U.M. NajeeB v. Bhargavi and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 27TH DAY OF NOVEMBER 2012/6TH AGRAHAYANA 1934** **RSA.NO. 544 OF 2005 ( )** **-------------------------------------AS.253/2002 OF SIXTH ADDITIONAL VI ADDL.DISTRICT COURT, ERNAKULAM OS.789/1998 OF SECOND ADDITIONAL, MUNSIFF'S COURT, ERNAKULAM** **APPELLANT(S)/APPELLANT/1ST RESPONDENT/PLAINTIFF:** **--------------------------------------------------------------------------------------** ## **U.M.NAJEEB** **RESIDING AT ULLATTIL HOUSE, PAIMATTOM DESOM KUTTAMANGALAM VILLAGE, KOTHAMANGALAM TALUK.** **BY ADVS.SMT.AYSHA YOUSEFF** ## **RESPONDENT(S)/APPELLANT & RESPONDENTS NO.2 TO 4/ 3[RD] DEFENDANT AND DEFENDANTS 1, 2 & 4:** **--------------------------------------------------------------------------------------** ## **1. BHARGAVI** **VAZHEEPADINJARU,AMBALLUR VILLAGE,KANJIRAMATTOM P.O REP. BY HER POWER OF ATTORNEY HOLDER AND SON K.N.CHANDRAN, S/O.LATE NARAYANAN, GOVERNMENT EMPLOYEE, KALAYIPARAMBIL, VAZHEEPADINJARU, KANJIRAMATTOM P.O. (DIED).** ## **2. SATHYAN, S/O.KRISHNAN,** **RESIDING AT CHATHANATU HOUSE, NJARAKKAL NJARAKKAL VILLAGE, KOCHI TALUK, VYPIN ISLAND ERNAKULAM.** **3. KALESH, S/O.KRISHNAN, RESIDING AT CHATHANATU HOUSE, NJARAKKAL, NJARAKKAL VILLAGE KOCHI TALUK, VYPIN ISLAND, ERNAKULAM.** ## **R.S.A. NO.544 of 2005** ## **4. GEETHA, W/O.SUNDARAM, RESIDING AT MARUTHANAL HOUSE, KANJIRAMATTOM P.O. AMBALLUR VILLAGE, KANAYANNUR TALUK.** ## **ADDITIONAL RESPONDENTS IMPLEADED:** **-------------------------------------------------------------** **5. SANTA, AGED ABOUT 58, D/O. BHARVAVI, KALAYIPARAMBIL, VAZHEEPADINJARU, AMBALLUR VILLAGE, KANAYANNUR TALUK, KANJIRAMATTOM P.O., PIN - 682 315.** **6. USHA, AGED ABOUT 52, D/O.BHARGAVI, KALAYIPPARMBIL, VAZHEEPADINJARU, AMBALLUR VILLAGE, KANAYANNUR TALUK, KANJIRAMATTOM P.O., PIN - 682 315.** **7. KANCHANA, AGED ABOUT 46, D/O.BHARGAVI, KALAYIPPARAMBIL, VAZHEEPADINJARU, AMBALLUR VILLAGE, KANAYANNUR TALUK, KANJIRAMATTOM P.O., PIN - 682 315.** **8. CHANDRAN, AGED ABOURT 43, D/O.BHARGAVI, KALAYIPPARAMBIL, VAZHEEPADINJARU, AMBALLUR VILLAGE, KANAYANNUR TALUK, KANJIRAMATTOM P.O., PIN - 682 315.** **ADDITIONAL RESPONDENTS 5 TO 8 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 1[ST] RESPONDENT VIDE ORDER DATED 25.9.2009 IN I.A. NO.1534 OF 2009.** **BY ADV. SRI.K.C.CHARLES ) BY ADV. SRI.A.BALAGOPALAN )R1 BY ADV. SRI.K.C.CHARLES ) BY ADV. SRI.POLY MATHAI ) BY ADV. SRI.P.CHELLAPPAN )R1 & R8** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27.11.2012 ALONG WITH C.O. NO.106/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No. 544 of 2005 & C.O. No.106 of 2005 ==================================== Dated this the 27[th] day of November, 2012 J U D G M E N T** The Second Appeal arises from the judgment and decree of the Sixth Additional District Court, Ernakulam in A.S. No.253 of 2002 modifying the judgment and decree of the Second Additional Munsiff's Court, Ernakulam in O.S. No.789 of 1998. 2. The appellant-plaintiff sued the defendants for a decree for specific performance. Respondents 2, 3 and 4 are defendants 1, 2 and 4 while additional respondents 5 to 8 are the legal heirs of the deceased 1[st] respondent-3[rd] defendant. The 1[st] respondent-3[rd] defendant has filed a Cross Objection against certain findings entered by the learned Additional District Judge in the judgment in A.S. No.253 of 2002. The parties are referred as plaintiff and defendants as in the trial court for convenience. 