Sarvadamanan, S/o. Chet-tiparambil Gopalan v. Varghese and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 1[ST] DAY OF MARCH 2024 / 11TH PHALGUNA, 1945** **RFA NO. 344 OF 2003 (E)** **AGAINST THE JUDGMENT AND DECREE DATED 28.02.2003 IN OS NO.359 OF 1998 ON THE FILE OF THE PRINCIPAL SUB COURT,IRINJALAKUDA** ## **APPELLANT/DEFENDANT NO.5:** **SARVADAMANAN, S/O.CHETTIPARAMBIL GOPALAN, ALATHUR VILLAGE, DESOM, MUKUNDAPURAM TALUK.** **BY ADVS. SRI.K.P.DANDAPANI (SR.) Millu Dandapani** ## **RESPONDENTS/PLAINTIFF & DEFENDANT NOS.1 TO 4:** **1. VARGHESE, S/O KANICHAYIVEETTIL THOMAN, PAZHUKARA DESOM, ANNALLUR VILLAGE, MUKUNDAPURAM TALUK.** - ***2. THAMPI, S/O. MANJORANVEETTIL DEVASSY, PUZHAKARA DESOM, ANNALLUR VILLAGE, MUKUNDAPURAM TALUK MERY, D/O MANJORANVEETTIL DEVASSY,** - ***3. PUZHAKARA DESOM, ANNALLUR VILLAGE, MUKUNDAPURAM TALUK.** - **(*R2 AND R3 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE** - **4. PETITIONER VIDE ORDER DATED 25.8.2008 ON I.A.NO.3469/2008.) ROSY, W/O.MANJORANVEETTIL DEVASSY, PUZHAKARA DESOM, ANNALLUR VILLAGE, MUKUNDAPURAM TALUK. SHALLY, D/O. MULLAPPILLIL ANTU, MADATHUMPADI VILLAGE, DESOM, KODUNGALLUR TALUK.** **BY ADVS. SMT.P.A.ANEESHA SRI.BABU KARUKAPADATH SRI.M.H.HANIL KUMAR JAGAN ABRAHAM M GEORGE SMT.M.A.VAHEEDA BABU SRI.VISWANATHA CHETTIAR** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR FINAL HEARING ON** - **23.02.2024, THE COURT ON 01.03.2024 DELIVERED THE FOLLOWING:** R.F.A.No.344 of 2003 2 ## **C.S.SUDHA, J.** **------------------------------R.F.A.No.344 of 2003 ------------------------------------------------** ## **Dated this the 1[st] day of March 2024** ## **J U D G M E N T** This appeal has been filed by defendant no.5 against the judgment and decree dated 28/02/2003 in O.S.No.359/1998 on the file of the Subordinate Judges' Court, Irinjalakuda. The respondents herein are the plaintiff and defendants 1 to 4 respectively in the suit. The parties and the documents will be referred to as described in the suit. 2. The plaint schedule property having an extent of 1 acre and 64.780 cents was obtained by Devassy, the predecessor-in-interest of defendants 1 to 3 as 'C' schedule of partition deed no.856/1959. After the death of Devassy, the property devolved on defendants 1 to 3 and they were in joint possession of the same. Out of this property, the 1/3[rd] share of the first defendant having an extent of 54.667 cents of property was agreed to be sold to the plaintiff as per Ext.A1 agreement dated 28/04/1998. The property was agreed to be sold at the rate of ₹800/- per cent. On the date of the agreement, an amount of ₹3 lakhs was paid as advance sale consideration. The time R.F.A.No.344 of 2003 3 stipulated for execution of the deed was nine months from 28/04/1998. The plaintiff was always ready and willing to perform his part of the contract within the stipulated time. However, the defendant was never ready or willing to perform his part of the agreement and he never took any steps to partition of the property or convince the plaintiff of its extent or the fact that it was free from any encumbrances. Thereafter on enquiry the plaintiff came to know that subsequent to the execution of Ext.A1 agreement, the first defendant as well as the second defendant, who are siblings, executed Ext.A2 release deed dated 26/05/1998 in favour of the third defendant, that is, their mother with regard to their respective shares in the property. On 24/09/1998 the third defendant as per Ext.A3 sale deed sold the entire extent of property to the fourth defendant for an amount of ₹55,000/-, though the property was much more valuable. The fourth defendant as per Ext.A4 sale deed dated 23/10/1998 sold the property in favour of the fifth defendant for a sale consideration of ₹57,000/-. Exts.A2 to A4 documents have been created by defendants 1 to 3 in collusion with defendants 4 and 5 only to defeat the valuable rights obtained by the plaintiff as per Ext.A1. Exts.A3 and A4 documents have never come into force. The said documents are not binding on the plaintiff and hence are liable to be set aside. The plaintiff is also entitled to a decree for specific performance or in the alternative for return of R.F.A.No.344 of 2003 4 the advance amount of ₹3,00,000/- and also an amount of ₹1,00,000/- towards loss with interest at the rate of 18% per annum from the defendants and their assets. 3. Before the trial court, defendants 1 to 3 though served with summons, remained _ex-parte_ . 