Regular Second Appeal No. 776 of 2005

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 2ND DAY OF AUGUST 2013/11TH SRAVANA, 1935** **RSA.No. 776 of 2005 ( ) ------------------------** **AGAINST THE JUDGMENT IN AS 199/1997 of ADDL.DISTRICT COURT (ADHOC)-II, KOTTAYAM DATED 29-01-2005** **AGAINST THE JUDGMENT IN OS 185/1993 of MUNSIFF COURT, ETTUMANOOR DATED 13-12-1996** **APPELLANT/2ND RESPONDENT/2ND DEFENDANT::** **-------------------------------------------------------------------------** **C.C. MANI, S/O. CHACKO, RESIDING AT CHATHAN CHIRAYIL HOUSE, KADAPPURU KARA, KANAKKARI VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.** **BY ADVS.SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.P.GOPAL** ## **RESPONDENT(S)/APPELLANT & RESPONDENTS 1 & 3/PLAINTIFF :** - **--------------------------------------------------------------------------------------------------------------** **1. JAMES MATHEW, S/O. MATHAI,** - **RESIDING AT NAKKIRIYIL (FROM THOTTAPRANKAL) KADAPPURU KARA, KANAKKARI VILLAGE, KOTTAYAM TALUK KOTTAYAM DISTRICT.** **2. TOMY JOSEPH, S/O. JOSEPH, RESIDING AT MATHIRAPPALLIL, (FROM NARIPPARA) KADAPPURU KARA, KANAKKARI VILLAGE, KOTTAYAM TALUK KOTTAYAM DISTRICT.** **3. THRESSIAMMA JOSEPH, RESIDING AT MATHIRAPPALLIL, (FROM NARIPPARA), KADAPPURU KARA KANAKKARI VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.** **R1 BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.)** **SRI.K.JAYAKRISHNAN (SR)** **SRI. P.B.KRISHNAN R2 BY ADV. SRI.P.M.NEELAKANDAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ R.S.A. No. 776 of 2005 -----------------------------------------Dated this the 2[nd] day of August, 2013 ## **J U D G M E N T** The 2[nd] defendant in a suit for specific performance is the appellant herein. The suit was filed by the plaintiff for a decree for specific performance directing defendants 1 and 2 to execute sale deed in respect of the suit property in favour of the plaintiff on payment of the balance consideration of Rs.700/- or any amount which the court may fix. 2. According to the plaintiff, the suit property jointly belonged to one Joseph who died on 22.5.1987 and his mother – Aleyamma Joseph. They obtained the property as per Ext.A1 sale deed. On the death of Joseph, his half share in it devolved upon his wife (D3) and his children; namely, Tomy Joseph (D1), Sebastian Joseph, Ivy Joseph and Lancy Joseph alias Ancy Joseph. It was contended that on 6.2.1993 defendants 1 and 3 and Aleyamma Joseph ## **R.S.A. No.776/2005** **-2-** executed Ext.A2 agreement with the consent of the other heirs of deceased Joseph, agreeing to sell the suit property for a consideration of Rs.7,500/-. According to the plaintiff, a sum of Rs.6,500/- was paid by him to the defendants towards consideration and accordingly the property was given possession to the plaintiff. As per the terms of Ext.A2, the sale deed was to be executed before 15.9.1993 on receiving the balance consideration. It is also stated that Aleyamma Joseph, mentioned earlier, assigned her half share in that property to the plaintiff as per Ext.A3 sale deed dated 19.4.1993. Sebastian Joseph, who is one of the sons of Joseph, assigned his share in that item to the plaintiff as per Ext.A4 sale deed dated 4.5.1993. Thresiamma Joseph (D3) and her daughters Ivy Joseph and Ancy Joseph, who are other legal heirs of deceased Joseph, also assigned their shares in that item to the plaintiff as per Ext.A5 sale deed dated 6.5.1993. It is contended that the **-3-** ## **R.S.A. No.776/2005** plaintiff was always ready and willing to perform his part of the contract so as to get the sale deed executed by the 1[st] defendant as well. But he, instead of assigning his share in favour of the plaintiff transferred it to the 2[nd] defendant as per Ext.B1 sale deed dated 5.5.1993. Hence, the suit has been filed seeking a direction to the 1[st] and 2[nd] defendants to execute the sale deed in respect of the remaining share which the 1[st] defendant had in that property. 3. The following substantial questions of law are framed :- - (i) Whether the finding of the lower appellate court that Ext.A2 is a genuine and valid agreement, against the finding entered by the trial court is correct ? - (ii) Is not the finding of the lower appellate court that the plaintiff was put in possession of the property on the strength of the agreement incorrect, as the said plea is inconsistent with the facts noted in the respective sale deeds ? ## **R.S.A. No.776/2005** **-4-** (iii) Is not the finding of the lower appellate court that the appellant is not a bonafide purchaser incorrect ? 