3. The plaintiff claimed that defendants 1 and 2 executed Ext.A1, agreement dated 23.02.1995 in his favour agreeing to sell **R.S.A. No.544 of 2005** ## -: 2 :- the 3.40 Ares referred to therein for consideration at the rate of Rs.4,300/- per cent. The period for execution of the sale deed was six months. According to the plaintiff, the period which was to expire by 22.08.1995 was extended till 28.08.1995. On 30.08.1995 the plaintiff issued Ext.A5, notice to defendants 1 and 2 calling upon them to execute the sale deed pursuant to Ext.A1, agreement. Defendants 1 and 2 issued Ext.A4, reply. In the meantime, the 2[nd] defendant assigned one cent (according to the plaintiff, out of the 3.40 Ares referred to in Ext.A1) to the 3[rd] defendant as per Ext.B1, assignment deed No.3210 of 1995 dated 18.08.1995 and registered on 23.08.1995. Remaining portion of the 3.40 Ares was assigned in favour of the 4[th] defendant as per document No.3294 of 1995 dated 30.08.1995 executed by defendants 1 and 2, a copy of which is Ext.A6. The plaintiff alleged that he was ready and willing to perform his part of the agreement and that defendants 1 and 2 backed out. Hence the plaintiff prayed for a decree for specific performance of the agreement for sale after declaring that assignment deed Nos.3210 and 3294 of 1995 in favour of defendants 3 and 4, respectively are null and void. 4. Defendants 1 and 2 while admitting execution of ## **R.S.A. No.544 of 2005** ## -: 3 :- Ext.A1, agreement denied that there was extension of the period till 28.08.1995. They claimed that the plaintiff was not ready and willing to perform his part of the contract and hence they executed assignment deed Nos.3210 and 3294 of 1995 in favour of defendants 3 and 4. Defendants 3 and 4 also resisted the suit on various grounds including that they are bona fide purchasers for valid consideration without notice of the agreement for sale. 5. The trial court found that the plaintiff is entitled to get specific performance of Ext.A1, agreement for sale disregarding assignment deed Nos.3210 and 3294 of 1995 executed in favour of defendants 3 and 4. A decree for specific performance was granted. I am told that pursuant to that decree, the court executed the assignment deed in favour of the plaintiff for the 3.40 Ares. 6. Defendants 1, 2 and 4 did not challenge the judgment and decree against them. The 3[rd] defendant challenged the judgment and decree to the extent it went against her, in A.S. No.253 of 2002. The first appellate court found in favour of due execution of Ext.A1 and that the plaintiff was ready and willing to perform his part of the contract. The first appellate court was of the view that the 3[rd] defendant is a bona fide purchaser of the ## **R.S.A. No.544 of 2005** ## -: 4 :- one cent covered by assignment deed No.3210 of 1995 for valid consideration unaware of existence of Ext.A1, agreement and hence, allowed the appeal to the extent it concerned the one cent covered by assignment deed No.3210 of 1995. That judgment and decree of the first appellate court are under challenge in this Second Appeal at the instance of the plaintiff. 7. The following substantial questions of law are framed for a decision: (i) Whether the powers conferred under Order XLI, Rule 27 of the Code of Civil Procedure (for short, “the Code”) upon a court of appeal is liable to be invoked in favour of an unsuccessful litigant before the trial court? (ii) Whether an appellate court is justified in accepting documents in evidence which the parties to the suit could very well produce before the trial court itself, that too without giving an opportunity to the parties to testify the veracity of the documents in question? (iii) Whether a sale deed executed by one of the coowners is valid as against a prior sale agreement executed by both the co-owners jointly with another party? ## **R.S.A. No.544 of 2005** -: 5 :- (iv) Whether an appellate court can modify the finding in a suit for specific performance especially when the executors of the sale agreement themselves have not challenged the verdict of the trial court? (v) Whether the documents accepted by the appellate court in evidence without complying the provisions under Order XLI, Rule 27(2) of the Code can be treated as legal evidence? (vi) Has not the lower appellate exceeded the jurisdiction in accepting additional evidence without recording the reasons as contemplated under Order XLI, Rule 27(2) of Code? 8. In the Cross Objection preferred by the deceased 3[rd] defendant, the following substantial question of law is framed for a decision: When Ext.A1, agreement for sale has not been signed by the purchaser/appellant disentitling the vendors to seek for specific performance have not the courts below gone wrong in granting decree for specific performance of Ext.A1? 