V. Haridas & Sojan v. M.P. Mathew & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN** **TUESDAY, THE 31[ST] DAY OF JANUARY 2023 / 11TH MAGHA, 1944 RFA NO. 31 OF 2015 (D)** **AGAINST THE JUDGMENT IN O.S.NO.590/2009 OF I ADDITIONAL SUB COURT, ERNAKULAM** **------------** ## **APPELLANTS/DEFENDANTS:** - **1 V.HARIDAS, AGED 47 YEARS, S/O.ACHUTHA WARRIER, 37/1895, LAKSHMI NIVAS, BANK ROAD, KALOOR, KOCHI 17, NOW RESIDING AT LAKSHMI NIVAS, ST.MARTIN ROAD, PALARIVATTOM P.O., KOCHI-25.** - **2 SOJAN, AGED 43 YEARS, S/O.KURIAKOSE, 5/731, KARIMAIL HOUSE, NELLIJUTTA P.O, KANNUR, PIN-670 632.** **BY ADVS. SRI.ABRAHAM P.GEORGE SRI.M.RAJENDRAN NAIR SMT.M.SANTHY SRI.K.VINODKUMAR** ## **RESPONDENTS/PLAINTIFFS:** - ***1 M.P.MATHEW (DIED).** - ***2 SOSAMMA, AGED 89 YEARS,** **W/O.M.P MATHEW, S.M.PLASA, OPP.TOWN HALL, BANERJI ROAD, ERNAKULAM (ORIGINAL AND CORRECT ADDRESS-MANYATH HOUSE, NELLIKUZHY P.O, KOTHAMANGALAM, PIN-686 691.** **(R1 AND R2 DIED AND R3 TO R7 ARE RECORDED AS LEGAL HEIRS VIDE ORDER DATED 07.11.2016.)** **R.F.A.No.31 of 2015** -:2:- - **3 LOUIS M. MATHEW, AGED 67 YEARS,** - **S/O.LATE M.P MATHEW, RESIDING AT 37, PROVIDENCE, KENTIL PARK, SOUTH BROWNSURI C.K, NEW JERSY, U.S.A (ORIGINAL AND CORRECT ADDRESS - MANYATH HOUSE, NELLIKUZHY P.O, KOTHAMANGALAM), PIN-686 691.** - **4 VALSA VARGHESE, AGED 64 YEARS, D/O.LATE M.P MATHEW, PAINADATH HOUSE, NAYATHODU P.O, ANGAMALY-683572.** - **5 MONY M. MATHEW, AGED 62 YEARS, S/O.LATE M.P MATHEW, MANYATH HOUSE,** - **M.S.M PLASA, OPP TOWN HALL, KOCHI 18 (ORIGINAL AND CORRECT ADDRESS MANYATH HOUSE, NELLIKUZHY P.O, KOTHAMANGALAM), PIN-686 691.** - **6 MERCY PAUL, AGED 57 YEARS, D/O. M.P MATHEW, MARACHERRY HOUSE, UPPUKULAM, OONNUKAL P.O, KOTHAMANGALAM-686 693.** - **7 MATHY MOL MATHEW, AGED 49 YEARS, D/O.LATE M.P.MATHEW, LONGWOOD, FLORIDA, U.S.A (ORIGINAL AND CORRECT ADDRESS-MANYATH HOUSE, NELLIKUZHY P.O, KOTHAMANGALAM),** **PIN-686 691.** **BY ADVS. SRI.S.SREEKUMAR (SR.)** **SRI.P.MARTIN JOSE (CAVEATOR) -R5 SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18.12.2022, THE COURT ON 31.01.2023 DELIVERED THE FOLLOWING:** ## **A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ.** —-------------------------- ## **R.F.A.No.31 of 2015** —-------------------------- Dated this the 31st day of January, 2023 **J U D G M E N T** A.Muhamed Mustaque, J. This appeal was filed by the defendants in O.S.No.590/2009 on the file of the Sub Court, Ernakulam. The suit filed by the plaintiffs to declare two documents as null and void was allowed. Consequential injunction was also granted in favour of the plaintiffs. 2. The suit property is located in the heart of the Ernakulam town near Ernakulam Town (North) Railway Station. The total extent of the land is 4.650 **R.F.A.No.31 of 2015** -:2:- cents with a multi-storeyed building. The suit was instituted by M.P.Mathew and his wife Sosamma. The first plaintiff-Mathew died pending suit and their children were impleaded as additional plaintiffs. Sosamma also died pending appeal. 3. The prayers in the suit are on the footing of the alleged fraud committed on late Mathew by the first defendant-V.Haridas. The suit property belonged to late Mathew and his wife Sosamma. Mathew was staying alone in the suit property. His wife Sosamma, afflicted with parkinson's disease was lodged in Mythri Trust Old Age Home. The first defendant-Haridas came into contact with Mathew while he was in search of a room for lease. Mathew developed an acquaintance with Haridas. It appears that Haridas became a frequent visitor to his home and showered love and affection to Mathew by bringing food, spending time with him etc. There were financial transactions between them. Haridas prompted Mathew to sell the above property **R.F.A.No.31 of 2015** ## -:3:- to purchase another 14 cents of land at Palarivattom in the joint name of Mathew and Haridas. The total purchase value of the land having 14 cents at Palarivattom according to Haridas was Rs.4.5 crores. Mathew was 87 years old and was not prepared to sell the property. Haridas then put forward another suggestion, to raise the amount by mortgaging the plaint schedule property. The plaint narrates that Haridas assured repayment of loan from the income of the property to be