RSA NO. 1102 OF 2006

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **FRIDAY, THE 8[TH] DAY OF JULY 2022 / 17TH ASHADHA, 1944** ## **RSA NO. 1102 OF 2006** **AGAINST THE JUDGMENT IN AS 51/2001 OF III ADDITIONAL DISTRICT COURT,** ## **KOLLAM** **DECREE AND JUDGMENT IN OS 351/1996 OF PRINCIPAL SUB COURT, KOLLAM** **-----** ## **APPELLANT/1ST RESPONDENT/1ST DEFENDANT:** 1 THANKAPPAN,( **DIED LRS IMPLEADED** ) S/O.NANU,THODIYIL VEEDU, PALLITHOTTAM, KOLLAM,NOW RESIDING AT SINDHU NIVAS, VELANCONAM, PUNUKKANNOOR CHERRY, KOTTARAKKARA VILLAGE, KOLLAM. 2 PONNAMMA,( **DIED LRS IMPLEADED** ) THODIYIL VEEDU, PALLITHOTTAM, KOLLAM, NOW RESIDING AT VILAKATTU THEKKETHIL, ASRAMAM, KOLLAM. ## ( **R4 TRANSPOSED AS THE SECOND APPELLANT VIDE ORDER DATED 14.02.2007 IN IA.337/2007** .) ## *** ADDL. APPELLANTS** 3 TO 9 3 LEELA KUMARI P. AGED 65 YEARS SREE BHAVAN, MYLAPRA P.O., PATHANAMTHITTA. 4 P.GIRIJA AGED 63 YEARS GIRI SELVA NIVAS, NJETTAYIL MELATHIL, PERUMPUZHA P.O., KERALAPURAM, KOLLAM. 5 MOHAN P. AGED 60 YEARS VILAKKATH VEEDU, SAMRUTHI NAGAR-69, ASRAMOM P.O., KOLLAM. 6 SASIKALA BABU AGED 57 YEARS SREESAILAM, VENNICODE P.O. - 695318, AKATHUMURI, THIRUVANANTHAPURAM DISTRICT. **RSA NO. 1102 OF 2006 -2-** 7 GEETHA P. AGED 54 YEARS PALAVITAYIL VEEDU, VENDAR P.O., PUTHOOR, KOTTARAKKARA, KOLLAM-691507. 8 REMYA S. AGED 31 YEARS MINI VILASOM, VENDAR P.O., PUTHOOR, KOTTARAKKARA, KOLLAM691507. 9 DHANYA S. AGED 30 YEARS DHANYA BHAVAN, VAIDYASALA NAGAR-122, ASRAMOM P.O., KOLLAM691002. ## *( **THE LEGAL HEIRS OF DECEASED 2ND APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 3 TO 9 AS PER ORDER DATED 28/03/2019 IN I.A.1333/2018.** ) ADDL. APPELLANTS 10 TO 12** 10 SHIBU P RESIDING AT SINDHU NIVAS, KOTTAMKARA,CHANTHANATHOPPE P.O., PIN-691 014. 11 SINDHU P RESIDING AT SINDHU NIVAS, KOTTAMKARA,CHANTHANATHOPPE P.O., PIN-691 014. 12 SHEEBA RESIDING AT SINDHU NIVAS, KOTTAMKARA,CHANTHANATHOPPE P.O., PIN-691 014. ## **( **LEGAL HEIRS OF DECEASED APPELLANT NO.1 ARE IMPLEADED AS ADDL.A10 TO A12 AS PER ORDER DATED 22.10.2021 IN IA.1/2021.** ) BY ADV V.PREMCHAND ## **RESPONDENTS/APPELLANTS & 2ND RESPONDENT/PLAINTIFFS & 2ND DEFENDANT:** 1 GIRIJA THAMPI, LAILA MANDIRAM, ASRAMAM, KOLLAM, NOW RESIDING AT T.C.NO.13/2158, KANNAMOOLA, KUNNUKUZHI, THIRUVANANTHAPURAM. **RSA NO. 1102 OF 2006 -3-** 2 KAVITHA THAMPI OF -DO- -DO-. 3 SANGEETHA THAMPI -DO- -DO-. 4 PONNAMMA THODIYIL VEEDU,( **TRANSPOSED AS 2ND APPELLANT** ) PALLITHOTTAM, KOLLAM, NOW RESIDING AT VILAKATTU THEKKETHIL, ASRAMAM, KOLLAM. BY ADVS. SABU GEORGE P.B.KRISHNAN(K/1193/1994) P.B.SUBRAMANYAN(K/1145/2009) MANU VYASAN PETER(K/000652/2013) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.S.A. No.1102 of 2006** **= = = = = = = = = = = = = = = = = = Dated this the 8[th] day of July, 2022** ## **J U D G M E N T** This Regular Second Appeal is by the defendants in a suit for specific performance of an agreement for sale and for partition. The trial court granted a decree for refund of the advance amount paid under the agreement. The decree was challenged by way of an appeal and cross objection by the plaintiffs and the defendants respectively. The first appellate court modified the decree, by granting the relief of specific performance and partition. 2. Ext.A1 agreement dated 05.06.1991 and Ext.A2 agreement dated 26.06.1992 are the agreements on which the suit has been filed. The plaintiffs are the legal heirs of late Natesan alias N.O.Thambi. According to the plaintiffs, on 05.06.1991, the first defendant entered into Ext.A1 agreement with their predecessor Natesan, R.S.A. No.1102 of 2006 **==> picture [34 x 9] intentionally omitted <==** agreeing to sell an extent of 4¾ cents out of a larger extent of 9½ cents which belong jointly to the first and second defendants. As per Ext.A1, the price fixed was ` 30,000/- per cent. The total advance amount payable was ` 28,000/-. Out of the said amount, on the date of Ext.A1, ` 3,000/- was paid as token/initial advance. The balance advance amount of ` 25,000/- was payable on or before 31.10.1991. The property in question was subject to a mortgage. A suit, as