Thomas John and Others v. Joseph and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID THURSDAY, THE 9TH DAY OF AUGUST 2012/18TH SRAVANA 1934 AS.No. 490 of 1998 ( ) ---------------------(AGAINST THE JUDGMENT AND DECREE IN OS.349/1995 of PRINCIPAL SUB COURT,ERNAKULAM) APPELLANTS/PLAINTIFFS: ---------------------1. THOMAS JOHN, S/O.THOMAS, AGED 68, KANNAMPILLY, PUTHENPURACKAL, UDAYAMPEROOR, MANAKKUNNAM VILLAGE. -DIED.(LR'S IMPLEADED) 2. K.C.SALEEM, S/O.MADHAVAN, AGED 35, KATTANEZHATH, UDAYAMPEROOR, MANAKUNNAM VILALGE. *ADDL.APPELLANTS A3 TO A5 ARE IMPLEADED. ADDL.A3. K.J.THOMAS, S/O. THOMAS JOHN, KANNAMPILLY PUTHENPURACKAL, UDAYAMPEROOR, MANAKUNNAM VILLAGE. ADDL.A4. K.J.MATHEW, S/O. -DO- IN-DO- -DOADDL.A5. K.J.JOSEPH, S/O. DO. IN DO. -DO. *(LEGAL REPRESENTATIVES OF DECEASED 1ST APPELLANT ARE IMPLEADED AS PER ORDER DATED 29.6.2012 IN S.A.393/2012). BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.M.K.ROBIN RAJ SRI.M.L.SAJEEVAN SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.B.SUBRAMANYAN RESPONDENTS/DEFENDANTS: ----------------------- 1. JOSEPH, S/O. OUSEPH, AGED 64, KANNAMPILLY PUTHENPURACKAL, UDAYAMPEROOR MANAKUNNAM VILLAGE. -DIED (LR'S IMPLEADED ) A.S.NO.490/1998 -2- 2. VARGHESE,S/O. LATE OUSEPH, AGED 59, RESIDING AT KANNAMPILLIL HOUSE, UDAYAMPEROOR DESOM, MANAKUNNAM VILLAGE, KANAYANNUR TALUK. *ADDL.RESPONDENTS Nos.3 TO 7 ARE IMPLEADED. ADDL.R3.MARY, W/O.LATE JOSEPH RESIDING AT KANAMPILLY, PUTHENPURACKAL, UDAYAMPEROOR, MANAKKUNNAM VILLAGE. ADDL.R4. JOBY, S/O. DO-IN-DO. ADDL.R5. POULOSE, S/O. DO-IN-DO. ADDL.R6. GEORGE, S/O. DO-IN-DO. ADDL.R7. JOHNSON, S/O. DO-IN-DO. (*LEGAL REPRESENTATIVES OF DECEASED R1 ARE IMPLEADED AS ADDL.R3 TO R7 AS PER ORDER DATED 13.4.2012 IN I.A. 3857/2011.) BY ADV. SRI.ABRAHAM JOHN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: al. **HARUN-UL-RASHID, J. --------------------------------------A.S.No. 490 of 1998 --------------------------------------Dated this the 9[th] day of August 2012.** ## **JUDGMENT** Plaintiffs in O.S.349/1995 on the file of the Principal Sub Court, Ernakulam are the appellants. The appeal is directed against the judgment and decree dated 29.9.1997 in the suit. The suit was filed for specific performance of an agreement of sale. The court below held that the plaintiffs are not entitled to get plaint schedule property assigned to them on deposit of the balance of sale consideration. The parties hereinafter are referred to as plaintiffs and defendants as arrayed in the suit. 2. Originally there was only one defendant in the suit who is the sole defendant. As per order dated 19.6.1996 in I.A.4312/1995, the first defendant's brother was impleaded as additional 2nd defendant. The suit was filed stating that the original defendant executed an agreement dated 19.12.1994 undertaking to sell to the plaintiffs, the plaint schedule property on or before 31.1.1995. Rs.15,000/- per cent is the consideration fixed for the property. The property is a small **A.S.No.490/1998+** **2** bit of land having approximately 2 cents. It is recited in the agreement that Rs.3,000/- was received by the defendant as advance towards the total sale price. The suit was filed on the allegation that though the plaintiffs were ready and willing to pay the balance sale consideration and to get the sale deed registered, at their expenses, the defendant was not ready to comply with the stipulations in the karar and refused to execute the sale deed. The plaintiffs sent lawyer notice on 31.1.1995. Ext.A1 is the agreement. Ext.A2 is the copy of the lawyer notice and Ext.A3 is the reply notice dated 21.2.1995. In the reply notice, the defendant denied the execution of the karar and receipt of advance amount. In the written statement filed by the additional 2nd defendant, it is _inter alia_ contended that original defendant has no absolute saleable right over the plaint schedule property, that the additional 2nd defendant has in fact right over the plaint schedule property and so the original defendant is not entitled to enter into an agreement for the sale of plaint schedule property to any one. Therefore, the plaintiffs are not entitled to get the plaint schedule properties assigned to them. 3. PWs.1 and 2 were examined on the side of the plaintiffs and Exts.A1 to A3 were marked. DW1 is the additional 2nd defendant and DW2 is the original defendant. The defendants did not produce any documents. 