Roopa Sudhakar/ Appellant v. Joseph Thomas

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA, 1945 RFA NO. 786 OF 2014** **AGAINST THE JUDGMENT AND DECREE DATED 11.06.2014 IN O.S.NO.9 OF 2010 OF THE PRINCIPAL SUB COURT, THALASSERY** ## **APPELLANT/SUPPLEMENTAL DEFENDANT:** **ROOPA SUDHAKARAN AGED 50 YEARS, D/O.LATE KAMALABAI, 'VASUDHA', P.O. CIVIL STATION, TULLICHERRY, KANNUR - 670 002. BY ADVS. SRI.M.SASINDRAN SRI.A.ARUNKUMAR** ## **RESPONDENT/PLAINTIFF:** **JOSEPH THOMAS, S/O.THOMAS, CHEVAYOOR AMSOM, KOZHIKODE - 673 017. BY ADVS. SRI.C.M.ANDREWS SMT.BOBY M.SEKHAR SMT.NEETHU RAVIKUMAR SMT.REVATHY P. MANOHARAN SRI.SHYAM PADMAN** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A.No.786 of 2014** **= = = = = = = = = = = = = = = = = = Dated this the 4[th] day of March, 2024** ## **JUDGMENT** Challenging the decree for specific performance of an agreement for sale, the additional 2[nd] defendant is in appeal. 2. The original sole defendant died pending the suit and the 2[nd] defendant, who is her daughter, was impleaded as the additional 2[nd] defendant. 3. The plaint schedule property is 15 cents with a two storied building. The plaintiff was a tenant of the original defendant in respect of the ground floor of the building. Ext.A1 is a document dated 13.06.2003 styled as possessory-mortgage deed, whereunder the plaintiff was put in possession. On 13.08.2006, Ext.A2 agreement was executed between the plaintiff and the original defendant, whereunder the plaint schedule property was R.F.A.No.786 of 2014 -: 2 :- agreed to be conveyed to the plaintiff for a total sale consideration of Rs.16,00,000/-. An amount of Rs.1,25,000/- was paid on the date of Ext.A2 agreement. The amount of Rs.25,000/- that was paid as security deposit at the time of Ext.A1 was also to be treated as part of advance sale consideration. Thus, the total advance sale consideration paid as on the date of Ext.A2 is treated as Rs.1,50,000/-. The period fixed for performance is, on or before 13.04.2007. On 20.03.2007, Ext.A8 notice was issued by the plaintiff calling upon the original defendant to perform the agreement. However, this was refused as per Ext.A9 reply dated 30.03.2007. It is thereupon that the suit has been filed. 4. In the written statement, though the signature in Ext.A2 agreement was admitted, it was contended that the document was signed on the belief that it was the renewal of Ext.A1 arrangement on receiving a further R.F.A.No.786 of 2014 -: 3 :- advance of Rs.1,25,000/-. During the relevant time, the original defendant was not in a sound disposing state of mind. Exts.A1 and A2 were executed under the impression that it is a licence deed and a deed of renewal of licence, respectively. The original defendant never intended to alienate the plaint schedule property, it was contended. 5. The trial court upheld Ext.A2 agreement and granted a decree for specific performance. 6. I have heard the learned counsel on either side. 7. The points that arise for determination are; _i) Is the finding of the trial court regarding the genuineness of Ext.A2 agreement based on the evidence?_ _ii) Was the trial court right in having exercised the discretion under Section 20 of the Specific Relief Act, 1963 to grant a decree for specific performance?_ 8. Ext.A2 agreement is attested by two witnesses. One among them is examined as PW2. The other witness to Ext.A2 is none other than the additional 2[nd] defendant, R.F.A.No.786 of 2014 -: 4 :- the daughter of the original defendant. She was examined as DW1. PW2 has categorically deposed about the due execution of Ext.A2 agreement. The trial court found the testimony of PW2 to be reliable. Coming to the evidence of DW1, she claimed that she is residing with her family at Kannur. She was not present at the time of execution of Ext.A2 agreement. She had affixed her signature on Ext.A2 later, when she visited her mother. It is her case that she is not conversant with Malayalam, which is the language in which Ext.A2 is written. She affixed her signature under the belief that it was only a licence agreement. The trial court noticed that, though DW1 filed a proof affidavit in English, her cross examination