Ummar Cherukode Amsoom and Muhammedkutty v. Kunhava alias Ahmmedkutty (died) and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA WEDNESDAY, THE 3RD DAY OF SEPTEMBER 2014/12TH BHADRA, 1936 RFA.No. 321 of 2008 ( ) ------------------------ AGAINST THE ORDER/JUDGMENT IN OS 131/1993 of SUB COURT, OTTAPPALAM DATED 31-03-2008 APPELLANT(S)/DEFANDANTS 1 & 2: ------------------------------------------------- 1. UMMER CHERUKODE AMSOM, OTTAPPALAM TALUK. 2. MUHAMMEDKUTTY, S/O.VEERAN, -DO- -DO- BY ADV. SRI.M.C.MADHAVAN RESPONDENT(S)/PLAINTIFFS AND SUPPLEMENTAL DEFENDANTS 3 AND 4: ------------------------------------------------------------1. KUNHAVA ALIAS AHAMMEDKUTTY(DIED) S/O MARAKKAR, MANCHINGATHODI, KOZHAKKETHIL PERUMUDIYOOR AMSOM, KODUMUNDA DESOM, OTTAPPALAM TALUK, POST KODUMUNDA, VIAL PATTAMBI PALAKKAD DISTRICT. 2. PATHUMMA, AGED 54 YEARS, W/O AHAMMEDKUTTY, -DO- -DO3. HAMZA, AGED 35 YEARS, S/O AHAMMEDKUTTY, -DO- -DO4. AYISHA, AGED 34 YEARS, D/O.AHAMMEDKUTTY, -DO- -DO5. FOUSYA, AGED 25 YEARS, D/O.AHAMMEDKUTTY, -DO- -DO6. MUHAMMED BASHEER, S/O AHAMMEDKUTTY, -DO- -DO7. HARIS, AGED 21 YEARS, S/O.AHAMMEDKUTTY, -DO- -DO8. ABDUL RASHEED, AGED 31 YEARS, S/O AHAMMEDKUTTY, -DO- -DO- 9. MUHAMMED REFEEQ, S/O AHAMMEDKUTTY, -DO- -DOR,2 TO 8 BY ADV. SRI.S.SREEKUMAR (SR.) R,R2 TO 8 BY ADV. SRI.JIBU P THOMAS R,R2 TO 8 BY ADV. SRI.P.S.APPU R2 -R8 BY ADV. SRI.T.C.SURESH MENON THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24/7/2014, THE COURT ON 3/9/2014 DELIVERED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR & P.V. ASHA, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **R.F.A. No.321 of 2008** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 3RD DAY OF SEPTEMBER, 2014** ## **JUDGMENT** ## Ramachandran Nair, J. The appellants are aggrieved by the decree and judgment of the court below whereby, in a suit for specific performance of an oral agreement for sale, the court below has passed a decree in favour of the plaintiff directing the defendants to execute a sale deed in respect of the plaint schedule property. The necessary facts for the disposal of the appeal are the following: 2. The land involved is 2.63 acres owned and possessed by the appellants. The deceased first respondent herein was the sole plaintiff. As per the averments in the plaint, the defendants purchased the property in question by a document dated 3.9.1988. The oral agreement is to sell the property to the plaintiff for an amount of Rs.3 lakhs. The defendants are his nephews. They are in Gulf countries and for the first time a talk regarding the sale of the property was made when the second defendant came to the native place prior to 2.11.1991. He agreed to part away with the property for Rs.3 lakhs and also that the deal can be settled when the first defendant R.F.A.No.321/2008 -2- will be back in the native place. The first defendant was here in the native place in March, 1992 and there was a talk between the plaintiff and the first defendant, wherein it was agreed that the suit property will be transferred for an amount of Rs.3 lakhs. On that day the oral agreement was thus arrived at on behalf of second defendant also. It is also his case that on that day an amount of Rs.50,000/- was given as advance through another brother of the defendants, Shri Moideen and the possession of the property was also handed over to the plaintiff by the first defendant for and on behalf of the second defendant also. The defendants are residing in a place called Cherukod and they had decided to purchase certain items of properties in that area and since more amount was required for purchase of the same, the plaint schedule property was proposed to be sold to the plaintiff. Since the first defendant could not complete all the steps for purchase of the property before he went back to Gulf countries, he authorised Shri Moideen, his brother to do all acts required for purchase of the property. Accordingly, the sale deeds were executed through Shri Moideen in favour of the defendants. As directed by the first defendant, the plaintiff had entrusted Rs.2,50,000/- to Shri Moideen for which he had issued receipts also. It is R.F.A.No.321/2008 -3- pleaded that he paid all the amounts required as sale consideration. It is further averred that when the second defendant came back to his native place, the plaintiff met him along with Shri Moideen, but he was trying to be evasive in the matter. Later, a lawyer notice was issued to the second defendant on 2.5.1993 and the second defendant gave a reply refusing to execute the sale deed. It is averred that the plaintiff was ready and willing throughout. It is also stated that the stand of the second defendant in the reply notice that the plaintiff had to pay an amount of Rs.1,39,000/- in relation to the sale of one jeep bearing registration No.KRM 3587 owned by the defendants, is not correct. The plaintiff has not sold the said vehicle. 3. In the written statement the defendants contended that there was no oral agreement for sale of the property and there was no talk also between the parties either on 2.11.1991 or in March 1992. There was no understanding between the first defendant and the plaintiff to sell the property for 3 lakhs of rupees and no amount has been received through Shri Moideen as advance also. They also denied the averment that the defendants were short of money for purchasing the property in Cherukod and therefore the plea that Rs.2,50,000/- was paid through Shri Moideen is R.F.A.No.321/2008 -4- also denied. The receipts have been got executed after influencing Shri Moideen. Actually the plaintiff was trying his level best to see that Shri Moideen has also right over the property of the defendants and he has been on inimical terms with the defendants. Criminal complaints were there between the defendants and their brother Shri Moideen. They also denied the plea of oral agreement raised by the plaintiff. The reply to the lawyer notice has been sent after showing various correct details. They denied the averment that the plaintiff has been put in possession of the property and that the defendants are in possession of the property and the property tax is also being paid by the defendants. They have further pleaded that the jeep KRM 3587 in the name of the second defendant was sold through the plaintiff and he has not paid back the entire amount and therefore there were difference of opinion between the plaintiff and the defendants and that the attempt of the plaintiff is to prevent the defendants from recovering the amount from the plaintiff. 4. The suit was decreed after accepting the case of the plaintiff. At that time the plaintiff was examined as P.W.1 and another witness, viz. Shri Moideen, who is the brother of the defendants, was examined as P.W.2 and R.F.A.No.321/2008 -5- Exts.A1 to A14 were marked. Exts.X1 and X2 were marked as third party exhibits. One Shri Mohammadkutty, a relative of the defendants was examined as D.W.1 and through him Exts.B1(a) to B1(c) tax receipts have been marked. 5. The defendants filed an appeal before this Court as A.S. No.393/1994. By judgment dated 6.9.2007 this Court set aside the decree and judgment and remanded the matter for fresh trial. After remand, the plaintiff died subsequently and the legal representatives are the respondents herein. 6. While remanding the matter, this Court specified the aspects to be considered in a matter like this where only an oral agreement is set up. After remand, one more witness, viz. P.W.3 was examined on the side of the plaintiff and Exts.A15 to A17 and Ext.X3 were produced. On the side of the defendants, D.W.2 was examined and Exts.B2 to B9 have been produced. 7. We heard Shri M.C. Madhavan, learned counsel for the appellants and Shri S. Sreekumar, learned Senior Counsel and Shri T.C. Suresh Menon for the respondents. R.F.A.No.321/2008 -6- 8. Learned counsel for the appellants submitted that the judgment rendered by the court below is beset with wrong assessment of facts and evidence which have resulted in faulty conclusions. It is submitted that the trial court did not bear in mind the crucial legal aspects directed to be considered by this Court while remanding the matter, in the judgment in A.S. No.393/1994. The basic parameters to be proved for granting a decree on an oral agreement set up are not satisfied in the facts and evidence of this case. It is submitted that the evidence on the whole will not establish any oral agreement. Finally, it is submitted that the judicial discretion to be exercised in the light of Section 20 of the Specific Relief Act has also not been adhered to by the trial court. 