RFA (Indigent) No.251 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 22ND DAY OF JULY 2019 / 31ST ASHADHA, 1941** ## **RFA (INDIGENT) No.251 of 2012** **U/S 96 R/W ORDER XLI RULE 1 & ORDER XLIV RULE 1 CPC FROM DECREE DATED 30.11.2010 IN OS 907/2008 OF PRINCIPAL SUB COURT, IRINJALAKUDA** ## **------------** ## **APPELLANT/1st DEFENDANT:** **RATHNAMMA, D/O.KALLUR THEKKE PISHARATH KESHAVA PISHARADI, RESIDING AT PAZHAYIDATH PISHAROM, P.O. KODAKARA- 680684, THRISSUR DIST.** **BY ADV. SRI.K.G.BALASUBRAMANIAN** ## **RESPONDENTS/PLAINTIFFS & SECOND DEFENDANT:** - **1 KUNJU MARAKKAR, S/O CHULLIPARAMBIL BAVA, CHENGAMANADU PO, PIN- 683578. (DIED)** - **2 HABEEB, S/O KARTHANDE PARAMBIL MOIDU, NEAR CHEMBIKADATH BHAGAWATHY TEMPLE, KALLUR PO-680317, THRISSUR DT.** - **3 VAHAB** **S/O KARTHANDE PARAMBIL HABIB, REPRESENTED BY POA 2ND RESPONDENT HABEEB, S/O KARTHANDE PARAMBIL MOIDU, NEAR CHEMBIKADATH BHAGAWATHY TEMPLE, KALLUR PO-680317, THRISSUR DT.** RFA (Indigent) No.251 of 2012 :- 2 :- **4 KRISHNAN NAIR S/O GOPALAN NAIR, PAZHAYIDATH PISHAROM,PO KODAKARA-680684, THRISSUR DT.** ## ***ADDL. RESPONDENTS R5 TO R11 IMPLEADED** **ADDL.R5 RAMLATH W/O CHULLIPARAMBIL KUNJU MARAKKAR, AGE NOT KNOWN, CHENGAMANADU PO-683578. ADDL.R6 WAHAB S/O CHULLIPARAMBIL KUNJU MARAKKAR, AGE NOT KNOWN, CHENGAMANADU PO-683578. ADDL.R7 SUHAI S/O CHULLIPARAMBIL KUNJU MARAKKAR, AGE NOT KNOWN, CHENGAMANADU PO-683578. ADDL.R8 ANABI D/O CHULLIPARAMBIL KUNJU MARAKKAR, AGE NOT KNOWN, AYSHA MANSIL, ETTUKALI PARAMABU, CUSAT, SOUTH KALAMASSERY PO-683104. ADDL.R9 BALKIS D/O CHULLIPARAMBIL KUNJU MARAKKAR, AGE NOT KNOWN, PEZHUM PARAMBU, PALLARIMANGALAM, PO.PIDAVOOR -689695, KOTHAMANGALAM.** ***[LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED IN THE PARTY ARRAY AS ADDL.R5 TO R9 VIDE ORDER DATED 18/11/2016 IN IA.NO.142/2016.]** **BY ADVS. SMT.S.JAYASREE - R4 SRI.K.B.PRADEEP - R1 AND R2, ADDL. R5 TO R9 SRI.MILESH.V.PAVIYALA - ADDL. R5, R7, R8, R9** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** ## **= = = = = = = = = = = = = = = = = = RFA (Indigent) No.251 of 2012 = = = = = = = = = = = = = = = = = = Dated this the 22[nd] day of July, 2019** ## **J U D G M E N T** The first defendant in a suit for specific performance of an agreement for sale, is the appellant. She challenges the decree of the trial court granting specific performance. 2. Ex.A1 agreement for sale dated 16.01.08 was executed between defendants 1 and 2 and the first plaintiff. The second defendant is the power of attorney holder of the first defendant. The second plaintiff is the son-in-law of the first plaintiff and the third plaintiff is the son of the second plaintiff. As per Ext.A1, 11 cents of property belonging to the first defendant was agreed to be conveyed for a total consideration of `12,40,000/-. The period fixed for performance was up to 15.06.2008. On the date of Ext.A1, an amount of `1,40,000/- was paid towards advance sale consideration. A further amount of `60,000/- was RFA (Indigent) No.251 of 2012 :- 2 :- payable towards advance sale consideration, to be paid on or before 15.02.08. It is not in dispute that the period for performance under Ext.A1 was extended between the parties on various occasions. The period was initially extended to 30.06.08, then to 30.07.08 and finally to 30.08.08. As borne out by the endorsements on Ext.A1, a total amount of `10,40,000/- was paid by the first plaintiff to the defendants out of the total sale consideration, on various occasions. 3. On 09.09.08, i.e. after the expiry of the extended period of Ext.A1, the parties executed Ext.A2 agreement dated 09.09.08 regarding sale of the property. As per Ext.A2, the total sale consideration payable was `12,40,000/- out of which an amount of `10,40,000/- was acknowledged as paid towards advance sale consideration. The period fixed for performance was till 09.10.08. As evidenced by the endorsement on Ext.A2, the period was further extended up to 10.11.08 and then to 10.12.08. Alleging failure on the part of the RFA (Indigent) No.251 of 2012 :- 3 :- defendants to honour the agreement, the suit is filed. 4. The execution of Exts.A1 and A2 agreements are not challenged by the defendants. They contend that the total sale consideration agreed to between the parties was `18,40,000/-. It is pleaded that the plaintiffs are always ready and willing to convey the property for the said consideration. The fact that a total amount of `10,40,000/- was received by them is also admitted. The defendants challenged the right of the plaintiffs to get a decree as sought for. 5. The trial court decreed the suit as prayed. Aggrieved thereby, the first defendant is in appeal. 