4. The first defendant filed written statement denying the execution of the agreement. It is contended that no such agreement was entered into and that the defendant or his brother or grandmother had not received any consideration as alleged in the plaint and that the agreement in question is a fabricated document. It is denied that he had agreed to sell his share in the plaint schedule property to the plaintiff. The first defendant executed Ext.B1 sale deed No. 1041/1993 for a consideration of Rs.3,000/-. The plaintiff was aware of the same. 5. Based on the contention raised by the first defendant the 2[nd] defendant was impleaded. He filed written statement reiterating the contentions raised by the first defendant. He also contended that no such agreement ## **R.S.A. No.776/2005** **-5-** was entered into between the first defendant nor did the 3[rd] defendant execute the agreement in favour of the plaintiff. The agreement was created subsequent to Ext. B1 sale deed. It is further contended that plaint item No. 2 belonged to the 2[nd] defendant and it is in his possession. 6. The Addl. 3rd defendant Thresiamma filed written statement supporting the plaintiff. 7. P.W.1 to P.W.3 were examined and Exts. A1 to A8 were marked. On the side of the defendant DW1 to DW3 were examined and Ext.B1 was marked. 8. The trial Court found that the agreement set up by the plaintiff is not true and so the suit was dismissed. In the appeal filed by the plaintiff the learned Addl. District Judge reversed the finding entered by the trial Court and granted decree for specific performance directing defendants 1 and 2 to execute the sale deed in respect of plaint item No. 2 in favour of the plaintiff on deposit of the **-6-** ## **R.S.A. No.776/2005** balance consideration of Rs.1,000/- . 9. The learned counsel for the 2[nd] defendant, who is the assignee under Ext. B1 contends that the lower appellate court went wrong in holding that there was an agreement as alleged by the plaintiff and that the first defendant was bound to execute the sale deed based on the agreement entered into between Joseph and his mother Aleamma Joseph on the one hand and the plaintiff on the other hand. Admittedly subsequent to the execution of Ext. A2 the first defendant transferred plaint item No. 2 to the 2[nd] defendant as per Ext. B1 sale deed dated 5-5-1993. 10. The crucial question for consideration is whether the 2[nd] defendant who is the subsequent transferee has taken the transfer in good faith and whether the payment of consideration had been made without notice of Ext.A2 contract. It is argued by the learned counsel for the appellant that no mention was made in any of the sale **-7-** ## **R.S.A. No.776/2005** deeds executed by Alieyamma and others in favour of the plaintiff that agreement (Ext.A2) had been entered into and it was pursuant to that agreement the sale deed was executed by them. Had there been such an agreement, then certainly, mention would have been made in the assignment deeds executed in favour of the plaintiff. But it is pertinent to note that even the mother of the first defendant (DW1 Thressiamma) filed written statement and also gave evidence to the effect that the agreement relied upon by the plaintiff is true. The further fact that she and her two daughters executed the sale deed in respect of their share over the suit property would also lend assurance to the case of the plaintiff that an agreement was entered into earlier and it was pursuant to that agreement the sale deed was executed. The learned counsel for the respondents would submit that the trial Court did not properly appreciate the evidence. But the lower appellate court had **R.S.A. No.776/2005** **-8-** a threadbare examination of the entire evidence and found that the probabilities factor echoes more in favour of the case set up by the plaintiff that Ext.A2 agreement was entered into, and because Joseph died, his legal heirs other than the first defendant in this suit executed the sale deed on different dates assigning their share in the property to the plaintiff. The further fact that the grandmother of the first defendant also executed the sale deed in respect of her share in the property would vouchsafe for the truthfulness of the contention raised by the plaintiff that an agreement (Ext.A2) was entered into and it was because of that agreement sale deed was executed by Alieyamma also. The fact that there is no mention in