Ponnamma and Mangalam v. Thomas Thomas and Others

RFA.No.577 OF 2005 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 16TH DAY OF DECEMBER 2020 / 25TH AGRAHAYANA, 1942** **RFA.No.577 OF 2005** **AGAINST THE JUDGMENT DATED 30.7.2005 IN OS 37/1999 OF SUB COURT, PATHANAMTHITTA** ## **APPELLANTS/DEFENDANTS 1 AND 3** **1 PONNAMMA, D/O. LAKSHMY AMMA, AGED ABOUT 64, AMBALATHINAL HOUSE, KANJEETTUKARA P.O., AYROOR SOUTH (DIED)** **SECOND APPELLANT AND RESPONDENTS 2 AND 3 ARE THE LRS OF THE DECEASED FIRST APPELLANT AS PER ORDER DATED 1.6.2018 VIDE MEMO DATED 7.3.2018 BEARING CF. NO.1058/2018** **2 MANGALAM, D/O.PONNAMMA, AGED 36 AMBALATHINAL, KANJEETTUKARA P.O., AYROOR SOUTH.** **BY ADVS. SRI.M.NARENDRA KUMAR** ## **RESPONDENTS/PLAINTIFF AND DEFENDANTS 2 AND 4** **1 THOMAS THOMAS, S/O. THOMAS, AGED 45 EDAKKADAVIL, KANJEETTUKARA, AYROOR VILLAGE,, PATHANAMTHITTA DISTRICT, REP. BY POWER OF ATTORNEY, HOLDER SUSAMMA THOMAS, W/O.THOMAS THOMAS, AGED 41,, EDAKKADAVIL, KANJEETTUKARA, AYROOR VILLAGE, PATHANAMTHITTA DISTRICT.** - **2 ADITHYA KUMAR K.C. S/O.CHELLAPPAN NAIR AGED ABOUT 32, AMBALATHINAL, KANJEETTUKARA P.O, AYROOR SOUTH** RFA.No.577 OF 2005 2 **3** **K.P.PUSHPAKUMARI D/O.PONNAMMA AGED ABOUT 34 YEARS, DO. DO.** **R1 BY ADV. SRI.JACOB P.ALEX** **R1 BY ADV. SRI.T.SETHUMADHAVAN SR.** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 2608-2020, THE COURT ON 16-12-2020 DELIVERED THE FOLLOWING:** RFA.No.577 OF 2005 3 ## **JUDGMENT** Challenge in this appeal is to the judgment and decree rendered by the learned Subordinate Judge, Pathanamthitta in a suit for specific performance of contract filed as O.S.No.37/1999. 2. The parties are referred to in the rank assigned to them in the suit for the purpose of convenience and clarity. 3. The claim of the plaintiff is that the defendants are the owners of the plaint schedule property as per partition deed No.1403/1973 of SRO, Aranmula. The defendants 1 to 3 entered into an agreement on 10.2.1999 agreeing to alienate the property of all the defendants including the fourth defendant for a total sale consideration of Rs.6 lakhs. The time fixed for execution of the sale deed was two months from 10.02.1999. Out of the total sale consideration a sum of Rs.5 lakhs was RFA.No.577 OF 2005 4 received as advance. Since the defendants failed to execute the sale deed, a notice was issued on 10.3.1999 showing his readiness and willingness to perform the agreement to sell. However, in spite of the receipt of the notice, the sale deed was not executed and so the plaintiff was constrained to file the suit for specific performance of contract with an alternative prayer for realization of the advance amount with interest. 4. The suit was resisted by the defendants 1 and 3 contending that there was no agreement to sell the property as alleged by the plaintiff. But in fact the wife of the plaintiff and the second defendant were conducting a partnership business of money lending and while so, the business went in heavy loss and then the plaintiff and his associates started to terrorize the defendants 1 to 3 saying that the second defendant would be arrested and implicated in criminal case unless he pays a sum of Rs.6 lakhs to the wife of the RFA.No.577 OF 2005 5 plaintiff. The original title deed and tax receipt of the property were retained by them as security for the amount which was due from the second defendant and while so, in the night of 06.02.1999 the plaintiff and one K.P Mathew, the brother of the plaintiff's wife along with few others came to the residence of the first defendant and obtained a document from them. It was only an agreement to the effect that an amount of Rs.6 lakhs will be paid to the wife of the plaintiff within a period of two years and a job would be arranged for the second defendant in Gulf so as to enable him to pay the amount. The document was got signed without disclosing the contents of the same. Thereafter on 10.02.1999 the plaintiff and his brother in law and few others again came to the residence of the first defendant and told that some mistake had crept in the agreement and therefore, again the defendants 1 to 3 have to affix signature in the document brought by them. The defendants were threatened RFA.No.577 OF 2005 6 with dire consequences when they refused to sign the same. So out of fear and anxiety they have signed the document. The agreement for sale of the property appeared to be an act of fabrication and in fact there was no negotiation for sale of the property. The defendants have not received an advance amount of Rs.5 lakhs from the plaintiff and they never agreed to obtain power of attorney from Pushpakumari, the fourth defendant so as to alienate the property to the defendants. While so, due