6. Heard Sri.K.G.Balasubramanian, learned counsel for the appellant-first defendant and Sri.K.B.Pradeep, learned counsel for the respondents-plaintiffs. 7. As noticed supra, the execution of Exts.A1 and A2 agreements for sale are not in dispute. That out of the total sale consideration an amount of RFA (Indigent) No.251 of 2012 :- 4 :- `10,40,000/- was received by the defendants is also not in dispute, though there is dispute as to what is the total sale consideration. According to the defendants, the total sale consideration was `18,40,000/- and not as claimed by the plaintiffs. As regards the consideration, the recitals in Exts.A1 and A2 are categoric that the total sale consideration is `12,40,000/-. There is no evidence to find that the agreed consideration was anything more than that mentioned in Exts.A1 and A2. That apart, Section 92 of the Indian Evidence Act prohibits the parties from proving that the consideration is more than that is mentioned in the document. Therefore, the contention of the defendants that the agreed consideration is more than that mentioned in Exts.A1 and A2 is only to be negatived. 8. The learned counsel for the appellant would submit that the suit is not maintainable for reasons more than one. Firstly, there is no privity of contract between the plaintiffs 2 and 3 and the RFA (Indigent) No.251 of 2012 :- 5 :- defendants. Only a party to the contract can sue thereon seeking specific performance. Secondly, going by the plaint averments, the consideration for the intended sale is paid by the first plaintiff and the sale deed is sought to be executed in the names of plaintiffs 2 and 3. This amounts to a benami transaction which is prohibited under the Benami Transaction Prohibition Act, 1988. Since the transaction is hit by the provisions of the Benami Prohibition Act, a decree for specific performance cannot be granted. Such a transaction would be against the provisions of Section 23 of the Indian Contract Act, submits the learned counsel. It is further contended that Ext.A1 agreement which enables the first plaintiff to seek conveyance in favour of his nominee was superseded by Ext.A2 agreement which does not contain such a clause. Ext.A1 agreement ceased to be in force by virtue of novatio. Hence the suit claiming conveyance in favour of plaintiffs 2 and 3 is bad in law, submits the learned counsel. 9. As regards the aforesaid contentions, at the RFA (Indigent) No.251 of 2012 :- 6 :- outset it is to be noticed that, no such plea was raised on the above, by the defendants in the written statement. No such issue was framed. No such argument was raised before the trial court. 10. True that, unlike Ext.A1, Ext.A2 does not contain a clause authorising conveyance in favour of the purchaser's nominee. However, a reading of Exts.A1 and A2 agreements reveals that the property agreed to be conveyed remains the same, the parties remains the same, the sale consideration remains the same and the total advance consideration paid under Ext.A1 itself is stated to be the advance sale consideration under Ext.A2. Suffice to notice that except for extending the period up to 09.10.08, Ext.A2 makes no departure from Ext.A1 agreement. It cannot be said that Ext.A1 has been substituted by virtue of Ext.A2. As noticed, it is only an extension of the period for performance fixed under Ext.A1. Even assuming that Ext.A1 has been substituted by Ext.A2, for the reason given hereunder, that cannot be a ground to refuse the decree in the present case. RFA (Indigent) No.251 of 2012 :- 7 :- 11. In Exts.A1 or A2 there is no prohibition against assignment of the rights under the contract. In T.M.Balakrishna Mudaliar v. M.S.Rao, [AIR 1993 SC 2449] , the Apex Court held that even if there is no express clause in the agreement to the effect that the contract is enforceable by the assignee, unless there is a prohibition under the agreement the assignee is entitled to seek for specific performance. As noticed first above, the second plaintiff is the son-in-law of the first plaintiff and the third plaintiff is the son of the second plaintiff. The original party to the contract is very much in the suit as the first plaintiff. When the first plaintiff seeks for execution of sale deed in the names of plaintiffs 2 and 3 also, what exactly is the arrangement between them, is not known. In the absence of any pleading regarding the alleged benami character of the transaction, the plaintiffs were not called upon, nor had opportunity to explain the same. The rights under an agreement for sale being a transferable right and the parties being very close relatives, RFA (Indigent) No.251 of 2012 :- 8 :- the transaction cannot be casually held to be benami. In the absence of any plea, the said contentions cannot be urged at this stage. 