Sobha v. Sreena and Thajudeen

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941** ## **RFA.No.670 OF 2014** **(AGAINST THE JUDGMENT DATED 28.8.2014 IN O.S.NO.417/2011 ON THE FILE OF THE PRINCIPAL SUB COURT, KOLLAM** ## **APPELLANT/PLAINTIFF:** **SOBHA AGED 50 YEARS W/O.CHANDRASEKHARAN,CHANDRA BHAVAN,KAIKULANGARA KOLLAM WEST VILLAGE,KOLLAM TALUK,KOLLAM CORPORATION,HOUSE NO 637,KAIKULANGARA WEST WARD NO 29** **BY ADVS. SRI.V.R.KESAVA KAIMAL SMT.C.S.RAJANI** ## **RESPONDENTS/DEFENDANTS:** **1 SREENA AGED 37 YEARS W/O.SAJI,PAZHAYATHU VEEDU(THIRUVATHIRA),ULIYAKOVIL P.O,ULIYAKOVIL CHERRY,KOLLAM EAST VILLAGE,KOLLAM 691 019 2 THAJUDEEN AGED 70 YEARS S/O.PAREETHU KUNJU,RESIDING AT HAJI VEEDU,CHERIYATTINCHERRY,EDAVA VILLAGE,CHIRAYINKEEZHU TALUK,PIN 695 311** **R1 BY ADV. SRI.LEO GEORGE R1-2 BY ADV. SRI.JOSE TOM C. KANDATHIL R1 BY ADV. SRI.R.SATISH KUMAR** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28-032019, THE COURT ON 05-09-2019 DELIVERED THE FOLLOWING:** RFA.No.670 OF 2014 2 ## **JUDGMENT** Being aggrieved by the judgment and decree in O.S.No.417/2011 on the file of the Sub Court, Kollam, the plaintiff has preferred this appeal. The suit filed for specific performance of a contract, declaration that a sale deed is void and for permanent prohibitory injunction was dismissed by the court below by the impugned judgment and decree, dated 28[th] August, 2014. 2. The parties are referred to as per their ranking before the trial court. 3. The facts necessary for disposal of this appeal in brief are as follows: The plaint schedule property is owned and possessed by the first defendant. On 30.3.2011 he entered into an agreement for sale of the **-** same with the plaintiff for a total sale consideration of Rs.10,00,000/ by receiving an amount of Rs.8,00,000/- as advance. The period fixed for performance of contract was 6 months. Though the plaintiff was ready with the balance sale consideration, the first defendant had failed to perform her part of contract and she alienated the property on 10.5.2011 to the 2[nd] defendant as per sale deed No.1225/2011 of Kollam SRO. The document was created to defraud her creditors and RFA.No.670 OF 2014 3 executed without any consideration and hence it is liable to be declared as void. The plaintiff is entitled to get a decree for specific performance of contract and declaration. An alternative prayer for realization of the amount of the advance of Rs.8,00,000 **/** - is also claimed. 4. The first defendant inter alia contended that she had no property in Vadakkevila Village and no sale agreement was executed on 30.3.2011 on receipt of an advance amount of Rs.8,00,000/- in favour of the plaintiff. The document produced is a fabricated one and it is not legally enforceable. The sale deed bearing No.1225/2011 of Kollam SRO is a valid document and now the first defendant has no right over the property as the second defendant has purchased the same as per sale deed No.1225/2011. The plaintiff and the first defendant are having acquaintance with each other. She had some financial transactions with the daughter of the plaintiff and her son-inlaw. With respect to the said transaction the plaintiff had handed over four signed blank cheques and three blank stamp papers to them. The amount was repaid through Federal Bank, Changanassery Branch and in the financial transaction some more amount was due to be paid to the son-in-law of the plaintiff towards interest. Because of the close acquaintance with each other a signed blank paper was entrusted by RFA.No.670 OF 2014 4 the first defendant to the plaintiff as compelled by her saying that her daughter was harassed by her husband demanding money from the 1[st] defendant. No sale agreement was executed as alleged by the first defendant. The first defendant had sold her property to the second defendant as per sale Deed No.1225 dated 10.5.2011 and she is continuing as a tenant in the building. There were suits in the Munsiff Court, Kollam as O.S.No.177/2011 and O.S.No.246/2011 before the sale deed. The sale deed was executed after culmination of those suits and discharge of the liabilities. There is no sale agreement as alleged by the plaintiff and the first defendant has not received any amount as advance. 