was in Malayalam, that she was speaking the language fluently. She was born and brought up at Calicut. Her father was a tailor at Calicut. Her studies up to B.Ed was within Kerala. She deposed that she had signed Ext.A2 after one week of its execution and that, R.F.A.No.786 of 2014 -: 5 :- during that time, the mother was not mentally stable and that she was curious about the contents of Ext.A2. In spite of the same, it is claimed that she had confidence in the plaintiff, and therefore signed Ext.A2 without thinking about its consequences. The relevant portion of the cross examination reads thus; "രണ�മത� എഗ��തമന � തയ���ക�ന�യ� ഏർപ�ട� ത�യ� സമയ��� ഒപ�ത�ച സമയ��� ഞ�ൻ ക#�ഴ�കക�ട� ഉണ�യ�ര�ന�ല. Ext.A2 ഞ�ൻ ആദ*മ�യ� #�ണ�നത� അമ ഒപ�ത�ച� ഒര�ഴ #ഴ�ഞ�ണ�. Ext.A2 എഗ��തമൻ് � ഒപ�ട�ന #�ല�� അമ മ�നസ�#മ�യ� stable ആയ�ര�ന�ല. Mentaly stable അല�� ആൾ കരഖയ�ൽ ഒപ�ട�ൽ അത�ൽ error �ര�ൻ സ�ധ*ത യ�കണ� (Q) �ര�ന�� �ര�ത�ര�ക�ന�� സ�ധ*തയ�ണ� (A) ആ #�രണ� ത#�ണ� Ext.A2- ��ന�ത� contents എന�ണ�എന��യ�ന�ളcuriosity എന�ക�ണ�യ�ര�ന�. ഒര�ഴ #ഴ�ഞ� ഞ�ൻ �നത�ൽ അന*�യക�രൻ ആ�ശ*തപടത� ഗ9#�രമ�ണ� ഞ�ൻ സ�ക�യ�യ� Ext.A2 ��ൽ ഒപ� ത�ചത�. Ext.A2 കരഖ ��യ�ച� ക#ൾപ�ക�ന�യ� ഞ�ൻ അന*�യക�രകന�ട� ആ�ശ*തപട�ല. അന*�യക�രൻ തതറ�ദര�പ�ക�ന ആളല�തയന�� �ഞ�ക�ന ആളല�തയന�� അമക� ക?�ധ*� ഉണ�യ�ര�ന�. എന�ക� ക?�ധ*� ഉണ�യ�ര�ന�ല. അന*�യക�രൻ എതനത#�ണ� Ext.A2- ൽ just ഒന� ഒപ�ടണതമന� 9�ഞ� ഒപ�ട@പ�ച�. ഒര� document- ൽ ഒപ�ട�ൽ അത�ന�ത� consequence തന 9റ� മനസ�ല�ക�യ�ട�ണ� സ�ധ�രണ ഒപ�ട�#. ഞ�ൻ A2 R.F.A.No.786 of 2014 -: 6 :- ��ൽ ഒപ�ട�നത�ന� മ�മ�യ� ഓട�ച� കന�ക�യല ഞ�ൻ അ�സ�നത� page ൽ ഒപ�ട�# മ�ഗതമ�ണ� ത�യ�ത�. Last page മ�ഗത� #�ണ�ച� തര�#യ�ണ� ത�യ� തത�. അമയ�തട ഒപ� #ണത�ൽ ഞ�ൻ ഒപ�ത�ച�. Last page മ�ഗത� #�ണ�ചത�ൽ അന*�യക�രന�ൽ സ�ശയ� കത�ന�യ�ല.” 9. She admitted that the original of Ext.A1 lease agreement was retained by the original defendant whereas, with regard to Ext.A2, which is the sale agreement, only a copy is retained by the original defendant and that the original agreement is with the plaintiff. As noticed by the trial court, the possession of the original lease agreement with the landlord and the original sale agreement with the purchaser also suggests that the parties were aware of the nature of transaction. 10. As regards the contention that the original defendant-mother was mentally feeble during the relevant period, there is total lack of evidence to prove the same. If the original defendant was so incapacitated R.F.A.No.786 of 2014 -: 7 :- during the relevant period as is claimed, then the additional 2[nd] defendant would have been very careful while executing Ext.A2 agreement. Under such circumstance, the attestation of Ext.A2 agreement by the 2[nd] defendant lends much credence to the genuineness of the agreement. The plaintiff has produced copies of the title deeds and prior deeds. This again corroborates the genuineness of Ext.A2 agreement. Regarding the possession of such documents with the plaintiff, the suggestion made to him in cross examination is that, it was taken away by him by breaking open the trunk kept in the house. However, there was absolutely no such case in the written statement. 11. The defendant has a contention that the value fixed in Ext.A2 agreement is lower than the market value and that suggests that it is not a genuine agreement for sale. PW4 is a nearby resident. He deposed with regard to the negotiations between the plaintiff and the R.F.A.No.786 of 2014 -: 8 :- original defendant about the value of the property, that the original defendant demanded Rs.18,00,000/- and on negotiation it was finally settled at Rs.16,00,000/-. The trial court held the testimony of PW4 to be reliable. Nothing is placed before me to suggest that the evidence of PW4 is unreliable or to discredit his testimony. Thus, it can only be found that the finding of the trial court with regard to the genuineness of Ext.A1 agreement is correct and based on the evidence. 12. Now coming to the exercise of discretion under Section 20 of the Specific Relief Act, the learned counsel for the appellant relied on a judgment of this Court in _**Kolleri Velayudhan v. V. Dinu (2020 KHC 2045)**_ to contend that, since the agreement contains stipulation for damages, discretion is to be exercised by the court to decline specific performance. It is also argued that, this is the only property of the defendant and it may be taken as a circumstance to exercise the R.F.A.No.786 of 2014 -: 9 :- discretion to decline specific performance. 