9. Learned counsel Shri Madhavan submitted that the court had to consider whether there has been consensus ad idem between the parties. The burden of proof in such a case is clearly on the plaintiff. It is highlighted that even going by the averments in the plaint and the evidence of P.W.1, the plaintiff the alleged oral agreement was between him and the first defendant and the second defendant was not a party. It was clearly admitted in the evidence that the second defendant has not agreed to transfer R.F.A.No.321/2008 -7- the property for Rs.3 lakhs. It is further submitted that in the plaint the specific date on which the alleged oral agreement has been arrived at, has not been pleaded and only at the stage of evidence he has stated the date as 15.3.1992. 10. It is further submitted that there is no consistent plea and proof in evidence with regard to the payment of the first instalment of advance, viz. Rs.50,000/-. What is alleged is that it was paid through P.W.2, Shri Moideen. The same is also not a believable story, since even according to the plaintiff, the first defendant was available in the locality at that point of time and there was no particular reason for handing over the amount through Shri Moideen. 11. It is further argued that the case of the plaintiff that the remaining instalments were directly paid to Shri Moideen and the evidence adduced in support of it, viz. Exts.A2 to A4 receipts do not inspire any confidence. The evidence of P.W.2, Shri Moideen with regard to the said receipts is that actually he had signed the same at the request of the plaintiff but he did not go through the contents of the same. 12. It is submitted that the evidence in the case will show that there R.F.A.No.321/2008 -8- was animosity between Shri Moideen and the defendants at the crucial period. The documents now produced by the plaintiff, Exts.A15 and A16 to show that Shri Moideen has been authorised to file two suits on behalf of defendants 1 and 2 could not have been relied on, since it is long after the filing of the suit. The evidence of Shri Moideen himself as P.W.2, that there was difference of opinion between them and he had filed a criminal complaint against them will show that at the crucial time there was difference of opinion between Shri Moideen and the defendants. 13. It is further submitted that the silence of the plaintiff for a long time in spite of the alleged payment of the entire sale consideration on 15.9.1992 is fatal to his case. From 15.9.1992 upto the date of issuance of the lawyer notice on 2.5.1993 he was keeping total silence. Ext.A12 is a letter sent by the defendants to the plaintiff wherein it is clearly stated that as on the said date they are not selling any property and whenever the property is proposed to be sold it will be sold to the plaintiff himself. The plaintiff never replied to the said letter which is also significant. Therefore, in a matter like this where an oral agreement alone was set up, the delay is very crucial. R.F.A.No.321/2008 -9- 14. With regard to the case of the plaintiff that the plaintiff was asked to provide funds for the purchase of property at Cherukode, by the defendants, learned counsel submitted that Exts.A5 to A8 documents will show that the total sale consideration is only Rs.2,43,200/- whereas the case of the plaintiff is that the total sale consideration was Rs.5,70,000/- and therefore he had arranged balance payment of Rs.2.5 lakhs. The same also cannot therefore be accepted. Learned counsel invited our attention to the oral evidence and the discrepancies therein with regard to the alleged amount of advance stated to have been paid for purchasing the property at Cherukode. It is submitted that the entire sale consideration was paid on 29.8.1992 as is clear from Exts.A5 to A8 sale deeds and therefore the plea that he had paid Rs.1 lakh on 15.9.1992 for the purchase of property covered by the document executed on 15.9.1992 cannot also be supported. 15. It is submitted that the attempt of the plaintiff to link the two transactions has also not been successful while adducing the evidence. Ext.A1, even though relied upon by the plaintiff to show that Shri Moideen, the brother of defendants 1 and 2 has been authorised to purchase the property, it cannot also lead to the said inference. At any rate, Shri Abdul R.F.A.No.321/2008 -10- Latif, the executor of Ext.A1 has not been examined also. Even going by Ext.A1, an amount of Rs.1,20,000 has been paid as advance on 1.6.1992. This also will show that the alleged payment of Rs.2.5 lakhs at the time of registration of the sale deeds, Exts.A5 to A8 is not correct. It is further submitted that the evidence of P.W.3 to show that a power of attorney has been executed between defendants 1 and 2 cannot also advance the case of the plaintiff. It will not show that the property was agreed to be sold to the plaintiff. 16. Lastly it is submitted that the claim that the plaintiff was put in possession of the property on 15.3.1992 is not proved at all. There is no positive evidence to show that he has been put in possession whereas the evidence will show that defendants 1 and 2 continued to be in possession of the property. The same also will cut at the root of the case of the plaintiff. 17. The following decisions have been relied upon by the learned counsel for the appellants to support the pleas of the appellants: “ **Ouseph Varghese v. Joseph Aley and others** {(1969) 2 SCC 539}, **Mathew v. Kuruvila (1988 (1) KLT 7 - SC), Mayawanti v. Kaushalya Devi** {(1990) 3 SCC 1}, **Brij Mohan and others v. Sugra Begum and others** {(1990) 4 SCC 147}, **Ganesh Shet v.** R.F.A.No.321/2008 -11- **Dr.C.S.G.K. Setty and others** (AIR 1998 SC 2216), **S.R. Balakrishnan and another v. Yakoob and others** (ILR 2001 (2) Ker. 521), **Basheer v. Khadeeja** (2001 (2) KLT 632), **Aliyas v. Aboobacker** (2006 (4) KLT 282) and **Thiruvengadam Pillai v. Navaneethammal** {(2008) 4 SCC 530}.” 18. Learned Senior Counsel for the plaintiff Shri S. Sreekumar mainly submitted that Ext.X3 power of attorney will show that the second defendant executed the same for sale of the plaint schedule item through the first defendant. The circumstances under which the oral agreement was arrived at are also relevant. The defendants wanted to purchase six acres of property at Cherukode and intimated the same to the plaintiff. They also sent a portion of the money required to the plaintiff for purchase of the property. After the said transaction was gone into, then alone by Ext.A12, they intimated that they are not agreeable to sell the plaint schedule property to the plaintiff. It is also clear from the evidence of D.W.2 that they are in the habit of entering into oral agreements. The receipts Exts.A2 to A4 will show that the plaintiff had paid Rs.2.5 lakhs for purchase of property at Cherukode and Ext.A1 is the agreement between P.W.2, the brother of defendants 1 and 2 for sale of the said property. R.F.A.No.321/2008 -12- 19. It is submitted that the alleged difference of opinion between defendants and P.W.2, who is their brother, cannot be believed in the light of Exts.A15 and 16 which are copies of the plaints in the suits filed against the plaintiff by describing P.W.2 as power of attorney holder of defendants 1 and 2. It is clear from the evidence that P.W.2 was looking after the affairs of the defendants. It is submitted that the evidence of the plaintiff coupled with the evidence of P.W.2 will show that there is an oral agreement which is followed by payment of amounts by the plaintiff through P.W.2. As far as the execution of the documents in such circumstances is concerned, it can be seen that Exts.A5 to A8 were executed on 29.8.1992 whereby the properties at Cherukode were purchased by the defendants. The last document was executed on a different date as advance had to be paid on the said date and the evidence of the plaintiff will show that he had paid the said amount. The total sale consideration for those items of properties, was Rs.5.7 lakhs. 20. It is submitted that Exts.X1 and X2 letters by the defendants will show that money was being sent and a close reading of letters will evidence the existence of the oral agreement. The sending of those letters has been R.F.A.No.321/2008 -13- admitted by the second defendant and the first defendant has not been examined also. It is further submitted that the story put forward by the defendants that the plaintiff had sold their jeep and the amount was paid towards the sale value of the jeep is not supported by any evidence. Thus, it is submitted that the cumulative circumstances will show that there is a clear oral agreement for sale. With regard to the explanation offered by the defendants that Ext.X3 was executed for having rubber cultivation in the plaint schedule property, it is submitted that the document will not show that such an authorisation was given. 