5. The second defendant contended that the property mentioned in the agreement is not the property in the suit. The allegation that a sale agreement was executed between the plaintiff and the first defendant is not correct and even if there is an agreement, it is not binding upon the second defendant. He is a bonafide purchaser of 2.02 Ares of land in Resy. No.9/3/2 of Kollam East Village with a building therein. He is enjoying the property as the owner with valid title. The sale deed is not a sham document as alleged. It is a valid document executed for valid consideration. The relief sought for in the plaint are not allowable and the plaintiff is not entitled for any of the reliefs RFA.No.670 OF 2014 5 sought for. 6. Before the court below the plaintiff herself was examined as PW1. PW2 to 7 were also examined and Exts.A1 to A6 were also marked. For the defendants Dws1 to 3 were examined. But no documentary evidence was adduced. Ext.X1 to X4 were also marked. The court below on appreciation of the evidence dismissed the suit by the judgment and decree under challenge. 7. Heard the learned counsel for the appellant/plaintiff and the learned counsel for the respondents/defendants. 8. The plaint schedule property is 5 cents of land with a building therein in Sy.No.9/3/2 of Kollam East Village. On the basis of Ext.A1 sale agreement the plaintiff has filed the suit for specific performance of contract. But at the outset it is to be noted that the execution of Ext.A1 is denied by the 1[st] defendant. A mere perusal of Ext A1 would show that it does not contain the necessary stipulations and conditions that would appear normally in a sale agreement. The first defendant had contended that no such agreement was executed for sale of the property for a total sale consideration of Rs.10,00,000/- and by receiving an amount of Rs.8,00,000/- as advance. The first defendant had also contended that it was a fraudulently created document and as there was some money transaction between the son-in-law, one RFA.No.670 OF 2014 6 Rejimon and the daughter of the plaintiff certain signed documents were executed by her and thus Ext A1 was fabricated. It is also to be noted that Ext.A2 is the copy of the sale deed by which the 1[st] defendant sold her property to the 2[nd] defendant. In Ext.A1 it is seen described as, situated in Vadakkevila village in Re.Sy.No.9/3/2 but in Ext.A2 it is shown as in Kollam village The sale agreement is not attached with a schedule of property with full details of the property . 9. It is well settled that in civil cases mere preponderance of probability is quite sufficient for its decision. The standard of proof required in civil cases is generally expressed as proof of balance of probabilities. It is not required by the party approaching the court seeking a relief to prove its case beyond reasonable doubt as in the case of criminal cases. In that view, the evidence adduced by the parties have to be evaluated. Here, it is pertinent to note that though the signature in Ext.A1 agreement is admitted by the 1[st] defendant, the execution of an agreement for sale of the plaint schedule property for a sum of Rs.10,00,000/- to the plaintiff was not admitted by the 1[st] defendant. The signature alone in the document is admitted by the 1[st] defendant. According to DW1, the 1[st] defendant, she had some financial transactions with Raji, the daughter of the plaintiff and Rejimon, the son-in-law of the plaintiff from the year 2008 itself. She RFA.No.670 OF 2014 7 was paying the amount due to them by way of instalments through Bank. While so, the plaintiff approached her and demanded for a document so as to pacify Rejimon, the son-in-law, who was blaming his wife Raji for not demanding the entire amount due to them with interest from the 1[st] defendant. So, the plaintiff insisted for a document to convince her son-in-law with regard to the amount due, as per the financial transaction between them and since the plaintiff is a person having close acquaintance with the 1[st] defendant for a quite a long time, she had affixed her signature in a blank stamp paper brought by the plaintiff. The plaintiff promised that it was only to pacify her son-in-law and not for any other purpose. The 1[st] defendant was working as a Clerk attached to the office of an Advocate and the plaintiff was running a small hotel in the Campus where the court building was situated. So, they were having acquaintance with each other and believing the words of the plaintiff, the 1[st] defendant affixed her signature in the blank stamp paper. But the plaintiff has manipulated the said document and created a sale agreement and filed the suit, is the definite stand taken by the 1[st] defendant. 