Regular First Appeal Nos. 657 of 2015 and 660 of 2015 — V.T. Vijayan v. U. Kuttappan Nair and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA,** ## **1944** ## **RFA NO. 657 OF 2015** **AGAINST THE JUDGMENT AND DECREE DATED 29.07.2015 IN OS** **628/2012 OF III ADDITIONAL SUB COURT, KOZHIKODE** ## **APPELLANT/2ND DEFENDANT:** ## **V.T.VIJAYAN** **AGED 45 YEARS, S/O.LATE CHANDU NAIR, MOOVIE HOUSE, MERIKUNNU (P.O), CHEVAYOOR AMSOM, DESOM, KOZHIKODE DISTRICT.** **BY ADVS.** **SRI.T.KRISHNANUNNI (SR.) SRI.R.BINDU SASTHAMANGALAM SRI.PRASANTH M.P** ## **RESPONDENTS/PLAINTIFF & DEFENDANTS 1 & 3 TO 5:** **1 U.KUTTAPPAN NAIR AGED 70 YEARS, S/O.DAKSHAYANI AMMA, UMMOLI VEEDU, CHELAVOOR AMSOM, DESOM, KOZHIKODE DISTRICT, PIN - 673 571.** **2 M.P.KOMALAVALLI AMMA, AGED 53 YEARS, W/O.LATE U.CHANDRAN NAIR, KOMALA BHAVAN, KAKKAVAYAL (P.O), PURAKKADI AMSOM, DESOM, SULTHANBATHERY TALUK, WAYANAD DISTRICT,PIN - 673 122.** - **3 C.K.SARITHA,** **AGED 37 YEARS, D/O.CHANDRAN NAIR, KOMALA BHAVAN, KAKKAVAYAL (P.O), PURAKKADI AMSOM, DESOM, SULTHAN BATHERY TALUK, WAYANAD DISTRICT, PIN - 673 122.** 2 R.F.A. Nos.657 & 660 of 2015 - **4 C.K.SUMITHA** **AGED 34 YEARS, D/O.CHANDRAN NAIR, KOMALA BHAVAN, KAKKAVAYAL (P.O), PURAKKADI AMSOM, DESOM, SULTHAN BATHERY TALUK, WAYANAD DISTRICT, PIN - 673 122.** **5 C.K.ARUN KUMAR, AGED 29 YEARS, S/O.CHANDRAN NAIR, KOMALA BHAVAN, KAKKAVAYAL (P.O)PURAKKADI AMSOM DESOM, SULTHAN BATHERY TALUK, WAYANAD DISTRICT, PIN - 673 122.** **BY ADVS. SRI.K.S.BHARATHAN R1 SRI.B.C.MENON SRI.S.V.BALAKRISHNA IYER (SR.) SMT.S.ANJUSHA** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 22.11.2022, ALONG WITH RFA.660/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 R.F.A. Nos.657 & 660 of 2015 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA,** **1944** **RFA NO. 660 OF 2015** **AGAINST THE JUDGMENT AND DECREE DATED 29.07.2015 IN OS 373/2013 OF III ADDITIONAL SUB COURT, KOZHIKODE APPELLANT/PLAINTIFF:** **V.T. VIJAYAN AGED 45 YEARS, S/O. LATE CHANDU NAIR, MOOVIE HOUSE, MERIKUNNU P.O., CHEVAYOOR AMSOM, DESOM, KOZHIKODE DISTRICT.** **BY ADVS. SRI.T. KRISHNANUNNI SRI.R.BINDU SASTHAMANGALAM SRI.PRASANTH M.P** ## **RESPONDENT/DEFENDANT:** **U. KUTTAPPAN NAIR AGED 70 YEARS, S/O. DAKSHAYANI AMMA, UMMOLI VEEDU, CHELAVOOR AMSOM, DESOM, KOZHIKODE DISTRICT - 673 571.** **BY ADVS. SMT.S.ANJUSHA SRI.K.S.BHARATHAN SRI.B.C.MENON SRI.S.V.BALAKRISHNA IYER (SR.)** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 22.11.2022, ALONG WITH RFA.657/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 R.F.A. Nos.657 & 660 of 2015 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** ## **-----------------------------------------------** ## **Regular First Appeal Nos.657 & 660 of 2015** ## **-----------------------------------------------** ## **Dated this the 22nd day of November, 2022.** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** Among these appeals, R.F.A.No.657 of 2015 is preferred against the judgment and decree in O.S.No.628 of 2012 and R.F.A.No.660 of 2015 is preferred against the judgment and decree in O.S.No.373 of 201, on the files of the Sub Court, Kozhikode. As the issues involved in the suits were closely interconnected, they were jointly tried and disposed of by a common judgment. The points to be adjudicated in the appeals are also closely interlinked and they are, therefore, disposed of by this common judgment. Parties and documents are referred to in this judgment, unless otherwise mentioned, are as they appear in O.S.No.628 of 2012. 2. O.S.No.628 of 2012 is a suit instituted by the plaintiff for a declaration that the decree in O.S.No.462 of 2009 R.F.A. Nos.657 & 660 of 2015 5 on the files of the Sub Court, Kozhikode, is one fraudulently obtained by the second defendant, and for cancellation of the document executed by the court in his favour in execution of the said decree. The plaintiff also sought a decree directing the first defendant to transfer the plaint schedule property to him and for a decree for transfer of the plaint schedule property to him through the process of the court, if the first defendant fails to do so. 3. The first defendant in the suit is the wife of the deceased brother of the plaintiff, U.Chandran Nair. Defendants 3 to 5 are the children of the first defendant. The plaintiff was running a business in partnership with the first defendant and U.Chandran Nair in the name and style, Union Enterprises. The second defendant who is a relative of the plaintiff and defendants 1 and 3 to 5 was an employee in a tourist home run by Union Enterprises. There were series of disputes between the plaintiff on one side and defendants 1 and 3 to 5 on the other side in connection with the assets and business of Union Enterprises. O.S.No.201 of 2008 before the Munsiff Court, Sulthan Bathery was a suit instituted by the plaintiff against 6 R.F.A. Nos.657 & 660 of 2015 defendants 1, 3 to 5 and others, for rendition of the accounts of Union Enterprises which was stated to be dissolved by the plaintiff, and for partition of its assets. The second defendant and Union Enterprises were defendants 19 and 29 respectively in the said suit. While the said suit was pending, an agreement was entered into between the plaintiff and the second defendant on one side and defendants 1 and 3 to 5 on the other side on 13.10.2011. As per the terms of the said agreement, defendants 1 and 3 to 5 agreed to pay and the plaintiff agreed to accept a sum of Rs.1,25,00,000/- towards full and final settlement of all claims of the plaintiff over the assets and business of Union Enterprises subject to the fulfilment of the various conditions stipulated in the agreement to be performed by the plaintiff and the second defendant. Out of the said amount, a sum of Rs.70,00,000/- was paid to the plaintiff by defendants 1 and 3 to 5 on the date of execution of the agreement itself and out of the balance Rs.55,00,000/-, in lieu of payment of Rs.50,00,000/-, the first defendant agreed to transfer the plaint schedule property to the plaintiff. The remaining Rs.5,00,000/- was agreed to be paid by the first R.F.A. Nos.657 & 660 of 2015 7 defendant on fulfilment of the various conditions stipulated in the agreement to be performed by the plaintiff and the second defendant. There were various suits and other proceedings instituted by the plaintiff and the second defendant in respect of the assets and business of Union Enterprises and one of the conditions stipulated in the agreement was that all such suits and proceedings shall be withdrawn by the plaintiff and the second defendant. That apart, the second defendant had also filed a suit as O.S.No.462 of 2009 on the file of the Sub Court, Kozhikde against the first defendant for specific performance of an agreement for sale alleged to have been executed by the first defendant in favour of the second defendant in respect of the plaint schedule property. Another term in the agreement was that the said suit shall also be withdrawn by the second defendant so as to enable the first defendant to transfer the plaint schedule property to the plaintiff. O.S.No.201 of 2008 was later dismissed on the basis of a joint statement filed by the plaintiff and defendants indicating the settlement arrived at between them which culminated in the agreement referred to above, though the agreement was not specifically referred to in 8 R.F.A. Nos.657 & 660 of 2015 the joint statement nor produced before the court. 