4. The fourth defendant filed written statement contending that he is a _bona fide_ purchaser of the property from the third defendant as per Ext.A3 sale deed. After he obtained title over the property by way of Ext.A3, he conveyed the property in favour of the fifth defendant by way of Ext.A4 sale deed for valuable sale consideration. Now defendants 1 to 3 have no manner of right in the property. Ext.A1 agreement relied on by the plaintiff is a concocted one made in collusion with the first defendant to defeat the rights of the fourth as well as the fifth defendant. The said agreement is not supported by any consideration. The plaintiff never had the financial capacity to purchase the property. Since Ext.A1 is a fraudulent and concocted one, the plaintiff is not entitled to the reliefs prayed for in the plaint. 5. The fifth defendant filed separate written statement claiming to be a _bona fide_ purchaser of the property. The court fee paid by the plaintiff is insufficient. The property would fetch morethan ₹40 lakhs. So the plaintiff needs to pay the necessary court fee for the relief seeking setting aside the R.F.A.No.344 of 2003 5 documents. The agreement relied on by the plaintiff is a concocted one. The signature seen in Ext.A1 is not that of the first defendant and hence the document is required to be sent for examination by an handwriting expert. 6. In completion of pleadings, the parties went to trial. PW1 and PW2 were examined and Exts.A1 to A7 were marked on the side of the plaintiff. DW1 and DW2 were examined and Exts.B1 and B2 were marked on the side of the defendants. The report of the advocate commissioner has been marked as Ext.C1. The trial court on an appreciation of the oral and documentary evidence and after hearing both sides, declined the prayer for specific performance. The alternative relief of return of advance amount of ₹3 lakhs with interest at the rate 6% per annum from 28/04/1998 till the date of realization from the first defendant as well as his assets has been granted. The relief of compensation of ₹1 lakh claimed by the plaintiff has been declined in the absence of evidence to prove loss. Aggrieved, the fifth defendant has come up in appeal. 7. In this appeal though notice was served on the plaintiff as well as defendants 1 to 4, none have appeared. 8. Heard the learned counsel for the 5[th] defendant. 9. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the trial court calling for an R.F.A.No.344 of 2003 6 interference by this Court. 10. The 5[th] defendant claims to be a _bona fide_ purchaser of the property as per Ext.A4 sale deed. Originally in the plaint there was a prayer for setting aside Ext.A2 release deed executed by the first defendant in favour of the third defendant and Exts.A3 and A4 sale deeds executed by the third defendant in favour of the fourth and the fifth defendants respectively. During the course of the trial, the said relief was given up. The fifth defendant contended that Ext.A1 is a fabricated and concocted document executed by the first defendant to defeat his right in the property. It was argued by the learned counsel for the fifth defendant that a mere glance at Ext.A1 itself would show that the same is a fabricated and concocted document and that it was never intended to be an agreement for sale. There is no schedule of the property agreed to be sold or the details of the document as per which the first defendant obtained right in the property. This would probabilise the case of the defendants that Ext.A1 had been created just to defeat the right of the fifth defendant over the property, goes the argument. Before the trial Court, the defendants 1 to 3 remained ex-parte. The plaintiff was examined as PW1. According to him, Ext.A1 was executed by the first defendant agreeing to sell the latter's 1/3[rd] right in the plaint schedule property. PW2, a witness in Ext.A1 agreement also supports the case of the plaintiff. If the contention of R.F.A.No.344 of 2003 7 the fifth defendant was true, the first defendant ought to have appeared before the Court and challenged Ext.A1. But defendants 1 to 3 never appeared either before the trial Court or before this Court. The fifth defendant is a complete stranger to Ext.A1 agreement. Hence, he cannot challenge Ext.A1 when the first defendant, a signatory and party to the same, inspite of receipt of summons has failed to appear before the court. 