T.K. Jalaludheen Musaliar and Others v. Beena S and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 16[TH] DAY OF NOVEMBER 2021 / 25TH KARTHIKA, 1943** **RFA NO. 172 OF 2020** **AGAINST THE JUDGMENT & DECREE DATED 10/07/2020 IN OS 102/2014 AND ALSO THE COUNTER CLAIM OF ADDITIONAL SUB** ## **COURT, KOLLAM** ## **APPELLANTS/DEFENDANTS 1 TO 3:** - **1 T.K.JALALUDHEEN MUSALIAR, AGED 80 YEARS S/O LATE THANGAL KUNJU MUSALIAR, RESIDING AT MAISON ARMITAGE, KILIKOLLUR P.O., KOLLAM PIN-691 004.** **2 NAJUMA MUSALIAR, AGED 71 YEARS W/O JALALUDHEEN MUSALIAR, RESIDING AT MAISON ARMITAGE, KILIKOLLUR P.O., KOLLAM PIN-691 004.** **3 J.AFSAL MUSALIAR, AGED 46 YEARS S/O JALALUDHEEN MUSALIAR, RESIDING AT MAISON ARMITAGE, KILIKOLLUR P.O.,KOLLAM PIN-691 004.** **BY ADVS. S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.A.JANI(KOLLAM) SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.AJAY BEN JOSE SRI.MANJUNATH MENON SHRI.HARIKRISHNAN S.** ## **RESPONDENTS/PLAINTIFF & DEFENDANTS 4 TO 6:** **1 BEENA.S AGED 45 YEARS D/O LATE SHAMSUDHEEN, RESIDING AT BARDH, ULIYAKOVIL P.O., KOLLAM PIN-691 019 (PLAINTIFF)** - **2 P.M. SHABEER, AGED 66 YEARS** RFA NO. 172 OF 2020 2 **S/O LATE PEER MUHAMMAD, RESIDING AT AAZEEN NO 33 A, MUSALIYAR NAGAR, SECOND MILE STONE, KILIKOLLUR P.O.,KOLLAM PIN-691 004 (4TH DEFENDANT)** **3 SHAHUL HAMEED, AGED ABOUT 56 YEARS WRA-87, REHUMATH, KALIPPAMANGALAM, MANAKKADU, THIRUVANANTHAPURAM-9 (5TH DEFENDANT)** **4 KUKKILI, AGED ABOUT 51 YEARS HEAD ACCOUNTANT, SUPREME TRADERS, CHINNAKKADA, KOLLAM, PIN-691 001 (6TH DEFENDANT)** **BY ADVS. SRI.K.S.HARIHARAPUTHRAN FOR R1 SMT.BHANU THILAK FOR R1** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 16.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA NO. 172 OF 2020 3 ## **JUDGMENT** The defendant Nos.1 to 3 came up in appeal aggrieved by the decree declaring Ext.A1 sale deed (original of which marked as Ext.B2) void and setting aside the said document, besides its cancellation by the trial court and the decree for mandatory injunction and consequential perpetual injunction and also against the dismissal of the counter claim. 2. The dispute is centering around the alleged execution of Ext.B2 sale deed by the plaintiff in the name of first defendant. The sale consideration stated in the document comes to Rs.20,00,000/- (Rupees twenty lakhs). According to the plaintiff, it is the result of coercion and threat exerted by defendants 1 to 3 on the plaintiff and hence the suit for declaring the document void and to set aside and cancel it. 3. Defendant Nos.1 and 2 are the father RFA NO. 172 OF 2020 4 and mother of the 3[rd] defendant and 4[th] defendant is one of their relatives. The very case advanced by the plaintiff is that she had constructed a building over the property with the loan assistance from Federal Bank Ltd., Kollam and it was subsequently taken over by Karur Vysya Bank **,** Kollam. For the last 28 years, the defendants are conducting business in the name and style of 'Supreme Bakers' at Kollam. The plaintiff was working as the Manager of the said business from its very inception till 1/11/2014. She was paid salary of Rs.15,000/- per month. On her request, it was enhanced to Rs.45,000/- per month from August, 2014 onwards. While so, on 1/11/2014 at about 9 p.m., she was summoned to the office of the defendants. She went to their office along with her daughter Shabnam and son-in-law Riyas, but she alone was taken to their cabin and unleashed threat on her on the allegation that she had misappropriated an amount of Rs.75 lakhs for the last eight months from their 5 RFA NO. 172 OF 2020 business concern, besides the allegation that they had sustained a heavy loss of Rs.2 crores during the last two years. From there, the plaintiff, her daughter and son-in-law were taken to the plaint schedule property and took away the cheque book of her daughter maintained with Karnataka Bank, Kollam Branch. Copies of title deeds of the plaint schedule property, title deed and prior deed of another 74 cents of property along with basic tax receipts were also taken away by the defendants. Thereafter, the plaintiff and her daughter and son-in-law were again taken back to their office and obtained a signed undated cheque for Rs.1 crore from her daughter besides a promissory note. The plaintiff and her son-in-law were also coerced to sign as witnesses to the said promissory note. 4. On 4/11/2014, the defendants again came to the plaint schedule property at about 10 p.m. and under threat and coercion obtained two agreements signed by the plaintiff without RFA NO. 172 OF 2020 6 disclosing its content. Her son-in-law was also compelled to sign on the agreement as a witness. 