kumarakom, in the names of Smt.Ganga and Sri.Ponnachan and that since he had already paid Rs.1,00,000/- into the account earlier, the balance sale consideration was only Rs.80,000/- and therefore, that he issued Ext.A5 notice on 21.4.2008 asking them to appear before the Sub Registrar's Office for execution of the documents on 24.5.2008. 24. At this juncture it is relevant to **RFA.No.170/2012 & Con. Cases** **22** note that even going by the assertions of Sri.Achankunju, he had paid Rs.2,00,000/as advance at the time when the agreement was entered into and that he had paid Rs.1,00,000/- towards the loan account subsequently in addition to Rs.85,547/-, which he asserts, is covered by Ext.A2 receipt. Going by these assertions, the total amount paid by him is Rs.3,85,547/and therefore, it defies logic as to how he maintains that a balance of Rs.80,000/- was ready with him to be paid to the vendors when they executed the sale deed. This discrepancy is certainly sought to be explained by Sri.Mathew John, by contending that this is an inadvertent omission in making the calculation and he submits that, in fact, no amounts were payable by Sri.Achankunju against the sale consideration; and that on the contrary, that an amount of Rs.5,547/- had been paid **RFA.No.170/2012 & Con. Cases** **23** in excess. 25. However, I cannot accept the above submissions ex facie, nor can I find that the discrepancy in the testimony of Sri.Achankunju was on account of an inadvertent omission, because he persistently maintains the position that he had paid Rs.1,00,000/- and Rs.85,547/- into the Bank and that he was ready to pay Rs.80,000/- more, which he stated in Ext.A5 lawyer notice also. Obviously, therefore, his claim that he has paid Rs.1,00,000/into the loan account, followed by Rs.85,547/-, can only be taken with a pinch of salt, particularly because Ext.A2 receipt issued by the Bank is in the name of Smt.Ganga, though was produced on record by Sri.Achankunju. This certainly draws a cloud on the veracity of the assertions of Sri.Achankunju and I am therefore, of the view that the Trial Court was completely **RFA.No.170/2012 & Con. Cases** **24** right in having found that the averments in the plaint, as also the deposition of PW1, is vitiated on account of these factors. 26. That apart, even though Ext.A1 agreement in O.S.452 of 2008 stipulated six months as the period for performance, it is on record that Sri.Achankunju did nothing until 21.4.2008, when he issued Ext.A5 Advocate's notice and this is relevant because this date coincides with the date after a legal notice is stated to have been issued by Smt.Ganga and Sri.Ponnachan rescinding this agreement. Curiously, Sri.Achankunju, while he deposed as PW1 in the Suit, refused to acknowledge that he had received the said notice from Smt.Ganga and Sri.Ponnachan and he took the stand that he had issued Ext.A5 legal notice unconnected to the alleged receipt of the notice by the former. However, it is without doubt that Ext.A5 was issued nearly **RFA.No.170/2012 & Con. Cases** ## **25** at the end of the period of limitation for seeking specific performance of Ext.A1 agreement and these aspects also certainly throw great amount of doubt on the assertions of Sri.Achankunju. 27. I notice from the impugned judgment that the Trial Court has analysed the facts and circumstances in great amount of detail, including by evaluation of Exts.A3 and A3(a) statements of accounts in the name of Smt.Ganga - which Sri.Achankunju claimed to represent the amounts deposited by him for the purpose of clearing of the loan liability - and tested it against Ext.A2 receipt that was issued by the Service Co-operative Bank, which showed that the loan in question had been cleared as early as on 22.10.2005. It thus found by the Trial Court correctly that the amounts which Sri.Achankunju claimed to have paid as per Ext.A2 had no relationship to the **RFA.No.170/2012 & Con. Cases** **26** loan account mentioned in Ext.A1 agreement, since it was proved that the said loan account had been closed as early as on 22.10.2005 by Smt.Ganga and Ponnchan themselves. I notice that the Trial Court has, therefore, concluded that all the payments subsequently may be with respect to other loan accounts, since it is also available from evidence that Smt.Ganga and Sri.Ponnachan had created other liabilities on the properties subsequently by remortgaging it, so as to solve their financial crisis from time to time. 28. In the conspectus of the unimpeached evidence on record, I cannot find the views and conclusions of the Trial Court to be in any manner vitiated and I find no reason to intervene with the same. 29. That having been concluded, I will turn to the facts and issues in O.S.307 of **RFA.No.170/2012 & Con. Cases** ## **27** 2008, from which A.S.170/2012 arises, which are in pari materia with the ones which I have already notice above. Here again, the agreement of sale claimed by Sri.Achankunju, namely Ext.A1, shows a total consideration of Rs.4,80,000/-, out of which an amount of Rs.3,50,000/-, is stated to have been paid as advance. The agreement stipulated that the balance of Rs.1,30,000/- is to be used for the purpose of liquidating the liability the vendor – Smt.Ganja, with the Service Cooperative Bank, Vadakkumbhagam, but what is absolutely vital in this agreement is that, no period for performance of the same had been fixed. 