V.R. Rameshan & Jayasree R. v. N.V. Rajagopala Pai

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: ## THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 26TH DAY OF JULY 2013/4TH SRAVANA, 1935 RSA.No. 1458 of 2012 () ---------------------- AGAINST THE JUDGMENT IN AS 23/2010 of ADDL. DISTRICT COURT, NORTH PARAVUR AGAINST THE JUDGMENT IN OS 521/2007 of MUNSIFF COURT, PARAVUR APPELLANT(S)/APPELLANTS/DEFENDANTS: ---------------------------------- ## 1. V.R.RAMESHAN S/O RAMANANDANAIKAN, VATHERIPARAMBIL, KUZHUPPILLY MURI KUZHUPPILLY VILLAGE, KOCHI TALUK. 2. JAYASREE R., W/O RAMESHAN, VATHERIPARAMBIL, KUZHUPPILLY MURI KUZHUPPILLY VILLAGE, KOCHI TALUK. BY ADVS.M/S.G.KRISHNAKUMAR,TITTO THOMAS,M.NASEEMA & PRIYA SHENOY ## RESPONDENT(S)/RESPONDENT/PLAINTIFF: ----------------------------------- - K.V.RAJAGOPALA PAI, AGED 71 YEARS * ( corrected as N.V. Rajagopala Pai) S/O VENKITESWARA PAI, NINTHASTALATH, KUZHUPPILLY MURI KUZHUPPILLY VILLAE, KOCHI TALUK-682 501. BY ADV. SRI.N.V.RAJEEV SHENOY & ADV. SRI.PRASUN.S FOR R1 (CAVEATOR) THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-07-2013, ALONG WITH RSA. 352/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: - *(The name of the respondent is corrected as 'N.V.Rajagopala Pai' instead of K.V.Rajagopala pai as per order dated 3-10-2013 in I.A.2065/2013) ## N.K.BALAKRISHNAN, J. .................................................... R.S.A. No. 1458 of 2012 & R.S.A. **352/2013** ................................................... Dated this the 26[th ] day of July, 2013 ## JUDGMENT R.S.A. 1458/2012 is the appeal filed by the defendants in O.S. 521/2007. The plaintiff in O.S.391/2007 is the appellant in R.S.A. No. 352 of 2013. O.S. 391/2007 was a suit for injunction filed by him to restrain the respondent herein from trespassing into the plaint schedule property shown therein. The respondent herein filed O.S. No.521 of 2007 for injunction restraining the appellants herein from trespassing into the property and committing acts of waste and also causing interference in the plaintiff's enjoyment of the plaint schedule property. 2. Those suits were jointly tried and a common judgment was passed by the trial Court. O.S. 391/2007 was treated as the leading case and evidence was recorded therein. **R.S.A.1458/2012** & R.S.A. 352/2013 **2** 3. PWs.1 to 3 were examined and Exts. A1 to A3 were marked on the side of the appellant. DW1 and DW2 were examined and Exts. B1 to B9 were marked on the side of the respondent. The Commissioner's report was marked as Ext. C1. The trial Court after analysing the evidence found that the case set up by the appellant is not true. The suit filed by the appellant was hence dismissed and a decree was granted in the suit filed by the respondent herein. The appeals filed against the same were dismissed by the appellate court. Hence, these two Second Appeals. 4. The following substantial questions of law have been framed:- - _i) Are there not sufficient pleadings to hold that the transaction is vitiated by fraud ?_ - _ii) Even if there are no sufficient pleadings to attack the transaction on the ground of fraud, if the transaction speaks for itself and if there are intrinsic materials to found a case of fraud, are the courts below correct in holding that the document is not vitiated by fraud ?_ 5. Ext.A1 is the sale deed dated 5-11-1998 executed **R.S.A.1458/2012** & R.S.A. 352/2013 **3** by the first appellant (hereinafter referred to as “the appellant”) in favour of the respondent assigning 50 cents of land from out of 55 cents of land comprised in Sy.No. 581/13. It is not disputed that the appellant was the owner in possession of 55 cents of land which was obtained as per partition deed No. 589/1967. The aforesaid property measuring 55 cents was the property shown as item No. 1 in the 'D' Schedule to that partition deed. 6. According to the respondent, the suit property measuring 50 cents was sold to him by the 1[st] appellant for a total consideration of ` 1,00,000/-. The remaining 5 cents with the residential house situated therein is admittedly in the possession of the appellant. The aforesaid 50 cents of land was separately demarcated and there are physical boundaries to identify the aforesaid 50 cents of land. 7. The appellant contended that Ext. A1 was executed bonafide believing that it was only a usufructory mortgage. **R.S.A.1458/2012** & R.S.A. 352/2013 **4** According to him he had borrowed Rs.1,00,000/- from the respondent and as a security Ext. A1 the