12. Learned counsel for the appellant submits that, though the plaintiffs contend that possession of the property was handed over to them under the agreement for sale, the circumstances as brought out through Ext.C2 Commissioner's Report indicate otherwise. According to the learned counsel, the materials evidence a case of trespass by the plaintiffs. The very act of trespass should be taken as a ground to exercise discretion under Section 20 of the Specific Relief Act against the plaintiffs, and decline a decree for specific performance. When Ext.A2 agreement specifically recites that possession of the property has been handed over and in the absence of any material to show that the defendants were continuing in possession in spite of the said recital, the mere statements in Ext.C2 report which suggests that some photographs of the idols worshiped by the defendants and various other articles were found in RFA (Indigent) No.251 of 2012 :- 9 :- a toilet room situated in another portion of the property would not be sufficient enough to prove the case of alleged trespass. The contention of the plaintiffs is that it is stage managed by the defendants. Exts.B10 to B15 police complaints referred to by the learned counsel for the appellant, alleged to have been given pursuant to the acts of trespass, is seen to have been made three months after the suit. No other material is brought to my notice to substantiate a case of trespass. The recital in Ext.A2 regarding handing over of possession could not be disproved by the defendants. There is no material to find the trespass alleged by the defendants. 13. Learned counsel for the appellant would further contend that, according to the plaintiffs, pursuant to Exts.A1 and A2 agreements, sale deeds were written and signed by the defendants, but the defendants did not co-operate to have them registered. Exts.A7 and A9 are the documents. The said documents could have been presented for registration by the plaintiffs in terms of Sections RFA (Indigent) No.251 of 2012 :- 10 :- 34 and 35 of the Registration Act and could have followed the procedure as envisaged thereunder, rather than rushing to the court with a suit for specific performance. According to the learned counsel, that is a circumstance to be considered by the court while exercising its discretion under Section 20 of the Specific Relief Act. I am unable to subscribe to the said contention. The defendants having failed to perform in terms of Exts.A1 and A2 agreements, the plaintiffs are under law entitled to institute the suit and it cannot be held to be a circumstance dis-entitling the relief for specific performance. 14. Substantial part of the sale consideration has been paid and the plaintiffs are in possession under the agreement for sale. The readiness and willingness of the plaintiffs are not under challenge. No circumstances are brought out disentitling the plaintiffs to have the discretion under Section 20 exercised against them, to refuse a decree for specific performance. The trial court was right in granting the decree for specific RFA (Indigent) No.251 of 2012 :- 11 :- performance. The exercise of discretion by the trial court cannot be held to be perverse. No interference is warranted. The appeal fails and is accordingly dismissed. **Sd/SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge RFA (Indigent) No.251 of 2012 :- 12 :- It is clarified vide order dt.23/01/2020 in RFA (Indigent) 251/2012 that “taking note of the details of the assets of the petitioner as mentioned by this Court in its order dt.07.02.2012 in CMC No.22/2011, and a decree for specific performance having been passed in respect of 11 cents of property referred to therein, it is directed that no court fee need be recovered in terms of order XXXIII Rule 11 CPC”. Sd/Deputy Registrar