Allowed

Kalliyanikutty v. Narayanan

Kerala HC17 Nov 2016AS/663/1998

Case brief

AI extract

What is this about?

Appeal against dismissal of a suit to set aside a sale deed for coercion and want of consideration. The Court held evidence of coercion was lacking but found no proof that the sale price was paid or intended to be paid. The Court remanded the suit for fresh evidence.

What did the court decide?

Impugned judgment and decree set aside; suit remanded to trial court for de novo consideration; appellant to appear for further evidence.

Kalliyanikutty Vs Narayanan — Contract and Commercial Disputes | Kerala HC (2016)

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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 V.CHITAMBARESH

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THURSDAY, THE 17TH DAY OF NOVEMBER 2016/26TH KARTHIKA, 1938

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AS.No. 663 of 1998 (A)

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AGAINST THE JUDGMENT AND DECREE IN OS 435/1992 of ADDL.SUB COURT, IRINJALAKUDA DATED 10-03-1998

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APPELLANT(S): PLAINTIFF:

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KALLIYANIKUTTY

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D/O.CHAMAKKALA KUMARIPPILLY KAMALAKSHY AMMA ANNANADU DESOM, KALLUR, VADAKKUMMURI VILLAGE MUKUNDAPURAM TALUK.

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BY ADV. SRI.K.RAMAKUMAR (SR.) BY ADV. SRI.S.M.PRASANTH

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RESPONDENT(S):

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NARAYANAN, S/O.VANNADIYIL RAMAPOTHUVAL PALLIKKAL DESOM, PALLIKKAL VILLAGE, KANNUR TALUK.

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R,1 BY ADV. SRI.S.SREEKUMAR (SR.) R BY ADV. SRI.P.MARTIN JOSE R BY ADV. SRI.P.PRIJITH

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11-11-2016, THE COURT ON 17.11.2016 DELIVERED THE FOLLOWING:

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'C.R'

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Chitambaresh, J.

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The suit was one for a declaration that Ext.A3 sale deed executed by the plaintiff in favour of the defendant lacks consideration and that it is vitiated by coercion. There was also a prayer to set aside Ext.A3 sale deed and to recover possession of the property scheduled therein from the defendant with mesne profits and interest. The plaint schedule property of extent 18 cents in Survey No.101 of Melur Village of Mukundapuram Taluk belonged to the plaintiff under Ext.A1 sale deed. The plaintiff contended that a bag containing blank signed stamp papers was lost by her husband during travel which was mis-utilised by the defendant to create a document. The document saddled liability in the husband of the plaintiff on the basis of which the defendant threatened with the aid of the police and politicians. The husband of the plaintiff and his brother were constantly harassed resulting in the execution of Ext.A3 sale deed which was bereft of

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AS.No.663/1998

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consideration and vitiated by coercion.

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The defendant contended that he along with his brother and the husband of the plaintiff were conducting a hotel business and that a sum of . 3,12,000/- was due to him on that count. It is that liability that was reflected in the document dated 17.3.1989 styled as an 'agreement' and was not by misusing blank signed stamp papers. The matter was talked over with the husband of the plaintiff and eventually Ext.A3 sale deed was got executed from the plaintiff. The value of the property conveyed was assessed at 75,000/- out of the sum of 3,12,000/- due even though the sale consideration was recited as. 25,000/- in Ext.A3 sale deed. It was also pointed out that the defendant had since transferred the property to another and that the suit filed for the reliefs is frivolous and vexatious.

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The trial court dismissed the suit with compensatory costs of ` 2,000/- against which the plaintiff has filed this Appeal Suit. We heard Mr.S.M.Prasanth, Advocate for the appellant and

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AS.No.663/1998

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Mr.P.Martin Jose, Advocate for the respondent.

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There is paucity of evidence to hold that coercion was exerted on account of which the plaintiff executed Ext.A3 sale deed in favour of the defendant in respect of the suit property. Neither the complaint to the police nor the writ petition for police protection filed by the plaintiff have been produced in support of threatening calls by the defendant. No independent evidence has been let in to show that the plaintiff was surrounded by the henchmen of the defendant forcing the execution of Ext.A3 sale deed. It is impossible to hold therefore that Ext.A3 sale deed executed by the plaintiff in favour of the defendant is liable to be set aside on the ground of coercion. But that by itself will not conclude the issue since the plaintiff has also a case that Ext.A3 sale deed is not supported by any sale consideration. We have to consider as to whether there has been a transfer of ownership in exchange for a price and that the purchase money was tendered by the buyer to the seller.

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It will be profitable to refer to the provisions of the Transfer of Property Act, 1882

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AS.No.663/1998

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[hereinafter referred to as 'the Act' only] as regards sale and the liabilities of buyer. Sale is defined in the Act as under:-

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“54.'Sale' defined:- 'Sale' is a transfer of ownership in exchange for a price paid or promised or part paid and part promised.”

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The rights and liabilities of the buyer and seller under the Act are as follows:-

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Rights and liabilities of buyer and seller:-

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(1) x x x x (2) x x x x (3) x x x x (4) x x x x (5) The buyer is bound(a) x x x x (b) to pay or tender, at the time and place of completing the sale, the purchase money to the seller or such person as he directs.”

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The evidence as regards the price paid or promised or part-paid and part-promised in exchange for a transfer of ownership and the tender of the same to the seller or such person as he directs is to be scanned.

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The Advocate Commissioner who inspected

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the property has been examined as PW.1, the plaintiff

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has been examined as PW.2 and the husband of the plaintiff has been examined as PW.3. It may be stated that the husband of the plaintiff was the attesting witness to Ext.A3 sale deed who spoke about absence of consideration. No oral evidence was adduced on behalf of the defendant and we are left to peruse the averments in the written statement to know about the actual defence. The specific averment in the written statement is that the property was conveyed valued at 75,000/- for the dues of. 3,12,000/- from the husband of the plaintiff. There is no averment in the written statement that the intention of the plaintiff was to execute a sale deed in favour of the defendant of the property scheduled. Neither is there any case that the plaintiff directed the defendant not to tender the purchase money to her and instead adjust it towards the dues of her husband.

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The defendant asserts that payment of price is not a condition precedent for completion of sale relying on the following observations in Kaliyaperumal v. Rajagopal [(2009) 4 SCC 193]:

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“16. Sale is defined as being a transfer

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of ownership for a price. In a sale there is an absolute transfer of all rights in the properties sold. No rights are left in the transferor. The price is fixed by the contract antecedent to the conveyance. Price is the essence of a contract of sale. There is only one mode of transfer by sale in regard to immovable property of the value of Rs 100 or more and that is by a registered instrument.

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It is now well settled that payment of entire price is not a condition precedent for completion of the sale by passing of title, as Section 54 of the Transfer of Property Act, 1882 (“the Act”, for short) defines “sale” as “a transfer of ownership in exchange for a price paid or promised or part-paid and part promised.” If the intention of parties was that title should pass on execution and registration, title would pass to the purchaser even if the sale price or part thereof is not paid. In the event of non-payment of price (or balance price as the case may be) thereafter, the remedy of the vendor is only to sue for the balance price. He cannot avoid the sale. He is, however, entitled to a charge upon the property for the unpaid part of the sale price where the ownership of the property has passed to the buyer before payment of the entire price, under Section 55(4)(b) of the Act.” (emphasis supplied)

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True that title would pass to the purchaser even if the

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AS.No.663/1998

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sale price or part thereof is not paid provided the intention of parties was that the title should pass on execution and registration. The parties must intend not only to transfer the ownership in the property but also that the price would be paid either in presenti or in futuro. But the intention of the parties including the seller and the buyer should be manifest by the attendant circumstances surrounding the due execution of the deed. The intention is to be gathered from the recital in the sale deed, conduct of the parties and the evidence on record [See Vidhyadhar v. Mankikrao (AIR 1999 SC 1441)]. We approve the decision in Kavukutty and another v. Baby and others [2015 (5) KHC 642] that mere recital in the sale deed would not suffice in the circumstances. No pleadings exist in the written statement and no oral evidence at all has been adduced by the defendant to establish the intention to sell by the plaintiff.

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The defendant adds that Ext.A3 sale deed is a continuation of the agreement dated 17.3.1989 to which the plaintiff was a party and the same was produced in the criminal court. It is the case of the

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defendant that the intention of the plaintiff to sell the property in question is reflected in the agreement followed by Ext.A3 sale deed. It appears that the plaintiff and her husband were convicted by the trial court which was however set aside in appeal and confirmed by this Court. It is pointed out that the plaintiff relied on Ext.A3 sale deed in the criminal case in order to wriggle out of the criminal liability charged on her and her husband. But no steps were taken by the defendant to summon the alleged agreement dated 17.3.1989 from the court where the criminal case was pending. Not even the certified copy of the agreement or the judgments in the criminal case have been produced by the defendant to discern the intention of the plaintiff as revealed. The defendant when confronted with this situation sought an opportunity to adduce further evidence to demonstrate the intention of the plaintiff. The subsequent transferee of the property from the defendant has also to be impleaded since there is a prayer for recovery of possession of the property. The only option therefore is to remand the suit to the trial court for

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AS.No.663/1998

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de novo consideration in the light of the observations above and we are constrained to do so.

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The impugned judgment and decree are set aside and the suit is remanded to the trial court for consideration anew after affording to the parties an opportunity to adduce further evidence. The parties will appear in court below on 13.12.2016 and the court fee paid on the memorandum of Appeal Suit shall be refunded to the appellant. The court below shall endeavour to dispose of the suit within a period of six months from the date of receipt of a copy of this judgment and the records.

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The Appeal Suit is allowed. No costs.

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Sd/V.CHITAMBARESH, Judge.

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Sd/ANIL K.NARENDRAN, Judge.

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nj/11.11.2016

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//TRUE COPY//

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P.S. to Judge.

Kalliyanikutty v. Narayanan

Case brief

What is this about?

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Kalliyanikutty v. Narayanan

Case brief

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