11. Here I refer to the dictum in **Vidhyadhar v. Manikrao, AIR 1999 SC 1441** . The 1[st] defendant in the case contended that the sale deed executed by the 2[nd] defendant in favour of the plaintiff was fictitious and that the whole transaction was a bogus transaction as only a paltry sum had been paid as sale consideration. This plea of the 2[nd] defendant was not supported by the 1[st] defendant, who did not enter the witness box to state the facts pleaded in the written statement on oath in the trial court and avoided the witness box so that he may not be cross examined. It was held that the same by itself was enough to reject the claim that the transaction of sale between the 2[nd] defendant and the plaintiff was a bogus transaction. Where a party to the suit does not appear in the witness box and state his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct. The 1[st] defendant was R.F.A.No.344 of 2003 8 not a party to the transaction of sale between the 2[nd] defendant and the plaintiff and hence had no personal knowledge of the terms settled between the 2[nd] defendant and the plaintiff. The transaction was not settled in his presence nor was any payment made in his presence. Nor, for that matter, was he a scribe or marginal witness of that sale deed. In this circumstance could the 1[st] defendant have raised a plea as to the validity of the sale deed on the ground of inadequacy of consideration or part payment thereof? It was held that the 2[nd] defendant alone, who was the executant of the sale deed, could have raised an objection as to the validity of the sale deed on the ground that it was without consideration or that the consideration paid to him was highly inadequate. The Apex Court also noticed the dictum in **Lal Achal Ram v. Kazim Husain Khan (1905 (32) IA 113: ILR 27 All 271)** , wherein the Privy Council laid down the principle that a stranger to a sale deed cannot dispute payment of consideration or its adequacy. It was also noticed that the said decision had since been considered by various High Courts and a distinction had been drawn between a deed which was intended to be real or operative between the parties and a deed which is fictitious in character and was never designed as a genuine document to effect transfer of title. In such situations, it would be open even to a stranger to impeach the deed as void and invalid on R.F.A.No.344 of 2003 9 all possible grounds. It has been further held that the decisions of various High Courts drawing such distinction was based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which the title to the property was intended to be conveyed to the plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances. For example, in a landlord - tenant matter where the landlord is possessed of many properties and cannot possibly seek eviction of his tenant for bona fide need from one of the properties, the landlord may ostensibly transfer that property to a person who is not possessed of any other property so that that person, namely, the transferee, may institute eviction proceedings on the ground of his genuine need and thus evict the tenant who could not have been otherwise evicted. In the said situation, the deed by which the property was intended to be transferred, would be a collusive deed representing a sham transaction which was never intended to be acted upon. It would then be open to the tenant in his capacity as a defendant to assert, plead and prove that the deed was fictitious and collusive in nature. The Apex Court, therefore, did not R.F.A.No.344 of 2003 10 subscribe to the view expressed by the Privy Council in the case of **Lal Achal Ram** ( _Supra_ ) in the broad terms in which it was expressed, but approved the law laid down by the various High Courts which drew the distinction. 12. Likewise in this case also the 5th defendant is a complete stranger to the transaction evidenced by Ext.A1 agreement for sale between the plaintiff and the first defendant. The 5th defendant was not a party Ext.A1 and hence had no personal knowledge of the terms settled between the plaintiff and the 1[st] defendant. The transaction was not settled in his presence nor was any payment made in his presence. Nor, for that matter, was he a scribe or witness in Ext.A1. In such circumstances he cannot raise a plea as to the validity of the sale agreement on the ground of inadequacy of consideration or fraud. The 1st defendant alone, the executant of A1, could have raised an objection as to the validity of the deed on the ground that it was fabricated or was without consideration or that the consideration paid to him was highly inadequate etc. Hence the 5th defendant being a complete stranger to the transaction cannot challenge Ext.A1. 