4. The case set out by the plaintiff in the plaint in O.S.No. 628 of 2012 was that though he has approached the first defendant on several occasions for transfer of the plaint schedule property to him as agreed, she was evading the requests of the plaintiff for one or the other reasons. On being suspicious about the conduct of the first defendant, it is stated that the plaintiff had made enquiries and it was revealed that O.S.No.462 of 2009 was decreed by the court on 27.10.2011 on the basis of a joint statement filed by defendants 1 and 2 to the effect that the first defendant will transfer the plaint schedule property to the nominee of the second defendant and that in the event the first defendant fails to do so, the second defendant will be entitled to get the transfer effected through the process of the court either in his name or in the name of any of his nominees. It is stated by the plaintiff that it was also revealed to him that the second defendant has filed a petition as I.A.No.7442 of 2011 later in O.S.No.462 of 2009 and obtained an assignment deed transferring the plaint schedule property to him through the process of the court. According to 9 R.F.A. Nos.657 & 660 of 2015 the plaintiff, the conduct of the second defendant in obtaining transfer of the plaint schedule property in his favour through the process of court flouting the terms of the agreement being fraudulent, the assignment deed executed by the court for the said purpose does not affect the right of the plaintiff to get the plaint schedule property transferred to him in terms of the agreement and he is, therefore, entitled to the reliefs prayed for in the suit. 5. The first defendant did not contest the suit. The second defendant contested the suit by filing a written statement. The execution of the agreement and the settlement of the disputes which were the subject matter of O.S.No.201 of 2008 were admitted by the second defendant. It was, however, contended by the second defendant that the sum of Rs.1,25,00,000/- referred to in the agreement was the amount agreed to be paid not to the plaintiff alone, but to the second defendant also, as the agreement was entered into not only for the settlement of the claims of the plaintiff over the assets of Union Enterprises, but also for the settlement of the claims of the second defendant and a few other employees of Union 10 R.F.A. Nos.657 & 660 of 2015 Enterprises over the assets of Union Enterprises. It was also stated by the second defendant in the written statement that even though there was an understanding between the plaintiff and the second defendant at the time of entering into the agreement that the claims of the second defendant and other employees would be settled by the plaintiff out of Rs.70,00,000/- payable to him, the plaintiff did not honour the said understanding. Further, it was stated by the second defendant that the agreement for sale, on the basis of which the second defendant instituted O.S.No.462 of 2009 was one obtained by him in his individual capacity after paying a sum of Rs.10,00,000/- by way of advance sale consideration and there was, therefore, an understanding that the plaintiff will compensate the second defendant for the loss caused to him in connection with the said transaction also out of Rs.70,00,000/payable to him. It was alleged by the second defendant that the plaintiff has not honoured the said understanding also. According to the second defendant, he was, therefore, not obliged to honour the condition stipulated in the agreement as regards the suit, O.S.No.462 of 2009. That apart, it was also 11 R.F.A. Nos.657 & 660 of 2015 contended by the second defendant that after the agreement, the plaintiff took the stand that he does not want the plaint schedule property and that it is sufficient that the first defendant gives him Rs.55,00,000/- in lieu of the same and the said demand of the plaintiff was accepted by the first defendant and two cheques of Rs.50,00,000/- and Rs.5,00,000/were accordingly handed over to the plaintiff by defendants 1 and 5 respectively. It was also contended by the second defendant that the plaintiff had made an endorsement regarding the variation of the term of the agreement aforesaid in the copy of the agreement retained by the first defendant. According to the second defendant, in light of the said subsequent development, the second defendant was not obliged to withdraw O.S.No.462 of 2009 as undertook by him in the agreement and it is in the said circumstances that the said suit was disposed of based on the joint statement filed by defendants 1 and 2. In essence, the case of the second defendant was that the document executed by the court in execution of the decree in O.S.No.462 of 2009 is not vitiated in any manner and the plaintiff is, therefore, not entitled to any 12 R.F.A. Nos.657 & 660 of 2015 relief in the suit. 6. O.S.No.373 of 2013 was one instituted by the second defendant against the plaintiff. The case set out by the second defendant in the said suit was that as stated by him in the written statement filed in O.S.No.628 of 2012, Rs.1,25,00,000/- referred to in the agreement was the amount agreed to be paid by defendants 1 and 3 to 5 to the plaintiff as also to the second defendant; that the arrangement between the plaintiff and the second defendant was that a sum of Rs.10,00,000/- out of Rs.70,00,000/- payable to the plaintiff will be paid to the second defendant towards settlement of his claim against the assets of Union Enterprises and that the plaintiff has not honoured the said commitment. The suit was therefore, for realisation of the said amount of Rs.10,00,000/with interest and costs from the plaintiff. The plaintiff contested the suit contending that the second defendant was not entitled to any amount from Union Enterprises; that the sum of Rs.1,25,00,000/- provided for in the agreement was intended exclusively to be paid to the plaintiff towards the settlement of his claims over the assets of Union Enterprises and that there 13 R.F.A. Nos.657 & 660 of 2015 was no understanding between the plaintiff and the second defendant for payment of any amount to the second defendant out of the amount payable to him in terms of the agreement. 