13. Admittedly, the additional 2[nd] defendant is residing at Kannur with family. At paragraph 24 of the written statement filed by the original defendant, it is stated thus; _“24. This defendant further submits that the plaint schedule property is the only property belongs to this defendant. She had decided to gift the plaint schedule property and the house therein to her only daughter “Roopa”._ Therefore, it was intended to be gifted by the original defendant to the additional 2[nd] defendant. It is not a case where the 2[nd] defendant has no other place of residence. Not only that, it was the situation that existed even at the time of entering into the agreement. Parties entered into the agreement being fully conscious of the above. Here it is to be noticed that, the plaintiff’s case is that the mother was intending to shift her residence with her daughter at Kannur. The plea of hardship has no substance. In the judgment R.F.A.No.786 of 2014 -: 10 :- relied on by the learned counsel for the appellant, this Court had specifically taken note of the circumstances which prompted the Court to exercise its discretion not to grant specific performance. The stipulation in the agreement therein providing a right to claim damages for breach was only an additional fact taken note of by the Court. The conclusion was apparently not founded on the said clause in the agreement. It would be appropriate to refer to paragraph 6 of the judgment, which reads thus; _“6. The only question that arises for determination in this appeal is regarding the exercise of discretion under Section 20 of the Specific Relief Act. It is not in dispute that at the time of entering into Ext.A1 agreement, the defendant was in highly impecunious circumstances which compelled him to enter into Ext.A1 agreement for sale. It has been so specifically pleaded by him. The said state of affairs is not in dispute. According to the defendant, it is such state of penury which compelled him to enter into Ext.A1 agreement for sale for a throw away price. From the evidence of PW1 – the plaintiff, it has come out that he is a financier. Ext.A1 agreement is in the year 2005 and the evidence was taken in the suit in 2006. In the cross-examination_ R.F.A.No.786 of 2014 -: 11 :- _of PW1 – the plaintiff, it was specifically put to him that the property would fetch centage value of more than Rs.1 lakh for which the plaintiff pretends ignorance. Anyhow, he does not deny the suggestion.”_ Therefore, the mere fact that Ext.A2 agreement provides for damages for default by itself is not a ground to decline specific performance. 14. The trial court, while granting the decree for specific performance, has taken note of all the circumstances involved in the case. The exercise of discretion cannot be said to be arbitrary. 15. With regard to the payment of balance consideration, the trial court took note had due consideration to the fact that the value of immovable property has shot up considerably, and taking note of the time lag, directed the plaintiff to deposit the balance sale consideration with interest at the rate of 10% per annum from 12.04.2007 till the date of deposit. Having due regard to the rise in land value during the R.F.A.No.786 of 2014 -: 12 :- past years and also the depletion in the money value, and with due consideration to the fact that the relief of specific performance has its roots in equity, it is considered reasonable that the balance sale consideration be deposited with interest at the rate of 12% per annum. But for the same, no interference is called for with the impugned judgment and decree. Resultantly, the appeal is allowed in part. The decree and judgment of the trial court to the extent it directs deposit of the balance sale consideration with interest at the rate of 10% per annum will stand modified re-fixing the interest at the rate at 12% per annum. But for such modification, the decree and judgment of the trial court are affirmed. No cost. Sd/- **SATHISH NINAN, JUDGE** yd