4. The court below did not place any reliance on the oral **A.S.No.490/1998+** **3** evidence of the 2nd plaintiff who was examined as PW1. PW2 is the attesting witness to Ext.A1 agreement. The court held that Ext.A1 is a mutual agreement that, none of the plaintiffs has signed Ext.A1 and that PW2, the attester to Ext.A1 is interested towards the plaintiffs. The trial court also recorded the findings against plaintiffs for the reason that the plaintiffs failed to examine the scribe who is the son of the first plaintiff. The trial court by observing that there is no independent or cogent evidence to find that first defendant has executed Ext.A1 karar, denied reliefs to the plaintiffs. The trial court did not accept the case of the plaintiffs that the defendant received Rs.3000/- as advance. The court also did not place reliance on Ext.A1 agreement for the reason that it is prepared in white paper. Another reason stated by the court below is that the property in question does not absolutely belong to the first defendant so as to enable him to sell the property. It is stated by the learned Judge that the property in question includes a pathway which is set apart for the use of both the defendants. The court held that unless it is established that the first defendant has absolute right to sell the property, the karar, even if it is held that it is executed by the first defendant cannot be said to be one which is enforceable and that as per Section 56 of the Contract Act, an agreement to do an act impossible in itself is void. In short, the court held that if the property belongs to defendants 1 and 2, one of them alone cannot sell it or to enter into a contract of sale and **A.S.No.490/1998+** **4** that even if one of them can enter into a contract to sell the same, such contract is not having any legal validity. For the said reasons, the court below dismissed the suit. 5. Ext.A1 is the agreement executed by the defendant (sole defendant) in favour of the plaintiffs undertaking to sell the plaint schedule property on or before 31.1.1995. The agreement is dated 19.12.1994. It is recited in Ext.A1 that the plaintiffs paid Rs.3,000/as advance towards the sale price. Rs.15,000/- is the amount fixed as consideration for the sale. I have gone though the evidence of PW1 and PW2. PW1 testified before the court that first defendant executed the karar on 19.12.1994 receiving Rs.3000/- as advance and agreed to execute the sale deed on or before 31.1.1995. PW2 is the attesting witness to Ext.A1. He testified before the court that he had signed Ext.A1 agreement in the presence of the parties and witnessed the execution of the agreement. I have also examined the admitted signature of the defendant in the acknowledgment card signed by him on receipt of the notice and the signature in Ext.A1 agreement. I find similarity in the signatures. Ext.A1 is a unilateral agreement and is not a mutual agreement. Therefore, the plaintiffs cannot be find fault with not signing Ext.A1 agreement. I have gone through the oral evidence of PW2. Nothing has been brought out to discredit his testimony though he was cross examined at length. The court below disbelieved the versions of PW2 stating that he is interested towards **A.S.No.490/1998+** **5** the plaintiffs. This Court finds no sustainable reasons to hold so. The court below also found fault with plaintiffs for not examining the scribe of Ext.A1. The execution of Ext.A1 agreement can be proved by the examination of the attesting witnesses. The non-examination of scribe is not fatal to the merits of this case. Competent witness to be examined is the attesting witness to the karar. He was examined in this case. Therefore, the finding that there is no independent or cogent evidence to hold that the first defendant has executed Ext.A1 karar is without any basis. Further, the court below held that the property does not absolutely belong to the first defendant and therefore, he has no right to sell the property and the karar cannot be one which is enforceable. The 2nd defendant though contended that the property was not the absolute property of the first defendant, no evidence was adduced to prove his right over the said property. Nothing has been produced before the court to prove that additional 2nd defendant has any right over the property. Both defendants did not adduce any evidence in support of their contentions. 