5. On 5/11/2014, they were again taken to the office of the document writer Somavally Amma at about 1.15 p.m. and thereafter to the office of Sub Registrar, Kollam by 2.00 p.m. and obtained thumb impression and signature of the plaintiff in a document and got it registered without making any enquiry with respect to the content of the document or consent of the party by the Sub-Registrar. The son-in-law of the plaintiff Riyas was also compelled to sign on the document as a witness. It was not executed at the free volition of the plaintiff. 6. On 30/11/2014, the defendants 1 to 3 came to the residence of the plaintiff and threatened to vacate the premises. On enquiry at the Sub-Registry Office by the plaintiff, she came to know about the execution of the sale deed in respect of the plaint schedule RFA NO. 172 OF 2020 7 property in favour of the first defendant for a total consideration of Rs.20 lakhs. The plaintiff was also taken to Karur Vysya Bank on 6/11/2014 and caused to take back title documents. On enquiry, it was understood that the 3[rd] defendant had issued a cheque for RS.35,35,000/-(Rupees Thirty Five Lakhs Thirty Five Thousand) for discharging the bank liability, without the consent of the plaintiff. 7. The defendants contested the suit denying all the allegations levelled against them regarding the execution of the sale deed. According to them, she was in a financial crisis at the time when the sale was effected. It was sold by the plaintiff at her free volition by accepting a total consideration of Rs.85,35,000/ (Rupees Eighty Five Lakhs Thirty Five Thousand). As insisted by her, an amount of Rs.50 lakhs was paid in cash. The balance amount of Rs.35,35,000/- (Rupees Thirty Five Lakhs Thirty Five Thousand) was paid for RFA NO. 172 OF 2020 8 discharging the bank liability with Karur Vysya Bank under a cheque issued by the 3[rd] defendant, thereby she had received the entire sale consideration. It was on her request, the sale consideration was stated in the document as Rs.20 lakhs. Hence, a separate agreement, Ext.B1 was executed on the very same day showing the actual sale consideration and the mode of payment. Both these documents were duly executed and signed by the plaintiff and her son-in-law affixed his signature as a witness to its execution. 8. The trial court found that Ext.B2 is the result of coercion exerted on the plaintiff by defendants 1 to 3 and hence declared void and also set aside and cancelled the same and granted a decree of permanent prohibitory injunction and dismissed the counter claim, against which defendants 1 to 3 came up in appeal. 9. It is submitted by the learned counsel for the plaintiff Sri.Hariharaputhran that the 9 RFA NO. 172 OF 2020 circumstances involved in the suit would sufficiently show the alleged coercion on the plaintiff in getting Ext.B2 sale deed executed in favour of the first defendant. The main focus of the argument is that the plaintiff was coerced to execute Ext.B2 sale deed under threat that she had misappropriated an amount of Rs.75 lakhs from the business of the defendants while she was working as the Manager. The admission made by DW2, the son of first defendant was brought to the notice of this court in support of his argument that no possession was handed over in furtherance of the sale. Hence, the sale deed is void and fictitious. It is further submitted that when there is serious dispute as to the consideration paid by the purchaser to the seller, the document would stand sham and took reliance from **Thulasidhara and Another v. Narayanappa and Others [(2019) 6 SCC 409]** . Further, no evidentiary value can be given to Ext.B15 document showing payment of an amount RFA NO. 172 OF 2020 10 of Rs.50 lakhs out of the sale consideration and relied on the legal position settled by a Division Bench of this Court in **Chirag** **Enterprises, Merchant and Commission Agents v. Star Traders, Merchants and Another [2012 (4)** **KHC 271]** . It was also submitted that the first defendant has not mounted on the box and after filing the proof affidavit, he went away from the court without facing cross-examination, hence adverse inference has to be drawn and took reliance from **Sardar Gurbakhsh Singh v. Gurdial Singh and Ors [AIR 1927 Privy Council 230]** and **Vidhyadhar v. Manikrao and Another [AIR** **1999 SC 1441]** . Inter alia, it was contended that mere marking of a document does not by itself amount to acceptance in evidence by taking support from **Narbada Devi Gupta v.