10. It is well settled that mere affixing of signature does not amount to admission of execution of an agreement or deed. In **Velayudhan** v. **Velayudhan** (2001 (1) KLT 392) a Division Bench of RFA.No.670 OF 2014 8 ## this Court observed in para 9 as follows: ''To sign means to affix the signatures. But when it comes to the signing of written instrument, it implies more than the act of affixing a signature. It implies more than the clerical act of writing the name. The intention of the person signing is important. The person should have affixed the signature to the instrument in token of an intention to be bound by its conditions. It has been said that for a signing consists of both the act of writing a person's name and the intention in doing this to execute, authenticate or to sign as a witness. The execution of a deed or other instrument includes the performance of all act which may be necessary to render it complete as a deed or an instrument importing the intended obligation of every act required to give the instrument validity, or to carry it into effect or to give it the forms required to render it valid. Thus, the signature is an acknowledgment that the person signing has agreed to the terms of the document. This can be achieved only if a person signs after the document is prepared and the terms are known to the person signing. In that view of the matter, mere putting of signature cannot be said to be execution of the document.'' 11. So the admission of the 1[st] defendant of having affixed her signature in the document alone is not sufficient to treat it as a strong piece of evidence in favour of the plaintiff. The other facts involved in this case have to be evaluated meticulously as the fact that the parties had acquaintance with each other for quite a long period, is not denied by the plaintiff. It is pertinent to note that the 1[st] defendant had RFA.No.670 OF 2014 9 examined DW2 the Chief Manager of Federal Bank, Kollam Branch in order to prove her case that she had financial transaction with the daughter and son-in-law of the plaintiff and she repaid the amount by way of instalments. Ext.X1 to X4 series are the documents proved through the Manager. The case of the 1[st] defendant as DW1 was that due to the financial difficulty she was facing during the year 2008 she borrowed a sum of Rs.2.5 lakhs from Raji and Rejimon and as security for the said amount, she had handed over four blank signed cheques of Federal Bank, Kollam Branch and 3 signed blank signed stamp papers and the said amount was repaid by way of instalments with interest. She relies mainly on Exts. X1 and X2 to substantiate her case. Ext.X1 is the statement of account of the 1[st] defendant pertaining to the period from 1.8.2008 to 18.7.2014. From Ext.X1 it is seen that an amount of Rs.2,00,562/- was withdrawn from the account of the 1[st] defendant by Rejimon. It is further revealed from the said document that the account in favour of the 1[st] defendant/1[st] respondent started only on 1[st] August, 2008 and she deposited Rs.2,00,562/- on 19.8.2008 and on the very same day the amount had been withdrawn from her account by Rejimon. DW 1 had deposed that, her intention was to repay the amount directly to Rejimon but as it was not possible, she had to open an account and to deposit the RFA.No.670 OF 2014 10 amount so as to transact the money through the Bank and thus the account was started on 1.8.2008 and deposited Rs.2,00,562/- on 19.8.2008 which was withdrawn by Rejimon on the very same day. Ext X1 further shows that on 30.3.2009 an amount of Rs.1,00,000/was deposited in her account by Rejimon and that was withdrawn by him on 16th May, 2009. Like that, the entry dated 20[th] October 2009 would show that there was a deposit of Rs.38,100/- in her account and a further sum of Rs,27,600/- on 25[th] January 2010. Ext.X2 is the statement of account of Rejimon for the period from 1.8.2008 to 18.7.2014. Corresponding entry is seen in the account of Rejimon dated 19.8.2008 for a sum of Rs.2,00,562/-. So also, it is seen that on 15[th] June, 2009, Rs.11,200/- had been deposited by the 1[st] defendant in his account. It could also be seen that there was a deposit of Rs.12,200/- in the account by the 1[st] defendant on 18.7.2009, a sum of Rs.12,200/- on 19.8.2009, another sum of Rs.10,500/- on 19[th] September, 2009, a sum of Rs.5,250/- on 21[st] November, 2009 and like that various amounts had been deposited on various dates in the account of Rejimon. It is pertinent to note that both Exts. X1 and X2 are computer generated statements certified by the Chief Manager and Branch head of the Federal Bank, Kollam and both these documents are sufficiently proved as genuine by RFA.No.670 OF 2014 11 examining DW2. So, these documents would indicate that the first defendant had money transaction with the plaintiff during 2008 which extended upto November, 2010. 