to the intervention of one Rev.Fr. K.A Cherian, the adviser of the plaintiff and his wife a discussion took place between them and another agreement was executed which superseded all the agreements between the parties. Now the whereabouts of the second defendant are not known to the other defendants. The agreement is an invalid one and the plaintiff is not entitled to get a decree for specific performance or for return of any amount as claimed in the suit. RFA.No.577 OF 2005 7 5. Before the court below on the above pleadings necessary issues were raised and the parties adduced evidence. In support of the case of the plaintiff two witnesses were examined i.e. himself as PW1 and an attesting witness as PW2. Exts.A1 to A7 were also marked for the plaintiff. The first defendant examined herself as DW1 and two witness were examined as DW2 and DW3. Ext.B1 was also marked. The court below after evaluation of the entire evidence found that Ext.A1 agreement is a genuine one and thereby a decree for specific performance of contract with respect to the shares of the defendants 1 to 3 was granted. The said judgment and decree are challenged mainly contending that Ext.A1 is not enforceable as it was never intended to be acted upon as an agreement for sale. 6. Heard Sri. M.Narendra Kumar, the learned counsel for the appellants/defendants 1 and 3 and Sri.Sethumadhavan, the learned senior counsel and RFA.No.577 OF 2005 8 Sri.Jacob P.Alex the learned counsel for the respondent/plaintiff. **==> picture [431 x 11] intentionally omitted <==** agreement dated 10.2.1999 executed by the defendants 1 to 3 in favour of the plaintiff agreeing to sell an extent of 47 cents out of a larger extent of 64 cents. The genuineness of the agreement though challenged by the contesting defendants, admitted their signature in the document. Ext.A6 is the original title deed of the suit property in the name of the defendants but it was produced by the plaintiff. It is a partition deed by which the 1[st] defendant as well her three children, ie; the defendants 2 to 4 have obtained 64 cents of land. Relying on Ext.A1 it is alleged that the defendants 1 to 3 have executed the sale agreement agreeing to alienate the plaint schedule property of 47 cents in favour of the plaintiff by executing the sale deed by them by getting a power of attorney in their favour for the fourth RFA.No.577 OF 2005 9 defendant within a period of two months from the date of execution of the document. An amount of Rs.5 lakhs was also received out of the total sale consideration fixed for the property as Rs. 6 lakhs, is the definite case of the plaintiff but they failed to execute the sale deed. 8. At the outset, it is to be noted that the defendants 1 and 3 alone filed written statement in the case and the defendants 2 and 4 remained absent in the suit. Though it is contended that the plaint schedule property is not properly described in the plaint, a perusal of the title deed marked as Ext.A6 and the plaint description shows that the description of the property is in tune with the description of the same in the original title deed. 9. Learned counsel for the defendants 1 and 3 contended that one Susamma Thomas who is the wife of the plaintiff and the second defendant ,the son of the first defendant conducted a financial business by name “A & T” investments but it fell RFA.No.577 OF 2005 10 in loss and as a result there was some settlement talk and finally the liability was fixed as Rs.10 lakhs and out of the same, it was agreed to give Rs.5 lakhs to the plaintiff by the second defendant and to facilitate payment the agreement was executed. But it was stoutly denied by the plaintiff and the definite case of the plaintiff was that the agreement was to execute the sale deed within a period of two months of the agreement and Rs.5 lakhs was received as part of the sale consideration and the balance was only Rs.1 lakh. It was contended that Ext.A2 notice was issued within the period prescribed expressing his readiness and willingness to perform the agreement to sell. It is significant to note that in the written statement the contesting defendants ie, defendants 1 and 3 have raised a contention that on 6.7.1999 the plaintiff and his brother-in-law, one K.P Mathew came to their residence and obtained a document and they told that the second defendant RFA.No.577 OF 2005 11 had to pay the amount and they could arrange a job for him abroad to clear off his liability and if the document is not signed he will be put in difficulty and so without reading the contents, they signed the document brought by them. Later on 10.2.1999 the plaintiff along with his brother-inlaw and his friends again came to their residence and forced them