OS 267/1984, was pending before the Munsiff's Court, Kollam, for redemption of the mortgage. The period fixed for performance of Ext.A1 agreement was, six months from the date of obtaining possession under the decree in OS 267/1984. Subsequently, on 26.06.1992, Ext.A2 agreement was executed between the first defendant and Sri.Natesan with regard to the very same subject matter. Ext.A2 agreement was executed on almost the same terms and conditions, subject to the modification that, as on the ## R.S.A. No.1102 of 2006 -: 3 :- date of Ext.A2 agreement i.e. 26.06.1992, an amount of ` 25,000/- has been paid as advance sale consideration. The period fixed for performance was the same as in Ext.A1. The plaintiffs allege that, though the defendant got possession of the property under the decree in OS 267/1984 on 27.10.1995, the first defendant failed to convey the property in terms of the agreement. It is contended that, the plaintiffs were always ready and willing to get the sale deed executed but, the first defendant is evading performance of the same. It is accordingly that the suit has been filed. The second defendant is impleaded as the owner of the remaining half of the total extent of 9.5 cents. The plaintiffs also seek for partition of one-half of the total extent of 9.5 cents. 3. The defendants denied the execution of both Exts.A1 and A2 agreements. According to the defendants, Natesan had agreed to advance a loan to the 1[st] ## R.S.A. No.1102 of 2006 -: 4 :- defendant for the purpose of marriage of his daughter but failed to provide the financial assistance. It was contented that, the plaint schedule property is situated at the heart of Kollam town, and will fetch a value of ` 1 lakh per cent, and that no prudent man would enter into an agreement for sale in respect of the said property for the value as claimed by the plaintiffs. The plaint averments based on the agreements were denied. It was also contended that the suit is barred under Order II Rule 2(3) of the Code of Civil Procedure since, the plaintiffs had filed a suit as OS 741/1995 for injunction against alienation of the property. It was also pleaded that the relief of specific performance is a discretionary relief and it may be declined. 4. The trial court held that Exts.A1 and A2 agreements have been executed by the first defendant. However, the Court, on appreciating the facts and materials, exercised its discretion to decline the ## R.S.A. No.1102 of 2006 -: 5 :- relief of specific performance, and granted a decree for return of the advance sale consideration with interest. 5. Dissatisfied with the decree, the plaintiffs filed AS 51/2001 before the District Court. The defendants challenged the decree by filing cross objection. The first appellate court concurred with the trial Court on the validity of Exts.A1 and A2 agreements. It proceeded to grant a decree for specific performance. It is aggrieved thereby that this Regular Second Appeal has been filed. 6. Heard Sri.V.Premchand learned counsel for the appellants-defendants, and Sri.P.B.Krishnan, the learned counsel for respondents-plaintiffs, on the following substantial questions of law:- (i) Is the finding of the Courts below regarding the genuineness of Exts.A1 and A2 agreements for sale supported by evidence? - (ii) Is the discretion exercised by the first ## R.S.A. No.1102 of 2006 -: 6 :- appellate court in granting a decree for specific performance justifiable on the circumstances obtaining in the suit? (iii) Is the suit barred under Order II Rule 2 of the Code of Civil Procedure? 7. Plaintiffs claim that Exts.A1 and A2 agreements for sale were executed in favour of Sri.Natesan, the predecessor-in-interest of the plaintiffs by the 1[st] defendant. The defendants deny the execution. To prove the agreement, the plaintiffs examined PW2 who was the attestor in both Exts.A1 and A2 agreements. Relying on the same, the courts below held the execution of the agreements to have been proved. It is a concurrent finding of fact entered on the basis of the evidence of the attesting witness to the agreements. No perversity in the appreciation of the evidence of PW2, or the failure to consider any evidence which would suggest the non-execution of Exts.A1 and A2 agreements by the first ## R.S.A. No.1102 of 2006 -: 7 :- defendant, could be pointed out. The finding on the genuineness of Exts.A1 and A2 agreement is thus, not liable to be interfered with. The substantial question of law is thus answered in favour of the respondents. 