30. Thus, the agreement in this Suit did not provide for the time frame within which the sale deed had to be executed or for the balance sale consideration to be paid; and it is without doubt that **RFA.No.170/2012 & Con. Cases** ## **28** Sri.Achankunju called upon Smt.Ganga to comply with its terms only on 25.4.2008, when Ext.A2 lawyers' notice had been issued asking her to present herself before the Sub Registrar's office on 30.4.2008. I see that the Trial Court has analysed the impact of Exts.A5 to A7, which are the receipts and certificates issued by the Service Co-operative Bank, Kumarakom, which appear to have been placed on record to show that Sri.Achankunju had an amount of Rs.1,15,000/- to his credit on 19.4.2008, which he explains, while he deposed as PW1, to be the amounts given to him by his children, who are the additional appellants in this case. The Court tested these documents placed in evidence, against the testimony of DW4, 5 and 6, two of whom are relatives of Sri.Ponnachan, who asserted that the amounts shown in **RFA.No.170/2012 & Con. Cases** ## **29** Ext.A1 as advance was actually part of a loan transaction and that the parties never intended to have a sale executed on its terms. 31. The evidence of DW5 was found to be crucial by the Trial Court because he was a witness to Ext.A1 agreement and he asserted that the same was only created for the purpose of security of the loan availed by Smt.Ganga and Sri.Ponnachan but that it was never intended to be acted upon. 32. What is of considerable important in this Suit is that the notice issued by Smt.Ganga and Sri.Ponnachan to Sri.Achankunju on 19.4.2008, rescinding both the agreements involved in these cases, has been placed on record as Ext.B2, whereby they informed him that they were rescinding them since he do not comply with this part of the agreements. **RFA.No.170/2012 & Con. Cases** ## **30** It is this document which is now relied upon by Sri.Mathew John, learned counsel for the appellant, to predicate that this is an admission by Smt.Ganga and Sri.Ponnachan as regards the execution of the agreements involved in these cases and he relies on the judgment of the Hon'ble Supreme Court in **Ammini Tharakan v. Lilly** **Jacob (2014 (2) KLT 187)** in substantiation. 33. When I hear Sri.Mathew John as above, it is without doubt that even in the absence of Ext.B2, the factum of execution of the agreements in these cases are virtually admitted by both Smt.Ganga and Sri.Ponnachan. Their only contention is that they did not sign these agreements with the intent to convey the property to Sri.Achankunju but only as a security for the amounts received by them as loan and they concede that the amounts shown as **RFA.No.170/2012 & Con. Cases** ## **31** advance therein were, in fact, paid to them by Sri.Achankunju as a loan repayable with 9% interest. It is certainly without doubt that in Ext.B2 lawyer's notice, Sri.Achankunju has been notified that Smt.Ganga and Sri.Ponnachan are rescinding the agreements because he did not comply with his obligations under the same; but this is explained by Sri.Ponnachan, in his testimony as DW2, that since Sri.Achankunju and his family were refusing to vacate their residential property and since he appeared to be spinning a nefarious design to have the agreements enforced, they issued Ext.B2 informing him that they do not intend to act as per the agreements and that they are rescinding the same. 34. In this regard, The submissions of Sri.Mathew John, learned counsel for the appellants, is that once Ext.B2 had **RFA.No.170/2012 & Con. Cases** ## **32** been concededly issued, the Trial Court could not have dismissed the Suits, since both the agreements should be construed to have been expressly admitted. 35. As I have already indicated above, it is not sufficient to show that the agreements were signed by the parties but also that there was a _consensus ad idem_ between them, but this is crucially absent in these cases because of the reasons and factors I have already discussed above. 36. I am therefore, of the certain opinion that merely because Ext.B2 had been caused to be issued by Smt.Ganga and Sri.Ponnachan to Sri.Achankunju, it was not incumbent upon the Trial Court to have automatically decreed the Suits, even without verifying whether the said agreements were executed by the parties with volition and with intent to take it **RFA.No.170/2012 & Con. Cases** ## **33** to final execution. It is certainly a matter of great relevance in these cases that it is only after Ext.B2 notice had been issued by Smt.Ganga and Sri.Ponnachan to Sri.Achankunju, (which, interestingly, in his testimony he evasively says he is not aware of) that the latter had issued his notices to the former asking them to execute the sale deeds, even though, admittedly, the term of performance of the agreement involved in O.S.452 of 2008 had long expired. 37. The sum total of the afore factors clearly lead me to the opinion that the Trial Court has not erred in any manner in having issued the impugned judgment and decree on the aspect as to whether the said agreements are deserving to be specifically performed. 38. However, even when I conclude as above, I find some cause in favour of the **RFA.No.170/2012 & Con. Cases** ## **34** appellants as regards the admitted advance amounts received by Smt.Ganga and Sri.Ponnachan in O.S.No.452 of 2008. I notice that this was declined by the Trial Court solely because there was no prayer made by Sri.Achankunju in the plaint for this purpose. However, it is pertinent that it is the specific submission of the learned counsel for the defendants that they were always willing to re-pay the said amounts with the interest agreed to by them, namely 9% per annum. This aspect had been lost sight of by the Trial Court and I am, therefore, certainly of the view that the appellants are entitled to this, particularly when it is unequivocally stated by the learned counsel for the defendants that they are always willing and ready to pay back the amounts with reasonable interest. 39. Finally, coming to the third **RFA.No.170/2012 & Con. Cases** ## **35** Suit, namely, O.S.563 of 2010, the Trial Court has found that the possession of Sri.Achankunj, and his family in the plaint schedule property was not directly connected to the agreements of sale between the parties. I have also, through my above observations, granted imprimatur to this finding and there is no doubt that such assertions are without basis, especially because the agreements in question admittedly do not contain any stipulation that the perperter had been given permission to Sri.Achankunju under its terms. Obviously, therefore, Sri.Achankunju and his wife must have obtained possession of the property independent of the agreements of sale and I find that the explanation given by the defendants - Smt.Ganga and Sri.Ponnachan - that they allowed Sri.Achankunju and his wife to stay in their property on **RFA.No.170/2012 & Con. Cases** ## **36** account of their close relationship and because the wife of Sri.Achankunju was suffering from cancer, requiring treatment at the Medical College, Kottayam; and that it would not have been possible for her to do so, if she had been staying at their original residence at Ithikkayal. These statements are virtually admitted because the evidence tendered by Sri.Achankunju, as PW1, concedes that their house in Ithikkayal was not easily accessible to a public road and that his wife would have had to walk more than one kilometre to even access a public street and then to reach a hospital for treatment. I cannot, therefore, find any reason to suspect the deposition and statements of Smt.Ganga and Sri.Ponnachan that Sri.Achankunj and wife were allowed to stay in their residential house, so as to enable her to **RFA.No.170/2012 & Con. Cases** ## **37** get proper treatment. The Trial Court has, therefore, concluded correctly and I therefore, see no reason to disturb any of such findings in R.F.A.513 of 2019. Resultantly, and in the conspectus of the above : - (a) R.F.A.170 of 2012 and R.F.A.513 of 2019 are dismissed; however without making any order as to costs and thus directing the parties to suffer their respective costs. (b) R.F.A.231 of 2012 is allowed in part, thus decreeing O.S.452 of 2008, allowing the appellants to recover an amount of Rs.2,00,000/-, concededly paid as advance to the defendants, along with 9% interest from the date of Suit till realization, for which purpose, the plaint schedule property in the Suit, will stand charged under Section 55(6)(b) of the Transfer of **RFA.No.170/2012 & Con. Cases** ## **38** Property Act, however, without making any order as to costs and thus directing the parties to suffer their respective costs in this Appeal also. After I decreed this judgment, the learned counsel appearing for the respondents submitted that since the appellants have been residing in the house for the last several years without any authority, the rate of interest as awarded above may be reduced. I am afraid that I cannot accede to this request because, if the respondents have a claim against the appellants on account of their unauthorised stay in the property in question, it is upto them to work out their remedies appropriately and I say this particularly because, as is clear from the judgment in O.S.No.563 of 2010, only a mandatory injunction has ## **RFA.No.170/2012 & Con. Cases** **39** been granted but without any amounts being awarded as damages towards the overstay of the appellant in the property in question. I, therefore, leave open these contentions to be pursued by them appropriately, subject to the laws and prescriptions of Limitation. ## **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** **MC/Mrcs**