9. It is contended by the learned Senior Advocate for ## **R.S.A. No.544 of 2005** ## -: 6 :- the plaintiff that finding of the first appellate court that the deceased 3[rd] defendant is a bona fide purchaser (of one cent as per assignment deed No.3210 of 1995) without notice of Ext.A1, agreement for sale is erroneous. It is pointed out that though the 3.40 Ares belonged to defendants 1 and 2 jointly, Ext.B1, assignment deed as regards the one cent was executed in favour of the 3[rd] defendant only by the 2[nd] defendant while a few days later defendants 1 and 2 jointly executed Ext.A6, assignment deed No.3294 of 1995 in favour of the 4[th] defendant. The deceased 3[rd] defendant and defendants 1 and 2 are closely related. My attention is also drawn to the evidence of the 1[st] defendant as D.W1 that the deceased 3[rd] defendant was aware of Ext.A1, agreement at the time Ext.B1, assignment deed No.3210 of 1995 was executed in favour of the deceased 3[rd] defendant. In the circumstances the first appellate court was not right in protecting the assignment in favour of the deceased 3[rd] defendant. It is also contended that in view of the finding the first appellate court has entered that the plaintiff was ready and willing to perform his part of the contract, he ought to have been given a decree for specific performance concerning the one cent covered by Ex.B1, assignment deed as well. **R.S.A. No.544 of 2005** ## -: 7 :- 10. The learned counsel for additional respondents 5 to 8 (legal representative of the deceased 3[rd] defendant) contended that Ext.A1 is not enforceable as the plaintiff is not a signatory to it. Reliance is placed on the decisions in **Lalithambika v.** **Varghese** (2004 [3] KLT 892) and Aliyas v. Aboobacker (2006 [4] KLT 282). The further contention is that there is no evidence to show that the 3[rd] defendant was aware of Ext.A1, agreement for sale at the time she got Ext.B1, assignment deed No.3210 of 1995 executed in her favour. It is pointed out that the said sale deed was taken for valid consideration as proved in the evidence. Further argument advanced is that the one cent covered by Ext.B1, assignment deed No.3210 of 1995 was being used by the deceased 3[rd] defendant for access to her properties and hence that one cent is essential for the beneficial enjoyment of rest of the property belonging to the deceased 3[rd] defendant. In such circumstance if specific performance of one cent is ordered, that would result irreparable loss and difficulties to the 3[rd] defendant. It is contended that in the circumstances the trial court was right in refusing to grant specific performance in respect of the one cent covered by Ext.A5. 11. So far as the question raised in the Cross Objection ## **R.S.A. No.544 of 2005** ## -: 8 :- concerning enforceability of Ext.A1, agreement is concerned, there is no dispute for defendants 1 and 2 about execution of Ext.A1. Their challenge is only to the endorsement on Ext.A1 that its period was extended from 22.08.1995 to 28.08.1995. It has come in evidence that seeking the same relief, the plaintiff had filed O.S. No.1155 of 1995 against the defendants but the plaint was rejected on 20.01.1997 for non-payment of balance court fee. As per Rule 13 of Order VII of the Code, when the plaint is rejected, a fresh suit on the same cause of action is not barred. The plaintiff filed the present suit on 22.05.1998. 12. Assuming that the period for performance of Ext.A1, agreement for sale was to expire by 22.08.1995, the plaintiff got 3 years' time from that day to sue for specific performance. The present suit filed on 22.05.1998 is well within the said period of 3 years. Hence the question whether the period of Ext.A1 was extended from 22.08.1995 to 28.081995 is irrelevant. 