to sign a new agreement saying that some mistake had crept in the first document and thus got the document signed by them. So, the execution of the document for sale of the plaint schedule property was denied and they also denied the receipt of Rs.5 lakhs as part of the sale consideration. But it is interesting to note that in the reply notice marked as Ext.A5 the defendants have contended that the agreement is void and unenforceable and not supported by consideration and that the document is a fabricated one obtained by committing fraud and coercion. So in short, the execution of Ext.A1 sale agreement was admitted by RFA.No.577 OF 2005 12 the contesting defendants in the written statement though contended that the contents were not disclosed to them. A mere reading of the written statement would reveal that by misrepresentation of material facts the agreement to sell the property was obtained by the plaintiff. But at the first instance it was alleged in the reply notice that the plaintiff committed fraud and thus induced them to enter into the agreement to sell the property and in fact they never had the intention to sell the property. The recitals in the agreement would show that as the fourth defendant was out of India the defendants 1 to 3 would get her power of attorney so as to execute sale deed in favour of the plaintiff. 10. It is pertinent to note that the defendants have also taken a different contention in the written statement that another agreement was executed by Susamma Thomas, the wife of the plaintiff and the second defendant as a result of RFA.No.577 OF 2005 13 the compromise arrived on 16.4.1999 in the presence of DW3, Rev.Fr.K.Cherian and that agreement supersedes all previous agreements and therefore they are not bound to execute the sale deed in favour of the plaintiff. But the original document is not available on record. Instead of that Ext.B1 a photocopy of an agreement dated 16.4.1999 was produced so as to avoid the execution of the sale deed. 11. But DW3 has no case that such a document was executed by Susamma Thomas and the second defendant in his presence. He has also no case that he has verified the accounts of “A & T” investments and fixed the liabilities of the said business as claimed by the defendants. Most importantly, Ext.B1 is only a photocopy which is not even signed by both parties in the presence of DW3 and DW3 has admitted that he has signed the same only as the photocopy of a document and that will not show that such a document was executed in RFA.No.577 OF 2005 14 his presence. In fact he did not testify in favour of the agreement. So the evidence of DW3 will not show that a document was executed by both parties ie, Susamma Thomas and the second defendant and that document will supersede Ext.A1. Therefore, Ext.B1 has no validity at all in the eye of law and it cannot be treated as a document executed with the intention to show that there was an agreement or some arrangement between the parties to settle the dispute of the firm run by Susamma thomas and the second defendant at any point of time and that the document would supersede Ext.A1. 12. So the question to be looked into is whether the plaintiff is entitled to get a decree for specific performance of contract on the basis of Ext.A1 admittedly executed by the parties to the litigation. As mentioned earlier, the defendants have raised a contention that Ext.A1 is vitiated by fraud as it was executed by exerting pressure or misrepresentation on the defendants and hence not RFA.No.577 OF 2005 15 binding on them. It is well settled that when fraud is alleged regarding the execution of a document so as to avoid the same, definitely materials and evidence must be there. Under the law, it is absolutely necessary to plead fraud specifically and give particulars of the fraud. The burden of proof is on the person who alleges fraud, which should be proved by direct cogent evidence. Mere assertion by the defendants without any material to show that the document is vitiated by fraud or misrepresentation, are not all sufficient to discard or reject the agreement. In the absence of specific pleadings and evidence regarding the fraud played by the plaintiff to get Ext.A1 sale agreement, it could only be treated as a genuine document. There is also difference between fraud and misrepresentation. Fraud as defined in Section 17 of the Indian contract Act is an act done to deceive the other party, but misrepresentation as defined in Section 18 is a bonafide representation RFA.No.577 OF 2005 16 believing it to be true which turns out to be untrue. To discard a document as vitiated by fraud or misrepresentation and to hold it as void, definite and specific pleadings and stringent standards of evidence must be there, which is quite lacking in this case. Conjectures and suspicions cannot take the place of proof. Mere assertion by the party without any material to support is not all sufficient to arrive at a conclusion of fraud or misrepresentation but material had to be placed and evidence had to be led by the party alleging the same to avoid a contract. (See **State of Kerala and another v. M.A.Mathai** [(2007) 10 SCC 195)]. 