21. It is submitted that after the remand of the matter, D.W.2 even though was examined, his evidence also will support the plaintiff's case. Therefore, it is a case where equity is in favour of the plaintiff and the court below has exercised the discretion properly. Learned Senior Counsel relied upon the decisions of the Apex Court in **Skyline Education Institute (India) Private Limited v. S.L. Vaswani and another** {(2010) 2 SCC 142} and **Mohd. Mehtab Khan & others v. Khushunma Ibrahim & others** (AIR 2013 SC 1099) to contend for the position that the discretion exercised by the trial court cannot be normally interfered with by this Court. With R.F.A.No.321/2008 -14- regard to the evidence produced by the defendants as Ext.B6 series, learned Senior Counsel submitted that they have not been properly proved also. The attention of this court was elaborately taken to the oral and documentary evidence. 22. In reply to the above arguments, learned counsel for the appellants reiterated the contentions of the appellants. 23. The following points therefore arise for consideration: (i) Whether there is any oral agreement for sale of the plaint schedule property between the plaintiff and defendants 1 and 2; (ii) Whether the plaintiff has succeeded in proving that there is really a consensus arrived at for the said oral agreement for sale; (iii) Whether the documents, especially Exts.X1, X2, X3 and A12 will evidence the existence of an oral agreement for sale between the plaintiff and defendants 1 and 2; and (iv) Whether the evidence adduced by the plaintiff is sufficient to grant a decree for specific performance of the oral agreement for sale of the plaint schedule property. 24. In the plaint, the plaintiff has not alleged any specific date on which the oral agreement was arrived at between the parties. The sequence of events pleaded by the plaintiff is in effect that the second defendant came R.F.A.No.321/2008 -15- to the native place prior to November 1991 and there were talks between the plaintiff and the second defendant with regard to the sale of the property and it was agreed by the second defendant that when the first defendant comes back to the native place the transaction can be finalised. With regard to the alleged talk between the first defendant and the plaintiff what is stated in the plaint is that he came to the native place in March, 1992 and they talked about the matter and the sale price was fixed at Rs.3 lakhs. 25. With regard to the payment of advance amount, what is stated is that on the said date through the brother of the plaintiff (P.W.2 Moideen) an amount of Rs.50,000/- was given as advance and the property was put in possession of the plaintiff. 26. It is relevant to consider the main portions of the deposition of P.W.1. Coming to his evidence, it is for the first time that he stated before the court that the date of the alleged oral agreement was 15.3.1992. On the same day, Rs.50,000/- was given as advance through P.W.2, Shri Moideen. According to him, he talked about the matter to the second defendant in November, 1991 and at that point of time the first defendant was in Salala (Gulf). He came to the native place in March 1992. The agreement was R.F.A.No.321/2008 -16- with first defendant, Shri Ummer. Possession was given on the same date. The second defendant had given a power of attorney to the first defendant for selling the property. The oral agreement for sale was arrived at for the benefit of both the defendants. They decided to sell the property for purchase of property near Cherukode for Rs.5.7 lakhs and there is an agreement for sale between the owners of the property at Cherukode and the defendants and it was executed in the name of Shri Moideen and the plaintiff is a witness to that document (Ext.A1). The defendants are his nephews. Before the first defendant returned to Gulf countries, the entire transactions for purchase of property at Cherukode could not be gone into and therefore he entrusted the matter to P.W.2, Shri Moideen. Rs.2.5 lakhs was paid by the plaintiff to P.W.2 in three instalments, viz. on 25.8.1992 (Rs.50,000/-), on 31.8.1992 (Rupees One Lakh) and on 15.9.1992 (Rupees One Lakh) and Exts.A2 to A4 receipts have been given by Shri Moideen. Exts.A5 to A8 are the documents by which the properties were purchased. The three documents were executed on 31.8.1992 and there was some delay in executing the fourth document. When Rs.1.20 lakhs was paid as advance which is mentioned in the agreement, it included Rs.50,000/- given R.F.A.No.321/2008 -17- by the plaintiff also. On the reverse of Ext.A1, payment of Rs.2 lakhs has been stated. According to him, the first defendant had sent Rs.50,000/- by cheque in his name and another Rs.1,15,000/- through the brother-in-law of the second defendant. He has got bank accounts in the State Bank of India, Muthuthala and Canara Bank in Pattambi. Exts.A9 and A10 are the pass books. The money sent by the first defendant was drawn by him on 25.8.1992 through Canara Bank. Ext.A11 is the letter sent by the first defendant to the Manager of the State Bank of India to release the amount to the plaintiff. He has also spoken about the various payments, which according to him, have been made by him. Finally, he has stated that he has received Ext.A12 letter which was received by him after Ext.A8 sale deed was executed wherein it is stated that they will pay back his money at any time and property will be given to him when it is proposed to be sold. 27. With regard to the relationship between P.W.2 and the defendants, it is stated that the first defendant and P.W.2 are residing in the same house and there is no difference of opinion between them. According to him, after the filing of the plaint a complaint has been filed by P.W.2 before the Police. He also stated that he was ready and willing to perform all the R.F.A.No.321/2008 -18- obligations under the oral agreement. 28. In cross examination initially he stated that the entire amount of Rs.3 lakhs was entrusted with Shri Moideen. Then he stated that Rs.50,000/- was paid to the first defendant and Rs.2.5 lakhs was paid to Shri Moideen, P.W.2 for which he got receipts from Shri Moideen. Again he stated in cross examination that Rs.50,000/- was given as advance to the first defendant himself who is the eldest nephew. According to him, he did not take receipts initially for the same, since defendants are his nephews and later when receipt was received from Shri Moideen, the above payment was also recorded therein. To a specific question why such a recital was made, he answered that Rs.50,000/- was paid through Shri Moideen. In the cross examination he has also stated again that the sale price was arrived at Rs.3 lakhs on 15.3.1992 and in fixing the price, the second defendant has no role. According to him, there is no document to show that they agreed to sell the property to him at Rs.3 lakhs but the matter was talked over with him earlier. He also stated that the second defendant has not agreed that the property will be sold at Rs.3 lakhs. He further stated that normally he does not lend money and will not do it without getting documents to outsiders R.F.A.No.321/2008 -19- either before or after the sale. 29. P.W.1 further stated that the plaint schedule property was sold by him to the defendants earlier. To a specific question he answered that he had asked the defendants to purchase some property in the name of Shri Moideen and he had occasion to write to that effect to the defendants. When the defendants were in the native place, there was some quarrel with Shri Moideen, but he does not know the details. Lower down in cross examination he has stated that the various amounts paid on 25.8.1992, 31.8.1992 and 15.9.1992 to Shri Abdul Latheef for purchase of property at Cherukode include the money sent by the defendants and the money advanced by him. According to him, he initially paid amount to Shri Moideen, then got it back and then paid to Shri Abdul Latheef. According to him, he is having certain business activities and he has also admitted that he has been arranging sale of property to persons who had gone abroad and similarly for the defendants also he had arranged purchase of properties. He has also stated that at the time of Ext.A12 letter the relationship between the parties was cordial. With regard to the payments made to Shri Abdul Latheef, it is stated that it was in the presence of witnesses and witnesses R.F.A.No.321/2008 -20- who signed in all the three receipts are the same. 30. With regard to the claim for possession of the property, P.W.1 admitted that no oral or documentary evidence are there to show the same and he has not remitted any amount towards tax also and that the defendants are paying the property tax. He denied the suggestion that he sold KLM 3887 jeep for the defendants. 