the sale deeds about Ext.A2 agreement cannot be blown up out of proportion to hold that there was no agreement at all. 11. It is submitted by the learned counsel for the respondents that the documents are prepared by the ## **R.S.A. No.776/2005** **-9-** document writers and that normally mention would not be made about the agreement, in the sale deed for host of reasons; most often because the valuation shown in the agreement may be more than what is shown in the sale deed. There may be such other reasons also for not mentioning about the agreement in the sale deed. But that does not mean that there was no agreement at all. It is also pertinent to note that when the appellant/2[nd] defendant purchased the property he would have certainly verified the encumbrance in respect of the property in which case he would have realised the fact that sale deeds were executed by other sharers in respect of the said property in favour of the plaintiff. Not only that, on enquiry he could have realised the fact that all the other sharers had already executed the sale deed in respect of the said property in favour of the plaintiff. In such cases, it is unreasonable to think that the person who was having only very negligible ## **R.S.A. No.776/2005** **-10-** share in the property would choose to sell that share to a third party nor is it reasonable to think that a person like the 2[nd] defendant would purchase that negligible share from the first defendant, as otherwise he would be only purchasing the 'litigation'. The very fact that DW1 the mother of the 1[st] defendant has also chosen to support the case of the plaintiff would go a long way to hold that the case set up by the plaintiff is true. 12. It is vehemently argued by the learned counsel for the appellant that to a pointed question put to P.W.1 it was stated that he obtained possession of the property on the date of the sale deed and if so, the recital in the agreement that the plaintiff was put in possession of the plaint schedule property on the strength of the agreement must certainly be false. But the lower appellate court has found that the question put to P.W.1 by the learned counsel for the 2[nd] defendant would only indicate that on the ## **R.S.A. No.776/2005** **-11-** strength of the sale deed also the plaintiff had obtained possession of the property. It is only a re-affirmation of the fact that possession was given to the plaintiff on the strength of those documents. That does not mean that the case of prior possession set up by the plaintiff on the strength of Ext.A2 agreement is not true. Relying on the evidence given by P.W.1 and the witnesses to Ext.A1 which was supported by the evidence given by DW1 the mother of the appellant the lower appellate court found that Ext.A2 is a genuine agreement. It is also important to note that the first defendant who contended that no such agreement was entered into did not care to mount the witness box to deny the execution of the agreement. It is he who had to deny the execution of the agreement. 13. To prove Ext. A2 - agreement the plaintiff relies upon the oral testimony of P.Ws 2 and 3 besides his own testimony. P.W.3 is the uncle of P.W.1. It was stated by **-12-** ## **R.S.A. No.776/2005** him that the parties told that item No.1 measuring 30 cents in respect of which Ext. A2 was executed should not be given to somebody else and so it was thought that the property be purchased by P.W.1. It was stated that Ext. A2 was executed in the house of P.W.2. P.W.2 and P.W.3 were witnesses to Ext. A2. It is also stated that a document (Ext.A7) was also prepared as per which Sebastian and the first defendant herein had agreed to execute the sale deed in respect of his undivided share to the plaintiff and in fact the first defendant had also signed that document. But the first defendant declined to get the document registered. That was how the share of the first defendant could not be assigned to the plaintiff. 