Partly allowed

Puliyan Veettil Muhammed v. Thekkechali Abdulla

Kerala HC10 Jul 2013AS/223/2000

Case brief

AI extract

What is this about?

In an appeal against a decree for specific performance of an agreement for sale, the Court held that despite the genuineness of the agreement, it is unjust to enforce specific performance due to long delay and property value escalation. The suit was instead decreed for return of the advance amount with interest.

What did the court decide?

Decree for specific performance set aside; suit decreed for return of advance amount of `20,000/- plus 6% interest from date of suit.

Puliyan Veettil Muhammed Vs Thekkechali Abdulla — Specific Performance | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS

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WEDNESDAY, THE 10TH DAY OF JULY 2013/19TH ASHADHA, 1935

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AS.No. 223 of 2000 (E)

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OS 141/1988 of SUB COURT, MANJERI

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APPELLANT/DEFENDANT :

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PULIYAN VEETTIL MUHAMMED, S/O.KAKKOTTUPURATH MOOSAKUTTY, AGED 63 YEARS, RESIDING AT PULIYAN VEETTIL HOUSE, OLAVATTOOR DESOM, ERNAD TALUK, MALAPPURAM DIST. (DIED)

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SUPPLEMENTAL APPELLANTS 2 TO 10 IMPLEADED :

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AYISHAKKUTTY, W/O.LATE PULIYAN VEETTIL MUHAMMED, AGED 64 YEARS, PULIYAN VEETTIL HOUSE,

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OLAVATTOOR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.

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IKKAIMA, D/O.LATE PULIYAN VEETTIL MUHAMMED,

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AGED 43 YEARS, PULIYAN VEETTIL HOUSE,

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OLAVATTOOR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.

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MOOSAKUTTY, S/O.LATE PULIYAN VEETTIL MUHAMMED,

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AGED 41 YEARS, PULIYAN VEETTIL HOUSE,

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OLAVATTOOR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.

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PATHUMMA, D/O.LATE PULIYAN VEETTIL MUHAMMED,

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AGED 41 YEARS, PULIYAN VEETTIL HOUSE, OLAVATTOOR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.

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SAFIYA, D/O.LATE PULIYAN VEETTIL MUHAMMED,

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AGED 33 YEARS, PULIYAN VEETTIL HOUSE,

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OLAVATTOOR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.

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JAMEELA, D/O.LATE PULIYAN VEETTIL MUHAMMED,

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AGED 28 YEARS, PULIYAN VEETTIL HOUSE,

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OLAVATTOOR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.

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SUBAIDA, D/O.LATE PULIYAN VEETTIL MUHAMMED, AGED 26 YEARS, PULIYAN VEETTIL HOUSE,

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OLAVATTOOR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.

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ABDUL KARIM, S/O.LATE PULIYAN VEETTIL MUHAMMED, AGED 24 YEARS, PULIYAN VEETTIL HOUSE,

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OLAVATTOOR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.

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SAKKINA, D/O.LATE PULIYAN VEETTIL MUHAMMED, AGED 20 YEARS, PULIYAN VEETTIL HOUSE,

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OLAVATTOOR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.

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(SUPPLEMENTAL APPELLANTS 2 TO 10 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED APPELLANT AS PER ORDER DATED 12.6.2003 IN I.A.NO.250/2003)

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BY ADVS.SRI.P.GOPAKUMARAN NAIR

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SRI.C.S.DIAS

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RESPONDENT/PLAINTIFF :

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THEKKECHALI ABDULLA, S/O.ALAVI, AGED 60 YEARS, RESIDING AT THEKKECHALI HOUSE, OLAVATTOOR DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. (DIED - MEMO RECORDED)

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(IT IS RECORDED THAT THE SOLE RESPONDENT PASSED AWAY ON 26.5.2009 VIDE ORDER DT. 7.1.2010 IN MEMO DT. 6.1.2010 CF 123/2010)

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ADDL. RESPONDENTS 2 TO 8 IMPLEADED :

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AYSHA, W/O.LATE THEKKECHALI ABDULLA, AGED 60 YEARS, MALATTIYIL HOUSE,NOONIKKARA, VAZHAKKAD P.O.

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(VIA) KONDOTTY, MALAPPURAM.

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AMEENA, D/O.LATE THEKKECHALI ABDULLA, AGED 41 YEARS, MALATTIYIL HOUSE,NOONIKKARA, VAZHAKKAD P.O.

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(VIA) KONDOTTY, MALAPPURAM.

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SAIDALAVI, S/O.LATE THEKKECHALI ABDULLA, AGED 38 YEARS, MALATTIYIL HOUSE,NOONIKKARA, VAZHAKKAD P.O.

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(VIA) KONDOTTY, MALAPPURAM.

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MUHAMMED, S/O.LATE THEKKECHALI ABDULLA, AGED 36 YEARS, MALATTIYIL HOUSE,NOONIKKARA, VAZHAKKAD P.O. (VIA) KONDOTTY, MALAPPURAM.

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KHADEEJA, D/O.LATE THEKKECHALI ABDULLA, AGED 33 YEARS, MALATTIYIL HOUSE,NOONIKKARA, VAZHAKKAD P.O. (VIA) KONDOTTY, MALAPPURAM.

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PATHUMMA, D/O.LATE THEKKECHALI ABDULLA, AGED 29 YEARS, MALATTIYIL HOUSE,NOONIKKARA, VAZHAKKAD P.O. (VIA) KONDOTTY, MALAPPURAM.

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UMMUKULSU, D/O.LATE THEKKECHALI ABDULLA, AGED 26 YEARS, MALATTIYIL HOUSE,NOONIKKARA, VAZHAKKAD P.O. (VIA) KONDOTTY, MALAPPURAM.

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(LEGAL REPRESENTATIVES OF THE DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 2 TO 8 VIDE ORDER DT. 1.6.2012 IN I.A.NO.250/10)

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R2,3,5,6,7,8 BY ADV. SRI.K.MOHANAKANNAN

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R2,3,5,6,7,8 BY ADV. SMT.M.A.ZOHRA

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 2.7.2013, THE COURT ON 10.7.2013 DELIVERED THE FOLLOWING :

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M.L.JOSEPH FRANCIS, J.

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A.S. No.223 OF 2000

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----------------------------------------------Dated 10^th July, 2013.

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J U D G M E N T

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This appeal is filed by the defendant in O.S.No.141 of 1988 on the file of the Sub Court, Manjeri. The respondent herein was the plaintiff in that suit, which was filed by him for specific performance of an agreement for sale.

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The case of the plaintiff is briefly as follows : The

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plaint schedule property, having an extent of 65 cents belonged to the defendant. On 24.7.1987, the plaintiff and defendant entered into an agreement for sale, by which the plaintiff agreed to purchase, and the defendant agreed to sell the plaint schedule property for a total consideration of 32,500/- and the plaintiff paid 20,000/- to the defendant, as advance. The defendant affixed his right thumb impression in the agreement as his left thumb was injured and that fact was recorded by the Notary in the agreement. The plaintiff was ready and willing to pay the balance of sale consideration in time, as stipulated in the agreement. On 16.3.1988, the plaintiff sent a lawyer notice to the defendant, to which the defendant sent a reply notice

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raising false contentions. Hence, the plaintiff was constrained to file the above suit.

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The defendant filed written statement denying execution of the agreement for sale and receipt of advance. The defendant contended that on 19.12.1987, he was taken in a jeep by the plaintiff and others and they assaulted the defendant and got his right thump impression affixed on blank papers by force and the defendant was admitted in a hospital and the Kondotty Police registered a case, but later filed a refer report without proper investigation. A civil case is pending before the Sub Court, Manjeri in which the younger brother of the defendant and one Assainkutty Haji are the contesting parties. The plaintiff and some others, who are the relatives of Assainkutty Haji assaulted the defendant and forcibly obtained thumb impression of the defendant on a blank stamp paper under the impression that the brother of the defendant instituted the suit against Assainkutty Haji at the instance of the defendant.

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In the Sub Court, PW1, PW2, DW1 and DW2 were

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examined and Exts.A1 to A3, B1 and B2 were marked. The learned Sub Judge, on considering the evidence on record, decreed the suit, as per judgment dated 8.4.1992, directing the defendant to convey the plaint schedule property to the plaintiff on deposit of balance of sale consideration of `12,500/- by the plaintiff within two months, failing which the plaintiff is at liberty to move the court for getting the sale deed executed. Against that judgment and decree, the defendant filed A.S.No.495/1992 before this Court and as per the judgment dated 5.11.1997, this Court allowed the appeal and remanded the case to the Sub Court, Manjeri for fresh disposal after giving opportunity to the parties for adducing fresh evidence. After remand, both sides did not adduce any fresh evidence. The learned Sub Court, on considering the pleadings and the evidence on record, found that Ext.A1 agreement was executed between the plaintiff and the defendant, and decreed the suit and granted a decree for specific performance as decreed earlier, giving three months' time to the plaintiff to deposit the balance of sale consideration before the court. Against that

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A.S. No.223 OF 2000

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judgment and decree dated 7.2.2000, the defendant filed this appeal.

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During the pendency of this appeal, the original plaintiff and the original defendant died. Additional appellants 2 to 10 are impleaded as the legal heirs of appellant/ defendant. Additional respondents 2 to 8 are impleaded as the legal heirs of respondent/ plaintiff.

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Heard the learned counsel for the appellants and the learned counsel for the respondents.

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At the time of hearing, the learned counsel for the appellants raised the following arguments : The court below failed to understand the scope and purport of the judgment of this Court in A.S.No.495/1992, remanding the case for fresh disposal. The court below ignored the specific observation in the remand order that execution of a document does not tantamount to the mere admission of a signature. The court below erred in not accepting the appellant's version, as to how his thumb impressions were obtained in blank papers. The court below ought to have found that even if the thumb

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impression in Ext.A1 was that of the appellant, that was not sufficient to hold Ext.A1 as a genuine and enforceable agreement for sale. The learned counsel for the respondents supported the judgment and decree of the court below.

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According to the plaintiff, Ext.A1 is the agreement for sale executed between the plaintiff and the defendant dated 24.7.1987, by which the plaintiff agreed to purchase, and the defendant agreed to sell the plaint schedule property having an extent of 65 cents for a total consideration of 32,500/- and the plaintiff paid 20,000 as advance on the same day. The period of the agreement was fixed as four months from the date of the agreement. Ext.A1 shows that the stamp paper of that agreement was purchased on 24.7.1987 in the name of the plaintiff (Abdulla). Ext.A1 contains three pages and each page contains the name of the defendant (Muhammed) and his thumb impression and all the three pages contain the signature of the plaintiff (Abdulla) and each page is attested by the Notary on 24.7.1987. The third page of Ext.A1 contains the endorsement of the Notary that the right thumb impression of

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A.S. No.223 OF 2000

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the first party Muhammed was taken, as his left thumb was bandaged. In paragraph 5 of the written statement, the defendant contended that Ext.A1 agreement was created by misusing the papers in which the defendant was forced to affix his thumb impression. Therefore, it is clear that the defendant is not disputing his thumb impression in Ext.A1 agreement for sale. Therefore, there is no necessity to send the thumb impression of the defendant in Ext.A1 for expert opinion.

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The plaintiff, who was examined as PW1 deposed

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that the defendant executed Ext.A1 agreement for sale in his presence and in the presence of attesting witnesses and Notary. Now, that Notary is no more. Therefore, it is not possible to ascertain whether the defendant affixed his right thumb impression in Ext.A1 in the presence of Notary by examining the Notary. PW2 is an attesting witness to Ext.A1 agreement for sale. PW2 deposed that the defendant executed Ext.A1 agreement for sale in his presence and in the presence of Notary. PW2 deposed that in Ext.A1, the defendant wrote his name in Malayalam as 'Muhammed' and the defendant affixed

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his right thumb impression as his left thumb was bandaged. The defendant has no case that he was assaulted by the plaintiff and his associates on 24.7.1987 for getting his thumb impression in Ext.A1.

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Ext.B1 is the copy of the F.I.R. in Crime No.320/87 in which it is stated that the defendant Muhammed was assaulted by Mammadissa Haji and others on 19.12.1987 and his right thumb impression was taken on a stamp paper. In that F.I.R., the plaintiff herein was not arrayed as an accused. Ext.B2 is the copy of private complaint filed by the defendant before the Magistrate Court, Manjeri regarding the same incident, in which the name of the plaintiff is also shown as an accused. When the defendant was examined as DW1, he denied the execution of Ext.A1 agreement for sale. DW1 has no case that the name 'Muhammed' written in Malayalam near to his thumb impression in each page of Ext.A1 was not written by him.

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According to PW2, the defendant wrote the name of the defendant as 'Muhammed' in Malayalam in each

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A.S. No.223 OF 2000

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page of Ext.A1. Page Nos.7 and 11 of the deposition of DW1 recorded before the Sub Court contain the name of the defendant as 'Muhammed' written by the defendant in his own handwriting in Malayalam. Under Section 73 of the Evidence Act, a court is competent to compare the disputed writing with the admitted writing of a person. But, it is not safe to record its findings based solely on its comparison. The court can compare the writing in order to appreciate properly the other evidence produced in court. On comparing the disputed writing of the defendant in pages 1 to 3 in Ext.A1 with the admitted writing of the defendant in pages 7 and 11 of the deposition of DW1 and on appreciating the testimony of PW1 and PW2 in the light of that comparison, I am of the view that the learned Sub Judge is perfectly justified in finding that Ext.A1 agreement is a genuine agreement for sale executed by the defendant.

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The next question to be considered is as to whether the plaintiff is entitled to get a decree for specific performance of Ext.A1 agreement for sale. In the plaint, the plaintiff has not sought an alternative relief for return of

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A.S. No.223 OF 2000

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advance amount. But, in the relief portion in the plaint, it is stated that the court can grant other reliefs, which the court thinks just and reasonable. Order VII Rule 7 of the Code of Civil Procedure provides that it shall not be necessary to ask for general or other reliefs which may always be given as the court may think just to some extent as if it had been asked for. It is true that the decree of specific performance is a discretionary remedy. If the plaintiff who seeks specific performance is guilty of delay or laches, the court will refuse to pass a decree of specific performance in favour of the plaintiff even if he is entitled to the same on other respects. When the parties agree and prescribe certain time limit for taking steps by one or other party, it must have some significance and the said time limit cannot be ignored altogether on the ground that time has not been made the essence of contract. It is not necessary to state in the agreement itself as time to be the essence of the contract. The express covenants themselves in the contract may disclose the same. In Ext.A1, it is stated that the plaintiff has to pay the balance sale consideration of `12,500/- to the

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A.S. No.223 OF 2000

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defendant within four months from 24.7.1987. The original of Ext.A2 lawyer notice was sent to the defendant only on 16.3.1988. It is a matter of common knowledge that the value of the property escalates very fast. In that view of the matter, it would not be equitable to grant specific performance after the lapse of a long period of time. Escalation of price during the pendency of the proceedings may be a relevant consideration under certain circumstances for refusing to grant a decree for specific performance. In the present suit, Ext.A1 agreement was executed on 24.7.1987 and the agreed price was `500/- per cent. The original plaintiff and the original defendant are no more. Considering the subsequent material changes in the circumstances of the case, I am of the view that it is only just and reasonable to pass a decree for return of advance amount with reasonable interest, instead of granting a decree for specific performance.

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Accordingly, this appeal is allowed in part. The judgment and decree in O.S.No.141 of 1988 on the file of the Sub Court, Majeri allowing specific performance of agreement

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for sale is set aside and that suit is decreed for return of advance amount and the additional respondents are allowed to realise a sum of `20,000/- together with interest at the rate of 6% per annum from the date of the suit till the date of realization from the assets of the deceased defendant in the hands of additional appellants and charged on the plaint schedule properties. The parties are directed to suffer their respective costs in this appeal and in the suit.

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Sd/-

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M.L.JOSEPH FRANCIS, JUDGE.

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tgs

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(true copy)

Puliyan Veettil Muhammed v. Thekkechali Abdulla

Case brief

What is this about?

What did the court decide?

Puliyan Veettil Muhammed v. Thekkechali Abdulla

Case brief

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