** **Birendra Kumar Jaiswal and Another [(2003) 8** **SCC 745]** . It was also submitted that when execution is under challenge, the burden would equally lie on the person, who claimed under the document by relying on **Dattatraya v.** RFA NO. 172 OF 2020 11 **Rangnath Gopalrao Kawathekar [AIR 1971 SC** **2548]** . 10. An initial objection was raised by the defendants that the plaintiff is estopped from adducing oral evidence against the contents of Ext.B2 document, the alleged sale deed by virtue of operation of Section 92 of the Evidence Act. But it was rightly rejected by the trial court by relying on **Krishi Utpadan Mandi Samiti, Sahaswan v. Bipin Kumar (AIR 2004** **SC 2895)** . It is well settled that the bar under Section 92 of the Evidence Act will not operate against a “term of contract”. Neither consideration nor delivery of possession will come under the purview of “term of contract” and as such, parol evidence is permissible. 11. It is an admitted case of the plaintiff that the signatures found affixed in Exts.B2 sale deed and Ext.B1 agreement for sale as that of her and her son-in-law were affixed respectively by them on the date of its execution. Further, it is admitted that she RFA NO. 172 OF 2020 12 went to the Sub-Registrar office for its registration, but pleaded that she was not aware of the contents of the document. At the same time, she admitted that it is her son-inlaw, who had introduced her before the SubRegistrar along with another witness, for its registration. Her son-in-law,PW2 has also admitted all these facts while in the box. It was also admitted that on the next day of its execution, she was taken to the bank for clearing the bank liability over the property. She did not have any case that her son-in-law, PW2, colluded with defendants 1 to 3 for getting the document executed and registered. No such case was advanced by the plaintiff and no such allegation was raised against her sonin-law, PW2. Even she did not have any case of enmity or ill-will with her son-in-law. On the other hand, even going by the case advanced by the plaintiff, it is clear that she took the help and assistance of her daughter and son-inlaw when she went to the office of defendants 1 RFA NO. 172 OF 2020 13 to 3 on 1/11/2014 at 9 p.m.. It is her further case that her son-in-law accompanied her at the time when Ext.B2 was executed and registered on 5/11/2014 and also at the time when the agreement for sale was executed on the same day. PW2, the son-in-law, is a witness to the registered sale deed and the agreement for sale. On the other hand, Ext.B2 document would sufficiently show that it was signed by her son-in-law, PW2, as an attesting witness to the document. He is one of the witnesses who identified the executant before the Registrar and signed before him for the purpose of registration. Hence, it is clear that the plaintiff was accompanied and assisted by her son-in-law at the time when Ext.B1 agreement was executed and Ext.B2 sale deed was executed and registered in accordance with the law in force, wherein he stood as a witness. While in the box, he had admitted his participation in the execution of Ext.B2 sale deed and Ext.B1 agreement for sale and the signatures affixed RFA NO. 172 OF 2020 14 therein as that of him. If they were compelled and coerced to execute the abovesaid documents under threat as alleged, it is not explained why they have not taken up the matter with any competent authority by preferring a complaint immediately after its execution or within a reasonable time and what actually prevented them from making a complaint before any authority. Admittedly, they were not put under any guard or surveillance after the execution of Ext.B2 sale deed. No such case was advanced. Even according to them, on 1/11/2014 four days before its execution, a cheque for Rs.1 crore and a promissory note signed by both of them were obtained from her daughter under threat and coercion against which also, neither the plaintiff nor her daughter or son-in-law made any complaint at any point of time till the date of the suit. It is admitted by PW2 that immediately after the execution and registration of Ext.B2 sale deed, he went to Thiruvananthapuram to meet his wife, who was RFA NO. 172 OF 2020 15 residing there at that time. There is a clear four days gap from the day on which the plaintiff alleged to have been summoned to the office of defendants 1 to 3 and the day on which Ext.B2 sale deed was executed and registered. No probable or acceptable explanation was