8. On appreciation of the entire evidence and materials on record, I find various circumstances which disentitle the plaintiffs for a decree for specific performance. They are being discussed hereunder. 9. As per Exts.A1 and A2 agreements the 1[st] defendant agrees to convey an extent of 4¾ cents from out of a larger extent of 9½ cents belonging jointly to the defendants. The location of the 4¾ cents is not specified. The agreement is not to convey undivided ½ rights of the 1[st] defendant over the entire property. 10. Admittedly there is a residential building and a well situated in the 9½ cents. The third plaintiff as PW1, has admitted that the building is situated towards the middle of the entire 9½ cents. The building has not ## R.S.A. No.1102 of 2006 -: 8 :- been included in Exts.A1 and A2 agreements. The same has not been valued. Consideration for the building and the well has not been fixed. The same is not agreed to be conveyed. However, in the schedule to the plaint, the plaintiffs have included the one half right of the first defendant over the building, well etc. It would be apposite to refer to the relevant portion of the plaint schedule description in vernacular, which reads thus:- “C§s\ sam-¯w H-¶p tNÀ-¶p In-S-¡p-¶-Xp-am-b 9 1/2 skâ v ]p-c-bn-Shpw k-I-e hr-£-§fpw A-Xn-ep-Å MC 116þ-mw ]pXnb MC 753þmw \-¼À sI-«n-Shpw In-Wdpw G-Sp¸p-Ifpw A-Xn hm-Zn-IÄ-¡pÅ 1/2 A-h-Im-i-am-b 4 3/4 skâ v \-ev-]v-\n-ev-]-\p-k-cn-¨v Af-¶v thÀ-Xn-cn-¨v In-«p-¶ ” `m-Kw B-Ip¶p. Therefore, under the cover of Exts.A1 and A2, the plaintiffs seek for conveyance of one-half rights over the residential building, well and other structures (G-Sp-¸p-IÄ) situated in the property. ## R.S.A. No.1102 of 2006 **==> picture [34 x 9] intentionally omitted <==** 11. As is admitted by PW1-the third plaintiff, there is a residential building situated towards the middle of the entire property of 9½ cents. The agreements does not include the building. Hence conveyance of 4¾ cents excluding the building is practically impossible. 12. As per Exts.A1 and A2 agreements, an extent of 4¾ cents belonging to the first defendant, from out of the total extent of 9½ cents, is agreed to be conveyed. However, in the relief claimed in the plaint, the plaintiffs seek for execution of sale deed after partition of the total extent of 9½ cents and that too on receipt of the balance consideration to be fixed by the Court after ascertaining the extent. This is at variance from the terms of Exts.A1 and A2 agreements. 13. As per the terms of Exts.A1 and A2 agreements, an extent of 4¾ cents is agreed to be conveyed for a sale consideration of ` 30,000/- per cent. Here it is ## R.S.A. No.1102 of 2006 -: 10 :- also to be noted that, in paragraph 2 of the plaint it is pleaded that, as per Exts.A1 and A2 agreements the first defendant had agreed to sell the plaint schedule property for a total sale consideration of ` 1,42,500/-. This does not go in tune with the relief claimed in the plaint wherein they require the Court to fix the extent and the total consideration. 14. In the relief portion, the plaintiff has sought for execution of sale deed after satisfying the plaintiff regarding “title, extent, encumbrance etc.” and seeks for permission of the court to deposit the balance consideration so adjudged by the court. The relief sought is conditional. 