purchased. Haridas also agreed to contribute to the purchase by selling the property owned by him at Thrissur. Citing Mathew’s old age, Haridas told him that the loan can be obtained only in his name and asked Mathew to transfer the property to his name so as to obtain the loan. Believing the words of Haridas, Mathew himself and on behalf of his wife, executed a sale deed showing consideration of Rs.6 lakhs on 23/3/2009. **R.F.A.No.31 of 2015** -:4:- 4. Haridas denied the allegation that the sale deed was executed in his favour to purchase another property at Palarivattom. According to him, Mathew was neglected by his children. He had mortgaged the property with Syndicate Bank. He purchased the property from Mathew and Sosamma for valuable consideration and after the purchase, he cleared the loan amount due to Syndicate Bank. 5. Haridas filed a counter-claim seeking mandatory injunction to remove the plaintiffs and to restore possession. He also sought permanent injunction against the plaintiffs. 6. The counter claim has been dismissed. In this appeal, the appellants challenged the decree in favour of the plaintiffs as well as in the counter claim by paying separate court fees for the said reliefs. Haridas sold one cent of land out of 4.596 cents in favour of one Sojan by a separate **R.F.A.No.31 of 2015** -:5:- sale deed. Sojan claims that he is a _bona fide_ purchaser without notice. 7. We shall now advert to the evidence adduced in this matter. We note that no oral evidence was adduced on the side of the defendants. PW1 to PW8 were examined as the witnesses of the plaintiffs. Exts.A1 to A21 were marked on the side of the plaintiffs. Exts.B1 to B6 were marked on the side of the defendants. The Advocate Commission reports and sketch were marked as Exts.C1, C1(a) and C2. 8. PW1, Mony M.Mathew is the son of Mathew and Sosamma. He was impleaded as an additional 5th respondent. He spoke in tune with the plaint pleadings. He also deposed about the nature and character of his father as a gullible person. PW1 was in the United States. According to him, he came from the US in the month of September 2009. He deposed that he came to know about Haridas **R.F.A.No.31 of 2015** -:6:- through his father during his visit during the month of September 2009. He deposed that his father Mathew shifted his residence to a flat owned by his sister. He further deposed that Haridas used to frequent the house of his sister and visit his father and attempted to take Mathew from there. It is from his father, he came to know about the transaction. It is then that he understood that the transfer was effected without any consideration for the purpose of purchasing the property in Palarivattom. He deposed that Haridas insisted that Mathew not disclose the transfer to anyone as it would affect the proposed transaction at Palarivattom. And this was the reason why his father Mathew refused to disclose the matter to his children. PW1 deposed that he made an inquiry about Haridas and came to know about his antecedents. Accordingly, a complaint was lodged before the Judicial First Class Magistrate. He further deposed that Mathew, having **R.F.A.No.31 of 2015** ## -:7:- come to know about the fraud played on him, became mentally and physically weak and he was forced to be admitted in the hospital. His cousins, Jiji Kuriakose and Tomy also came to know about this fraudulent transfer and contacted Haridas over phone and recorded the telephonic conversations. According to PW1, the recorded telephonic conversations would reveal the extent of the fraud committed by Haridas on Mathew. 9. PW2, Jiji Kuriakose is a crucial witness in this matter. He is Sosamma’s brother’s son. He retired as a Senior Travelling Inspector of Accounts from the Railway. He deposed that he used to inquire about the affairs of Mathew and Sosamma. He further deposed that Mathew had conveyed to him about the purchase of a property at Palarivattom along with Haridas. However, he was against such a purchase. He also said that Mathew applied for a loan with the State Bank of India and the Bank refused to grant loan to him. **R.F.A.No.31 of 2015** -:8:- Later, he came to know about the transfer of property in the name of Haridas through PW1, Mony M.Mathew. When he inquired about this with Mathew, Mathew told him that he transferred the land in favour of Haridas as Mathew was unable to obtain a loan and Haridas being young will be able to obtain loan from the Bank. It is further deposed, Mathew told him that Haridas promised to retransfer the land after he obtained a loan from the Bank. Jiji Kuriakose had a conversation with Haridas through the phone and recorded the conversation. He also deposed, Mathew told him that Haridas played fraud on him, before his death. 10. PW3 K.V.Purushan is a Circle Inspector of Police, who investigated the matter and he suggested court action in this matter. 11. PW4, P.Thomas - no reliance has been placed on his testimony. **R.F.A.No.31 of 2015** -:9:- 12. PW5, Subramani is a Cobbler, who is doing his work near the plaint schedule property. He used to call Mathew as _appachan_ . He used to keep all his tools at the plaint schedule property after his work. He deposed that _appachan_ informed him about the purchase of a property at Palarivattom along with Haridas and _appachan_ told him that he could not obtain loan from SBI due to his age. He further deposed that _appachan_ told him that he will convey the property in favour of Haridas for obtaining loan and Haridas agreed to retransfer the property after obtaining the loan. 13. PW6 is the Advocate Commissioner, who visited the plaint schedule property. 14. PW7 is Krishna Pillai. He deposed that his brother-in-law who is in America owns a property at Palarivattom having an extent of 20 cents. It is he who constructed a 3 storeyed building in that land. This building has been let out on **R.F.A.No.31 of 2015** -:10:- lease and he is the power of attorney holder. His brother-in-law had intention to sell the property and later he also sold the property. He deposed that Haridas visited him for purchase of the property and, when Haridas came, an aged person also accompanied him. They also discussed about purchase of the property. They initially demanded a room on lease till the completion of the building. When they came, he was told that the son of the accompanied person was in the US. Accordingly, he suggested that the son may contact his brother-in-law in the US for purchase. He disclosed that Rs.4.5 crores was demanded as purchase price. He does not know Mathew personally. He referred Mathew as an old man who accompanied Haridas. 15. PW8, Ratnamma. Ratnamma had a litigation with Haridas. She and her husband had filed a civil suit before the Munsiff Court, Pathanamthitta, as **R.F.A.No.31 of 2015** -:11:- against Haridas and Sasi alleging that both of them defrauded them and obtained their property. 16. We shall now advert to the documentary evidence in this matter. Exts.A1 to A6 are the powers of attorney of the parties. Ext.A7 is the death certificate of Mathew. We are not referring to all the documents except the documents which are relevant for considering the issues in this matter. Ext.A13 is the document executed in favour of Haridas covering one cent. Ext.A14 is the document in favour of Haridas for 3.620 cents. The original phone was produced before the court below. The transcription was produced on CD as Ext.A17. Ext.A17(a) series are transcription details. Ext.A17(A) was the original phone which was returned. Based on the order of this Court in appeal, the original was produced again. Thereafter, we directed the appellant counsel to verify the transcriptions with the original voice recorded in the phone. The counsel submitted that **R.F.A.No.31 of 2015** -:12:- there is no variation in the voice recorded in the phone. One of the points to be considered in this case is whether the recorded telephonic conversation without the consent of the party whose voice is recorded, is admissible in law or not. The Advocate Commission reports marked as Exts.C1 and C2 would show that PW1 was present in the house and there was no trace of possession by Haridas or Sojan. 