forwarded by the plaintiff or PW2, the son-in-law, who had accompanied her, as to why they have not approached any of the competent authority regarding the threat and coercion unleashed on them by defendants 1 to 3 on 1/11/2014, the date on which the alleged cheque for Rs.1 crore and a promissory note got executed from her daughter and also on 05/11/2014 on which the alleged sale deed was executed. It seems to be so strange that even according to PW2, immediately after the execution of Ext.B2 sale deed and its registration, he went to Thiruvananthapuram to meet his wife, who was residing there at that time. He did not make any complaint regarding the preparation of promissory note or cheque by RFA NO. 172 OF 2020 16 his wife under threat and coercion. Hence, his version that the defendants had obtained a cheque for Rs.1 crore besides a promissory note from his wife seems to be so fallacious simply on the reason that just after its alleged execution and the execution of alleged sale deed, no action worth the name was taken by him or his wife as against the alleged malpractice of defendants, but simply stayed back till the date of execution of Ext.B2 sale deed and even after he went to Thiruvananthapuram to meet his wife without resorting to any remedy available. The fact that he went to Thiruvananthapuram after the execution of Ext.B2 sale deed at Kollam itself would show that he was not put under any surveillance by the defendants. The presence of plaintiff's daughter as on the date of alleged execution of cheque for Rs.1 crore and promissory note alleged by the plaintiff is also doubtful as she was in Thiruvananthapuram at the time when her husband went there after the execution of Ext.B2. It is so strange RFA NO. 172 OF 2020 17 enough that the plaintiff has never made any complaint regarding the alleged malpractice before any competent authority immediately after the alleged incident or within a reasonable time. All these are quite against the normal conduct of an ordinary prudent man and will take away even the probability of the case advanced by the plaintiff. 12. It is her further allegation that on the next day i.e. 6/11/2014, she was taken to the bank and obtained the documents of title entrusted with the bank in a loan transaction and took away by the defendants. Later on, it was learnt that a cheque for Rs.35,35,000/(Rupees Thirty Five Lakhs Thirty Five Thousand) was submitted with the bank on the same day for discharging the bank liability by the defendants. It is further alleged that it was done by the defendants without her knowledge or consent. The said version has got its own improbability and inconsistency. It was admitted by her that the documents entrusted RFA NO. 172 OF 2020 18 with the bank in a loan transaction was taken back from the bank. If that be so, she cannot be permitted to plea that it is without her knowledge and notice, they have discharged the bank liability by issuing a cheque for Rs.35,35,000/- (Rupees Thirty Five Lakhs Thirty Five Thousand) and hence the case set up by her that she came to know about it only on later stage on enquiry cannot be swallowed without a pinch of salt. Admittedly, she did not raise any objection to the bank at the time when the loan was discharged. On the other hand, Ext.B4 letter submitted to the Bank Manager for the said purpose contains her signature. If it was done under threat or coercion as alleged by her, it was not explained why it was not objected at the bank and why no complaint was filed before any competent authority inspite of the fact that it was discharged after the execution of the sale deed on the previous day and Ext.B1 agreement, wherein there is a clause regarding payment of a total sale consideration RFA NO. 172 OF 2020 19 of Rs.85,35,000/- and the amount reserved for discharging the bank liability, which comes to Rs.35,35,000/-. Falsity is writ large on the very case advanced by the plaintiff regarding the circumstances as narrated by her which led to the execution of Ext.B1 agreement, Ext.B2 sale deed, Ext.B4 letter, issuance of cheque for Rs.35,35,000/- to the bank by the 3[rd] defendant for discharge of bank liability over the property. In fact, she remained idle and inactive after the discharge of her liability with the bank for a total amount of Rs.35,35,000/- and thereby accepted the benefit under it for a long time without raising any objection whatsoever immediately after it or within a reasonable time. Even in the suit, nothing has been mentioned with respect to the abovesaid benefit received by her either expressing