13. I am also not impressed by the argument that because Ext.A1 is not signed by the plaintiff, it is not enforceable. The decisions relied on by the learned counsel are not concerning whether such an agreement is enforceable or not. There, the observations were made concerning the exercise of discretion ## **R.S.A. No.544 of 2005** ## -: 9 :- under Section 20 of the Specific Relief Act (for short, “the Act”). ## In **Aloka Bose v. Paramatma Devi and Others** ([2009] 2 SCC 582) it is held that in India, an agreement of sale singed by the vendor alone and delivered to the purchaser and accepted by the purchaser has always been considered a valid contract. If that be the situation with respect to an agreement of sale, there is no reason why I should take a different view with respect to the enforceability of an agreement for sale. The contention that because the plaintiff has not signed Ext.A1, it cannot be basis for specific performance cannot therefore be accepted. 14. Then the question is whether the plaintiff is entitled to get the sale deed executed with respect to the one cent covered by Ext.B1, assignment deed No.3210 of 1995? Though it is not pleaded by the 3[rd] defendant that the one cent covered by Ext.B1, assignment deed No.3210 of 1995 does not form part of the 3.40 Ares referred in Ext.A1, there appears to be some discrepancy in the matter as revealed by the evidence adduced by the plaintiff. In the plaint the suit property is described as 3.40 Ares (mentioned as 10 cents as per settlement deed No.767 of 1969 as per which defendants 1 and 2 acquired title over the suit ## **R.S.A. No.544 of 2005** ## -: 10 :- property). In Ext.B1, assignment deed No.3210 of 1995 dated 18.08.1995 the one cent is described as extending north-south towards western extremity of the 10 cents comprised in Sy. No.539/10. Going by Ext.B1, it would appear that the one cent covered by that assignment deed forms western portion of the total extent of 10 cents. In Ext.A1, the total extent agreed to be conveyed to the plaintiff is 3.40 Ares (which comes to around 8.50 cents). If that be so, it may appear from Ext.B1 that if the total extent is 10 cents, the one cent referred to therein does not form part of the 8.50 cents (3.40 Ares) referred to in Ext.A1 since it would appear that the one cent is part of the remaining 1½ cents in the 10 cents and forming the western portion of the 10 cents. 15. But in Ext.A6, assignment deed No.3294 dated 30.08.1995 executed in favour of the 4[th] defendant, 7.5 cents assigned in favour of the 4[th] defendant is described as excluding the one cent, extending north-south and situated towards west of the 3.40 Ares. Reading Ext.A6, one may have the impression that the one cent excluded from Ext.A6 (i.e., covered by Ext.B1) forms the western portion of the 8.5 cents. Thus there is a real controversy revealed from the evidence whether the one cent covered by Ext.B1 forms part of the 3.40 Ares or it falls outside ## **R.S.A. No.544 of 2005** ## -: 11 :- the 3.40 Ares. If the one cent covered by Ext.B1 falls outside the 3.40 Ares, Ext.A1 may not bind the said one cent purchased by the 3[rd] defendant as per Ext.B1. 16. The learned Senior Advocate submitted that as per the re-survey and as per T.P. A/c No.3209, total extent of land available in Sy. No.539/10 for defendants 1 and 2 is only 3.40 Ares. Unfortunately such evidence is not adduced before the court. 17. It is true that the deceased 3[rd] defendant had not raised such a contention in the written statement. But having regard to the description of property in Exts.B1 and A6, I am inclined to think that the controversy has to be set at rest now itself - otherwise the possibility of a continued litigation on that dispute cannot be ruled out. Therefore though the suit is of the year, 1998, I am constrained to direct the trial court to clear the controversy whether the one cent covered by Ext.B1, assignment deed No.3210 of 1995 forms part of the 3.40 Ares covered by Ext.A1, assignment or not. For that, a remand of the suit to the trial court to the extent it concerned the one cent covered by Ext.B1, assignment deed is necessary. 