13. The trial court noticing execution of Exts.A2 to A4 did not exercise its discretion to grant the relief of specific performance sought for. On the other hand, granted the relief of return of advance money paid by the plaintiff. PW1 supported by PW2 proves the case of payment of advance R.F.A.No.344 of 2003 11 consideration of ₹3 lakhs. This has not been discredited in any way. It cannot also be discredited by the fifth defendant being a stranger to the transaction evidenced by Ext.A1. The fifth defendant has taken up a contention that the suit is a collusive one. But evidence on record shows other wise. As per Ext.A1, the defendant agreed to sell the property at the rate of ₹800/- per cent. The total extent of the property is 1 acre and 64.780 cents. The first defendant's 1/3[rd] right in the property would come to ₹4,37,336/-, out of which he received an amount of ₹3 lakhs/- towards the sale consideration. Exts.A3 and A4 sale deeds executed by the third defendant in favour of the fourth and fifth respondents respectively show the sale consideration as ₹55,000/- and ₹57,000/- respectively. The fifth defendant himself contends in his written statement that the property would fetch more than ₹40 lakhs. But Exts.A3 and A4 sale deeds on which he relies on to claim right over the plaint schedule property shows the sale consideration to be much less. Therefore, the transactions/deeds executed by the first defendant along with defendants 2 and 3 in favour of defendants 4 and 5 seem to be to defeat the plaintiff's right in the property and not _vice versa_ . I find no evidence to hold Ext.A1 document to be a collusive one. The same has been apparently executed before the execution of Exts.A2 to A4 documents. 14. Be that as it may, though the plaintiff claims Exts.A1 to be an R.F.A.No.344 of 2003 12 agreement for sale, from the evidence on record it appears to be more of a money transaction. PW1 when cross examined does not seem to be aware of the property agreed to be purchased by him. He does not give any explanation as to why the details of the title deed of the first defendant relating to the property or the schedule of the property which was agreed to be sold was not incorporated in Ext.A1 agreement. A reading of his deposition indicates that it was more of a money transaction than an agreement for sale. This is all the more reason for not granting a decree of specific performance as has been rightly done by the trial court. 15. There is yet another reason to doubt the case set up by the fourth defendant. On the request of the plaintiff, an advocate commissioner was taken out to report regarding the present occupants of the building in the plaint schedule property. The advocate commissioner in Ext.C1 has reported that in the residential building situated in the plaint schedule property, the first defendant and family along with the third defendant were residing. The fifth defendant when examined as DW1 has an explanation for this. According to him, he has reassigned certain extent of the property including the residential building therein to the third defendant. However, no document(s) have been produced to substantiate the said contention of the fifth defendant. This aspect also probabilises the case of the plaintiff that the documents relied on R.F.A.No.344 of 2003 13 by the defendants have not come into force and have been executed in collusion with defendants 1 to 3 to defeat his claim. 16. A reading of the testimony of the fifth defendant examined as DW1 also disproves his case that he is a _bona fide_ purchaser of the property. He does not seem to have made any enquiries relating to the property and when questioned about the details of the property pleaded ignorance of the same. He also admits that he and the first defendant are business associates/colleagues. All these aspects all the more probabilises the case of the plaintiff. In these circumstances, I find no reason(s) to interfere with the findings of the trial court. The appeal _sans_ merit is dismissed. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S.SUDHA** **JUDGE** Jms