7. As noted, the suits were tried jointly treating O.S.No.628 of 2012 as the lead case. The evidence in the case consists of the oral evidence of the plaintiff as PW1 and that of the second defendant as DW1. The documentary evidence on the side of the plaintiff were Exts.A1 to A26 and the documentary evidence on the side of the second defendant were Exts.B1 to B26. Among the documents produced by the plaintiff, Ext.A1 is the agreement dated 13.10.2011, Ext.A3 is the judgement in O.S.No.462 of 2009, Ext.A7 is the objection filed by the first defendant to I.A.No.7442 of 2011 in O.S.No.462 of 2009 for transfer of the plaint schedule property in favour of the second defendant through the process of the court, Ext.A8 is the judgment and decree in O.S.No.250 of 2008 instituted by the second defendant against defendants 1 and 5 concerning the demolition of the room alleged to have been occupied by him in the tourist home run by Union Enterprises, Ext.A9 is the plaint in O.S.No.250 of 2008, Ext.A10 is the written statement 14 R.F.A. Nos.657 & 660 of 2015 of defendants 1 and 5 in O.S.No.250 of 2008, Ext.A17 is the decree in O.S.No.462 of 2009, Ext.A18 is the joint statement filed by defendants 1 and 2 in O.S.No.462 of 2009, Ext.A20 is the assignment deed executed by the court in favour of the second defendant pursuant to the decree in O.S.No.462 of 2009 and Ext.A24 is the written statement filed by the first defendant in O.S.No.462 of 2009. Among the documents produced by the second defendant, Ext.B6 is the copy of the application filed by the second defendant in O.S.No.462 of 2009 to execute the decree obtained by him in the suit, Ext.B11 is the plaint filed by the second defendant in O.S.No.462 of 2009, Ext.B15 is the application preferred by the second defendant in O.S.No.201 of 2018 seeking direction to the first defendant to produce the copy of Ext.A1 agreement retained by her, Ext.B19 is the objection filed by the plaintiff to the interlocutory application filed by the second defendant in O.S.No.201 of 2008 directing the first defendant to produce the copy of Ext.A1 agreement retained by her. 8. The court below did not accept the contention of the second defendant that the term in Ext.A1 agreement as 15 R.F.A. Nos.657 & 660 of 2015 regards the transfer of the plaint schedule property by the first defendant to the plaintiff has been varied, holding that there is no satisfactory evidence to establish the alleged variation and that the variation of the term in Ext.A1 as pleaded by the second defendant, being one which goes against the interest of the first defendant, it was highly improbable for the first defendant to agree to such a variation. It was also found by the court below on an appraisal of the materials on record that Ext.A20 assignment deed is invalid inasmuch as the same is contrary to the terms of Ext.A1 agreement and Ext.A18 joint statement filed by defendants 1 and 2 in O.S.No.462 of 2009. The court below also found that the second defendant has not established his case that there was any understanding between him and the plaintiff in terms of which the plaintiff agreed to pay any amount to him. In the light of the said findings, the court below dismissed O.S.No.373 of 2013 and decreed O.S.No.628 of 2012 canceling Ext.A20 assignment deed and directing the first defendant to transfer the plaint schedule property to the plaintiff. It was also directed that, if the first defendant fails to do so, the plaintiff will be at liberty to get the 16 R.F.A. Nos.657 & 660 of 2015 property transferred to him through the process of the court. The second defendant is aggrieved by the decisions in the suits and hence, these appeals. The court below however did not specifically deal with the question as to whether the decree in O.S.No.462 of 2009 is vitiated by fraud and consequently declined the relief of declaration sought by the plaintiff in this regard. 9. Heard the learned Senior Counsel Sri.T.Krishnanunni for the second defendant and the learned Senior Counsel Sri.S.V.Balakrishna Iyer, for the plaintiff. 10. The learned Senior Counsel for the second defendant pointed out at the outset, placing emphasis on the recitals in clause (6) of Ext.A1 agreement that the amount agreed to be paid by defendants 1 and 3 to 5 was not exclusively to the plaintiff and the amount was intended to be paid to both the plaintiff as also the second defendant. The learned Senior Counsel reinforced the said submission pointing out that if the second defendant had nothing to do with Union Enterprises, he would not have been arrayed as a party to Ext.A1 agreement along with the plaintiff. It was also argued by 17 R.F.A. Nos.657 & 660 of 2015 the learned Senior Counsel persuasively that the materials on record would indicate beyond doubt that the term in Ext.A1 agreement as regards the transfer of the plaint schedule property by the first defendant to the plaintiff in lieu of the payment of Rs.50,00,000/- has been varied by the plaintiff by agreeing to accept a sum of Rs.55,00,000/- and that the said variation has been given effect to by defendants 1 and 5 by handing over two cheques of Rs.50,00,000/- and Rs.5,00,000/to the plaintiff in discharge of the obligation of the first defendant to transfer the plaint schedule property to him. It was also argued by the learned Senior Counsel that the fact that two cheques for Rs.55,00,000/- issued by the defendants 1 and 5 have been received by the plaintiff is not disputed by the plaintiff. According to the learned Senior Counsel, if the plaintiff has a case that the cheques aforesaid were issued towards security, insofar as the receipt of the same is admitted, it was for the plaintiff to establish the said fact, and in the absence of any material to infer the same, the court below ought to have accepted the case put forward by the second defendant that the term in Ext.A1 agreement for transfer of the plaint schedule 18 R.F.A. Nos.657 & 660 of 2015 property to the plaintiff has been varied. If that be so, according to the learned Senior Counsel, it cannot be said that defendants 1 and 2 are precluded from entering into the arrangement mentioned in Ext.A18 joint statement for disposal of O.S.No.462 of 2009. It was also submitted by the learned Senior Counsel that the finding that the second defendant did not establish the case of variation of the term in Ext.A1 agreement was rendered by the court below solely on the ground that the second defendant did not establish that the plaintiff encashed the cheques stated to have been received by the plaintiff. According to the learned Senior Counsel, the fact relating to the encashment of the cheques is one that falls exclusively within the knowledge of the plaintiff and it was therefore for the plaintiff to give evidence regarding the same. It was also submitted by the learned Senior Counsel that the court below has declined the relief of declaration sought by the plaintiff that the decree and judgment in O.S.No.462 of 2009 is vitiated by fraud and in the absence of any appeal against the said part of the decree, the plaintiff is precluded from contending that the decree in O.S.No.462 of 2009 is vitiated by 19 R.F.A. Nos.657 & 660 of 2015 fraud. According to the learned Senior Counsel, if the decree is not vitiated by fraud, it cannot be said to be invalid merely for the reason that Ext.A18 joint statement is contrary to the terms of Ext.A1 agreement. It was also contended by the learned Senior Counsel that Ext.A1 agreement was not part of the decree in O.S.No.201 of 2008 and the plaintiff is, therefore, not entitled to enforce the terms of Ext.A1 agreement. 11. Per contra, the learned Senior Counsel for the plaintiff made elaborate submissions to support the impugned decisions. We are not referring to the said submissions for the present, as we propose to deal with the same elaborately in the course of our discussion on the points arising for consideration. Suffice to say that the essence of the submissions made by the learned Senior Counsel was that the second defendant has not established his contention that there was variation of any of the terms of Ext.A1 agreement and if that be so, the court below cannot be found fault with for having cancelled Ext.A20 assignment deed. 12. We have examined the arguments advanced by the learned counsel for the parties on either side. 20 R.F.A. Nos.657 & 660 of 2015 13. In the light of the facts narrated and the submissions made by the learned counsel for the parties, the points arising for consideration are (i) whether there has been any variation of the term of Ext.A1 agreement as regards the transfer of the plaint schedule property by the first defendant to the plaintiff, (ii) whether the finding of the court below that Ext.A20 assignment deed is liable to be cancelled, is sustainable in law and (iii) whether any interference is called for in the decree passed by the court below in O.S.No.373 of 2013. 