31. We will now come to the relevant portions of the evidence of P.W.2, Shri Moideen who is the younger brother of the defendants. In chief examination he stated that at the time of purchase of properties by Exts.A5 to A8, the defendants were not in the native place. Ext.A1 is the agreement executed for the same between Shri Abdul Latheef and P.W.2. The plaint schedule property was agreed to be sold to the plaintiff for Rs.3 lakhs which was meant for purchase of property at Cherukode. The plaintiff paid Rs.50,000/- through him to the first defendant and the remaining amount of Rs.2.5 lakhs was entrusted to him in three instalments and Exts.A2 to A4 are the receipts. The plaint schedule property is away from the residential place of the defendants and the property in Cherukode is near their place. The oral agreement was arrived at on 15.3.1992 and defendants 1 and 2 R.F.A.No.321/2008 -21- went abroad after entrusting the task of purchase of the property at Cherukode with him and the plaintiff. Exts.X1 and X2 are letters sent by the first defendant to him. 32. In cross examination he admitted that against the defendants he had made a complaint to the Police. It was made since there was difference of opinion between them. He denied the suggestion that he had made a complaint to the Police alleging that they have obtained spurious passports. He did not demand anybody to purchase the property at Cherukode in his name also. He did not demand it through the plaintiff also. According to him, he did not request the defendants to send money and he had not informed that he is not prepared to manage the property of the defendants and nobody has been engaged for managing the property also. He does not know the reason why in Ext.A12 it was written that for managing the property a person should be engaged on salary. He also does not know why it was written therein that the properties purchased are not proposed to be sold. It is stated that he is not aware about it. He is not aware whether the defendants had got a jeep also. He was in Jidda for two years and could not make much money. On 15.3.1992 only with respect to the plaint schedule R.F.A.No.321/2008 -22- property the oral agreement was finalised and the agreement for purchase of property at Cherukode was not finalised on that day. He admitted that there is no power of attorney executed in his favour for getting sale deeds. Ext.A1 agreement was executed in his name as suggested by P.W.1. The brothers and the plaintiff are alike to him. With regard to the receipts Exts.A2 to A4, what he has stated in evidence is that P.W.1 asked him to put his signature. Accordingly, he signed Ext.A2. Ext.A3 was also signed by him as requested by P.W.1 and he does not remember the person who prepared Ext.A3. He did not see it being prepared and it was brought by P.W.1 after preparing it and he was asked to put his signature. He signed it without reading or understanding it. He put his signature since he was so close and had confidence in P.W.1, to the extent of signing papers brought by him even without reading them. Ext.A2 was also brought prepared by P.W.1. With regard to Ext.A4 also, he stated that the same was brought by P.W.1 after writing and he signed it without reading through the same. 33. P.W.3 is the L.D. Clerk in the office of the Sub Registrar, Pattambi who was examined after remand of the matter. The register from the Sub Registrar's office was produced ( Book No.4) and marked as R.F.A.No.321/2008 -23- Ext.X3. 34. On the side of the defendants, D.Ws.1 and 2 have been examined. D.W.1 is a relative of the defendants who gave evidence in line with the pleas of the defendants. He disputed the existence of any oral agreement for sale between the plaintiff and defendants 1 and 2. 35. Coming to the evidence of D.W.2, in proof affidavit he has detailed the case of the defendants and denied the existence of any oral agreement and the receipt of advance amount through P.W.2 and the entrustment of Rs.2.5 lakhs by the plaintiff to P.W.2. It is also stated that the receipts obtained by the plaintiff as signed by P.W.2, are brought by influencing him and are not binding on them. The plaintiff had tried his level best to show that P.W.2 is also having right in the property of the defendants. At the time of filing of the case, the defendants and P.W.2 were not on cordial terms and utilising the same the plaintiff created various documents, by taking advantage of the situation. It is stated that even though the second defendant had executed a power of attorney in favour of the first defendant for selling their properties, it has nothing to do with the plaintiff. The plaintiff was not given possession of any property and the R.F.A.No.321/2008 -24- defendants are in possession of the plaint schedule property and tax also is being paid by them. The plaintiff has not paid in full the amount obtained by the sale of their jeep KRM 3587 and they were not in cordial terms because of the same. Since the plaintiff is a relative of the defendants, they had paid various amounts to the plaintiff and these details have been stated in the letters sent by the plaintiff to the defendants. He had forwarded a power of attorney in English stating that the same is required for mortgaging the plaint schedule property in bank. The defendants were not conversant with English and only when its contents were ascertained with the help of others, it was revealed that the draft of the power of attorney was prepared to sell the plaint schedule property and the attempt of the plaintiff was to cheat the defendants to get the property some how or other. Exts.B2 to B9 have been marked through the defendants. Ext.B9 is the draft of the power of attorney sent by the plaintiff to the defendants along with the letter. 36. In cross examination a suggestion was made that P.W.2 is the power of attorney holder of the defendants which was denied. To a specific question, he answered that after the trial of the case the relationship R.F.A.No.321/2008 -25- between him and P.W.2 was cordial. Exts.A15 and A16 are the copies of the plaint which were filed against the plaintiff through P.W.2 and Ext.A17 is the copy of the order in the criminal complaint filed by the defendants through P.W.2 against the plaintiff. He admitted that there were money transactions between the plaintiff and the first defendant. The power of attorney executed with the first defendant was one for getting loan for rubber cultivation. It was executed in 1991 which was cancelled also. It was registered in the Sub Registry Office, Pattambi. With regard to the plaint schedule property, he deposed that it is very near to the plaintiff's property. The property at Cherukode was purchased for an amount of Rs.4.5 lakhs by executing four different documents and the arrangements were made by the plaintiff and the matter was discussed and finalised by the plaintiff and the first defendant and payments were made through the plaintiff for which Rs.4 lakhs was sent by the defendants. Amounts were sent through Federal Bank and State Bank. With regard to the transaction regarding purchase of property at Cherukode, he stated that it was by an oral agreement. To a specific question whether there was any practice to have oral agreement, he answered “yes”. He denied the suggestion that a power R.F.A.No.321/2008 -26- of attorney was given to P.W.2. He also denied the suggestion that the plaintiff gave money as consideration for selling the plaint schedule property and for the purchase of property mentioned in Ext.A1. In cross examination he has also stated that the plaint schedule property was purchased by them in 1988 from the plaintiff and an amount of Rs.3 lakhs was due from the plaintiff as sale consideration for about 64 cents. 