15. Specific performance is to be in respect of the specific property that is agreed under the agreement. Under Exts.A1 and A2 agreements the 1[st] defendant has agreed to convey 4¾ cents from out of a larger extent of 9½ cents of which he is a co-owner. It is not the ## R.S.A. No.1102 of 2006 -: 11 :- undivided ½ rights of the 1[st] defendant that is agreed to be conveyed. Therefore, unless the 1[st] defendant gets absolute title over 4¾ cents out of the 9½ cents, the plaintiffs cannot seek for specific performance. Here, the 1[st] defendant has not obtained exclusive title over the portion of the property agreed to be sold. 16. Relief (a) claimed in the plaint reads thus:- _“a) Grant a decree in favour of the plaintiffs directing the 1[st] defendant to execute a proper sale deed after partition ½ of the total extent of 9 ½ cents in favour of the plaintiff on receipt of the balance consideration as may be fixed by this Hon'ble Court within a time to be specified after satisfying the plaintiff regarding title extent, encumbrance etc. over the plaint schedule property and in the event of the failure of the defendants to comply with it permitting the plaintiff to deposit the balance consideration so adjudged by this Hon'ble court within a time to be specified and to get a proper sale deed after partition ½ of the total extent of 9 ½ cents executed through court and to get delivery of the property through court.”_ The plaintiffs have sought for a relief of partition of the 9½ cents and thereafter for a decree for specific ## R.S.A. No.1102 of 2006 **==> picture [40 x 9] intentionally omitted <==** performance to convey the partitioned 4¾ cents. Therefore, the plaintiffs themselves were aware and conscious that, for seeking a relief of specific performance, there has to be a partition of the entire property first, and then only the 1[st] defendant would get absolute title over the property agreed to be conveyed. Unless partition is effected in respect of the property and the 1[st] defendants obtains the 4¾ cents agreed to be conveyed, the plaintiffs could not seek for, nor could they get a relief of specific performance of Exts.A1 and A2 agreements. 17. The plaintiff has sought for a decree of partition to be followed by specific performance. It is like, as goes the saying, ‘putting the cart before the horse’. Without title, the plaintiffs could not seek for partition. But, the plaintiff is not entitled to seek for a decree of partition until he gets co-ownership right over the property. However, the agreement does not R.S.A. No.1102 of 2006 **==> picture [40 x 9] intentionally omitted <==** provide for conveying of undivided/co-ownership rights. 18. Going by the plaintiff's case as pleaded in paragraph 2 of the plaint, and also going by Exts.A1 and A2 agreements for sale, on the date of Ext.A1 (05.06.1991) an amount of ` 3,000/- was paid towards advance sale consideration, and a further amount of ` 25,000/- was paid towards advance sale consideration on the date of Ext.A2 (26.06.1992). However, at the evidence stage, PW1 has produced Exts.A3 and A4 receipts whereunder, the first defendant is stated to have received an amount of ` 10,000/- under Ext.A3 on 19.10.1991, and an amount of ` 2,000/- under Ext.A4 on 30.11.1991. The same is not reflected in Ext.A2 agreement executed on 26.06.1992. Going by the recitals in Ext.A2 agreement dated 26.06.1992, on the date of the agreement an amount of ` 25,000/- has been paid, ready cash (A-Uzm³-km-bn cq-] 25000 C-t¶ Znh-kw ssI-]-än-bn-cn- ¡p¶p). When confronted with the recitals in Ext.A2 ## R.S.A. No.1102 of 2006 -: 14 :- regarding payment of the advance amount, PW1 would acknowledge the correctness of the same. She would also vouch to the genuineness of Exts.A3 and A4 receipts. Suffice to notice that there is inconsistency in the case set up regarding the payment of advance and the quantum. 