14. Point (i): It is trite that the animus of the parties to vary the terms of a contract is one to be established with convincing evidence, or otherwise, the same will enable some of the parties to get rid of their obligations under the contract unquestionably entered into and lessen the authority of written contracts by verbal collateral agreements relating to the same subject matter [See **Twentsche Overseas Trading Co. Ltd. v. Uganda Sugar Factory, Ltd.,** AIR 1945 PC 144]. In the light of the said principle, it was obligatory for the second defendant to establish by cogent and convincing 21 R.F.A. Nos.657 & 660 of 2015 evidence that there has been a variation of the term in Ext.A1 agreement as regards the transfer of the plaint schedule property by the first defendant to the plaintiff. The specific case of the second defendant in this regard is that the plaintiff had informed the first defendant after the execution of Ext.A1 agreement that he does not want the plaint schedule property and that it is sufficient that the first defendant gives him in lieu of the same a sum of Rs.55,00,000/- and that defendants 1 and 5, who had agreed to the said demand of the plaintiff, handed over to him two cheques for Rs.55,00,000/- in variation of the said term of the contract and that the said variation was endorsed by the plaintiff on the copy of Ext.A1 agreement retained by the first defendant. The relevant portion of the said plea of the second defendant contained in the written statement filed by him reads thus: “ അത�ൽ പ�ന�ട� ഉറ�പ�ക ഒന�� പപത�യ�ൽന�ന�� പണമ�യ� ക�ട�യ�ൽ മത� എന� പറഞത�ന റ അട�സ�നത�ൽ 55 ലക� ഉറ�പ�കയ�ലലക� ഒന�� പപത� 50 ലക� ഉറ�പ�കയ��ട �"ക�� അവര��ട മകൻ 5 ലക� ഉറ�പ�കയ��ട മ�&�ര� �"ക�� അന'�യക�രന� നല)�യ�ട�ളത�ണ�. ഈ സ�ഗത� അന'�യക�രന�� 1, 2 പപത�കള�� മ&�� ഒപ�വചത�� ഒന�� പപത�ക� കകമ�റ�യത�മ�യ കര�റ�ൽ 22 R.F.A. Nos.657 & 660 of 2015 ## ലരഖ�പട�ത�യ�ട�ളത�മ�ണ� The plea aforesaid is one refuted by the plaintiff in the plaint itself while dealing with the contentions raised by the second defendant in the reply sent by him to the lawyer's notice caused to be issued by the plaintiff. True, the plaintiff admitted the receipt of two cheques from defendants 1 and 5 in the written statement filed by him in O.S.No.373 of 2013, and the specific case pleaded by him in this regard in the said written statement was that the cheques were issued for due performance of the agreement to transfer the plaint schedule property to the plaintiff. Although it is stated by the second defendant in the proof affidavit about the variation of the term of Ext.A1 agreement pleaded by him, he did not state in the proof affidavit about the endorsement as regards the variation of Ext.A1 agreement alleged to have been made by the plaintiff on the copy of the agreement retained by the first defendant. The second defendant did not also take any steps to call for the copy of Ext.A1 agreement retained by the first defendant to prove the endorsement alleged to have been made by the 23 R.F.A. Nos.657 & 660 of 2015 plaintiff. That apart, the second defendant has no case either in the written statement filed by him in O.S.No.628 of 2012 or in the plaint in O.S.No.373 of 2013 or in the proof affidavit filed by him that the above cheques have been encashed by the plaintiff. Instead, he was maintaining all throughout that the plaintiff should have established that the cheques admittedly received by him from defendants 1 and 5 have not been encashed by him, to establish his case of variation of the term of Ext.A1 agreement. Although the plaintiff has not specifically stated anything about the encashment of the cheques, he categorically asserted that he has not received any amount from defendants 1 and 5 after the agreement. In other words, other than the oral evidence tendered by the second defendant as DW1, there is absolutely no convincing material to prove the variation of the term in Ext.A1 agreement as regards the transfer of the potential property by the first defendant to the plaintiff. On the other hand, there are sufficient materials on record which would probabilise the case of the plaintiff that there was no variation of any of the terms of Ext.A1 agreement at all. One crucial document which would demonstrate the case 24 R.F.A. Nos.657 & 660 of 2015 of the plaintiff is Ext.A7. Ext.A7 is the objection filed by the first defendant to Ext.B6 application preferred by the second defendant for execution of the decree in O.S.No.462 of 2009. The specific stand taken by the first defendant in Ext.A7 objection is that in terms of Ext.A1 agreement, the plaint schedule property was agreed to be transferred to the plaintiff and that Ext.B6 application is filed flouting the terms of Ext.A1 agreement and that the second defendant is therefore not entitled to get the property transferred to him through the process of the court. The relevant portion of Ext.A7 reads thus: “ ഈ ലകസ��ല ഹര�3�ക�രന��, എത4കക�യ�� ഈ ഹർ3�യ�ൽ കക�ല"ര�ന�യ� അലപക ല6�ധ�പ�ച ക�ടപൻ ന�യര�� മ&�� തമ�ൽ 6ലതര� സ6� ലക�ടത�യ�ൽ ന�ലവ�ല�ണ�യ�ര�ന O.S.201/2008 നമർ ലകസ��ല ഒത�ര�3� ഹർ3�യ��ല വ'വസകള�� ഈ ലകസ��ല ഒത�ര�3� ഹർ3�യ��ല വ'വസകള�� പരസ<ര� 6ന�പട�ക�ടക�നത�ണ�. 6ലതര� സ6� ലക�ടത�യ�ൽ ക�ടപൻ ന�യർ O.S.201/08 ആയ� അന'�യ� ല6�ധ�പ�ചത�� ലമപട� ലകസ�ൽ ഈ എത4കക� ഒന�� പപത�യ�� ഹർ3�ക�രൻ 19 ആ� പപത�യ�മ�ണ�. ആയത�ന�ൽ രണ� ലകസ��ല തർകങള�� മധ'സ ത�ര�മ�നപപക�ര� ഒത�ത�ർപ�ക�കയ�� ഈ ലകസ��ല എത4കക� ലകസ�ല�ൾ�പട അന'�യപട�ക വസA� ക�ടപൻ ന�യർക� ത�റ��ക�ട�ക�വ�ൻ ത�ര�മ�ന�ക�കയ�� ആയത� അ�ഗ�കര�ച� ഈ ലകസ��ല ഹര�3�ക�രന�� എത4കക�യ�� ക�ടപൻ ന�യര�� ഉൾ�പ�ടയ�ളവർ 13.10.2011 ത�യത� ഒര� എപഗ��മന�റ� 25 R.F.A. Nos.657 & 660 of 2015 ഉണ�ക�കയ�� �"യA�ര�ന�. ആയത� അന�സര�ച� ഈ ലകസ��ല ഹർ3�ക�രൻ ന�ർലCശ�ക�ന ആൾക� ഈ ലകസ��ല അന'�യപട�ക വസA� ര3�സർ ആക� നൽക��മന� ഒത�ര�3� ഹർ3�യ�ൽ പപലത'ക� ലരഖ�പട�ത�യത�� ആയത� പപക�ര� അന'�യ� വ�ധ�യ�ക�കയ�മ�ണ�ണ�യത�. ലമപട� വ'വസകൾ പ�ല�ക�ൻ എത4കക� ഇലപ�ഴ�� ഒര�കമ�ണ�. എന�ൽ അന'�യവ�ധ�യ�യ ലശഷ� ലമപട� വ'വസകൾ ല�ഘ�ച��ക�ണ� ഒത�ര�3�യ��ല വ'വസകൾ ദ�ർവ'�ഖ'�ന� �"യA�� ഈ എത4കക��യലയ�, ക�ടപൻ ന�യ�രലയ� സമ�പ�ക��ത ഹർ3�ക�രൻ ലക�ടത��യ �ത&�ദര�പ�ച� അന'�യപട�ക വസA� കകവശ�പട�ത�ക എന ഉലCശലത��ടയ�ണ� ഈ ഹർ3� ഫയല�ക�യ�ര�ക�നത�. അന'�യപട�ക വസA� ഏ�ത�ര� വ�ലധനയ�� ലഭ�ക�ൻ ഹർ3�ക�രന� അവക�ശലമ� അർഹതലയ� ഇല�തത�ക�ന�. ആയത�ന�ൽ ഹർ3� ന�ക� കല<നയ�ലവണത�ണ�.” The extracted portion of Ext.A7 objection would indicate beyond doubt that there was no variation of the term of Ext.A1 agreement as regards the transfer of the plaint schedule property in favour of the plaintiff, for had there been any variation as claimed by the second defendant, the first defendant would not have filed an objection to Ext.B6 application in the nature of Ext.A7. That apart, Ext.B11 is the plaint in O.S.No.462 of 2009. The case pleaded by the second defendant in Ext.B11 is that he has entered into an agreement with the first defendant for purchase of the plaint schedule 26 R.F.A. Nos.657 & 660 of 2015 property for a sum of Rs.17,18,750/- and paid a sum of Rs.10,00,000/- by way of advance sale consideration and that the first defendant later refused to transfer the plaint schedule property to him as agreed upon. Ext.A24 is the written statement filed by the first defendant in O.S.No.462 of 2009. The stand taken by the first defendant in Ext.A24 is that there was no agreement at all by the first defendant in favour of the second defendant; that no amount whatsoever has been received by the first defendant from the second defendant towards advance sale consideration and that the agreement relied on by the second defendant is one forged by him. In fact, the second defendant had produced along with the plaint in the said suit the original of the title deed of the plaint schedule property with a plea that it was entrusted to him by the first defendant at the time of entering into the agreement for sale. The stand taken by the first defendant as regards the said plea in Ext.A24 written statement is that the second defendant was an employee of her husband; that he was taking care of the affairs of her husband and that the title deed of the property was one entrusted by her husband to the second defendant for 27 R.F.A. Nos.657 & 660 of 2015 remitting the basic tax. It was also contended by the first defendant in Ext.A24 that the second defendant is not a person who is capable of raising a sum of Rs.10,00,000/-. It was such a suit that was agreed to be withdrawn by the plaintiff and the second defendant together when disputes between the plaintiff on one side and defendants 1 and 3 to 5 on the other side pertaining to the assets and the business of United Enterprises were settled. In other words, Ext.A1 agreement probabilises the case set out by the first defendant in the written statement filed by her in O.S.No 462 of 2009. Be that as it may, it is beyond doubt that in terms of Ext.A1 agreement, the first defendant would be relieved from her obligation to pay Rs.50,00,000/- to the plaintiff once the plaint schedule property is transferred to the plaintiff. If as a matter of fact the agreement for sale, on the basis of which a decree was sought by the second defendant in O.S.No.462 of 2009, was a genuine document and the first defendant had, in fact, received from the second defendant a sum of Rs.10,00,000/- by way of advance sale consideration, we do not find any reason why the first defendant, in the light of the terms of Ext.A1 agreement, 28 R.F.A. Nos.657 & 660 of 2015 should transfer the plaint schedule property to the second defendant after receiving from him the balance sale consideration of Rs.7,18,750/-. The reason is that if there was no variation, even though the first defendant would lose the property, she would get the benefit of Rs.10,00,000/- received from the second defendant by way of advance sale consideration and if the alleged variation is genuine, the first defendant would lose the property as also a sum of Rs.47,81,250/- (55,00,000 - 7,18,750). Needless to say, the alleged variation would, no doubt, result in monetary loss to the first defendant. In short, the stand taken by the second defendant that there was a variation of the term of Ext.A1 agreement as regards the transfer of the plaint schedule property in favour of the plaintiff cannot be believed. That apart, it is seen that an interlocutory application was filed by the plaintiff in O.S.No.201 of 2008 for recalling the judgment therein, as he thought that the same was his remedy to enforce the terms of Ext.A1 agreement. In the said application also, the second defendant took the very same stand that there was variation of the terms in Ext.A1 as regards the transfer of the 29 R.F.A. Nos.657 & 660 of 2015 plaint schedule property and that there was an endorsement to that effect by the plaintiff in the copy of Ext.A1 agreement retained by the first defendant. The second defendant had also preferred an application in the said suit, seeking a direction to the first defendant to make available a copy of Ext.A1 agreement retained by her. Ext.B15 is the application preferred by the second defendant in this regard in O.S.No.201 of 2018. Ext.B19 is the objection filed by the plaintiff to the said interlocutory application. Ext.B19 indicates that the plaintiff had no objection in the said document being called for by the court to ascertain whether there was any variation in the term of Ext.A1 agreement as regards the transfer of the plaint schedule property. In the aforesaid facts and circumstances, we are of the considered view that the contention raised by the second defendant that there was a variation of the term of Ext.A1 agreement as regards the transfer of plaint schedule property in favour of the plaintiff, is unsustainable. The point is answered accordingly. 15. Point (ii): As we have found that there was no variation of the term in Ext.A1 agreement as regards the 30 R.F.A. Nos.657 & 660 of 2015 transfer of the plaint schedule property by the first defendant in favour of the plaintiff, the right of the plaintiff to get assignment of the plaint schedule property as per Ext.A1 agreement cannot be disputed by anyone. But as noted, the property now stands in the name of the second defendant based on the transfer effected by the court below in execution of the decree in O.S.No.462 of 2009. Ext.A17 decree in O.S.No.462 of 2009 is one passed based on Ext.A18 joint statement. Even though the court below held that the plaintiff is not entitled to a decree declaring that Ext.A17 decree in O.S.No.462 of 2009 is one obtained by the second defendant by playing fraud, the court granted the consequential relief by cancelling Ext.A20 assignment deed on the ground that the same is one obtained by the second defendant behind the back of the plaintiff, flouting the terms of Ext.A1 agreement, after rejecting the contention of the second defendant that there was variation of the terms in Ext.A1 as regards the transfer of the plaint schedule property. The findings rendered by the court below on the question of validity of Ext.A17 decree, as contained in paragraphs 16, 19 and 20 of the impugned 31 R.F.A. Nos.657 & 660 of 2015 ## common judgment read thus: “16. Admittedly, the plaintiff was a partner in the firm Union Enterprises. Plaintiff and 1[st] defendant were partners in the said firm. Undisputedly, 2[nd] defendant was the Manager of the tourist home run by the firm Union Enterprises in the name and style Arun Tourist Home. It is also not in dispute that with respect to the partnership firm Union Enterprises, plaintiff had filed a suit before the Sub Court, Sulthan Bathery as O.S.201/08. The 1[st] defendant herein, her children, 2[nd] defendant herein, tenants of the building owned by Union Enterprises and Union Enterprises were parties to the said suit. Undisputedly, during the pendency of the said suit, due to the interference of the mediators, an agreement was entered into between the parties on 13.10.2011. Ext.A1 is the said agreement. As per Ext.A1, entire dispute connected with Union Enterprises between plaintiff, 1[st] defendant and children of 1[st] defendant were settled amicably. In order to settle, O.S.201/08 a separate joint statement was prepared. Undisputedly, in Ext.A1, plaintiff and 2[nd] defendant were arrayed as first