37. Initially, the suit was decreed by judgment dated 24.5.1994. The appellants filed appeal before this Court as A.S. No.393/1994 wherein the judgment was set aside and the matter was remanded back for fresh consideration. This Court in the judgment in A.S. No.393/1994 has held as follows in paragraph 6, by relying upon the dictum laid down by the Apex Court in **Brij Mohan and others v. Sugra Begum and others** {(1990) 4 SCC 147}: “6. On an examination of the oral evidence and materials on record, we have noted that the trial court did not enter into any positive finding regarding the execution of the alleged agreement for sale. This is a case where the suit was filed for specific performance on the basis of an oral agreement for sale. The exact date on which the advance amount was received by the defendants or the exact date of R.F.A.No.321/2008 -27- receipt of the balance sale consideration is not pleaded in the plaint, nor there is any communication between the parties for over an year from the date of the alleged oral agreement in March 1992 till Ext.A13 lawyer's notice dated 25.9.1993. Though it is alleged that the entire sale consideration was paid, there was no demand for execution of the sale deed for a considerable length of time. The plaintiff has no case that neither the advance amount nor the subsequent payment of balance sale consideration was given to the owners of the property directly. It is well settled that, before a court can grant a decree for specific performance, the contract pleaded must be a specific one and the same must be established by convincing evidence. Seeking specific performance of oral agreement supported solely by oral evidence are to be scrutinised carefully and unless there is convincing and satisfactory evidence leading to the agreement, the discretional remedy of specific performance cannot be granted. In a suit for specific performance it is incumbent on the plaintiff to plead and prove the facts and circumstances leading to the agreement for sale. The court should meticulously consider all facts and circumstances and enter positive findings as to whether such an agreement has been entered into between the parties. In a case like this, where the plaintiff comes forward to seek a decree for specific performance of sale of immovable property on the basis of an oral agreement, heavy burden lies on the plaintiff to prove that there was consensus ad R.F.A.No.321/2008 -28- idem between the parties for a concluded oral agreement for sale of the immovable property and in such cases the evidence and proof of the agreement must be absolutely clear and certain. There must be cogent and reliable evidence to base a suit for specific performance on the basis of an oral agreement. The learned Sub Judge had discussed the evidence on record and held that the preponderance of probability is in favour of the plaintiff's case. The learned Sub Judge did not enter into any positive and concluded findings as to whether the defendants had agreed to sell their property by adducing positive proof and that whether there is the receipt of the full sale consideration by the defendants from the plaintiff. In such circumstances we are of the view that the learned Sub Judge ought to have entered positive findings on the issues to be decided between the parties. It has been held by the Hon'ble Supreme Court in the decision in _Brij Mohan and others v. Sugra Begum and others - (1990) 4 SCC 147_ that the burden is on the plaintiff to prove the existence of a concluded oral agreement and that whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has been held in the above said decision that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis R.F.A.No.321/2008 -29- of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. In _S.R.Balakrishnan and another v. Yakoob and others - ILR 2001(2) Kerala 521_ this court held that a decree for specific performance cannot be granted on the basis of an oral agreement supported by evidence unless there is cogent evidence to prove the agreement.” After remand, the plaintiff examined P.W.3, the L.D. Clerk of the Sub Registrar's office. We will have to find out whether evidence is adduced to conclude that there was an oral agreement for sale, in the light of the legal position explained by this Court as above. 38. In the light of the argument raised by the learned counsel for the appellants that even after remand and in spite of the direction by this Court no specific finding has been rendered by the court below as to whether there was any consensus ad idem and actually there was no evidence for the existence of the oral agreement for sale, we will have to analyse the evidence in detail. 39. The plaintiff's case in the plaint and when examined as P.W.1, is that initially he had talked over the matter to the second defendant in R.F.A.No.321/2008 -30- November 1991, the alleged oral agreement for sale was finalised between the first defendant and the plaintiff. The second defendant was not at all a party to that agreement. Therefore, the crucial aspect is whether as on 15.3.1992 there was an agreement for sale of the property for an agreed consideration between the plaintiff and defendant No.1. He has clearly admitted in his evidence as P.W.1 that in fixing the price, the second defendant had no role, but earlier they had talked over the matter. Again he reiterated to a specific question that the second defendant had not agreed that the property will be sold for Rs. 3 lakhs. Of course, his stand is that earlier they had talked about the fixation of price with the second defendant, but he had clearly admitted that the transaction was finalised with the first defendant on 15.3.1992 and the second defendant has not agreed to sell the property for Rs.3 lakhs. The question will be whether there is any consensus ad idem which was arrived at. He had talked over the matter with two parties on two different occasions and there was no joint meeting between all the three. 40. In this context, what is relied upon by the learned Senior Counsel for the plaintiff is Ext.X3 power of attorney. That was executed by the R.F.A.No.321/2008 -31- second defendant in favour of the first defendant in October, 1991. But the crucial aspect is that in 1991 there was no oral agreement for sale of the property to the plaintiff and Ext.X3 does not show that it was executed for selling the property to the plaintiff. The said item of evidence will not therefore help the court to arrive at a conclusion finally that the oral agreement of sale stands proved. It is a general power of attorney alone. 41. Then, the other crucial aspect is with regard to the advance amount given to D.W.1 and further payments made to P.W.2, In the plaint what is alleged is that the initial payment of Rs.50,000/- was made through P.W.2. This will not imply that he paid it directly to the first defendant. As P.W.1, the plaintiff's case is that it was paid to the first defendant through P.W.2. Evidently no receipt was obtained from the first defendant. But in cross examination what is stated is that he had entrusted Rs.50,000/- to the first defendant and the remaining amount of Rs.2.5 lakhs was paid to P.W.2. Lower down he had stated that Rs.50,000/- was given as advance to the first defendant himself. But later, he restated that the amount was paid through P.W.2, Shri Moideen. These versions therefore are inconsistent. The next instalment of Rs.50,000/- was paid to Shri Moideen on 25.8.1992 R.F.A.No.321/2008 -32- and in the receipt Ext.A2 mention is made about the payment of advance of Rs.50,000/- also. Therein also it is not stated that Rs.50,000/- was paid either through Shri Moideen or directly to the first defendant and what is stated after stating about the alleged transaction is that Rs.50,000/- was paid as advance to his brothers. Therefore, the versions are different. Exts.A2 to A4 bear different dates, viz. 25.8.1992, 31.8.1992 and 15.9.1992. The witnesses in all the three documents are the same persons. Exts.A5 to A8 sale deeds are executed on 29.8.1992. In Ext.A5 the sale consideration shown is Rs.80,000/- and in the document it is mentioned that the sale price has been received. The document is executed by one Shri Abdul Latheef as power of attorney holder of the vendors, Shri Mohammedkutty and Shri Moideenkutty. In Ext.A6 the sale consideration shown is Rs.42,000/- and it is mentioned that the amount has been received and similarly in Ext.A7 the sale price is shown as Rs.41,200/- which has been received also. Ext.A8 is also of the same date, viz. 29.8.1992 wherein the sale price is Rs.80,000/and it is mentioned that the amount has been received. Hence, all the sale deeds have been executed after receiving the sale consideration. In Ext.A1 which is stated to be an agreement between Shri Abdul Latheef as power of R.F.A.No.321/2008 -33- attorney holder and P.W.2 dated 1.6.1992. On the reverse side of the first page there is an endorsement that Rs.2 lakhs was received on 25.8.1992. Going by the evidence of P.W.1, Rs.1.20 lakhs was initially paid as advance to Shri Abdul Latheef. What is pleaded by the plaintiff and deposed by him in evidence with the support of Ext.A4 is that Rs.1 lakh was given on 15.9.1992 for enabling the execution of sale deed, Ext.A8. We have already noticed that Ext.A8 is also executed on 29.8.1992. Therefore, there is clear discrepancy with regard to these aspects, in evidence. If that be so, the plaintiff's case that he had paid Rs.50,000/- on 15.3.1992 and the remaining payments were made on 25.8.1992, 31.8.1992 and 15.9.1992 is clearly