17. Documents produced by the defendants are marked as Exts.B1 to B6. Ext.B1 is a complaint filed by Mony M.Mathew, PW1 as against Haridas. Ext.B2 is the final report by the police. Ext.B3 is a possession certificate. Ext.B4 is a settlement deed executed by Mathew. Ext.B5 is a diary alleged to have been maintained by late Mathew. Ext.B6 is the judgment in a suit. 18. The court below placed reliance on the testimonies of PW1-Mony M.Mathew, PW2 Jiji **R.F.A.No.31 of 2015** -:13:- Kuriakose and PW5-Subramani to hold that Haridas defrauded late Mathew. The court below also noted that the value of the property claimed by the plaintiffs, Rs.20 lakhs per cent, was not controverted. The defendants did not mount the box. The telephonic conversation between PW2 and Haridasan was relied on as a probative value of evidence to accept the testimony of PW2. 19. The learned counsel for the appellant Shri M.Rajendran Nair argued _in extenso_ . He particularly attempted to impeach the telephonic conversation by submitting that without a certificate as contemplated under Section 65B of the Evidence Act, 1872, no reliance could have been placed by the court below. The learned counsel further argued that the court below erred in placing reliance on hearsay oral evidence of the witnesses examined. The learned counsel further pointed out the findings in regard to the character of Haridas based on the evidence of PW8 **R.F.A.No.31 of 2015** -:14:- and such character evidence is inadmissible. The learned counsel argued that Mathew was hale and hearty and executed the deed for consideration. Learned counsel placed reliance on B5 to point out the passing of consideration. It is further submitted that the property was mortgaged with the bank and Haridas discharged the entire liability thereon. _Per contra_ the learned senior counsel Shri Sreekumar appearing for the plaintiffs submitted that the surrounding circumstances clearly indicate the fraud played on Mathew and the evidence of the witnesses are trustworthy. It is submitted that the defendants failed to mount the box purposefully. 20. The standard of proof in a case alleging fraud is high. The pleadings and evidence must manifest the deception. In this case, the pleadings and the oral evidence adduced have narrated the nature of fraud committed on Mathew. Therefore, the simple question before us is on the probative value of **R.F.A.No.31 of 2015** ## -:15:- the evidence adduced by the plaintiff. In civil cases it would be sufficient that through preponderance of evidence, fraud can be established. If the evidence adduced is convincing and sufficient to prove the existence of the fact, the Court should not hesitate in accepting such credible evidence. 21. We have no hesitation to accept the pleadings as such, to constitute the allegations of fraud. We, therefore, have to consider the probative value of the evidence. In a matter like this, the contextual relationship of the parties is the most relevant fact. It is specifically pleaded in the plaint that Haridas was able to sustain confidence with Mathew through constant visits and the assistance offered. In the written statement itself, Haridas admits that he had a fiduciary relationship with late Mathew. **R.F.A.No.31 of 2015** -:16:- 22. Section 17 of the Indian Contract Act defines fraud as follows: ## **Section 17 in The Indian Contract Act, 1872** 17. ‘Fraud’ defined.—‘Fraud’ means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:— —‘Fraud’ means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:—" (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; - (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it; - (4) any other act fitted to deceive; **R.F.A.No.31 of 2015** ## -:17:- (5) any such act or omission as the law specially declares to be fraudulent. Explanation.—Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence, is, in itself, equivalent to speech. Therefore, the essential requirements of fraud are, false representation, knowledge of falsity of representation by the person who makes the representation, and ignorance of falsity of the person to whom the representation was made. 23. ‘Fraud’ being a matter relating to the state of mind of a person who makes false representation, non examination of such a person becomes fatal. The Court cannot get direct evidence regarding fraud. The Court will have to analyse all the circumstances regarding the transaction. Necessary element in fraud is deception. The sale deed without possession **R.F.A.No.31 of 2015** -:18:- clearly probabilizes the case of the plaintiffs that the transaction was to obtain loan for the purpose of purchasing a property at Palarivattom. The purchase of the property at Palarivattom never materialized. Haridas had no answer in regard to the testimony given by PW7. It is clear that Haridas, with an intention to deceive Mathew, induced him to transfer the property in his name on a promise to obtain a loan for purchase of the property at Palarivattom. 