party and 1[st] defendant and her children were arrayed as second party. Crux of the settlement was that 1[st] defendant and her children will pay a sum of Rs.1,25,00,000/- to the plaintiff. The plaintiff as well as 2[nd] defendant agreed to withdraw all the litigations and complaints against the 1[st] defendant and her children. Admittedly, there was a stipulation in Ext.A1 to settle O.S.462/09 filed by the 2[nd] defendant herein against 1[st] defendant also. Admittedly, as per Ext.A1, the 2[nd] defendant is not entitled to get any amount either from the 1[st] defendant or plaintiff. Undisputedly, on the date of execution of the Ext.A1, a sum of Rs.70 lakhs was paid by the 1[st] defendant and her children to the plaintiff in cash. Receipt of Rs.70 lakhs on the 32 R.F.A. Nos.657 & 660 of 2015 date of execution of Ext.A1 is admitted by the plaintiff. As per Ext.A1, towards payment of balance amount of Rs.50 lakhs, the 1[st] defendant had to execute a registered sale deed with respect to the plaint schedule property in favour of the plaintiff up on withdrawing O.S.462/09 filed by the 2[nd] defendant. There is a stipulation in Ext.A1 to the effect that the said suit is to be referred to the Adalath for getting refund of the entire court fee. There is a further stipulation in Ext.A1 to the effect that 1[st] defendant and her children will hand over a notarised affidavit sworn to and signed by them stating that they will not take any action with respect to O.S.462/09. There is a stipulation in Ext.A1 to the effect that 1[st] and 2[nd] defendant will file a joint statement in O.S.462/09. It is important to note that at a close scrutiny of Ext.A1 shows that 1[st] defendant has to execute a registered sale deed with respect to the plaint schedule property in favour of the plaintiff herein. Execution of Ext.A1 and terms and conditions therein are admitted. It is true that in Ext.A1, there is a recital to the effect that registered sale deed with respect to the plaint schedule property in favour of the plaintiff has to be executed with the consent of the 2[nd] defendant. But there is nothing in Ext.A1 to suggest that the 2[nd] defendant is entitled to get assignment of the plaint schedule property. There is no stipulation to execute a registered sale deed in favour of the plaintiff under any circumstance. This shows that in any contingency or circumstance the 2[nd] defendant cannot get a registered sale deed executed in his favour without the concurrence of the plaintiff. It goes without saying that a registered sale deed executed ignoring Ext.A1 cannot be said to be valid. x x x x 19. It is true that the 2[nd] defendant has got a case that 33 R.F.A. Nos.657 & 660 of 2015 immediately after the execution of Ext.A1 the plaintiff herein approached the 1[st] defendant and stated to her that he did not want the property and he will be satisfied if Rs.50 lakhs stipulated in Ext.A1 is paid in cash. Accordingly, the 1[st] defendant paid the said amount by issuing a cheque, it is contended. It is pointed out that it is an admitted case of the plaintiff that for payment of Rs.5 lakhs, son of the 1[st] defendant had issued another cheque. In order to substantiate the said contention, the 2[nd] defendant would contend that the plaintiff in the written statement filed by him in O.S.373/2013 and reply notice caused by him categorically admitted that he had received two cheques from the 1[st] defendant. It is pointed out that in order to substantiate his case that the said cheques were not encashed by him, no acceptable evidence is adduced before this court. The so called cheques were not produced by him before this court. If it was not encashed, it will be with him. So it is evidently clear that there was a modification in Ext.A1 after the execution of Ext.A1. This probabilise the case of the 2[nd] defendant, it is urged. But it is to be noted that the case of the plaintiff that there was some arrangement after the execution of Ext.A1, cannot be swallowed by a prudent mind for reasons more than one. Firstly, there is no evidence to prove that on the next day of execution of Ext.A1, plaintiff approached the 1[st] defendant and informed her that he will be satisfied if Rs.50 lakhs is paid in cash. Apart from the oral interested testimony of DW1, there is no evidence to prove the same. Though much contentions were raised by the 2[nd] defendant to the effect that PW1 in clear terms admitted the arrangement projected by the 2[nd] defendant, no such admission could find in any of the pleadings. It is true that in the pleadings instead of using the expression "cheque", expression "cheques" are used. It is important to note that plaintiff is in possession of a cheque 34 R.F.A. Nos.657 & 660 of 2015 admittedly issued by Arun Kumar towards payment of Rs.5 lakhs. If actually plaintiff had received Rs.50 lakhs by encashing a cheque issued by the 1[st] defendant, the same can be proved by getting down the said cheque. No steps were taken in this regard. Apart from all these, it is rather highly unbelievable that 1[st] defendant had paid Rs.50 lakhs in cash to the plaintiff and thereafter sold the plaint schedule property for a sum of Rs.17,18,750/- to the 2[nd] defendant. It is important to note that, out of the said amount, a sum of Rs.10 lakhs was paid as advance. So, at the end, in complying Ext.A1 as per the modified terms, 1[st] defendant on paying Rs.50 lakhs to the plaintiff getting around Rs. 7,18,750/-. She will be loosing Rs.43 lakhs in view of the modification to Ext.A1. It is important to note that the plaint schedule property was agreed to be assigned to the plaintiff for a sum of Rs.50 lakhs as per Ext.A1. This being so, it is rather highly unbelievable that 1[st] defendant agreed for modification of Ext.A1 suffering a huge loss. 20. Another aspect which shows the falsity of the case of the 2[nd] defendant is the stipulation in Ext.A18. As I had already pointed out Ext.A18 stipulates for execution of a registered sale deed in favour of the nominee of the 2[nd] defendant. It is rather highly unbelievable that 1[st] defendant after paying Rs.50 lakhs to the plaintiff and on receipt of Rs.7,18,750/- from the 2[nd] defendant executed a joint statement undertaking to execute a registered sale deed in the name of nominee of the 2[nd] defendant. 2[nd] defendant on payment of Rs. 7,18,750/- to the 1[st] defendant got a joint statement which gives right to his nominee to get a registered sale deed executed in his favour and not in his favour. If actually there was a variation in Ext.A1 as contended by the 2[nd] defendant, Ext.A18 joint statement would have been drafted stipulating execution of registered sale deed 35 R.F.A. Nos.657 & 660 of 2015 in favour of 2[nd] defendant also. So I am of the view that the story of variation in the terms of Ext.A1 on the next day of the execution of Ext.A1 could not be swallowed by a prudent mind. Further, it is now well settled that evidence of oral agreement to contradict the terms of a contract reduced to the form of a document is not admissible. No evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument for the purpose of contradicting, varying, adding to or subtracting from terms. [See **Nanjappan Vs. Ramasamy and another** (2015 SAR (Civil) 403)].” It is not easy to give a definition of what constitutes fraud in the expansive signification in which the term is used by courts, for fraud is infinite in variety. Fraud in the contemplation of civil courts would include all acts, omissions, and concealments which involve breach of illegal or equitable duty, trust or confidence, justly reposed, and are injuries to another, or by which an undue or unconscientious advantage taken of another. Similarly, all surprise tricks, cunning, dissembling and other unfair ways that are used to cheat anyone are considered as fraud. Fraud in all cases implies a wilful act on the part of anyone, whereby another is sought to be deprived, by illegal or inequitable means, of what he is entitled to [See KERR on the Law of Fraud and Mistake, Seventh Edition]. In the light of the 36 R.F.A. Nos.657 & 660 of 2015 principles aforesaid, even though the court below did not grant to the plaintiff a decree declaring that Ext.A17 decree is one obtained by the second defendant fraudulently, the finding of the court below that Ext.A17 is a decree obtained by the second defendant contrary to Ext.A1 agreement behind the back of the plaintiff is, in fact a finding that the said decree is vitiated by fraud. 16. It is necessary at this juncture to deal with the argument advanced by the learned Senior Counsel for the second defendant that the court below declined the relief of declaration sought by the plaintiff that the decree in O.S.No.462 of 2009 is vitiated by fraud and therefore, in the absence of an appeal against the said part of the decree, the plaintiff is precluded from contending that the decree in the said suit is vitiated by fraud. Prayer (a) in the amended plaint reads thus: "6ഹ�മ�ന�പട ഈ ലക�ടത�യ��ല O.S.No.462/2009 ല�ണ�യ വ�ധ� പപത�കൾ "ത�യ�യ�� വഞനയ�യ�� ലക�ടത��യ �ത&�ദര�പ�ച�� ഉണ�ക�യത��ണന� സ�പ�ച�� അത�നന�സ4തമ�യ� രണ�� പപത�യ��ട ലപര�ൽ ര3�സർ �"യA ആധ�ര� ക�ൻസൽ �"യA��.” 37 R.F.A. Nos.657 & 660 of 2015 It is evident from the extracted prayer that it is a composite one for a declaration that the decree in O.S.No.462 of 2009 is vitiated by fraud and also for cancellation of Ext.A20 assignment deed executed by the court in favour of the second defendant pursuant to the decree. Going by the judgment, it is seen that the view taken by the court below is that insofar as the decree was found to be invalid, it is not necessary to deal with the question as to whether the same is vitiated by fraud. We also take this view, as we do not find any discussion on the question as to whether Ext.A17 decree is vitiated by fraud in the impugned judgement. Since the court granted to the plaintiff the relief sought by him for cancellation of Ext.A20 assignment deed on the ground that it is vitiated by fraud, it cannot be contended that the plaintiff is precluded from supporting the same, merely for the reason that the court below felt it unnecessary to grant the specific declaration sought by the plaintiff in that regard. The contention raised by the learned Senior Counsel for the second defendant is therefore devoid of merits and the same is accordingly 38 R.F.A. Nos.657 & 660 of 2015 rejected. 17. As found by the court below, in terms of Ext.A1 agreement, the second defendant is bound to withdraw O.S.No.462 of 2009 so as to enable the first defendant to transfer the plaint schedule property to the plaintiff. But the second defendant did not withdraw O.S.No.462 of 2009 as undertook by him in Ext.A1 agreement. Instead, as noted, Ext.A18 joint statement was filed by him in the said suit along with the first defendant and got the plaint schedule property transferred to his name. One crucial aspect to be seen in this context is as to whether the first defendant was a privy to the said transaction. As noticed by the court below, Ext.A18 joint statement is to the effect that the suit shall be disposed of so as to enable the first defendant to transfer the plaint schedule property to the nominee of the second defendant. Of course, it is stated that if the first defendant does not transfer the plaint schedule property to the nominee of the second defendant, the second defendant would be entitled to get the sale deed of the plaint schedule property executed through the process of the court either in his name or in the name of any of his nominees. 39 R.F.A. Nos.657 & 660 of 2015 Going by the tenor of Ext.A18 joint statement, there is no reason why a provision should be incorporated therein so as to enable the second defendant to get the plaint schedule property transferred to him, in the event the first defendant fails to transfer the plaint schedule property to the nominee of the second defendant, and we are of the view that such a provision was incorporated in the joint statement by the second defendant mysteriously. We take this view also for the reason that the specific averment made by the second defendant in Ext.B6 application that the first defendant is evading the demands made by the second defendant for transfer of the plaint the schedule property to his nominee, has been emphatically denied by the first defendant in Ext.A7 objection. Ext.A7 objection preferred by the first defendant to the application filed by the second defendant for execution of the decree passed based on the joint statement would indicate that the first defendant has joined with the second defendant and filed a joint statement in the said suit in the aforesaid fashion only to enable her to transfer the potential property to the plaintiff. In other words, the first defendant never intended the 40 R.F.A. Nos.657 & 660 of 2015 plaint schedule property to be transferred to the second defendant. We do not find any reason at all to disbelieve the said stand of the first defendant, for in the absence of any variation of the term in Ext.A1 agreement as regards the transfer of the plaint schedule property to the plaintiff, the first defendant would only invite trouble, if she permits transfer of the plaint to schedule property in favour of the second defendant. In other words, we are of the view that the signature of the first defendant in Ext.A18 joint statement is one obtained by the second defendant by misleading the first defendant. Needless to say, the said conduct of the second defendant would also amount to fraud, justifying cancellation of the document executed by the court pursuant to the decree based on the said joint statement. In this connection, it is also necessary to take note of the stand taken by the second defendant as regards Ext.A18 joint statement and Ext.A17 decree obtained by him based on the joint statement. The specific case pleaded by the second defendant in this regard in the written statement filed by him in the suit as also in the plaint in O.S.No.373 of 2013 is that there was an arrangement 41 R.F.A. Nos.657 & 660 of 2015 between the second defendant and the plaintiff that the plaintiff would pay a sum of Rs.10,00,000/- out of the amount payable to him in terms of Ext.A1 agreement towards his claim against the assets of Union Enterprises and he would also compensate the second defendant for the loss caused to him for agreeing to withdraw O.S.No.462 of 2009 and that the plaintiff did not honour the said understanding when he received the sum of Rs.70,00,000/- and therefore, the second defendant is not bound to withdraw O.S.No.462 of 2009 in terms of Ext.A1 agreement. It is his case that it is in the said circumstances, he obtained a decree in the nature of Ext.A17 based on Ext.A18 joint statement. The stand aforesaid of the second defendant also fortifies our conclusion that Ext.A17 decree in O.S.No.462 of 2009 is one liable to be set at naught as invalid. Point (ii) is thus answered in favour of the plaintiff. 