13. Order VI Rule 2 of the Code of Civil Procedure makes it clear that the pleadings must be specific with material facts on which the party relies on. The particulars regarding fraud, undue influence, misrepresentation etc must be pleaded and established by positive and tangible evidence. RFA.No.577 OF 2005 17 All those aspects are quite lacking in the pleadings as well in evidence in this case. 14. In **Alva Aluminium Ltd, Bangkok v. Gabriel** **India Ltd** [(2011) 1 SCC 167] it is held that there must be materials to rescind a contract and mere assertion by party is not at all sufficient. It is further held that a heavy duty lies upon the party who seeks to avoid a contract on the ground of misrepresentation, fraud or coercion to prove any such allegation. 15. Here, the genuineness of Ext.A1 agreement to sell was affirmed by PW2. It appears that Ext.A1 was executed in the presence of two witnesses. The first witness to Ext.A1 is one K.P Mathew and the second witness is one Sasidharan. The scribe is one P.K.Gangadharan Nair. PW2 is the first witness examined to support the plaintiff's case regarding the execution of Ext.A1 document. PW2 an attesting witness to the agreement has fully affirmed the execution of the agreement. The defendants were RFA.No.577 OF 2005 18 unable to disprove the testimony of PW2 who fully supported the evidence of the plaintiff that the execution of the agreement was for sale of the property and not for any other purpose. The defendants does not deny their signatures on the agreement to sell the suit property but takes the plea that it was only an agreement to pay Rs.6,00,000/- to the plaintiff's wife and the plaintiff fabricated it as a sale agreement. But they took no action against the plaintiff till date. It is pertinent to note that the first defendant as DW1 has admitted that the second attesting witness of the document was none other than the son of her sister Meenakshi. He was in military service and at present working as a supervisor in a private firm at Kozhenchery. The fact that Sasidharan Nair the second witness is a close relative of the defendants was not mentioned in the written statement and she had to admit the said fact only in cross examination. The RFA.No.577 OF 2005 19 non examination of him by the defendants itself is a ground to show that the document was executed without any fraud, coercion or misrepresentation on the side of the plaintiff. If the document was obtained by exerting pressure on the defendants or misrepresenting the facts, the defendants ought to have examined him as a witness before the court to establish their case. When the document was signed by him as an attesting witness it could correctly be presumed that he stood as an attesting witness as requested by the defendants. It is also pertinent to note that all the defendants are educated persons. In this background their case that they have signed the document without knowing its content appears to be quite unbelievable and it would show that such a contention was raised as an attempt to avoid the contract. Therefore, the failure to examine one of the attesting witness from their side is fatal to their case. In the absence of definite pleadings and reliable evidence RFA.No.577 OF 2005 20 that Ext.A1 was executed by playing fraud, coercion or misrepresentation, I find that Ext.A1 document was voluntarily executed by the defendants in favour of the plaintiff with the intention to alienate the property. 16. It is also to be noted that the financial capacity of the plaintiff is not under challenge. It is also pertinent to note that the original title deed of the property is in the possession of the plaintiff and the balance sale consideration is only Rs.1 lakh. PW1 had proved the agreement to sell the property by tangible evidence and also proved the fact that he was always ready and willing to perform his part of the obligations. Of course it has come out in evidence that the defendants have not obtained any power of attorney from the fourth defendant though she was employed abroad. But her absence is not sufficient to show that Ext.A1 is an incomplete or in executable document. RFA.No.577 OF 2005 21 17. In fact there is absolutely no contention that the plaintiff has no source of income or