14. It was also stated by P.W.3 that at the time when Ext. A7 was prepared and when he signed Ext. A7 from the office of the scribe the second defendant was also present and he took away the first defendant in his vehicle. ## **R.S.A. No.776/2005** **-13-** Therefore, P.W.3 says that the second defendant was actually aware of the agreement and the transaction till then entered into in respect of the said property. But the learned counsel for the appellant would submit that P.W.3 is the brain behind in the creation of Ext.A2 agreement to get the share of the first defendant re-conveyed to the plaintiff. The fact that he could not say what was the amount paid on that day or what was the amount which was to be paid as consideration to the first defendant is not a reason to say that P.W.3 can be disbelieved. The lower appellate court after analysing the evidence has chosen to believe the evidence of P.W.3. It was contended that the stamp paper for the preparation of Ext.A2 was purchased from Kottayam. He has stated that stamp paper is not available to be purchased from Ettumanoor. Therefore, nothing unusual can be said about the purchase of the stamp paper from Kottayam. The stamp papers were purchased in the name ## **R.S.A. No.776/2005** **-14-** of the first defendant, Tomy Joseph on 5-2-1993. The agreement was entered into on 6-2-1993. Nothing could be said about the purchase of the stamp papers on 5-2-1993. The contention that Ext.A2 was ante-dated to foist a false case that an agreement had been executed by the first defendant and others agreeing to sell the property, was rightly turned down by the lower appellate court. 15. P.W.2 who is the other witness to Ext.A2 has also given evidence in line with the evidence given by P.W.3. He has asserted that the agreement was entered into in his house and that he also signed Ext. A2. It was stated that the agreement was signed by the first defendant and also by P.W.3. The fact that he is the first cousin of the father of the first defendant is not disputed. Therefore, the plaintiff would contend that there was no reason for P.W.2 also to give evidence against the first defendant. To crown in all, the mother of the first defendant herself deposed about the ## **R.S.A. No.776/2005** **-15-** agreement entered into for sale of the plaint schedule property to the plaintiff. 16. The learned counsel for the appellant would submit that the first defendant had already sold the property to the 2[nd] defendant and so he is not interested in giving evidence to that effect and so the non-examination of the first defendant cannot be projected as a ground to say that the plea raised by the first defendant is untrue. But on a totality of the evidence and circumstances, it can be found that the denial put forward by the first defendant in the written statement remains in the pleading only. Since no contra evidence was adduced by the first defendant the evidence regarding the execution of the agreement given by P.W.1 and other witnesses to the agreement has to be accepted as true. Though previous possession of the plaintiff over the suit property was not mentioned in Ext.A3 to A5, the evidence regarding handing over of possession ## **R.S.A. No.776/2005** **-16-** of the property pursuant to Ext. A2 cannot be rejected as unworthy of evidence. Not only that there is an explanation given by P.W.1 that the document writer told him that the details regarding the execution of Ext.A2 and the delivery of the suit property to P.W.1 were not required to be incorporated in the sale deeds. Therefore, the nonmentioning of the details regarding the agreement etc. cannot come to the rescue of the appellant to contend that there was no agreement at all. There is also evidence to show that the plaintiff was always ready and willing to perform his part of the contract; he was ready to pay the balance consideration and to get the sale deed executed in his favour. On the strength of Ext. B1 executed by the first defendant, 2[nd] defendant has become the owner of the property assigned to him. It is in evidence that adjacent to that small portion of the property the 2[nd] defendant is having property of his own. According to the plaintiff, the ## **R.S.A. No.776/2005** **-17-** 2[nd] defendant was well aware of the existence of Ext. A1 agreement but has chosen to purchase the property from the first defendant, evidently with ulterior motives. The fact that the suit property is very near to the property held by the appellant herein and the further fact that the mother and sisters of the first defendant had already executed sale deeds in respect of their undivided share in favour of the plaintiff would make it indubitably clear that the appellant herein was aware of the existence of the agreement executed by the first defendant in favour of the plaintiff. The appellant had to be imputed knowledge regarding the execution of the agreement as it is discernible from the evidence and other attendant circumstances. It can be very well found that the 2[nd] defendant had sufficient notice of the execution