12. This would probablise the case of the 1[st] defendant that the plaintiff approached him to pacify her son-in-law as money was due from her in the transaction between the first defendant and Rejimon, the son-in-law of the plaintiff. 13. PW2 the witness of the plaintiff had deposed that Rs.75,000/- was borrowed by the 1[st] defendant for construction of a residential house in the plaint schedule property and she had issued a cheque as security for the said amount. But when she failed to repay the same, she filed a suit as O.S.No.343/2011 before the Munsiff Court and then the first defendant approached her along with her friend Mazeena and repaid the amount and got back the cheque from her. Thereafter the attachment ordered with respect to the property was lifted at her instance. 14. 1[st] defendant had also raised a contention that in fact the plaintiff was not even having money with her to pay an amount of Rs.8,00,000/- as advance for purchase of the property. Normally in a suit for specific performance of contract it is not necessary to verify whether the plaintiff had the amount to pay the advance amount. RFA.No.670 OF 2014 12 What has to be looked into is whether the plaintiff is having sufficient funds with her to pay the balance sale consideration. But when the peculiar facts involved in this case is evaluated especially when the 1[st] defendant had contended that the plaintiff had no capacity to pay the amount, it is necessary to evaluate the evidence in that line also. 15. According to the plaintiff she had raised funds by selling her gold ornaments of 40 sovereigns in a jewellery shop by name 'Fashion Jewellery' at Kollam. PW3 her daughter had deposed that she had handed over 40 sovereigns of gold ornaments to the plaintiff to sell the same to raise funds to pay the advance amount. PW6 one Suresh kumar was examined by the plaintiff to substantiate her case that she had sold 40 sovereigns of ornaments in a jewellary at Kollam by name 'Fashion Jewellery'. At the outset it is to be noted that no document was produced to substantiate her case that 40 sovereigns had been sold in the jewellery. PW6 though deposed that he is an employee of the jewellery no document was produced before the court to show that he was having any connection with the said jewellery. Therefore, apart from the interested testimony of PW6 no reliable and cogent evidence was adduced by the plaintiff to substantiate the allegation that 40 sovereigns of gold ornaments were sold so as to raise funds for payment of the advance amount of Rs.8,00,000/-. So RFA.No.670 OF 2014 13 the evidence of PW6 will not in any way help the plaintiff to substantiate the case of the plaintiff that she had arranged considerable amount to pay the advance amount of Rs.8,00,000/- by sale of gold ornaments owned by her daughter. 16. PW4, another witness examined by the plaintiff had admittedly no direct knowledge about the transaction. It is most interesting to note that the plaintiff had a case that the payment of Rs.8,00,000/- was for construction of the building situated in the plaint schedule property. If that be so, the defendant had to utilise the said amount for effecting construction and then alienate the property for a consideration of Rs.10,00,000/-. If that be so what the defendant would be getting as consideration in executing the sale deed in the instant case will only be Rs.2 lakhs. It is difficult to believe that such an agreement was executed between the parties as the evidence adduced by the plaintiff was to the effect that it was for the construction of the building in the property. Such an agreement also appears to be quite strange and would also probablise the case of the defendants that the document is a concocted one created by the plaintiff. 17. As the suit is mainly for the specific performance of a contract, the burden and the nature of proof to show that the intended RFA.No.670 OF 2014 14 purchase was a bonafide one, is definitely on the side of the plaintiff. The plaintiff had to establish that there was a concluded contract between parties . Even a meticulous evaluation of the circumstances narrated above is not required to cast serious doubt about the transaction between the parties. In fact a mere reading of Ext A1 would not show to whom, the sale deed was to be executed. A recital to that effect is conspicuously absent in the deed. The main requirement in a deed of this nature is the said clause, but it is conspicuously absent. Like that there is no clause that if the first party (the 1[st] defendant) fails to perform