inconsistent and do not tally with Exts.A4 to A8 sale deeds executed. Apart from the same, the total consideration, according to the plaintiff, for the purchase of property is Rs.5.7 lakhs. It is also clear from Ext.X2 letter that the amount mentioned therein was being sent to the plaintiff for purchase of the property at Cherukode. Therefore, the assertion by the plaintiff that Rs.2.50 lakhs was paid by him for enabling execution of the sale deeds on the respective dates, cannot be accepted in toto. Shri Abdul Latheef who was the power of attorney holder of the vendors in Exts.A5 to A8, has not R.F.A.No.321/2008 -34- been examined also. 42. Herein, the evidence of P.W.2 and his admission in cross examination with regard to the circumstances under which Exts.A2 toA4 are executed is relevant. According to him, they were prepared and brought by P.W.1 and he simply signed them as asked for by P.W.1 without even reading or understanding them and he does not know whether it was written by P.W.1. The witnesses to any of these documents have not been examined also. Apart from it, the same witnesses have signed Exts.A2 to A4 on three different dates which is also a circumstance not explained by the plaintiff. P.W.2 has stated that Ext.A3 was signed by him in the office of the scribe. It is clear from the evidence of P.W.2 that he blindly believed P.W.1 and hence signed these documents. It is clear that he signed them without understanding the contents. Therefore, the plea that they will lend support to the plaintiff to show that he has actually paid money for purchase of the plaint schedule property is also not convincing. P.W.2 also do not know the reason why in none of the sale deeds there is no mention of Ext.A1. 43. The plea raised by the plaintiff is that he was put in possession of the property on 15.3.1992. Another aspect that is relevant is that actually R.F.A.No.321/2008 -35- this is a property purchased by defendants 1 and 2 from the plaintiff in 1988. This has not been disclosed in the plaint. True that the property is near his residence and the property which is purchased by the plaintiff through the defendants at Cherukode is near their residence. Merely because he is residing near the plaint schedule property, he cannot claim possession. There should be cogent evidence to show the acts of possession as well as transfer of possession to him pursuant to the payment of advance. Here, the only support he has gathered is from P.W.2. But the evidence of P.W.1 will itself show that he has not remitted any tax for the property. The defendants have produced Exts.B1(a) to B1(c) to show payment of tax. There is no case for the plaintiff that he has paid tax in their name even though P.W.2 went on to the extent of stating that P.W.1 has paid the tax, which is not the case of P.W.1. P.W.2 pleaded ignorance whether the tax receipts are in the name of his brothers. P.W.1 has not taken out any commission also to show that he is in possession of the property. Therefore, as regards transfer of possession, there is no clear evidence. P.W.1 had admitted, in his evidence that to prove transfer of possession there is no oral or documentary evidence. Thus, an oral agreement of sale followed by R.F.A.No.321/2008 -36- handing over of possession has not been proved at all. 44. Then, the question is whether the correspondence Exts.X1, X2 and Ext.A12 will bring out the existence of the oral agreement for sale. Ext.X1 is dated 5.6.1992 (Given as 5.7.1992 in the last part of the letter). This is sent by the first defendant to P.W.2, his brother. Therein, he refers to a letter dated 8.6.1992 addressed to the plaintiff and non receipt of any reply from the plaintiff. He has asked P.W.2 to go and see the plaintiff after receipt of the letter and has stated that he will be sending Rs.1.5 lakhs on 20.7.1992. Shri S. Sreekumar, learned Senior Counsel for the plaintiff submitted that the contents of Ext.X1 letter will evidence the alleged oral agreement for sale as there is a mention that P.W.2 should ask P.W.1 to get ready with the money. But a reading of the same will show that he has directed P.W.2 to get the sale deed executed partially in respect of the property at Cherukode by 30.7.1992 after collecting Rs.50,000/- from P.W.1 which is confirmed by P.W.2 also in his evidence. Reference is made about sending of the amount through NRE cheque after getting it on 20.7.1992. Certain other instructions have also been given in that letter. Ext.X2 is dated 8.7.1992. There is a reference about the property at Kondumundam, but no details R.F.A.No.321/2008 -37- about the arrangements as claimed by the plaintiff are there. From the said letter also the various efforts taken to collect money and to send it over are clear. But we find from it that what he has instructed mainly is to entrust money to the plaintiff for completing the transaction at Cherukode and he has also instructed that if money is available with the plaintiff, the same also can be utilised for purchase of property at least half of it in extent. Merely because the instruction given to P.W.2 is to ask the plaintiff also to raise funds, in the absence of any reference to the proposal to sell the plaint schedule property to him, it cannot be said that by a reading of Ext.X1 what is intended by the first defendant in instructing P.W.2 to request the plaintiff to arrange funds, is only for selling the plaint schedule property. Such an idea is not clear from Ext.X2 also. There was reference about registration of property at Cherukode; that already Rs.3.5 lakhs have been sent etc., but nothing is mentioned about sale of property to the plaintiff and steps to be taken for registration of document. A complete reading of Ext.X2 will show the efforts being taken by the first defendant to raise funds and also to send it through his friends. 45. Ext.A12 is the letter relied upon by the plaintiff heavily. The R.F.A.No.321/2008 -38- same is dated 15.9.1992 and the date is crucial that it is after the last sale deed was executed. This letter is addressed to P.W.1. It is stated that the amount to be paid to P.W.1 will be sent through one Hamza by the 10[th] of next month. It is then stated that Hamza will give instructions regarding the agricultural operations to be done in the property. It is also stated that after Hamza's arrival one worker should be employed on payment of salary. Again it is reiterated that the money due to the plaintiff will be paid through Shri Hamza and that the sale deeds should be entrusted with their father. Finally, it is stated that whenever the property is proposed to be sold, it will be given to the plaintiff himself and that as of now any of the properties are not being sold. It is requested that in the property rubber may be planted and one employee may be engaged on permanent basis on payment of salary, after arrival of Shri Hamza. These instructions given in the letter are heavily relied upon by the learned Senior Counsel to contend for the position that there was an agreement for sale of the property. 46. Shri M.C. Madhavan, learned counsel for the appellants submitted that the existence of an agreement of sale orally made is not discernible from the said letter and what is mentioned is that amounts due to R.F.A.No.321/2008 -39- P.W.1 will be repaid. It is submitted that since it is a case of P.W.1 also that he was asked to raise funds, nothing will turn upon Ext.A12 to support the case of the alleged oral agreement for sale. 47. In Ext.A12 there is no mention about the alleged oral agreement for sale. In view of the close relationship between the parties and the cordiality at that point of time (P.W.1 admits that at the relevant date of Ext.A12 the relationship between the parties was cordial), there was no difficulty for the first defendant to mention about the proposal, if any, to sell the plaint schedule property to the plaintiff. The absence of the same in the said letter, according to us, is crucial and significant. Merely because he has stated that property is not proposed to be sold, that will not automatically lead to an inference that there was an agreement between the plaintiff and the first defendant for selling the property. His intention is clear when he stated that whenever there is a proposal to sell the property, it will be given to P.W.1. The same alone is discernible from Ext.A12 and at any rate, it is not a case where Ext.A12, in definite terms, show that there was an oral agreement for sale between the parties. 