of the agreement but in spite of that he obtained the assignment deed of the fractional share of the plaint schedule property from the first defendant . ## **R.S.A. No.776/2005** **-18-** 17. It is argued by the learned counsel for the appellant that if as a matter of fact, the amount which was payable to Aleyamma Joseph the first defendant and Sebastian had already been given, there was no necessity for the plaintiff to again pay the amount at the time when they separately executed the sale deed in respect of their respective shares. This argument has been countered by the learned counsel for the respondents. So far as the document writer, who writes the sale deed is concerned, it is in his own way the document is written up, as, according to him, the only point to be noted is whether the consideration had been paid, whether it was on the same day or earlier . Therefore, the fact that in the respective sale deeds there is mention regarding the payment of consideration on those days does not negative the plea that on the date of Ext. A2 part of the consideration was paid. It was stated by P.W.2 that Sebastian, Joseph and ## **R.S.A. No.776/2005** **-19-** Tomy Joseph had thought of going to Bombay and it was for that purpose they thought of selling that property for raising the fund. There is no reason to disbelieve the evidence of P.W.2. The lower appellate court has analysed the evidence in the correct perspective. I find no reason to hold otherwise. 18. As Ext.A2, the agreement is proved to have been executed and it is true, the only other question that would survive for consideration is whether the 2[nd] defendant was aware of the existence of Ext.A2 agreement at the time he purchase the property. The evidence given by P.W.3 that the 2[nd] defendant/appellant was present at the time when Ext.A7 was prepared and he knew that there was an agreement to sell the plaint schedule property to the plaintiff cannot be simply ignored. Not only that being the owner of the adjacent land he cannot feign ignorance as to what happened to the title of the remaining sharers. That ## **R.S.A. No.776/2005** **-20-** would certainly unfold the fallacy of the case put forward by the appellant that he was unaware of the execution of Ext.A2 agreement or that the other sharers transferred their shares to the plaintiff. Considering the totality of the evidence and circumstances, the lower appellate court found that the 2[nd] defendant was well aware of the fact that there was an agreement to sell the plaint schedule property in favour of the plaintiff and that the first defendant had agreed to sell the property to the plaintiff. It was pursuant to that agreement all the other sharers had executed the sale deeds. That also is a factor which would stare at the first defendant. It negatives the plea of the appellant that he is a _bonafide_ purchaser. 19. It is argued by the learned counsel for the appellant that as per Sec.19(b) of the Specific Relief Act, a specific performance of contract can be enforced not only against the party to the agreement who agreed to sell his ## **R.S.A. No.776/2005** **-21-** property; namely, the vendee but also against any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice. The fact that the first defendant did not duly prosecute the case is not a reason to hold that the 2[nd] defendant, the subsequent purchaser, is not entitled to impeach the validity and genuineness of Ext.A2, it is further argued. In support of this submission, the learned counsel has relied upon the decision of the Division Bench of the Madras High Court in **P.Retnaswamy** v. **A.Raja and Another** [(2008) 3 MLJ 638]. 20. It has already been found that the evidence and circumstances would clearly show that the 2[nd] defendant was aware of the sale agreement and that all the other sharers had already assigned their shares to the plaintiff. Therefore, it cannot be said that he was a bonafide ## **R.S.A. No.776/2005** **-22-** purchaser for value. As such, the contention raised by the appellant that he is a bonafide purchaser and a decree for specific performance cannot be sustained is found to be devoid of any merit. The lower appellate court was perfectly justified in holding that Ext.A2 agreement has been proved to be true and genunine. In the light of what is stated above, I find no reason to differ from the view taken by the lower appellate court. In the result this Regular Second Appeal is dismissed. Sd/N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj/ani