her willingness to relinquish and return or making any deposit thereof with the court. Nothing has been mentioned in that behalf though she had admitted the receipt of RFA NO. 172 OF 2020 20 an amount of Rs.35,35,000/- towards the discharge of bank liability. The advantage that was obtained by discharging the liability under the same transaction covered by Ext.B1 agreement for sale and execution of sale in performance of that agreement was not relinquished or returned by the plaintiff till the date of suit or even after the suit. When a benefit under a transaction was accepted, the party cannot go against the remaining part of the same transaction (Exts.B1 & B2) and would stand estopped from challenging it. On that ground also, the plaintiff cannot maintain a suit of this nature without relinquishing the benefit acquired by her under the same transaction by way of discharge of liability of Rs.35,35,000/- with the bank. 13. During the cross examination, PW2 has admitted that he is a person having wide social contact and friendship with police officials of high rank besides his social contact with politicians. Admittedly, he was doing two RFA NO. 172 OF 2020 21 separate business at Bishop Jerome Nagar at Kollam along with his wife and handling everything pertaining to the conduct of the said business. But till the date of the suit, no complaint was filed before any competent authority regarding the malpractice on account of the execution of a cheque for Rs.1 crore from his wife and the promissory note thereof, the execution of Exts.B1 and B2 deeds, the submission of Ext.B4 letter to the bank for the alleged discharge of bank liability, the allegation that the defendants had taken away documents returned by the bank etc. either by him or through his wife or through the plaintiff, his mother-in-law. Admittedly, the plaintiff, her daughter and her son-in-law are well educated persons. 14. The plaintiff in the box has admitted that she was maintaining very good relationship with defendants 1 to 3 and that even they have extended a helping hand to her by enhancing her monthly salary to Rs.45,000/- as against RFA NO. 172 OF 2020 22 Rs.15,000/- from August, 2014 onwards taking into account her financial crisis. It is further admitted by her that she was facing shortage of funds and financial problems during the relevant period in which Ext.B2 sale deed was executed. It is further evident from the fact that the property was burdened with a liability of Rs.35,35,000/- with Karur Vysya Bank at that time and she was not in a position to pay off the said liability. It would clearly show that there were compelling circumstances to sell off the property at the relevant time, which was omitted to be considered by the trial court. Further, every compelling circumstances existed at the time of execution of sale of immovable property cannot be a ground to vitiate the transaction unless it was caused to be originated by the act of purchaser or the persons behind him to the extent of making the seller to do the alleged act without any alternative. 15. The allegation in the plaint by the RFA NO. 172 OF 2020 23 plaintiff that she came to know the nature of the document and the consideration stated therein only from the date on which the defendants demanded her to vacate the premises i.e. on 30.11.2014 is a total falsehood. It seems to be so strange that she had executed and signed on the document without knowing its content, though she was assisted and accompanied by her son-in-law to the office of document writer and the office of SubRegistrar. She did not have any kind of grievance against her son-in-law and no case was set up that her son-in-law was not aware of the nature of document, Ext.B2, at the time of its preparation and execution and at the time when she was introduced before the SubRegistrar for its registration. Hence she cannot be allowed to plead ignorance with respect to the nature of document executed and registered with the active participation of her son-in-law. 16. The further case that the Sub- RFA NO. 172 OF 2020 24 Registrar even did not obtain her consent for its registration and not even disclosed its nature and she came to know only on subsequent enquiry when a demand was raised to vacate the premises cannot be accepted on two reasons that her son-in-law was with her all along at the time when Ext.B2 sale deed was executed and registered and also at the time of execution of agreement for sale. The Sub-Registrar was also examined as a witness and nothing was brought out to discredit his evidence. 