24. The suit was instituted by Mathew and his wife Sosamma. Mathew was not alive at the time of trial. The property was sold for Rs.6 lakhs. There was not much challenge against the claim made by the plaintiffs that the property would fetch Rs.20 lakhs per cent. Haridas claimed that the possession was handed over. Except for showing that in the revenue records his name has been entered, there was nothing to prove that he was in possession of the property. The case of Haridas **R.F.A.No.31 of 2015** -:19:- that after the death of Mathew, he was ousted from possession is unbelievable. The testimony of PW7 that Haridas and an old man approached him for purchase of property at Palarivattom owned by his brother-in-law cannot be brushed aside. This probabilizes the case of the plaintiffs. The evidence adduced by the plaintiffs of the telephonic conversation and character evidence need not be considered in this matter. It is doubtful that a telephonic conversation recorded without consent is admissible in law. In light of the privacy judgment of the Apex Court in **Justice** ## **K.S.Puttaswamy (Retd) & Another v. Union Of India & Ors. [(2017) 10** **SCC 1]** it is not safe to hold that such evidence is admissible. Further, the character evidence cannot be relied upon unless character itself was an issue and that issue has been decided in any proceedings against Haridas. 25. PW2 is a relative of Mathew. He has deposed that Mathew had spoken to him about the deception **R.F.A.No.31 of 2015** -:20:- played on him. Similarly, PW5, a cobbler had spoken that Mathew had told him that he was deceived by Haridas. These evidence may be relevant to prove the ignorance of falsity by Mathew at the time of execution of the sale deed. Trial court relied on Section 6 of Indian Evidence Act to hold that such evidence is relevant. We also endorse the same view on the point of view of law as expressed by the trial court. If the sale was genuine, why was the possession not handed over to Haridas; he has no answer for the same. There is no reason to disbelieve the evidence of PW7. He has deposed that Haridas and an old man came to meet him for purchase of the property. This probabilizes the case of the plaintiffs that Haridas made a false representation that the sale deed would enable him to purchase the property at Palarivattom. These aspects have to be adverted in the light of fiduciary relationship between Mathew and Haridas. Absolutely, there was no necessity **R.F.A.No.31 of 2015** -:21:- for Mathew to sell the property in favour of Haridas. Ext.B5 is the diary that claims to have been maintained by Mathew. This was relied on by Haridas. It is written in Ext.B5 that Mathew ‘went to the Registrar Office to sell North building to Haridas’. ‘Sold North building’. It is also written ‘one cent road side’. It is mentioned in the diary, 'sale of the property in favour of Haridas by two separate documents'. Nobody has a case that Mathew had not executed the document. In the same diary it is seen that on 29/1/2009 he went to Palarivattom to see Raman. Similarly, on 7/2/2009 it is also written that, gone to see the building at Ravipuram. Again it is written on 20/2/2009, went to Krishna Pillai (PW7) to talk about the purchase of the building. So the very document produced by the defendant Haridas would show that there was a talk regarding the purchase of the property at Palarivattom which Haridas never acknowledged. **R.F.A.No.31 of 2015** -:22:- We, in such circumstances, are of the view that no interference is warranted with the finding of facts entered by the court below. The appeal fails and is dismissed with costs. **Sd/-** **A.MUHAMED MUSTAQUE, JUDGE** **Sd/-** **SHOBA ANNAMMA EAPEN, JUDGE** ms