funds with him to pay the advance amount or the balance sale consideration as per the terms of the contract. The plaintiff was employed abroad and it has come out in evidence that as he has to proceed to Saudi Arabia in connection with his job, he has entrusted his wife to get the document executed in his favour by paying the balance sale consideration. When the evidence on record is evaluated, it could be seen that the plaintiff had entered into the agreement with the defendant to purchase the property of all the defendants. But the court below has not granted a decree for specific performance of contract of the entire property owned by the defendants. As the fourth defendant was abroad, and she could not contest the matter the court below had excluded her share from the sale and a decree for performance of sale was granted with respect to the shares of defendants 1 RFA.No.577 OF 2005 22 to 3 alone. As it has come out in evidence that Ext.B1 document is not a valid or genuine one, so as to discard Ext.A1, the argument raised by the contesting defendants that the execution of Ext.B1 would supersede Ext.A1 is not legally supported by evidence. Moreover the evidence of DW1 is not at all sufficient to prove the execution of Ext.B1 and in fact DW3 has not supported the execution of the agreement. 18. When the entire evidence is evaluated meticulously, it is to be noted that the defendants have admitted execution of Ext.A1, but could not prove that fraud or coercion was exerted by the plaintiff or facts were misrepresented for its' execution. When the facts are so glaring, the non examination of the other attesting witness by the defendants though cited as a witness is also a strong ground to reject the contention raised by the defendants. If he was examined the initial onus to prove fraud or misrepresentation could be easily RFA.No.577 OF 2005 23 discharged. A party alleging fraud or misrepresentation must prove the same by cogent evidence as law does not envisage raising of a presumption in favour of fraud or misrepresentation. As referred above the parties are not illiterate but on the other hand are well educated. Their case that they simply affixed their signature in Ext. A1 without knowing the contents is an unbelievable story. The true intention of the parties could be gathered from the language employed in the document itself. Moreover the fact that Ext.B1 was not executed in presence of DW2 stares against the case of the defendants. There is nothing on record to indicate that the original of Ext.B1 was with DW2, Susamma Thomas so as to apply Section 65 of the Evidence Act in favour of the defendants. As per Section 61 of the Evidence Act, the contents of a document are supposed to be proved either by primary or by secondary evidence. Primary evidence is the document itself. Existence RFA.No.577 OF 2005 24 of such document has not been proved by the defendants. Though the wife of the plaintiff when examined as DW2 denied of having executed such a document, the defendants have not cared to examine any witness in support of its execution. DW3 though admitted of having transaction with A&T investments has not deposed that Susamma Thomas had affixed her signature in the original of Ext B1 and he has no case that he had verified the assets of the business. But according to him, he has neither seen the original of Ext.B1 nor signed the same. He has also no case that the copy of the document was handed over to the first defendant. As stated by DW3 he has only signed a document as a photo copy and therefore no agreement was executed so as to supersede Ext.A1. It has to bear in mind that DW3 has filed a case against A&T investments in connection with certain money transaction, but there is no material on record to show that his transaction had any connection with the agreement RFA.No.577 OF 2005 25 of sale of the suit property between the plaintiff and the defendants. Therefore, his transaction was not in relation with the sale of the suit property as it was an agreement between the plaintiff and the defendants. The defendants failed to bring the original of Ext.B1 on record and thus took the frivolous plea that the same superseded Ext.A1. 19. On a meticulous evaluation of the entire evidence available on record, I find absolutely no legal ground to interfere with the judgment and decree which passed in favour of the plaintiff on sound, reasonable and judicial principles. There is no merit in the appeal and it deserves a dismissal. Therefore, I hereby confirm the decree and judgment rendered by the court below. In the result, the appeal is dismissed. Parties shall bear their respective Costs. **==> picture [37 x 12] intentionally omitted <==** SHIRCY V JUDGE smm