48. Learned counsel for the appellants submitted that Ext.A1, the R.F.A.No.321/2008 -40- alleged agreement for sale executed between Shri Abdul Latheef, the power of attorney holder of the vendors of Exts.A5 to A8 and P.W.2, Shri Moideen, does not refer to any such oral agreement for sale or about any simultaneous transaction. It is submitted that the non examination of Shri Abdul Latheef is also crucial. Actually, the said agreement is between Shri Abdul Latheef and Shri Moideen and the same is dated 1.6.1992. It will not therefore advance the case of the plaintiff, as according to him, the alleged oral agreement for sale is on 15.3.1992. There is nothing to show that as on 15.3.1992 anything was finalised for purchase of property at Cherukode, even though P.W.2 stated that there was some moves for that. But evidently, it has not been finalised on 15.3.1992. Therefore, there is no cogent evidence to connect these two transactions. To the same effect is about the reliability of Ext.X3 as that also does not connect the plaintiff. Ext.B9 which is stated to be draft of the power of attorney to be executed by the defendants in favour of the plaintiff also does not help in establishing any oral agreement for sale. 49. Learned Senior Counsel for the respondents argued that the defendants' case that money was due from P.W.1 as part of the sale R.F.A.No.321/2008 -41- consideration of the jeep, has not been established, and hence it makes the plaintiff's case more probable. The weakness of the case of the defendants cannot automatically go in favour of the plaintiff. The objection taken against the documents produced by D.W.2, Exts.B2 to B9 is that they have not been properly proved in evidence. Exts.B6(a) series are stated to be letters sent by the plaintiff to the defendants. We need not go into those documents, in the light of the fact that the evidence otherwise available in the case, as we have discussed above, will not help the respondents to convincingly establish the existence of the alleged oral agreement and the consensus ad idem arrived at between the plaintiff and defendants 1 and 2. 50. The argument of the learned Senior Counsel is that P.W.2 supports the case of the plaintiff. We find from his cross examination that with regard to certain instructions given in Ext.A12 even though he was asked, his replies are evasive. According to him, the reason as to why it is stated in Ext.A12 that an employee has to be appointed on salary for looking after the property, is not known to him. It is also stated by him that he does not know why in the said letter it is stated that the properties purchased are not being sold. With regard to the alleged sale of the jeep by P.W.1, his answer R.F.A.No.321/2008 -42- is that he does not know whether the plaintiff has sold the jeep of the defendants. He also answered, to a specific question that he does not know as to why in Ext.A12 it was stated that the money due to P.W.1 will be sent through with Shri Hamza. Therefore, if P.W.2 was having intimate knowledge or was managing the affairs of the defendants, he could not have given evasive answers on these crucial aspects. 51. We will now refer to the decisions relied upon by learned counsel on both sides. As regards the proof required for establishing an oral agreement for sale, learned counsel for the appellants relied upon the decisions of the Apex Court in **Ouseph Varghese's case** {(1969) 2 SCC 539}, **Mayawanti's case** {(1990) 3 SCC 1} and **Brij Mohan's case** {(1990) 4 SCC 147}. 52. In **Ouseph Varghese's case** {(1969) 2 SCC 539}, in paragraph 8 it has been held as follows: “8............But before a court can grant a decree for specific performance, the contract pleaded must be a specific one and the same must be established by convincing evidence. Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence.............” R.F.A.No.321/2008 -43- 53. In **Mayawanti's case** {(1990) 3 SCC 1}, the Apex Court has elaborately considered the requirements to be established when a decree is sought to be enforced in a contract of specific performance. The Apex Court emphasised the fact that the contract should be certain and the parties must have have been consensus ad idem. We extract herein paragraphs 8, 11 and 18: “8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to R.F.A.No.321/2008 -44- enforce that obligation. 11. ...........It is settled law that if a contract is to be made, the intention of the offeree to accept the offer must be expressed without leaving room for doubt as to the fact of acceptance or to the coincidence of the terms of acceptance with those of the offer. The rule is that the acceptance must be absolute, and must correspond with the terms of the offer. If the two minds were not _ad idem_ in respect of the property to be sold, there cannot be said to have been a contract for specific performance. If the parties themselves were not _ad idem_ as to the subject matter of the contract the court cannot order specific performance. 18. The specific performance of a contract is the actual execution of the contract according to its stipulations and terms and the courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been _consensus ad idem_ . The burden of showing the stipulations and terms of the contract and that the minds were _ad idem_ is, of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not _ad idem,_ there can be no specific performance, for there was no contract at all..........” Therefore, there should be clear evidence that the parties were at consensus ad idem and if the two minds were not ad idem in respect of the property to R.F.A.No.321/2008 -45- be sold, there cannot be said to have been a contract of specific performance. 54. In **Brij Mohan's case** {(1990) 4 SCC 147} also in paragraph 20 the legal position has been reiterated when an oral agreement for sale was sought to be established. It has been held as follows: “20..............However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement.” ## 55. **Ambikakumari v. Ramakrishnan** (ILR 1992 (1) Ker. 99) is relied upon to show that actually in Exts.A5 to A8 the sale consideration shown is only Rs.2.43 lakhs and therefore the plea of the plaintiff that it was R.F.A.No.321/2008 -46- purchased for Rs.5.70 lakhs cannot be accepted. 56. In **Mathew v. Kuruvila** (1988 (1) KLT 7 - SC) the Apex Court has laid down the matters to be considered by the court when a decree for specific performance is sought. We hereinbelow extract paragraph 14: “14. S.20 of the Specific Relief Act, 1963 preserves judicial discretion to courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff.................” Therefore, the court will have to meticulously consider all facts and circumstances of the case and merely because it is lawful to do so, the court is not bound to grant a decree for specific performance. 57. **Ganesh Shet v. Dr.C.S.G.K. Setty** (AIR 1998 SC 2216) is relied upon to contend for the position that there was no concluded contract between the parties and therefore a decree for specific performance cannot be granted. This was highlighted in the light of the fact that the plaintiff admitted that actually the second defendant had not agreed for the price as R.F.A.No.321/2008 -47- ## Rs.3 lakhs, in his cross examination. 58. In **S.R. Balakrishnan and another v. Yakoob and others** (ILR 2001 (2) Ker. 521) also this Court held that “rarely a decree for specific performance is granted on the basis of oral evidence unless there is cogent evidence to prove the agreement.” Therein, the judgments of the Apex Court in **Ouseph Varghese's case** {(1969) 2 SCC 539}, **Brij Mohan's case** {(1990) 4 SCC 147}, **K.V. Subbayya v. B.J. Guruvi Reddy** (AIR 1999 SC 2958) and **State of Rajasthan v. Smt. Kalki and another** (AIR 1981 SC 1301) have been relied upon. Reliance is placed on **Basheer v. Khadeeja (** 2001 (2) KLT 632) which is a Division Bench decision of this Court, to contend for the position that the plaintiff should prove that he was and still is ready and willing to perform his part of the agreement. 59. **Aliyas v. Aboobacker** (2006 (4) KLT 282) is by another Division Bench of this Court which is relied upon to contend that unsustainable defence cannot be a ground for denial of equitable consideration in all circumstances. 