18. Point (iii): The case pleaded by the plaintiff in O.S.No.373 of 2013 is that Ext.A1 agreement was not a settlement of the claims of the plaintiff over the assets of Union Enterprises alone. Instead, it was a settlement of the claims of a few employees of Union Enterprises including the second 42 R.F.A. Nos.657 & 660 of 2015 defendant and the amount of Rs.1,25,00,000/- agreed to be paid by defendants 1 and 3 to 5 to the plaintiff was intended to be paid not only towards the full and final settlement of the claims of the plaintiff over the assets of Union Enterprises, but also towards the full and final settlement of the claims of the employees of Union Enterprises including the second defendant. It was for the purpose of establishing the said case, the learned counsel for the second defendant has relied on clause (6) of Ext.A1 agreement. It is also the case of the second defendant that there was therefore an understanding between the plaintiff and the second defendant that the plaintiff would pay a sum of Rs.10,00,000/- out of the amount payable to him in terms of Ext.A1 agreement towards his claim against the assets of Union Enterprises and he would also compensate the second defendant for the loss caused to him by agreeing to withdraw O.S.No.462 of 2009 and that the plaintiff has not honoured the said understanding when he received the sum of Rs.70,00,000/-. The suit was one instituted for realisation of the sum of Rs.10,00,000/- allegedly agreed to be paid to the second defendant by the plaintiff towards his claim over the 43 R.F.A. Nos.657 & 660 of 2015 assets of Union Enterprises. 19. At the outset it has to be mentioned that we are not impressed by the argument advanced by the learned Senior Counsel for the second defendant based on Clause (6) of Ext.A1 agreement. Clause (6) of Ext.A1 agreement reads thus: “6. ലമൽപപക�ര� സ�വ�ൽ ലകസ�കൾ ഒത�ര�3�യ�യ� ഒത� ര�3� ഒപ�ട�ന സമയത� ഇത��ല രണ��കക�കൾ ഒന�� കക�കൾക� ലമൽ ന�ശയ�ച പപത�ഫല സ�ഖ'യ�ലലക� 70,00,000 രRപ (എഴ�പത� ലക� രRപ) �റ�ക� നൽലകണത�� ലമൽപപക�ര� ഒന�� കക�കൾ�കത��രയ�� ലഹ�ടൽ വ4ന�വൻ 6�ർ ലഹ�ടൽ രണ�� കക�യ��ട അഭ�ഭ�ഷകൻ എനവർ�കത��രയ�� ല6�ധ�പ�ച പര�ത� എന�വ പ�ൻവല�ച� ഒപ�ട� നൽക�യ�ൽ രണ�� കക�കൾ ഒന�� കക�യ�ൽ ഒന�� നമർക�രന�യ യ�. ക�ടപൻ ന�യർ എനവർ ലപര�ലല� യ�. ക�ടപൻ ന�യർ ന�ർലCശ�ക�നയ�ള��ട ലപര�ലല� ലക�ഴ�ലക�ട� �"ലവRർ വ�ലല3�ൽ 64/182 ൽ�പട 27.5 �സന�റ� സലത�ന റ ത�ര�ധ�ര� രണ��കക�കള��ല ഒന�� നമർക�ര� ഒന�� നമർക�ര�യ��ട "�ലവ�ൽ റ3�സ�പടർ പRർത�കര�ച� �ക�ട�ലകണ ത�ണ�. അപപക�ര� റ3�സ�പടർ �"യ�ന ആധ�രത�ൽ വ�.ട�. വ�3യൻ എനവർ സ�ക�യ�യ� ഒപ�ലടണത�ണ�.” As rightly pointed out by the learned Senior Counsel for the plaintiff, a harmonious reading of the clauses in Ext.A1 agreement, especially clauses (1) and (2) would establish beyond doubt that the amount specified in the document 44 R.F.A. Nos.657 & 660 of 2015 namely, Rs.1,25,00,000/- was one intended to be paid exclusively to the plaintiff. Clauses (1) and (2) of Ext.A1 agreement read thus: “1. കൽപ& സ6� റ3�സ�പട�ർ ആഫ�സ��ല 2004 �ല 2192-)o നമർ 3ന� ത�ര�ധ�രവ�� യRണ�യൻ എന�റർകപപസസ� എന പ�ർട�ണർഷ�പ� ലഫമ�ൽ ന�ന�� ഒന�� കക�യ��ല ഒന�� നമർക�രൻ യ�. ക�ടപൻ ന�യർ എനവർ 16.8.2004.)o ത�യത� പ�ര�ഞത��നയ�� ഒന�� കക�കൾ ഇത�ന�ൽ അ�ഗ�കര�ക�കയ�� സമത�ക�കയ�� �"യA�ര�ക�ന�. 0.S.201/2008)o നമർ ലകസ��ല അന'�യപട�ക വസA�കള�� അത��ല യRണ�യൻ എന�റർകപപസസ� എന പ�ർട�ണർഷ�പ� സ�പനവ�� അത�ന റ 6�സ�നസ�� ത�ടർന�� രണ��കക�കൾക� നടത��ക�ണ� ലപ�ക�നത�ന�� പകയവ�പകയങൾ നടത�നത�ന�� രണ��ക�കൾക� അവക�ശവ�� അധ�ക�രവ�� ഉണ�യ�ര�ക�നത�ണ�. ലമൽ ക�ര'ങൾ അ�ഗ�കര�ച ക�ണ� ഇര�കക�കള�� സ�ൽത�ൻ 6ലതര� സ6� ലക�ടത� മ�മ��ക ലമൽ നമർ ലകസ�ൽ ഒത� ര�3� ല6�ധ�പ�ലകണത�ണ�. 2. എല� ലകസ�കള�� പര�ത�കള�� ത�ർക�നത�ന�� ഒന�� നമർക�രന� ലകസ� ക�ര'ങള�ൽ വന "�ലവ�കൾക�� മ&�മ�യ� മദ'സന�ർ 1,25,00,000 രRപ (ഒര� ലക�ട� ഇര�പത� അഞ� ലക� രRപ) പപത�ഫല� ന�ശയ�ച� ഇര�കക�കള�� അ�ഗ�കര�ചത�� ലമപട� സ�ഖ' ഇത��ല രണ�� കക�ക�ർ ഒന�� കക�യ��ല ഒന�� നമർക�രന�യ യ�. ക�ടപൻ ന�യർ എനവർക� �ക�ട�ക��മന�� ന�ശയ�ചത�ണ�. ലമൽ പപത�ഫല സ�ഖ'യ�ലലക� 50,00,000 രRപ (അമത� ലക� രRപ) വ�ല ന�ശയ�ച� രണ��കക�യ��ല ഒന�� നമർക�ര�യ�യ ലക�മളവല� അമക� അവക�ശമ�യ ലക�ഴ�ലക�ട� ത�ലRക� �"ലവRർ വ�ലല3�ൽ 64/182 സർലWയ�ൽ �പട 27.5 �സന�റ� വസA� ലക�മളവല� ഒന�� കക�യ��ല ഒന�� നമർക�രന റ ലപര�ലല� ഒന�� നമർക�രൻ ന�ർലCശ�ക�നവര��ട ലപര�ലല� രണ�� നമർക�രന റ സമത പപക�ര� റ3�സ�പടർ �"യA� �ക�ട�ക��മന�� ന�ശയ�ചത�� സമത�ചത�മ�ണ�. 45 R.F.A. Nos.657 & 660 of 2015 ലമപട� വസA�വ��ന സ�6ന�ച� ഒന�� കക�യ��ല രണ�� നമർക�രൻ വ�.ട�. വ�3യൻ എനവർ ല6�ധ�പ�ചO.S.462/2009 നമർ അന'�യ� ലക�ഴ�ലക�ട� സ6� ലക�ടത�യ�ൽ ന�ലവ�ല�ളത�� ലമപട� ലകസ� ഒത� ര�3� �ക�ട�ത� വസA� ക�ടപൻ ന�യര��ട ലപര�ൽ റ3�സർ �"യA� വ�ങ�വ�ൻ വ�ധ� അദ�ലത� മ�ഖ�ന�ര� വ�ലങണത�� ലമപട� ലകസ� വ�.ട�. വ�3യൻ എനവർ ഒട�ക�യ ലക�ർട� ഫ�സ� റ�ഫണ� വ�ങ� സ�ഖ' വ�.ട�. വ�3യന� വ�ങ� ത�ർപ�ക�നത�ന�ൽ ഒന�� കക�കൾ �കത��ര ആയത��ല പപത�കൾ യ��ത�ര� വ�ധ ആലകപങലള� എത�ർപര�ത�കലള� പക�മ�നൽ സ�വ�ൽ വ'വഹ�രങലള� നൽക�കലയ� വല നഷവ�� ആവശ'�പട�കലയ� �"യ�നത�ലന� സമത�ച� ല6�ദ'�പട�ത� ലന�ടറ� പബ�ക� മ�മ��ക ഒപ� സ�ക'�പട�ത� അഫ�ഡവ�&� രണ��കക�കൾ ത�യ�റ�ക� ഒന��കക�കൾക� നൽലകണത�ണ�.” The claim raised by the second defendant against the plaintiff is based on a collateral oral arrangement. As rightly found by the court below, there is absolutely no evidence to establish the said collateral arrangement except the oral testimony of the second defendant. Ext.A9 is the plaint in O.S.No.250 of 2008 instituted by the second defendant against defendants 1 and 5. Ext.A10 is a written statement filed by defendants 1 and 5 in O.S.No.250 of 2008. Even though Ext.A9 would indicate that the second defendant had some claims against Union Enterprises, the said suit was dismissed for default and the second defendant had pursued the matter further. Ext.A8 is the 46 R.F.A. Nos.657 & 660 of 2015 judgment and decree in O.S.No.250 of 2008. Similarly, though identical claims have been raised by the second defendant in O.S.No.201 of 2008, he agreed to close the said suit based on a joint statement in which he was also a party. The documents aforesaid would also show that there is no basis for the claim made by the second defendant against the assets of Union Enterprises. On an overall appraisal of the materials on record, especially the nature of litigation and complaints which were settled in terms of Ext.A1 agreement, we have an impression that the second defendant was a person who was actively assisting the plaintiff in his fight against defendants 1 and 3 to 5, and the various complaints lodged by him in respect of the business of Union Enterprises as also the various claims raised by him over the assets of Union Enterprises were on behalf of the plaintiff. Similarly, we are also of the view that, as contended by the first defendant in the written statement filed by her in O.S.No.462 of 2009, the said suit was also one instituted by the second defendant at the instance of the plaintiff and it is in the said circumstances that he was also arrayed as a party to Ext.A1 agreement along with the plaintiff. 47 R.F.A. Nos.657 & 660 of 2015 Needless to say, no interference is called for in the decree passed by the court below in O.S.No.373 of 2013. Point (iii) is also therefore answered in favour of the plaintiff. In the light of the findings on points (i) to (iii), the appeals are devoid of merits and are, accordingly, dismissed. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** YKB