his part of the sale agreement or breach of the terms of the contract, then the 2[nd] party (the plaintiff) has the right to recover the advance amount paid by her. These two clauses are the important stipulations/provisions required in a deed of agreement to sell,but no such stipulations were seen incorporated in the document. The absence of such details would tell upon the genuineness of the document. It is well settled that even an oral agreement can be enforced, but there must be evidence to prove the there is a clear, definite and concluded contract between the parties to be enforced against the party who defaulted in performing the terms and conditions. But such a situation is not in existence in the present case. RFA.No.670 OF 2014 15 18. It is also to be noted that another relief has been sought for by the plaintiff to set aside document No.1225/2011 which stands in the name of the 2[nd] defendant as the property was transferred by the 1st defendant on 10.5.2011. Ext. A2 is the copy of the sale deed in favour of the 2[nd] defendant. Though the plaintiff has alleged that the sale deed in favour of the second defendant was executed by the 1[st] defendant to defeat the rights and interests of the plaintiff and it is a sham document which was created to defraud the creditors, in the relief portion what is sought for as relief (c) reads as follows: “the sale agreement executed between the defendants of Kollam SRO dated 10/5/2011 no.1225/1/2011 of the plaint schedule property may be declared void” 19. The plaintiff has requested to declare the sale agreement as void. In fact no relief was sought for to set aside the sale deed. No amendment was made to the pleadings and that would show that the plaintiff was not even vigilant in prosecuting the case filed against the defendants. A mere perusal of Ext.A2 coupled with the evidence of the 2[nd] defendant examined as DW3, who is a bonafide purchaser for value would indicate that the transaction between the 1[st] defendant and the 2[nd] defendant was a genuine one for valid consideration and the 2[nd] defendant can only be considered as a bonafide purchaser for valid sale consideration. Hence, the document is not liable to be set aside at any cost. RFA.No.670 OF 2014 16 20. Since it has come out in evidence that Ext.A1 agreement is not a sale agreement executed by the first defendant in favour of the plaintiff with the intention to alienate the plaint schedule property and that she had received an amount of Rs.8,00,000/- as advance from the plaintiff, the plaintiff is not entitled to get a decree for recovery of money on the basis of Ext.A1 agreement. In fact it appears that the first defendant had some financial transaction with the son-in-law of the plaintiff but that cannot be taken as an issue to grant a decree for realisation of money in favour of the plaintiff. No doubt, Ext A1could not be treated as a genuine document executed for the sale of the property involved. Only if the agreement is definite, clear, certain and genuine it could be enforced. When the existence of the document itself appears to be a false or concocted one, an enquiry whether the essential ingredients to decree a suit for specific performance, does not arise for consideration. The argument of the learned counsel for the plaintiff that as signature in Ext.A1 is admitted, the burden shifts to the 1[st] defendant, if accepted as such, it could safely be concluded that, he discharged the same by the overwhelming evidence available on record. 21. Considering all these facts I find that the plaintiff has failed to adduce reliable evidence before the court to prove that Ext.A1 is an RFA.No.670 OF 2014 17 agreement genuinely executed with the intention to sell the plaint schedule property, then owned by the 1[st] defendant. The sale effected by the 1[st] defendant in favour of the 2[nd] defendant is also held as a valid transaction and hence, not liable to be declared as void. So in short, on the basis of the peculiar facts and circumstances involved in this case, I find that the plaintiff is not entitled to get a decree for specific performance of contract, or for a declaration that the sale deed No.1225/2011 is a void one or for recovery of any amount from the 1[st] defendant. The court below has rightly rejected Ext.A1. It appears that the trial court examined all the evidence with care and diligence. No interference is called for in the well -reasoned judgment of the trial court. Accordingly, the appeal is dismissed. The parties shall bear their respective costs. Sd/- SHIRCY V 05.09.2019. JUDGE smm RFA.No.670 OF 2014 18