mortgage deed was executed. He says that when he approached the respondent for getting the mortgage redeemed he evaded stating one reason or other and thereafter he obtained copy of Ext.A1 and then only he realised that the document executed by him was actually a sale deed and not a mortgage deed. 8. The document was executed on 5-11-1998. According to the plaintiff, he obtained the copy of the document only on 8-5-2007 and only then he came to know that the document executed was a sale deed. It was after about nine years of the date of execution of Ext.A1. The evidence would clearly show that from the date of Ext.A1 onwards the respondent was in actual possession and enjoyment of the plaint schedule property measuring 50 cents. There is also evidence to show that the respondent has effected mutation in respect of the aforesaid 50 cents of land **R.S.A.1458/2012** & R.S.A. 352/2013 **5** and since then he has been paying basic tax in respect of that property. The appellant was not paying land revenue after the date of execution of Ext. A1. From the evidence of DW2 the Advocate Commissioner and from Ext. C1 report and C1 (a) sketch it could be found by the courts below that the property covered by Ext. A1 was properly demarcated and that it is having well defined boundaries on its three sides. Regarding the southern boundary, it was said that on the south-eastern corner and south-western corner, boundary stones were seen fixed. Hence there was no difficulty for the Courts below to hold that Ext.A1 sale deed was executed after properly measuring the property and the said property was put in possession of the respondent herein, the learned counsel for the respondent submits. 9. The courts below found that from Ext. C1 report and Ext.C1 (a) rough sketch it is clear that there is a compound wall on the eastern boundary of the plaint schedule property **R.S.A.1458/2012** & R.S.A. 352/2013 **6** separating the remaining 5 cents of land which is admittedly in the possession of the appellant. 10. There is a specific stipulation in Ext.A1 that the transferee should effect mutation and pay basic tax after Ext.A1. Pursuant thereto , the mutation was effected and the basic tax was paid by the respondent alone. There was no reasonable or plausible explanation for the appellant as to why basic tax was not paid by him in respect of the suit property after the date of Ext. A1. The second appellant in R.S.A. 1458/2013 who is the wife of the first appellant is a witness to Ext. A1 sale deed. She was examined as P.W.2. The evidence would show that P.W.1 and P.W.2 are educated persons. There is evidence to show that the appellant who was examined as P.W.1 had executed other sale deeds on earlier occasions also and so it cannot be said that P.W.1 was unaware of the execution of the documents assigning or mortgaging property. As such the contention raised by him **R.S.A.1458/2012** & R.S.A. 352/2013 **7** that he was unaware of the contents in Ext.A1 and he simply signed the document believing that it was a mortgage deed, cannot be accepted. The courts below disbelieved the evidence adduced on the side of the appellants and held that Ext.A1 is a sale deed attracting the provisions contained under Sec. 54 of the Transfer of Property Act and that the transferee has taken possession of the property pursuant to Ext.A1. 11. The suit was filed after about 9 years of Ext.A1. It is argued by the learned counsel for the respondent that in order to file a suit an imaginary cause of action has been stated by the appellant stating that he came to know of the real nature of the transaction only when he obtained copy of Ext.A1. There is no semblance of truth in the allegation made by P.W.1. One cannot feign ignorance as to the nature of the document executed by him for about 9 years. 12. The main argument that has been advanced by the learned counsel for the appellant is that evidence let in on the **R.S.A.1458/2012** & R.S.A. 352/2013 **8** side of the appellant could have been accepted by the courts below holding that Ext.A1 was obtained by fraudulent misrepresentation. A vague plea was raised to the effect that the appellant had absolute faith in the respondent and there was no reason to disbelieve the representation made by PW.1 and so believing the words of the respondent (DW1) the document was simply signed by the appellant and was attested by P.W.2 his wife. But the courts below found that there is no specific plea regarding fraud as required under Order VI Rule 4 C.P.C. 13. According to the appellant the respondent was just like his elder brother and so there was no reason to doubt the representation made by the respondent that Ext.A1 was a mortgage deed. The learned counsel for the appellants would submit that there is evidence to show that the appellant was in need of Rs.1,00,000/- to clear the debt due to a Cooperative Bank and that debt was cleared only on 7-11-1998 **R.S.A.1458/2012** & R.S.A. 352/2013 **9** immediately after the execution of Ext.A1 sale deed. In such circumstances, the courts below should have found that Ext.A1 was executed only as a security for the amount of ` 1,00,000/- borrowed by the appellant from the respondent. That circumstance was not given serious thought by the courts below, the learned counsel for the appellant submits. It is further argued by the learned counsel that the evidence would show that the respondent did not verify the prior title deeds, nor did he enquire as to whether the suit property was encumbered and so it is reasonable to hold that there was no intention to execute the sale deed but the clear understanding and intention was only to execute a mortgage deed to secure the amount lent by the respondent to the plaintiff. According to the learned counsel, if the transaction was intended to be a sale, then the normal conduct of the parties would be to insist for encumbrance certificate, possession certificate, prior title deeds, the location plan etc. **R.S.A.1458/2012** & R.S.A. 352/2013 **10** but admittedly the respondent did not enquire nor did he obtain any of the documents from the appellant and as such that also should have been considered by the courts below to hold that the case of execution of sale deed put forward by the respondent is bereft of any merit. 14. The evidence given by PW3, the Manager of Koovappilly Service Co-operative Bank would show that there were four loans outstanding and the amounts due thereunder were cleared on 7-11-1998. It is submitted by the learned counsel for the appellants that the respondent who was examined as PW1 has during cross-examination, admitted that he had no intention to purchase the property. But that also was not seriously considered by the courts below while appreciating the evidence and as such according to the learned counsel, the appreciation of evidence is perverse. I cannot agree with the submission so made by the learned counsel. From that solitary sentence occurring in the cross- **R.S.A.1458/2012** & R.S.A. 352/2013 **11** examination of PW1 it cannot be found that Ext.A1 was not a sale deed executed by the appellant in favour of the respondent. The respondent's counsel would submit that though the respondent had no intention to purchase the property, when the appellant offered to sell the property and when demanded for money he (P.W.1) purchased the property. There is nothing unusual in it. 15. The learned counsel for the respondent would submit that the courts below have already found that there is no specific pleading regarding fraud, misrepresentation and undue influence and so no amount of evidence adduced without specific pleading and foundation can be looked into by the courts below to build a case on such fraud, misrepresentation or undue influence. The learned counsel for the appellant would rely upon certain decisions in support of his submission that if there is sufficient evidence on record to justify the inference of fraud or misrepresention, the **R.S.A.1458/2012** & R.S.A. 352/2013 **12** court would be perfectly justified in granting a decree based on the evidence obtained in the case. The decision in Subbamma v. Mohd. Abdul Hafiz and another – AIR (37) 1950 Hyderabad 55 has been relied on in this connection. That was a case where the document was sought to be attacked on the ground that it was vitiated by undue influence. In the particular circumstance of that case it was held that if there are sufficient facts on record to justify the inference of undue influence, the omission to raise such a plea could not prevent the court from deciding the case on that ground provided there is no surprise to the opposite party. According to the learned counsel for the appellant the parties went to trial knowing fully well that Ext.A1 is attacked on the ground of fraudulent misrepresentation and so the courts below were not justified in holding that there is no specific pleading. But unlike in a case of undue influence mentioned in the aforesaid decision, here the appellant and his wife **R.S.A.1458/2012** & R.S.A. 352/2013 **13** (P.W.1 and P.W2) are educated persons and P.W.1 has admittedly executed documents earlier assigning certain properties and it is not a case where he was totally unaware of the procedure relating to the execution of documents. It is argued by the learned counsel for the appellant that the evidence would show that the witness signed the documents from the registrar's office and so there was no occasion for the scribe of the document to read over the contents of the document to the party who has to execute the document and so it has to be found that there was fraudulent misrepresentation on the part of the respondent in causing the first appellant to execute the document and to make P.W.2 the wife of the first appellant to sign the document as a witness. 16. It is trite law that in order to have a fair trial it is imperative that the parties should state the essential material facts so that the other party may not be taken by surprise. But the learned counsel for the appellants would submit that **R.S.A.1458/2012** & R.S.A. 352/2013 **14** the pleading should receive a liberal construction and no pedantic approach should be adopted to defeat justice on technicalities as has been held by the Apex Court in the decision in Ram Swarup Gupta v. Bishun Narain Inter College and Others – AIR 1987 SC 1242. It is further submitted that it is the duty of the court to ascertain the substance of the pleadings to determine the question and it is not desirable to place undue emphasis on form, instead, the substance of the pleadings should be considered. The duty of the court is to find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings, party knew the case and they proceeded to trial on those issues by producing evidence in that line it would not be open to a party to raise the question of absence of pleadings. It was held by a Constitution Bench of the Hon'ble Supreme Court in Bhagawati Prasad v. Shri. Chandramaul, - AIR 1966 SC 735:- **R.S.A.1458/2012** & R.S.A. 352/2013 **15** “If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led ab out them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the court has to consider in dealing with such an objection is : did then parties know that the matter in question was involved in the trial, and did they lead evidence about it ? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another”. 17. According to the appellants, the averments raised in the plaint would certainly amount to a plea of fraud and it was based on that the appellants adduced evidence; the respondent was also aware of the pleading and he understood the same in that line and proceeded with the trial treating the plea raised by the appellant as the one required **R.S.A.1458/2012** & R.S.A. 352/2013 **16** under Order VI Rule 4 C.P.C, to challenging the document on the ground of fraudulent misrepresentation. Hence, according to the learned counsel for the appellants the courts below were not justified in non-suiting the appellants on the ground that there is no specific pleading regarding fraud or fraudulent misrepresentation. 18. The learned counsel has also relied upon the decision in Sopan Sukhdeo Sable and Others v. Assistant Charity Commissioner and Others - AIR 2004 SC 1801, in support of his submission that what is required is not the piecemeal reading of the plaint but in its entirety. It is contented that Order 6 Rule 2 of C.P.C. requires that pleadings shall contain only a statement in a concise form of the material fact on which the party pleading relies for his claim. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or **R.S.A.1458/2012** & R.S.A. 352/2013 **17** change of its apparent grammatical sense . The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. Order 6 Rule 4 says that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willfull default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading. Therefore, a party relying on fraud, undue influence etc. has to give particulars in the plaint alleging such fraud, undue influence etc. 19. The distinction between “material facts” and “particulars” was dealt with by the Hon'ble Supreme Court in Samant N. Balakrishna v. George Fernandez - (1969 (3) SCC 238). There is was held:- “The word “material” shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim **R.S.A.1458/2012** & R.S.A. 352/2013 **18** becomes bad. The function of “particulars” is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet”. 