60. Learned Senior Counsel appearing for the respondents submitted that the principles stated in the Apex Court's decisions in **Skyline** R.F.A.No.321/2008 -48- **Education Institute (India)'s case** {(2010) 2 SCC 142} and **Mohd. Mehtab Khan's case** (AIR 2013 SC 1099) are relevant while considering the various aspects. It is submitted that unless this Court finds that the discretion exercised by the trial court is so arbitrary, the conclusions and findings made by the trial court cannot be interfered with. 61. **Skyline Education Institute's case** {(2010) 2 SCC 142} is a case by which the refusal to grant an injunction and its challenge was considered by the Apex Court. In paragraph 22 which is relied upon by the learned Senior Counsel, it has been held thus: “22. The ratio of the abovenoted judgment is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity.” We find from the above paragraph that the said dictum has been laid down in the matter of the principles to be gone into while granting or refusing to R.F.A.No.321/2008 -49- grant relief of temporary injunction and the scope of interference on the discretion exercised by the High Court. Such is not the case here. 62. In **Mohd. Mehtab Khan's case** (AIR 2013 SC 1099), in paragraph 15 it has been held thus: “.In a situation where the learned Trial Court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt,the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be emphasized is that as long as the view of the Trial Court was a possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by R.F.A.No.321/2008 -50- this Court in _Wander Ltd. v. Antox India (P) Ltd._ Para 14 of the aforesaid judgment which is extracted below would amply sum up the situation.” That was also a case where an interim order passed under Section 6 of the Specific Relief Act was challenged before the Apex Court. We find that the considerations herein will be different and the said dictum therefore cannot apply here. 63. We are of the view that in the light of the law laid down by the Apex Court in **Ouseph Varghese's case** {(1969) 2 SCC 539}, **Mayawanti's case** {(1990) 3 SCC 1} and **Brij Mohan's case** {(1990) 4 SCC 147} the burden is heavily on the plaintiff to establish the existence of an oral agreement. In the light of the dictum laid down in **Mayawanti's case** (supra) the stipulations and terms of the contract have to be certain and the parties must have been consensus ad idem. Herein, as we have already noticed, the plaintiff admitted that on 15.3.1992 he had talked over the matter with the first defendant alone and the second defendant was not there. The property is owned by both. He admitted as P.W.1 that the second defendant had not agreed for the price at Rs.3 lakhs, even though according R.F.A.No.321/2008 -51- to him, in November 1991 he had suggested the same. But in a matter like this where the plaintiff is seeking enforcement of an oral agreement for sale, unless there is real proof of consensus ad idem between the parties, the court cannot grant a decree. The same is absent here, in the light of the admission made by the plaintiff himself. 64. Apart from all these aspects, the silence of the plaintiff, even after receipt of Ext.A12 for a long time is crucial. Ext.A12 is dated 15.9.1992. the lawyer notice, Ext.A13 sent is on 25.9.1993. The delay on the part of the plaintiff to demand execution of the sale deed is therefore crucial, in the entire background of the case. He did not even attempt a reply to Ext.A12 wherein the first defendant communicated that the property is not being sold now. Even according to the plaintiff, at that time the relationship was very cordial. Therefore, it would have been natural for the plaintiff to send a reply asking the reason for not selling the property, if at all there was an oral agreement. As we have already noticed, Ext.A12 does not reflect any existence of an oral agreement for sale. The Division Bench in the earlier round of litigation, has adverted to this fact in paragraph 6 of the judgment in A.S. No.393/1994. There was total absence of communication between R.F.A.No.321/2008 -52- the parties for over an year from the date of Ext.A12 till Ext.A13 lawyer notice. 65. Even going by the plaintiff's case the entire considerations were paid on 15.9.1992. Then also there is a considerable delay in sending the lawyer notice, Ext.A13. In between, there was no demand for execution of the sale deed. 66. As observed by the Division Bench in A.S. No.393/1994, the plaintiff has no case that neither the advance nor the subsequent payment of balance consideration was given to the owners of the property directly, viz. Defendants 1 and 2. Therefore, when the contract pleaded is not fully established, the court will be slow to grant a decree. 67. In the light of Section 20 of the Specific Relief Act, the court will have to exercise the discretion properly after analysing all the facts and circumstances of the case. The court will have to consider further whether it would be fair, just and equitable, to grant a decree. 68. Learned counsel for the appellants further submitted that the findings rendered by the court below will show that many of the crucial aspects have not been considered and there is no consideration of the R.F.A.No.321/2008 -53- discretion under Section 20 of the Specific Relief Act and crucial mistakes have been committed in various paragraphs in relation to the analysis of evidence. 69. In paragraph 11 of the judgment, the court below has relied upon Ext.X3 power of attorney and it was found that by the same, the second defendant gave his power of attorney to the first defendant to sell the property for and on behalf of him also. Actually, Ext.X3 is in the year 1991 and at that point of time there was no oral agreement with the plaintiff. If, in 1991 there was an agreement to sell the plaint schedule property to the plaintiff, that would have been found a place in the power of attorney, submitted by the learned counsel for the appellants and we find much force on the same. In paragraph 13 the court below has found that the second defendant admits that the plaintiff has spent Rs.2.5 lakhs at the time of purchase of the property at Cherukode. This is one of the circumstances relied upon by the court below to find in favour of the plaintiff. We have perused the deposition of D.W.2 and a perusal of the same will show that in cross examination in spite of a suggestion being put to him, he has denied the suggestion that the plaintiff had spent Rs.2.5 lakhs at the time of R.F.A.No.321/2008 -54- purchase of the property at Cherukode. Therefore, that finding by the court below is on a wrong premise. 70. In paragraph 15 the court below found that on a reading of Exts.A11, A12, X1 and X2, it can be seen that there was a transaction by the plaintiff between the two sides and that there is clear mentioning about the sale of the plaint schedule property. We have already discussed the documents and we have found that these communications do not bring out any alleged oral agreement for sale. Therefore, the said conclusion by the court below in paragraph 15 is also not correct. At the most, the transactions can be, a money transaction between the plaintiff and the defendants. The plaintiff, as P.W.1, also admitted that he has been arranging purchase of properties to persons who are in Gulf countries. This also is significant. We find from the judgment that in paragraph 12 the court has observed as follows: “Ext.A1 is the agreement dated 1.6.1992 entered into by this Moideen as power of attorney holder of the defendants and another for the purchase of a property at Cherukod.” This is not correct. There is no case that Shri Moideen was the power of R.F.A.No.321/2008 -55- attorney holder. In that paragraph reliance is placed on Exts.A15 to A17 to show that P.W.2, Shri Moideen was on very good terms with defendants 1 and 2. But Exts.A15 to A17 are much after the filing of the suit. Ext.A15 is dated 27.11.2007, Ext.A16 is dated 29.11.2007 and Ext.A17 is an order dated 12.7.2005. Even going by the admission of P.W.2 in cross examination, at this point of time the relationship was cordial. D.W.2 in his evidence has stated that after the trial the relationship between the parties was cordial. Therefore, the subsequent documents which were produced long after the same, cannot help the plaintiff. This is a crucial aspect which should have been considered by the court below. P.W.2 had even admitted sending of complaints against defendants 1 and 2 during the earlier period. The suit was filed in 1993. The court below had heavily relied upon these two aspects to find favour with the plaintiff. The court below also was of the view that Exts.A11, A12, X1 and X2 will bring out a real transaction between the plaintiff and the defendants. What is concluded is that in these communications there is a clear mention about the sale of the property. We have adverted to the contents of those letters and whether there is an oral agreement for sale or not is not stated in any of the letters or at any rate, it is R.F.A.No.321/2008 -56- not clear from them. Therefore, we cannot agree with the reasoning adopted by the court below. The appeal is thus allowed and the decree and judgment of the court below will stand set aside. The suit is dismissed. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(P.V. ASHA, JUDGE)** **kav/**