17. The discharge of the said liability on 6.11.2014 is admitted in the plaint, but advanced a case that she was forcibly taken to the bank under threat and coercion on the next day of execution of Ext.B2 sale deed. Exts.B3,B4 and B5 documents produced by the defendants assumes importance at this juncture. Among them, Ext.B4 is an application containing her signature addressed to the Bank Manager dated 6/11/2014 seeking to discharge the bank liability on payment and to release the RFA NO. 172 OF 2020 **==> picture [15 x 9] intentionally omitted <==** documents of title entrusted with the bank. Ext.B6 letter dated 3/12/2014 proved through the Bank Manager, who was examined as PW3, would destruct even the very root of the case advanced by the plaintiff. It is a subsequent letter submitted by the plaintiff after 26 days in order to get a certified copy of her account and discharge of the bank liability so as to enter the same in the return to be filed before the income tax department as part of her financial transaction. It carries an admission and recognition regarding the abovesaid payment under the cheque and discharge of liability with the bank as one of her financial transaction. Accordingly, the bank issued a certified copy of the bank account and discharge details, Ext.A6. The fact that subsequently after 26 days she had applied for getting a certified copy of bank account for the purpose of entering the discharge of bank liability in her income tax return would sufficiently show that she was well aware of RFA NO. 172 OF 2020 26 the submission of Ext.B4 letter to the Bank Manager for the purpose of discharging the bank liability and the presentation of the cheque for Rs.35,35,000/- (Rupees Thirty Five Laksh Thirty Five Thousand) by the 3[rd] defendant. It would further show the fallacious nature of the case advanced by the plaintiff. 18. The next attack is against the payment of an amount of Rs.50 lakhs (Rupees Fifty Lakhs) in cash out of the sale consideration on the date of its execution. According to the defendants, it was on her request, such a huge amount was paid in cash by reserving the balance sale consideration of Rs.35,35,000/for discharging the bank liability and it was accordingly discharged on the next day. Subsequently, she had applied for getting a certificate so as to include the same in her income tax return. Once, the bank liability was discharged without any objection at her presence, that too, at her instance, it would support the acceptance of the said amount by RFA NO. 172 OF 2020 27 way of balance sale consideration, which would pre-suppose the earlier payment of other part of the consideration as enumerated under Ext.B1 agreement since it is by way of payment of balance sale consideration which was not objected to by the plaintiff. Hence, the production of Ext.B15 must be understood only for corroborative purpose and not as the sole document so as to bring out a liability. Ext.B15 was also entered in the return submitted before the tax authorities. Ext.B15 further shows that such a cash balance was available with the defendants at the time when it was withdrawn. What is dealt with in **Chirag Enterprise** 's decision (supra) is that entries in the book of account being a corroborative piece of evidence, no action can be maintained solely based on it and it shall not be a one set up during the ' _lis in motion'._ Further it was held that no sanctity can be attached to private extract of alleged account books, where the original accounts are not produced. As RFA NO. 172 OF 2020 28 discussed earlier, Ext.B15 and the entry made therein in the usual course of business was entered duly in the income tax return and it was produced and let in evidence as a corroborative piece of evidence. 19. It is true that an amount of Rs.20 lakhs alone was shown as the sale consideration in the document as against what is stated in the agreement for sale, which comes to Rs.85,35,000/-. An attempt to evade payment of proper stamp fee and registration fee in a document of transfer by not showing the actual consideration cannot by itself be a ground to invalidate the document when it was duly executed in accordance with the mandate under Section 54 of the Transfer of Property Act and registered under Section 17 of the Registration Act in compliance with the requirement under Sections 32, 33 and 34 of the Stamp Act. This might be the reason why the legislature has incorporated Section 45 B in the Stamp Act so as to deal with the documents which are 29 RFA NO. 172 OF 2020 undervalued. Hence, it cannot be taken as a ground of attack when the sale deed is proved to be executed in accordance with the mandate aforesaid. 