6. In such circumstances, finding of the court below that property belongs to both defendants is without any substance and without any evidence. Even if the property belongs to two persons there is nothing wrong, in the first defendant to convey his title by Ext.A1 karar. If the transferee has only fractional interest he has got every right to convey his fractional interest to any 3rd person. **A.S.No.490/1998+** **6** Therefore, even if, it is found that the first defendant has got only fractional right over the property, then also, Ext.A1 karar is enforceable. 7. Learned Senior counsel contended that the court below went wrong in holding that there is difference in the signature of defendant No.1 in Ext.A1, in the vakalath and in the written statement. Learned Senior counsel for the appellant submits that signatures in the vakalath and written statement are similar to that of Ext.A1. 8. Learned Senior counsel also submits that the Advocate Commissioner appointed, by the Court to examine defendant No.1 has not discharged his duty by not deciding the question of admission of the postal acknowledgment card in evidence. According to him, the Advocate Commissioner should have admitted the acknowledgment card in evidence and should have granted an opportunity to the appellants to cross examine defendant No.1. Learned Sr. Counsel also pointed out that the findings of the court below that the first defendant has no right to convey plaint schedule property as defendant No.2 has a right of way through plaint schedule property is not sustainable in law. It is pointed out that even if plaint schedule property was conveyed to the appellants the right of way claimed by defendant No.2 will not be extinguished. The counsel also contended that finding of the court below that plaint schedule property includes a pathway which is set apart for the use of both the defendants as per **A.S.No.490/1998+** **7** partition effected in their family is wrong and that such an observation was without any pleadings and evidence. The counsel for the appellants submits that the court below went wrong in holding that the respondent No.1 can sell the plaint schedule property only with the juncture of 2nd defendant and that the right of way to the defendant No.2 if any will not be affected by conveying the title and interest of respondent No.1. 9. I have examined the findings recorded by the court. Learned counsel for the appellant also relied on the decisions reported in **Kammana Sambamurthy** (deceased by L.Rs) v. **Kalipatnapu Atchutamma** (deceased by L.R) **and Ors. (AIR 2011 SUPREME COURT 103), Aloka Bose** v. **Parmatma Devi & Ors. (AIR 2009 SUPREME COURT 1527) and Thiruvengada Pillai** v. **Navaneethammal 2008 (2) KLT 267 (SC)** in support of their contentions. Learned counsel also brought to the notice of this Court the relevant passages in the Indian Contract Act & Specific Relief Act (Vol.II Pollock &Mulla) 14[th] Edition and the decisions reported in **Kundan Lal Rallaram, Appellant v. Custodian, Evacuee Property, Bombay, Respondent (AIR 1961 Supreme Court 1316), K.S.Nanji and Co.,Appellants v. Jatashankar Dossa and others, Respondents (AIR 1961 Supreme Court 1474), A.C.Arulappan, Appellant v. Smt.Ahalya Naik, Respondent AIR 2001 SUPREME COURT 2783.** Learned counsel also brought to the notice of this **A.S.No.490/1998+** **8** Court Page No.1864 of Sarkar on Evidence 17[th] Edition Vol.II in support of his contention that burden of proof lies on the defendant. I have examined the findings of the court below and contentions raised by the appellants. In the facts and circumstances noticed in the previous paragraphs, this Court is of the view that the court below failed to appreciate the facts and circumstances on the right perspective and failed to follow the correct principles of law. In these circumstances, this Court is of the view that the matter will have to be reconsidered afresh and a decision shall be taken after reappreciating the evidence. In the result, the appeal is allowed. The judgment and decree passed by the court below is set aside. The case is remanded for fresh consideration in accordance with law and untrammeled by any of the observations and findings in the judgment under appeal and this judgment. Parties shall appear before the court below on 12.9.2012. The court below shall dispose of the case as expeditiously as possible at any rate, within a period of nine months from the date of appearance of the parties. No order as to costs. Sd/- **HARUN-UL-RASHID JUDGE** al True copy P.A. To Judge **A.S.No.490/1998+** **9** ## **HARUN-UL-RASHID,J** **A.S.490/1998** ## **JUDGMENT** **9.8.2012**