20. What is required under Order 6 Rule 4 of CPC is to give particulars in the plaint alleging such fraud, undue influence etc. Therefore, in th light of the dictum laid down by the Hon'ble Supreme Court there is a duty cast on the plaintiff to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. The learned counsel for the appellants would submit that a reading of the plaint in whole would make it indubitably clear that it made the defendant to understand what the case he has to meet and it was based on that the appellant let the evidence and to challenge that evidence the respondent has also adduced evidence and so the courts below should not have taken a hyper technical approach to non suit the appellant holding that there are no material particulars to attract a plea of fraud **R.S.A.1458/2012** & R.S.A. 352/2013 **19** as required under Order 6 Rule 4 C.P.C. 21. The learned counsel for the appellant would also submit that misrepresentation itself would amount to fraud. It is further submitted that fraudulent misrepresentation is called deceit and consists in leading a man to damage by willfully or recklessly causing him to believe. He relies upon the decision of the Supreme Court in Ram Chander Singh v. Savithri Devi and Others (2003 ) 8 SCC 319 in support of that submission. According to the learned counsel, here it was actually a case of deception that was played by the respondent and in the peculiar circumstances of the case there can be no difficulty to hold that it amounts to fraud played on the appellants and so the evidence given by P.W1 to P.W.3 should have been accepted by the courts below to hold that Ext.A1 was brought about by a fraudulent misrepresentation making him believe that Ext. A1 is a mortgage deed whereas it was executed as a sale deed. But **R.S.A.1458/2012** & R.S.A. 352/2013 **20** the learned counsel for the respondent would submit that here it is not a case of fraud committed on Court and there was no suppression of material facts also. Though fraud vitiates every solemn act, here there is no specific pleading or evidence to show as to what was the nature of fraud played by the respondent. Admittedly a sum of ` 1,00,000/- was paid by the respondent as consideration for the property sold by the first appellant to the respondent. There is specific recital in Ext.A1 as to the necessity of effecting mutation and thereafter to pay basic tax by the transferee. The mutation was effected and land revenue was paid. Not only that 50 cents of land covered by Ext.A1 was properly identified and it is having specific well defined boundaries separating it from the 5 cents of land which is in the possession of the appellants where his residential house is situated. Therefore, it can never be said that there was any fraudulent misrepresentation. Hence, even if it is assumed that what is stated in the plaint is **R.S.A.1458/2012** & R.S.A. 352/2013 **21** sufficient to make the respondent to believe that Ext.A1 is attacked on the ground of fraud, still the evidence is insufficient to hold that a fraud was actually played on the appellants. 22. The decision of the Himachal Pradesh High Court in Smt. Niko Devi v. Kirpa -AIR 1981 Himachal Pradesh 51 and the decision of the Bombay High Court in Narayanbhat Bhimbhat Joshi v. Akkubaiu Manoharbhat Joshi - (1916) Indian Cases 576 are not applicable to the facts of this case. Both those cases were founded on undue influence. Facts stated therein are entirely different. The learned counsel for the appellant would submit that inference of fraud can be drawn from circumstances in as much as adduction of direct evidence is not possible. It is further submitted that fraud is something which may be proved by inferences reasonably drawn from the intrinsic evidence respecting the transaction itself. Therefore, it is the cumulative effect of the pleading **R.S.A.1458/2012** & R.S.A. 352/2013 **22** and evidence that may have to be looked into to find whether the transaction is vitiated by misrepresentation which may amount to fraud. But here, there is no evidence worth convincing on any of those aspects. 