20. Yet another contention was also raised by the plaintiff that the first defendant after filing proof affidavit went away from the court without facing cross examination and as such, adverse inference has to be drawn and secondly on the reason that the first defendant, who is the purchaser under Ext.B2 document was not mounted on the box. But, it is a suit against three defendants instituted on the allegation of threat and coercion exerted on the plaintiff by them jointly, in getting the sale deed executed and hence it is not at all necessary that the defendants who are standing on the same pedestal should be and must be mounted on the box to testify themselves. It is sufficient that one among the defendants who is standing on the same pedestal mounted on the box and faced cross examination for and on behalf of RFA NO. 172 OF 2020 30 all the defendants. It is not the plurality of the evidence, but its admissibility that governs and hence no adverse inference can be drawn. Further, no such proof affidavit as alleged by the plaintiff was submitted by the first defendant. The decision relied on by the plaintiff in **Sardar Gurbaksh Singh v. Gurdial Singh and Others (AIR 1028 PC 230)** hence will not render any assistance to the plaintiff. 21. The diversion of possession of property though an indication supporting a transfer of ownership over the immovable property, it has no much role to play in effectuating a valid sale as per Section 54 of the Transfer of Property Act and Section 17 of the Registration Act read with Sections 32, 33 and 34 of the Stamp Act. It is the specific case advanced by the defendants that the plaintiff was in a financial crisis and had undergone treatment in connection with her ailment by spending huge amount besides the bank liability and they have extended a helping RFA NO. 172 OF 2020 31 hand by enhancing her monthly salary to Rs.45,000/- from Rs.15,000/- from August, 2014 onwards. It was admitted by the plaintiff that such a helping hand was extended on account of her financial crisis and ailment. According to the defendants, it is out of the love, affection and intimacy towards the plaintiff, she was granted some time to remove her household articles from the property. There is much weight in the said contention especially when the transfer effected found to be genuine and the cordial relationship existed between them and admitted by the plaintiff. As such, the trial court is not justified in not granting the counter claim relief raised by the defendants. Since it is only a permission granted to occupy the premises and not for holding the property, a relief of mandatory injunction can be granted, wherein there is no scope for applying the legal settled by this Court in **Madhu Gupta v. K.T.Hassan Koya (2019 (5) KHC 42)** . RFA NO. 172 OF 2020 32 22. The claim for damages at Rs.60,000/raised in the counter claim cannot be granted unless there is satisfactory evidence to show the quantum of damages sustained by use and occupation. Hence, there is no reason for interfering with the rejection of the said relief. 23. Strange enough, it is thereafter she came up with a suit of this nature pleading ignorance with respect to almost all vital parts of execution of the sale deed, agreement for sale, application submitted before the bank, discharge of the liability, return of the documents of title etc. by advancing a case that all these were done under threat and coercion though her son-in-law was with her all along and stood as a witness to the agreement for sale and Ext.B2 sale deed and all other acts alleged to have been done under the alleged threat and coercion. The trial court went wrong in appreciating the evidence tendered in the suit in its RFA NO. 172 OF 2020 33 correct perspective in the light of settled legal principles. The decree and judgment of the trial court hence cannot sustained. The suit is liable to be dismissed and the counter claim is liable to be allowed in part. I do so by setting aside the judgment and decree of the trial court. The suit will stand dismissed. The counter claim will stand allowed in part by granting the relief of mandatory injunction directing the plaintiff and all the persons claiming under her to remove all the belongings from the scheduled building within three months, failing which the first defendant is allowed to execute the decree through court. The appeal is allowed accordingly. No costs. Sd/- ## **P.SOMARAJAN** ## **JUDGE** sv