R.F.A.No.541/07

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 5TH DAY OF NOVEMBER 2014/14TH KARTHIKA, 1936** **RFA.No. 541 of 2007 ( )** **------------------------** **AGAINST THE ORDER/JUDGMENT IN OS 337/2001 of PRL.SUB COURT,KOTTAYAM DATED 26-02-2007** **APPELLANTS/DEFENDANTS 3 & 4:** **-----------------------------** **1. T.S.DAVID, S/O.T.D.SAMUEL, AGED 57 YEARS, KIZHAKKETHEKKETHIL VEEDU, ERUMATTOOR MURI THRIPPERUNITHURA VILLAGE, MAVELIKKARA.** **2. SUSAMMA DAVID, W/O.T.S.DAVID, KIZHAKKETHEKKETHIL VEEDU, ERUMATTOOR MURI THRIPPERUNITHURA VILLAGE, MAVELIKKARA.** **APPELLANTS REP. BY THEIR POWER ATTORNEY HOLDER P.M.VARGHESE, AGED 56 YEARS, S/O.P.G.MATHEW, PUTHENPARAMBIL HOUSE, NIRHNAM VILLAGE, THIRUVALLA TALUK.** **BY ADVS.SRI.BECHU KURIAN THOMAS SRI.ROSHEN.D.ALEXANDER** **RESPONDENT(S)/PLAINTIFFS & DEFENDANTS 1 & 2:** **----------------------------------------------** **1. JAYAPRAKASH, S/O.JANARDHANAN, MANNARETH PUTHEN VEEDU, VETTUVENI MURI KARTHIKAPPALLY VILLAGE, KARTHIKAPPALLY TALUK.** **2. MANMADHAN, S/O.PRABHAKARA PANICKER, KOIPPALLI VEEDU, EROOR SOUTH MURI KARTHIKAPPALLY TALUK.** **3. GEORGE V.JOHN, S/O.YOHANNAN, PUTHENPARAMBIL VEEDU, VEEYOPURAM MURI VEEYUPURAM VILLAGE AND POST.** **4. ASWATHY GEORGE, W/O.GEORGE V.JOHN, PUTHENPARAMBIL VEEDU, VEEYOPURAM MURI VEEYUPURAM VILLAGE AND POST.** **R,R1 & 2 BY ADV. SMT. SUMATHY DANDAPANI** **ADV. SRI.MILLU DANDAPANI** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **K.T. SANKARAN & P.D. RAJAN, JJ.** ------------------------------------------R.F.A.No.541 of 2007 ---------------------------------------------Dated this the 5[th] day of November, 2014 ## **JUDGMENT** ## **K.T. SANKARAN,J.** Defendants 3 and 4 in O.S.No.337/2001 are the appellants. They challenge the judgment and decree passed by the court below granting a decree for specific performance of an agreement for sale of the plaint schedule properties. 2. O.S.No.337/2001 was filed by respondents 1 and 2 against respondents 3 and 4 as well as the appellants for specific performance of Ext.A1 agreement for sale. Hereinafter the parties are referred to as per their rank in the suit. 3. The case of the plaintiffs is that on 10.6.2000, R.F.A.No.541/07 2 defendants 1 and 2 agreed to sell the plaint schedule properties to the plaintiffs for a total sale consideration of 5,70,000/-. The plaint schedule properties include the₹ plaint A schedule, which belonged to the 1[st] defendant and which has an extent of 4.94 acres. The plaint B schedule property belonged to the 2[nd] defendant and that item has an extent of 1 Hectare. According to the plaintiffs, consideration fixed for Plaint A Schedule was 3,80,000/-₹ and that fixed for B Schedule was 1,90,000/-. An₹ advance amount of 3,50,000/- was paid for plaint A₹ schedule property and a sum of 1,20,000/- was paid for₹ plaint B schedule property. The period fixed for completing the transaction as per Ext.A1 was on 20.8.2001. The plaintiffs issued Ext.A2 notice dated 9.8.2001 to defendants 1 and 2 directing them to execute the sale deeds in terms of Ext.A1 agreement, on 18.8.2001. The R.F.A.No.541/07 3 plaintiffs alleged that on 18.8.2001, they waited in the Sub Registrar's office, but the defendants did not turn up. On enquiry, the plaintiffs came to know that the defendants 1 and 2 sold the plaint schedule properties to defendants 3 and 4 as per Exts.A14 and A15 assignment deeds dated 5.10.2000 for a consideration of ₹4,00,000/- for A schedule and 2,00,000/- for the B schedule. The 3₹ rd defendant is the brother-in-law of the 1[st] defendant and the 4[th] defendant is the wife of the 3[rd] defendant (sister of the 1[st] defendant). Plaintiffs prayed for a decree for specific performance of Ext.A1 agreement for sale. 4. The defendants were not personally served with summons. Service was completed by substituted service as per newspaper publication. The trial Court decreed the suit ex parte. Defendants 3 and 4 filed an application to set aside the ex parte decree contending that they were R.F.A.No.541/07 4 residing at Jamshedpur, the 3[rd] defendant being an employee there. It was contended that newspaper publication was made in Malayalam newspaper having circulation at Kottayam. The court below condoned the delay in filing the application for setting aside the ex parte decree and the ex parte decree was also set aside by order dated 27.2.2004. 