19. While Exts.A1 and A2 agreements recite the sale consideration at ` 30,000/- per cent, as PW1 the third plaintiff, in chief examination would depose that the value fixed was at ` 9,000/- per cent. The relevant portion of the deposition reads thus:- “H-cp sk-ân-\v 9000 cq-] sh-¨m-Wv F-{Kn-saâ v {]-Im-cw ” . hn-e k-½-Xn-¨Xv This is only to mention yet another inconsistency in the plaintiff's case. 20. Under Exts.A1 and A2 agreements, the period fixed for performance was six months from the date of obtaining possession from the mortgagee-defendant in OS 267/1984 which was a suit for redemption filed against ## R.S.A. No.1102 of 2006 -: 15 :- third parties. Even according to the plaintiffs, the mortgage was redeemed and the defendants got possession of the property on 27.10.1995. It is so asserted in paragraph 3 of the plaint and also in Ext.A5 notice issued by the plaintiffs. That fact is not disputed by the defendants. The six months period fixed for performance of the agreement expired on 26.04.1996. However, the suit for specific performance is filed only on 02.07.1996. In the meanwhile, the 1[st] plaintiff filed a suit as OS 741/1995 for a prohibitory injunction restraining alienation of the property in violation of the agreement. Though at that point of time the defendants had got possession of the property through OS 267/1984, the plaintiffs without seeking for specific performance, sought for a decree of prohibitory injunction against alienation. This casts shadow on the readiness and willingness on the part of the plaintiffs to have the agreement for sale enforced. This assumes ## R.S.A. No.1102 of 2006 -: 16 :- relevance also in the context of the challenge on the financial capacity made against PW1 during crossexamination, and the fact that there is total lack of evidence to show the financial capacity or the source to raise amounts for completing the sale. It is also relevant to note that Exts.B1(b) and B1(e) letters written by the plaintiffs predecessor-Natesan seem to suggest the he was not in sound financial position. Of course, as is settled, the plaintiff need not jingle money in his pocket. But when challenged, they need to prove that they had the source to pay or to raise money to complete the transaction. Such evidence is lacking in the case. 21. Though in the written statement a specific contention had been urged that the suit is barred under Order II Rule 2 CPC consequent on the filing of the suit for injunction as OS 741/1995 in respect of the same subject matter and on the very same cause of action, no ## R.S.A. No.1102 of 2006 -: 17 :- issue in the said regard was raised in the trial court. It is seen that during cross-examination of PW1, specific questions were put to her regarding OS 741/1995, its cause of action etc. However, the trial court judgment does not reflect consideration of any argument under Order II Rule 2 CPC. The lower appellate court has noticed the contention, and held that, the bar under Order II Rule 2 CPC would not be attracted since a suit for specific performance of contract was premature at the time of filing of OS 741/1995. The first appellate court was evidently not correct in holding so since, the cause of action to seek for specific performance had accrued as soon as the defendants got possession of the property on 27.10.1995 and at any rate, when the plaintiffs allege that the first defendant made preparations to violate the agreement and alienate the property to strangers. However, in spite of having urged a contention under Order II Rule 2 CPC, it ## R.S.A. No.1102 of 2006 -: 18 :- is seen that the pleadings in the earlier suit OS 741/1995 were not produced to prove the identity of the causes of action and thus to substantiate the plea. In _**Gurbux Singh v. Bhooralal [AIR 1964 SC 1810]**_ , a constitutional bench of the Apex Court categorically held that, to substantiate a plea of bar of suit under Order II Rule 2 CPC, the identity of the causes of action in both the suits is to be established by producing the pleadings in the earlier suit. The same having not been done, this Court cannot find that the present suit is barred under Order II Rule 2 CPC. However, the circumstance indicate that, even when the plaintiffs could have filed the suit for specific performance of Exts.A1 and A2 contract, they chose not to do it, but filed a suit for prohibitory injunction against alienation. This would have some relevance on their conduct, as well as on their plea of readiness and willingness to perform the agreements. ## R.S.A. No.1102 of 2006 -: 19 :- 22. The value fixed for the property under Exts.A1 and A2 agreements is ` 30,000/- per cent. In the written statement, the defendants had contended that the property is situated in the heart of Kollam town and would fetch a value of ` 1 lakh per cent. Ext.A7 series letters, sent by the first defendant to Natesan indicate that the first defendant was in need for money and was seeking assistance from Natesan. Regarding the market value of the property, the circumstances which led to the execution of Exts.A1 and A2, the financial requirements of the first defendant, have all been noticed by the first appellate court in paragraph 20 of the judgment which reads thus:- _“I am prepared to assume that there might have been price escalation which is quite natural when time passes on. Sometimes it may be again true that the exact market value of the property did not reflect in Exts.A1 and A2. But appellants have a reason which respondents cannot dispute at all that the agreements were executed at a time when nobody was prepared to purchase the property due to a suit for_ R.S.A. No.1102 of 2006 -: 20 :- _redemption of mortgagee pending for more than 7 years. When I read through the letters produced by both sides, an impression gains around that the first respondent was in dire need for money in those days around the execution of documents. Naturally therefore he might have been looking forward to the deceased Natesan friend of his to purchase the property and this might have been the motive behind execution of Exts.A1 and A2.”_ It would suggest that, compelled by the circumstances, the first defendant was necessitated to enter into Exts.A1 and A2 agreements under an unfair deal. Of course, the materials are insufficient to enter a positive finding regarding the same. 23. The circumstances as above, are to go into the zone of consideration of the Court while exercising the discretion whether to grant a decree for specific performance or not. Referring to the judgment of the Apex Court in _**Sughar Singh v. Hari Singh (Dead) through L.Rs. and Ors. [AIR 2021 SC 5581]**_ **,** the learned counsel for the respondents/plaintiffs contend that, the amendment made to the Specific Relief Act by which Section 10(a) was R.S.A. No.1102 of 2006 -: 21 :- inserted in the Act though may not be retrospective in operation still it is to be a guide while exercising discretion. Therein, the Apex Court held thus :- _“For the aforesaid, even amendment to the Specific Relief Act, 1963 by which Section 10(a) has been inserted, though may not be applicable retrospectively but can be a guide on the discretionary relief. Now the legislature has also thought it to insert Section 10(a) and now the specific performance is no longer a discretionary relief. As such the question whether the said provision would be applicable retrospectively or not and/or should be made applicable to all pending proceedings including appeals is kept open. However, at the same time, as observed herein above, the same can be a guide.”_ 24. Under the various circumstances as noticed above, I do not consider it to be a case where discretion is to be exercised in favour of grant of the relief of specific performance. The circumstances as above were not taken into consideration by the first appellate court and if they were taken note of, the court would not have exercised its discretion to grant a ## R.S.A. No.1102 of 2006 -: 22 :- decree for specific performance. Substantial questions of law Nos.2 and 3 are thus answered. 25. On the findings as above, the decree and judgment of the courts below are set aside. The plaintiff is granted a decree for recovery of the advance sale consideration of ` 28,000/- with interest at the rate of 9% per annum from 26.06.1992 (date of Ext.A2 agreement) till the date of realisation. The said amount shall be a charge on the share of the first defendant over the 9½ cents of property described in the plaint. Parties to bear their respective costs. The Regular Second Appeal is allowed as above. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge