Ramachandran and P.V. Remadevi v. Santamma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** ## **TUESDAY, THE 7TH DAY OF FEBRUARY 2012/18TH MAGHA 1933** ## **RSA.No. 146 of 2012 (A)** **----------------------** **.NO./ IN AS.15/2008 of ADDITIONAL.DISTRICT.COURT,PATHANAMTHITTA .NO./ IN OS.118/2004 of MUNSIFF.COURT.,PATHANAMTHITTA** **APPELLANT(S)/APPELLANTS/DEFENDANTS: ----------------------------------** **1. RAMACHANDRAN, AGED 49 YEARS, S/O.MADHAVAN, SASINILAYAM, ERUMAKUZHY MURI, PALAMEL VILLAGE, MAVELIKKARA, REP.BY HIS POWER OF ATTRORNEY P.V.REMADEVI, AGED 47 YEARS, D/O.VASUDEVAN PILLAI, PLEEDIKAYIL HOUSE, KARAKKADUM CHENGANNUR.** **2. P.V.REMADEVI, AGED 47 YEARS, D/O.VASUDEVAN PILLAI, PEEDIKAYIL HOUSE, KARAKKADUM, CHENGANNUR.** **BY ADVS.SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW** **RESPONDENT(S)/PLAINTIFF: ------------------------** **1 SANTHAMMA, AGED 57 YEARS, W/O.GOPINATH, MATHUKKAL HOUSE, KAIPUZHA MURI, KULANADA VILLAGE, KOZHENCHERRY TALUK-689 641.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **LSN** ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A. No.146 of 2012 -------------------------------------Dated this the 7[th] day of February, 2012.** ## **JUDGMENT** Defendants in O.S.No.118 of 2004 of the court of learned Munsiff, Pathanamthitta are aggrieved by the concurrent verdict entered against them in the suit filed by the respondent for a declaration that Ext.A1, sale deed No.1481 of 2000 is a sham document executed by her in favour of the 1[st] appellant/1[st] defendant, declaring title and possession of the respondent in the suit property and for consequential injunction. 2. According to the respondent, 17.60 Ares in R.S.No.384/15 and 16 belonged to her as per Ext.A3, sale deed No.3361 of 1991 and it formed part of a larger extent of 85 cents. It is her case that her husband had certain liabilities. Though she was not directly involved in that, she thought that for liability of her husband, the suit property may be proceeded against. She sought advise from the 2[nd] appellant in the matter. She advised the respondent to execute a sale deed in the name of somebody and instructed that the sale deed be executed in the name of the 1[st] appellant. Accordingly as agreed by them, sale deed No.1481 of 2000 was executed in the name of 1[st] appellant for a sum of `50,000/-. It is the further case of respondent that no consideration passed in the said transaction and notwithstanding execution of Ext.A1, sale deed, she continues to be the owner in possession and enjoyment of the property. It was **RSA No.146/2012** 2 only a sham transaction which was not intended to take effect. Respondent l cancelled the sale deed as per document No.1331 of 2001 and filed the suit for declaration and injunction as above mentioned. 3. Appellants, in their joint written statement admitted that respondent had approached the 2[nd] appellant but, according to them for a loan of `5,00,000/-. 1[st] appellant agreed to pay `5,00,000/- to the respondent as instructed by the 2[nd] appellant and document No.1481 of 2000 was executed in the name of 1[st] appellant for a consideration of `11,00,000/-, adjusting `6,00,000/- towards liability to the 2[nd] appellant. In the document, sale consideration was mentioned as `50,000/-. It is further contended that the sale deed has taken effect and that respondent is not entitled to the declaration and other reliefs prayed for. 4. Trial court came to the conclusion that sale deed No.1481 of 2000 is a sham document which was not intended to take effect and accordingly granted declaration and injunction prayed for. First appellate court confirmed that judgment and decree. That concurrent verdict of courts below are under challenge in this Court raising the substantial questions of law urged in the Memorandum of Appeal. **RSA No.146/2012** 3 5. Learned counsel for appellants has raised various points to challenge legality and correctness of judgment and decree of the courts below. It is contended by the learned counsel that going by the plea of respondent the transaction is one coming under Sec.53 of the Transfer of Property Act (for short, “the TP Act”) and hence no question of sham transaction would arise. According to the learned counsel, a fraudulent transfer coming under Sec.53 of the TP Act is a good transaction so far as the transferor and transferee are concerned though it is open to other creditors of transferor to assail the transaction on the ground that it was executed with a fraudulent design. Learned counsel has placed reliance on the decision in **John v. Cherian ( 1962 KLJ 957** ). It is also contended by the learned counsel that the document in question does not specify the requirements of a sham transaction. Reliance is placed on the decision in **Salim v. Fathima Muhammed (2006 (3) KLT 813)** . It is contended that at any rate, relief of declaration is sought beyond the prescribed time under Articles 58 and 59 of the Limitation Act. Reliance is placed on the decision in **Moosa v. Moideen (2001 (1) KLT 183** ). A further contention learned counsel has advanced is that since sale deed No.1481 of 2000 is registered in accordance with the provisions of the Registration Act and in the light of evidence given by PWs 1 and 2, intention of parties has to be gathered from the recitals in the document. Reliance is placed on the decision in **Bishundeo Narain Rai (dead) by L.Rs. and others v. Anmol Devi and others (AIR 1998 SC 3006** ) and in particular the observations in paragraphs 11 **RSA No.146/2012** 4 and 14. It is also argued by the learned counsel that evidence of witnesses would show that sale deed No.1481 of 2000 was executed as per the instruction of the respondent and hence, respondent cannot resile from the recitals in the document. Lastly it is argued that court fee paid by the respondent under Sec.25 (b) of the Court Fees and Suits Valuation Act (for short, “the Court Fees Act”) is not sufficient and that court fee was liable to be paid under Sec.40 of the Act. According to the learned counsel, by virtue of Explanation to Sec.12 of the said Act it is open to the appellate court also to consider insufficiency of court fee. 6. First question to be considered is whether the plea of appellants that sale deed in question going by the plea of respondent is a fraudulent transaction, could be accepted. No doubt, going by Sec.53 of the TP Act a fraudulent transfer is a good transaction so far as the transferor and transferee are concerned though other creditors whose rights are defeated may challenge the document on the ground of fraud. In the present case, respondent states that she had not received any amount from the appellants or from anybody else. It is her case that her husband had some transactions with certain persons and she was under an apprehension that her property may be proceeded against in connection with those transactions. Therefore she consulted the 2[nd] appellant. 2[nd] appellant advised her to execute a document in respect of the property in the name of somebody. Accordingly document No.1481 of 2000 was executed in the name of 1[st] appellant without receiving any consideration, without transferring property as recited in the document. The statement of **RSA No.146/2012** 5 respondent indicates that it is not a case of fraudulent transaction but, a sham transaction as pleaded by her. A sham transaction, it has been held by various authoritative pronouncements, is not intended to take effect, whatever the recitals therein may say. In the case on hand, respondent has not intended to transfer the property to anybody. Therefore the document, as pleaded by respondent is a sham transaction and not a fraudulent transfer. 7. Then the next question is whether on the evidence on record courts below went wrong in finding that the document is sham? Though initially the prayer was to set aside sale deed No.1481 of 2000 plaint was amended to make it as a prayer for declaration that sale deed No.1481 of 2000 is a sham document executed by the respondent in favour of the 1[st] appellant. 8. In the document it is stated that property mentioned therein is conveyed to the 1[st] appellant for a consideration of `50,000/- and 1[st] appellant is put in possession of the property. Sec.92 of the Evidence Act (for short, “the Act”) would not bar the respondent from contending that no consideration has passed, for, passing of consideration is not a ' term of contract' as understood in Sec.92 of the Act. Therefore, it is open to the respondent to plead, notwithstanding the recital in the sale deed that no consideration has passed. **RSA No.146/2012** 6 9. On the otherhand, plea of appellants that the sale consideration is `11,00,000/- is barred under Sec.92 of the Act, for, appellants could not adduce evidence to show that consideration for the sale is not `50,000/-. (See **Leelamma Ambikakumari and another v. Narayanan Ramakrishnan (1991** **(2) KLJ 648)** . Therefore, the contention that sale consideration is more than `50,000/- cannot be entertained, not to say that any amount of evidence adduced in violation of Sec.92 of the Act cannot be looked into. 10. It is pertinent to note what appellants have pleaded with respect to the consideration. I stated that respondent has no case that she owed any amount to the appellants. Appellants in their written statement contended that `6,00,000/- was due to the 2[nd] appellant and that was also taken as part of the sale consideration. But it is strange to note that the sale deed was taken in the name of the 1[st] appellant to whom admittedly respondent or her husband did not owe any amount. If actually any amount was due to the 2[nd] appellant, Ext.A1, sale deed ought to have been executed in her name. No doubt, 2[nd] appellant claims to be the power of attorney holder of the 1[st] appellant. These circumstances would show that the real person behind the transaction is the 2[nd] appellant though 1[st] appellant was shown as the transferee. 11. As regards transfer of possession of property, true that Ext.A1, sale deed No.1481 of 2000 mentions that. Recital in the document regarding transfer of possession is not a term of contract so that evidence to show that **RSA No.146/2012** 7 no possession was transferred is hit by Sec.92 of the Act. From the evidence on record, courts below came to the conclusion that respondent continues to be in possession of the property. Courts below observed that the property referred to in Ext.A1 is not the same property as referred to in Ext.A3, the prior document of title of respondent. Courts below also found that the entire 85 cents is lying contiguous within compound walls on all sides with one gate for access to the entire 85 cents and that the 17.60 Ares referred to in Ext.A1, sale deed is not separately demarcated from the said 85 cents. Evidence of 2[nd] appellant as DW1 would show that she made an attempt to enter into the suit property for the first time in the year, 2004 though Ext.A1, sale deed was executed in the year 2000. Form these circumstances courts below came to the conclusion that respondent continues to be in the possession of the suit property . That is a finding of fact on evidence and involves no substantial question of law. 12. It is pointed out by the learned counsel that the plea raised by the respondent cannot stand in view of Ext.A2, cancellation deed executed by the respondent. In Ext.A2, cancellation deed what respondent has stated is that she did not receive the balance sale consideration and hence Ext.A1, sale deed is being cancelled. Respondent when examined as PW1 has given evidence that those recitals were made in Ext.A2 as instructed by the document writer and not at per her instruction. **RSA No.146/2012** 8 13. Argument of the learned counsel is attractive. But appellants have no such case as stated in Ext.A2 so that, they can take advantage of that. Nor do they resist the suit on the ground that consideration is `50,000/- and that is paid in full. On the other hand their avowed plea is that the sale consideration was `11,00,000/- of which 1[st] appellant paid `5,00,000/- and the balance `6,00,000/- payable to 2[nd] appellant was adjusted in the sale consideration which I said having regard to Sec.92 of the Evidence Act cannot be entertained. Therefore, appellants cannot take shelter under Ext.A2, cancellation deed on the facts of this case. 14. Learned counsel has also argued that the finding of the courts below that no steps were taken by 1[st] appellant to get the property mutated in his name is not correct. But that is a finding of fact entered by the courts below on evidence and involves no substantial question of law. 15. The strange thing that appears from the evidence is that the impugned assignment deed is executed in the name of 1[st] appellant but he has not come forward to give evidence in support of the transaction. Instead, who comes forward to give evidence is the 2[nd] appellant whose role I have already stated above, may be of as a power of attorney. A power of attorney can give evidence as regards the matters within his knowledge but cannot be a substitute for the principal. **RSA No.146/2012** 9 16. Other argument learned counsel has advanced is based on Articles 58 and 59 of the Limitation Act. Under Article 59, the period of limitation to cancel or set aside an instrument or decree or for recession of contract is three years from the date when the facts entitling the plaintiff to cancel or set aside the document first becomes known to him. Under Article 58, period of limitation starts from the day the right to sue first accrues. In the present case, the relief prayed for is not to set aside the document but, a declaration that the sale deed in question as a sham transaction. Cause of action of that suit arises when the respondent comes to know that notwithstanding the understanding she claimed to have had with the appellants, the latter or any of them asserted title on the property. Therefore the suit filed in the year 2004 cannot be said to be time barred. 17. Another argument is that court fee paid by the respondent under Sec.25(b) of the Court Fees Act is not sufficient and that court fee was liable to be paid under Sec.40 of the Court Fees Act. Sec.40 of the Court Fees Act says that in suits for cancellation of a decree for money or other property having a money value or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject matter of the suit, and such value shall be deemed to be, if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other documents was **RSA No.146/2012** 10 executed. According to the learned counsel, court fee was payable on the consideration mentioned in the sale deed. But I must bear in mind that the prayer sought for in this case is of a declaration that impugned sale deed is a sham transaction and that respondent continues to be the title holder of the property. Relief has been valued under Sec.25 of the Court Fees Act. Moreover, the question of court fee cannot also be raised at this stage in view of Sec.12(2) of the Court Fees Act. 18. Sec.12 of the Court Fees Act requires that in every suit instituted in any court other than the High Court, the court shall before ordering the plaint to be registered, decide on the materials and allegations contained in the plaint and on the materials contained in the statement if any filed under Sec.10 the proper fee payable thereon. Sub-sec.(2) of Sec.12 says that any defendant may by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim but, subject to the next succeeding subsection, not later plead that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient. Sub-sec.(3) deals with a defendant added after issues are framed. Therefore, going by Sub-sec.(2) of Sec.12 of the Court Fees Act it is not open to the appellants, after first hearing of the suit or evidence is recorded on the merit to contend that the subject matter of the suit is not properly valued or that court fee paid is not sufficient. In this case, not only the issue was not brought before the trial court before first hearing of the suit or evidence is recorded but, no such plea was also raised in the written statement. **RSA No.146/2012** 11 The court also cannot consider that question after recording of evidence commences (See **Sumithra v. Kamala Bair - ILR (1979) 2 Kerala 124** - Paragraph 11) 19. My attention is drawn to Sub-sec.(4) of Sec.12 of the Court Fees Act which states that whenever a case comes up before a court of appeal, it shall be lawful for the court, either of its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower court affecting the fee payable on the plaint or in any other proceeding in the lower court and determine the proper fee payable thereon. I stated that at the appropriate time the appellants did not raise any objection as to proper valuation of the subject matter or correctness of the fee paid. Sub-sec.(4) only speaks about the power of appellate court to pass orders in the matter and that it is lawful for the appellate court either of its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower court affecting the fee payable. In this case, trial court has not passed any order as regards the correctness of valuation of the subject matter or the fee paid at the appropriate stage. Instead, an argument was advanced in the course of hearing the suit and the trial court made some observation in the judgment. That is not a decision entered by the trial court on the valuation of the subject matter or, sufficiency of the fee paid as contemplated under Sec.12(2) so that, it is lawful for this Court under Sub-sec.(4) of Sec.12 of the Court Fees Act to decided that matter in the Second Appeal. **RSA No.146/2012** 12 20. Having heard learned counsel at length and gone through the judgments under challenge I do not find any substantial question of law involved requiring admission of this appeal. Second Appeal is dismissed. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**