18. I hasten to add that since the decree against the 4[th] ## **R.S.A. No.544 of 2005** ## -: 12 :- defendant stands, this judgment and decree will not have any bearing on the decree granted by the trial court against the 4[th] defendant and against defendants 1 and 2 concerning the property covered by Ext.A6, assignment deed No.3294 of 1995. Interference is only with respect to the one cent covered by Ext.B1, assignment deed No.3210 of 1995. 19. The learned counsel for additional respondents 5 to 8 (legal representatives of the deceased 3[rd] defendant) has requested that the question whether the exercise of discretion under Sec.20 of the Act and whether the 3[rd] defendant is a bona fide purchaser having no knowledge about Ext.A1, agreement for sale and hence not bound by Ext.A1 be left open for decision by the trial court. Having regard to the facts and circumstances and considering the fact that the question whether the one cent covered by Ext.B1, assignment deed is part of the 3.40 Ares is required to be decided by the trial court, I am inclined to accept that request. Therefore the question whether the deceased 3[rd] respondent was a bona fide purchaser without notice of Ext.A1, assignment deed and whether the discretion to grant specific performance concerning the one cent as per Ext.B1 (in case the said one cent is part of the 3.40 Ares) is to be exercised in favour ## **R.S.A. No.544 of 2005** ## -: 13 :- of additional respondents 5 to 8 are left open for decision by the trial court. 20. The substantial questions of law framed in the Second Appeal and the Cross Objection are answered as above. The Second Appeal and Cross Objection are disposed of as under. (A) The Second Appeal is allowed by way of remand as under: (i) Judgment and decree of the Sixth Additional District Court, Erakulam in A.S. No.253 of 2002 are set aside. (ii) Judgment and decree of the Second Additional Munsiff's Court, Ernakulam in O.S. No.789 of 1998 to the extent it concerned the one cent covered by Ext.B1, assignment deed No.3210 of 1995 are set aside,. (iii) O.S. No.789 of 1998 is remitted to the Second Additional Munsiff's Court, Ernakulam for fresh decision whether the plaintiff is entitled to get specific performance concerning the one cent covered by Ext.B1, assignment deed No.3210 of 1995. (iv) The Second Additional Munsiff's Court, Ernakulam is ## **R.S.A. No.544 of 2005** ## -: 14 :- directed to ascertain, if necessary by proper measurement of the property whether the one cent covered by Ext.B1, assignment deed forms part of the 3.40 Ares covered by Ext.A1, agreement for sale. (v) In case it is found that the one cent covered by Ext.B1, assignment deed No.3210 of 1995 forms part of the 3.40 Ares covered by Ext.A1, agreement for sale, the question whether the 3[rd] defendant is a bona fide purchaser for consideration as per Ext.B1 without notice of Ext.A1, agreement for sale and whether the discretion under Sec.20 of the Act concerning the one cent could be exercised in favour of the additional respondents 5 to 9 shall be decided by the trial court after considering the evidence on record or as may be let in by the parties. (vi) The parties concerned (having regard to the scope of the remand) shall appear in the trial court on 12.12.2012. (vii) The Second Additional Munsiff's Court, Ernakulam court is directed to dispose of the remanded portion of the suit as early as possible giving it top priority after giving both sides sufficient opportunity to adduce further evidence if any. ## **R.S.A. No.544 of 2005** -: 15 :- (B) The Cross Objection is dismissed subject to the above direction. Parties shall suffer their costs in this Appeal and Cross Objection. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv