Appeal filed against judgment declining specific performance but decreeing recovery of advance amount. Court found agreement valid despite language allegation, dismissed appeal, and directed enforcement of recovery decree with court fee collection.
Appeal dismissed. Appellant directed to pay court fee. Parties to bear respective costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932
RFA.No. 354 of 2005() -------------------------------OS.446/1991 of I ADDL.SUB COURT,TRIVANDRUM ....................
APPELLANT/DEFENDANT: ----------------------------------------
A. RAJAMMAL, D/O. ANANDAVALLI, T.C.37/1240, KEEZHVAZHAPPALLY COMPOUND, THIRUVANANTHAPURAM.
BY ADV. SRI.B.KRISHNA MANI
RESPONDENT(S): PLAINTIFF: ------------------------------------------
P.THYAGARAJAN ACHARI, S/O. PARAMESWARAN ACHARI, ATTINGAL VARUVILAKATHUVEEDU, KEEZHVALOM VILLAGE, CHIRAYINKIL TALUK, THIRUVANANTHAPURAM.
ADV. SRI.R.S.KALKURA
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
tss
M.N. KRISHNAN, J.
R.F.A.NO.354 OF 2005
Dated this the 4th day of August, 2010.
J U D G M E N T
This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Thiruvananthapuram in O.S.No.446/1991. The suit was one for specific performance of a contract and in the alternative one for recovery of the amount with interest.
It is the case of the plaintiff that the defendant had entered into an agreement for sale as Ext.A1 and the agreement was to sell the property for a consideration of Rs.50,000/= of which Rs.40,000/= was paid as advance. According to the plaintiff, the defendant has committed breach and hence suit for specific performance with the
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alternative prayer.
there was no such agreement and really an amount of Rs.20,000/= had been borrowed from the father-in-law of the plaintiff and towards the same, some documents were made to be executed and therefore Ext.A1 is not a valid document which is enforcible.
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the plaintiff to get back the amount.
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has been prepared, executed and proved. The fact that there is transaction between the plaintiff and the defendant is further evidenced by the production of the document of title relating to the property. If there had been no agreement between the plaintiff and the defendant, there was no necessity for the plaintiff to be in possession of the document. Therefore, we cannot simply brush aside the case of the plaintiff.
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can be said that it is not an ordinary sale agreement but the parties have taken the pains to register it before the Sub Registrar and the document has been presented for registration and it is also stated that the husband was also with the defendant. So it is very clear that the document has been properly understood, executed, signed and consideration is received by the defendant from the plaintiff. It is seen from the address itself that the defendant is residing in Trivandrum and she is a Tamil Brahmin. Majority of the Tamil Brahmins in the State are born and brought up in the State and pleading ignorance about Malayalam may not be correct and just because the signature is in Tamil, that does not mean that she does not know Malayalam at all.
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not loom large for consideration as the finding against that is not in appeal and it is certain that plaintiff is entitled to get back the amount which she had paid to the defendant, I do not find any infirmity in the judgment and decree of the trial court and therefore the appeal fails and the same is dismissed and it is made clear that the office is directed to address the District Collector under Order 33 Rules 10 and 11 of the C.P.C for realisation of the court fee from the appellant in accordance with law. Parties in the appeal are directed to bear their respective costs.
Disposed of accordingly.
M.N. KRISHNAN, JUDGE.
cl
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2 issues framed by the court
Whether the defendant understood the implications of the agreement due to lack of knowledge of Malayalam.
Whether the decree for recovery of money should be modified or enforced as is.
1 provisions across 1 enactments
A. RAJAMMAL
P.THYAGARAJAN ACHARI
M.N. KRISHNAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
