The High Court dismissed an appeal against a second appeal decree granting a prohibitory injunction and rejecting a counter-claim for cancellation of a sale deed. The court rejected non est factum and sham document pleas as unsupported by evidence.
Second appeal dismissed; decree for prohibitory injunction upheld; counter claim for cancellation dismissed.
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 THOMAS P.JOSEPH
WEDNESDAY, THE 20TH DAY OF JUNE 2012/30TH JYAISHTA 1934
RSA.No. 745 of 2012 ()
AS.169/2010 OF II ADDL. DISTRICT COURT, KOZHIKODE OS.580/2008 OF PRINCIPAL MUNSIFF COURT-II, KOZHIKODE
APPELLANT/APPELLANT/DEFENDANT :
K.VASU
S/O.ARAMUGHAN, KOOTARAYIL HOUSE, THAZHEKODE AMSOM KACHERI DESOM, MUKKOM P.O., KOZHIKODE TALUK.
BY ADV. SRI.NIRMAL. S
RESPONDENT/RESPONDENT/PLAINTIFF :
P.V.KESAVAN NAMBOODIRI
S/O.ILLATH NARAYANAN NAMBOODIRI, AMBADI VEEDU POYILIL, NEELESWARAM DESOM, KOZHIKODE TALUK-673 001.
BY ADV. SRI.M.G.ASHOKAN (CAVEATOR)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mn
THOMAS P. JOSEPH, J.
---------------------------------------R.S.A.No.745 of 2012
Dated this the 20th day of June, 2012
JUDGMENT
Defendant in O.S. No.580 of 2008 of the court of learned Principal Munsiff, Kozhikode - II is aggrieved by the decree in that suit as confirmed by the learned II Additional District Judge, Kozhimode in A.S. No. 169 of 2010.
R.S.A.No. Of 745 of 2012
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only after the suit that he learned that his signature was obtained in a deed of conveyance. Sale deed No. 4298 of 1996 (allegedly executed by the appellant in favour of PW2) purporting to convey right, title, interest and possession of 38 ½ cents it is a sham and nominal document (Ext.B1 is a copy of that assignment deed). The building referred in that sale deed is not situated in the 38 ½ cents. The document was executed as a security. Appellant in the counter claim, prayed for cancellation of assignment deed Nos. 4298 of 1996 and 1480 of 2002.
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suit appellant learned that he was made to sign a deed of conveyance, in the course of evidence appellant has stated that he executed the document (original of Ext.B1) in the name of PW.2 but only as a security for the loan transaction. According to the learned counsel, that said document was executed as a security for the loan transaction and not intended to take effect as a sale deed as evident from the circumstances. Learned counsel submits that Ext.B5, settlement deed executed in favour of the appellant by his father concerning the 58 ½ cents refers to the side measurements of the said property but in Ext.B1, there is no mention of the side measurements. It is also the contention of learned counsel that it is not clear from Ext.B1 as to at which portion of the 58 ½ cents, the 38 ½ cents purported to be assigned as per Ext.B1 is situated. It is argued that in spite of the contention of appellant that the 38 ½ cents and the rest of the property belonging to him lie contiguous without any demarcation, no attempt was made by the respondent to take out a commission for identification of the property. On the other hand, courts below were a finding fault with the appellant for not taking out a commission. Learned counsel argues that it was the responsibility for the respondent to do so.
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that the sale consideration mentioned in Ext.B1 is only Rs.15,500/- which is alarmingly low and indicates that the said document was not intended to take effect.
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The decision further says that if on the other hand by his own negligence one has failed to read and understand the contents of the document, he has no reason to complain. The decision in Saunders V. Anglia Building Society was referred to by this court in Mathu V. Cherchi (1990(1)KLT 416). The Supreme Court in Grasim Industries Limited and another V. Agarwal Steel ((2010)1 SCC 83) has held that the presumption is that when a person signs a document, he has read or understood its contents.
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'executed' by the executant was a sham document. Of course, appellant has such a contention which I will adverted to a bit later.
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he did not. Having his not discharged that obligation, he cannot turn round and say that respondent ought to have taken out a commission.
The second appeal is dismissed.
Sd/-
THOMAS P. JOSEPH, JUDGE //True copy//
P.A. to Judge
Smv
3 issues framed by the court
Whether a registered document admitting execution can be challenged on grounds of non est factum.
Whether a sale deed executed as a security can be treated as a sham document without evidence of the loan.
Whether the appellant discharged the obligation to identify the property boundaries.
Colour shows how this judgement treated each authority
Saunders V. Anglia Building SocietyReferred¶37
(1970)3 ALL.ER 961
Mathu V. CherchiReferred¶39
(1990(1)KLT 416)
Grasim Industries Limited and another V. Agarwal SteelReferred¶39
((2010)1 SCC 83) · Who else cites this
Salim V. Fathima MuhammedReferred¶41
(2006(3) KLT 813)
K.VASU
P.V.KESAVAN NAMBOODIRI
THOMAS P.JOSEPH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
THOMAS P.JOSEPH
Parties & counsel