23. The decision of the Supreme Court in Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib and Others – AIR 1967 SC 878 cited before me by the learned counsel for the respondent has also no application to the facts of this case, since that was a case where the document was attacked on the ground of undue influence. The facts stated therein are entirely different from the facts of this case. The decision in Chandran Nair v. Krishnan – 1997 (1) KLT 656 has been relied upon by the learned counsel for the respondent. In that case it was held : _“Under O. 6 R. 4 of the Code of Civil Procedure, in all cases in which the party pleading relies on any misrepresentation, fraud, etc. particulars shall be stated in the pleading. It is stated that the document was executed on a misrepresentation. Defendant does not say as to what was the relationship he had with the plaintiff and for what purpose he approached the plaintiff and for what purpose he took loan from the plaintiff. These details are absent._ **R.S.A.1458/2012** & R.S.A. 352/2013 **23** _But I don't want to defeat the defence of the defendant on the above grounds because both the authorities have gone into the evidence and understood the nature of the claim and the nature of the defence set up by the defendant”._ 24. It is submitted by the learned counsel for the respondent that though the plaintiffs contended that the respondent was treated like an elder brother, the respondent is not the brother or near relative and that he does not even belong to that community and so there was no occasion for the appellants to have a bonafide belief that the representation made by the respondent is always true. It is further submitted that as noticed by the courts below PW.1 and P.W.2 are educated persons and the first appellant had entered into so many transactions earlier and it cannot be believed that any such representation or fraudulent misrepresentation can be made by the respondent to the appellant to get a document executed by him misrepresenting the facts. The decision in Kollanchil Padinhakkara Abdulrahiman and Another v. Kunhimohamad **R.S.A.1458/2012** & R.S.A. 352/2013 **24** and Others - AIR 1975 Kerala 150 has also been relied upon by the learned counsel for the respondent. There also the document was attacked alleging that it was vitiated by undue influence. The facts stated therein are also entirely different. Of course, it was stated therein that under Order 6 R. 4 C.P.C. it is incumbent on a party pleading undue influence to set out full particulars thereof, for which the Supreme Court decision reported in Lakshmi Prasad v. - AIR 1963 SC 1279 and Subhas Chandra Das Mushib (supra) was relied upon. 25. In the case on hand, though absence of pleadings as required under Order VI Rule 4 CPC was also referred to by the courts below, the appellants were non-suited, not only on the ground of paucity of pleadings, but also on the ground that there is absolutely no evidence to show that any fraud was played on the appellants by the respondent. The respondent is an old man aged about 71 years. In the absence **R.S.A.1458/2012** & R.S.A. 352/2013 **25** of anything else the contention that the plaintiff came to know of the fact that the document in question was actually a sale deed only in 2006 cannot be swallowed for a moment. The further fact that PW2, the wife of the first appellant also is a witness to the document would prove positively that the document was executed as a sale deed. 26. Learned counsel for the respondent would submit that the sale deed was executed in the year 1998 long before the Goshsree bridge was constructed. It was only after the construction and coming into operation of Goshree Bridge there was shooting up of land value in that locality. The suit was filed in the year 2007 because the appellants then thought that the sale was effected for inadequate consideration. The learned counsel for the respondent would submit that it is not the amount shown in Ext.A1 sale deed is not the actual amount that was paid as consideration. It is notorious that the parties, in order to avoid payment of stamp duty, **R.S.A.1458/2012** & R.S.A. 352/2013 **26** undervalue the property though much more amount was actually paid by the party as consideration. But the learned counsel has conceded that there is no pleading or evidence to that effect. Be that as it may, from the evidence on record it is clear that the fraud or misrepresentation alleged by the appellants remained unsubstantiated. 27. In view of what is stated above, I hold that the courts below were perfectly justified in holding against the appellants. The points are answered against the appellants. In the result, both these Regular Second Appeals are dismissed. Parties are directed to suffer their respective costs. _Dated this the 26[th] day of July, 2013._ Sd/-N.K.BALAKRISHNAN, JUDGE ## **/true copy/** ## **P.S. to Judge** ani/