5. In paragraphs 3 and 4 of the impugned judgment, it is erroneously stated that the ex parte decree was set aside against defendants 3 and 4. This statement is not correct. On perusal of the record, it is seen that the ex parte decree as such was set aside. Thereafter defendants 3 and 4 filed a joint written statement, in which they denied the execution of Ext.A1 agreement for sale. Defendants 3 and 4 further contended, inter alia, as follows: R.F.A.No.541/07 5 There was no agreement between the parties to sell the plaint schedule properties and there was no receipt of advance as alleged. Ext.A1 was forged by the plaintiffs for the purpose of the case. The signatures in Ext.A1 differ and those signatures were put by the plaintiffs. Bhasi @ Vasudevan, a witness in Ext.A1 agreement is a money lender. He had secured an attachment of the petrol bunk run by the 1[st] defendant and thereafter the attachment was withdrawn. The 1[st] plaintiff is conducting 'Mannareth Finance' at Haripad. He was also a partner of 'Polite Finance' at Haripad. Ext.A1 agreement was forged by the plaintiffs as well as Vasudevan for the purpose of getting the plaint schedule properties. No amounts were due to the plaintiffs from defendants 1 and 2. Defendants 3 and 4 are permanently staying at Jamshedpur for the last 30 years. Defendants 3 and 4 R.F.A.No.541/07 6 purchased the plaint schedule properties as per Exts.B1 and B2 assignment deeds dated 5.10.2000. A portion of the consideration was reserved with defendants 3 and 4 for discharging the debts due from defendants 1 and 2 to the Kerala State Financial Enterprise (KSFE). Defendants 3 and 4 discharged those debts to KSFE. 6. According to the plaintiffs, Exts.B1 and B2 were created fraudulently and they are sham documents. Exts.B1 and B2 are not supported by any consideration. 7. Before the court below, Exts.A1 to A20, Exts.B1 to B16 and Ext.X1 were marked. Pws 1 to 3 were examined on the side of the plaintiffs and Dws 1 and 2 were examined on the side of the defendants. 8. The contention put forward by defendants 3 and 4 that Ext.A1 agreement is a forged one was not considered by the court below on the ground that R.F.A.No.541/07 7 defendants 3 and 4 are not parties to Ext.A1 and therefore, they are not competent to raise that contention. At various places in the judgment such findings are seen made. Whatever contentions have been taken by defendants 3 and 4 either with respect to the genuineness of Ext.A1 and signatures therein or with respect to the execution thereof and passing of consideration, the Court below took the view that defendants 3 and 4 were not competent to raise such contentions, they being not parties to Ext.A1 agreement. The aforesaid finding of the court below is erroneous and unsustainable. In **Kannan Nambiar** v. **Narayani Amma** [1984 KLT 855= 1984 KLJ 627], a Division Bench of this Court held that not only the executant but also all the persons who are interested in denying the execution of a document are entitled to invoke the aid of the proviso to R.F.A.No.541/07 8 Section 68 of the Evidence Act. The decision in **Kannan** **Nambiar's case (supra)** was followed in **Velayudhan Asari** v. **Madhavan Pillai** [1988 (2) KLJ 805], wherein it was held thus: “.....There is nothing in the proviso to suggest that persons who are not parties to the document are under any disability to deny the execution of a document. What is envisaged is that the execution of a document by the person by whom it is purported to have been executed must be specifically denied. It does not mean that the right to deny the execution is available only to the parties to the document. There is no warrant for eliminating all other persons than the parties to a document from resorting to sec.68. Support can be drawn for this proposition from the following observations of a Division Bench of this Court in Kannan Nambiar v. Narayani Amma (1984 KLT 855). “The requirement (under Sec.68 of the Evidence Act) is only that the execution should be specifically denied by the party against whom the document is sought to be used. Not only the executant but also all the persons who are interested in denying the execution of the document are entitled to invoke the aid of the proviso to Sec 68 of the Evidence Act.” In the aforesaid decision, the expression “specifically denied” occurring in the proviso to Section 68 of the R.F.A.No.541/07 9 Evidence Act was considered and the aforesaid dictum was laid down. The same principle would apply to unregistered document as well as the agreement for sale also, though it is not registered. 9. In the light of the dictum laid down in the aforesaid decisions, the view taken by the court below that defendants 2 and 3 are not entitled to challenge the validity of Ext.A1 agreement for sale is unsustainable. Though the trial court made reference to the other evidence in the case, on going through the judgment impugned, we find that the contentions raised by defendants 3 and 4 were rejected mainly on the ground that they were not entitled to challenge the validity of Ext.A1 agreement. We are of the view that the entire matter requires reconsideration by the court below. For the aforesaid reasons, the judgment and decree R.F.A.No.541/07 10 passed by the Court below are set aside. The Court below shall consider the matter afresh on the basis of evidence. The parties also would be entitled to adduce such other evidence as is relevant. The Court below shall consider the entire matter afresh and dispose of the suit as expeditiously as possible. The parties shall appear before the Court below on 8[th] December 2014. **K.T. SANKARAN, JUDGE.** **P.D. RAJAN, JUDGE.** acd R.F.A.No.541/07 11 R.F.A.No.541/07 12