Dismissed

Johnson Thomas v. George Mathew

Kerala HC19 Feb 2016RSA/1387/2012

Case brief

AI extract

What is this about?

In second appeals, defendants challenged judgments fixing property boundaries. The High Court dismissed appeals rejecting the claim that a sale deed was invalid because the consideration was returned to the purchaser's daughter, ruling the document remained a valid sale under Section 54.

What did the court decide?

Second appeals dismissed; impugned judgments confirming title based on Ext. A1 sale deed upheld.

Johnson Thomas Vs George Mathew — Partition | 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 P.B.SURESH KUMAR

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FRIDAY, THE 19TH DAY OF FEBRUARY 2016/30TH MAGHA, 1937

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RSA.No. 1387 of 2012 (F)

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-----------------------(AGAINST THE JUDGMENT IN AS.NO. 177/2007 OF ADDL.DISTRICT COURT, PATHANAMTHITTA DATED 05-04-2010)

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(AGAINST THE JUDGMENT IN OS.NO. 222/2003 OF MUSNIFF COURT, ADOOR DATED 24-03-2007)

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------------------

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APPELLANT(S)/APPELLANTS/DEFENDANTS :

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1. JOHNSON THOMAS, AGED 47 YEARS, S/O.THOMAS, KALEELIL PUTHENVEEDU, VELLAKULANGARA MURI,

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ERATHU VILLAGE, ADOOR TALUK, PATHANAMTHITTA DIST.

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2. PONNAMMA THOMAS, AGED 74, W/O.THOMAS, KALEELIL PUTHENVEEDU, VELLAKULANGARA MURI,

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ERATHU VILLAGE, ADOOR TALUK, PATHANAMTHITTA.

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BY ADV. SRI.K.SHAJ

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RESPONDENT(S)/RESPONDENTS/PLAINTIFFS:

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1. GEORGE MATHEW, AGED 55 YEARS, S/O.GEORGE MAVILAYIL, BLESSY BHAVAN, GANESVILASAM, EDAKATTU MURI, PORUVAZHY VILLAGE,

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KUNNATHUR TALUK-689 644.

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2. ELSY MATHEW, AGED 52, W/O.GEORGE MATHEW,MAVILAYIL,

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BLESSY BHAVAN, GANESHVILASAM, EDAKATTU MURI, PORUVAZHY VILLAGE,

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KUNNATHUR TALUK-689 644

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R1 BY SRI.KURIAN GEORGE KANNANTHANAM,SENIOR ADVOCATE ADV. SRI.THOMAS GEORGE

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19-02-2016, ALONG WITH RSA.NO. 1389/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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P.B.SURESH KUMAR, J.

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R.S.A.Nos.1387 & 1389 of 2012

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Dated this the 19^th day of February, 2016

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JUDGMENT

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The common judgment in A.S.Nos. 177 of 2007 and 178 of 2007 on the file of the District Court, Pathanamthitta is under challenge in these second appeals. Among the said appeals, A.S.No.177 of 2007 was an appeal preferred against the decision in O.S.No.222 of 2003 on the file of the Munsiff's Court, Adoor and A.S.No.178 of 2007 was an appeal preferred against the decision in O.S.No.234 of 2003 on the file of the said Court. The suits were tried jointly treating O.S.No.222 of 2003 as the lead case. As such, I am referring to the parties in this judgment as they appear in O.S.No.222 of 2003.

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O.S.No.222 of 2003 is a suit for fixation of

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R.S.A.Nos.1387 & 1389 of 2012

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the northern and eastern boundary of the plaint schedule property. The plaint schedule property therein is a property measuring 15 cents. According to the plaintiffs, they have obtained title to the plaint schedule property by virtue of Ext.A1 sale deed. Ext.A1 sale deed has been executed by none other than the father of the second plaintiff at the time of the marriage of the second plaintiff with the first plaintiff. It is the case of the plaintiffs that the defendants who have properties on the north and east of the plaint schedule property are disputing its boundaries and hence the suit.

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The defendants resisted the suit. They contended that the plaintiffs have not acquired any property as per Ext.A1 sale deed. On the other hand, it was their contention that plaint schedule property is part of the property obtained by them by virtue of Ext.B1 partition deed. After the institution of the suit, the first defendant filed another suit as O.S.NO.234 of 2003 against the plaintiffs seeking a decree of permanent prohibitory

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R.S.A.Nos.1387 & 1389 of 2012 3

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injunction restraining the plaintiffs from trespassing into the suit property. The trial court found that the plaintiffs have obtained title to the plaint schedule property as per Ext.A1 sale deed and consequently, decreed O.S.No.222 of 2003 fixing the northern and eastern boundaries of the plaint schedule property . In the light of the decision in O.S.No.222 of 2003, O.S.No.234 of 2003 was dismissed. Though the defendants took up the matter in appeals, the appellate court confirmed the decision of the trial court and hence these second appeals by the defendants.

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Heard the learned counsel for the appellants as also the learned counsel for the respondents.

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As noted above, the plaintiffs claimed title to the suit property based on Ext.A1 sale deed. The case of the defendants is that Ext.A1 is an invalid document. It is conceded that if Ext.A1 sale deed is valid, the impugned judgments are not liable to be interfered with. As such, the only point arising for consideration is as to whether Ext.A1

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R.S.A.Nos.1387 & 1389 of 2012

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sale deed is a valid document. The learned counsel for the appellants, relying on Section 54 of the Transfer of Property Act, contended that Ext.A1 cannot be said to be a valid sale deed as the same is not a document executed in exchange for a price paid or promised. Section 54 of the Transfer of Property Act reads thus:

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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 partpromised.

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Sale how made- Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

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In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

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Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

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Contract for sale - A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.

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It does not, of itself, create any interest in or charge on such property.”

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R.S.A.Nos.1387 & 1389 of 2012

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To buttress his argument, the learned counsel relies on the

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following passage in Ext.A1.

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“§dÉµÞøÎáU ÉGßµ ÕØñá ÈßBZAá ÕßÜÏÞæµ ®ÝáÄßJKá ÕßÜÏVÄíÅ¢ ÎáXÉxáøâÉ 1500 ¨ øâÉ ¦ÏßøJ¾âùâ¢ ÈßB{ßW øIÞ¢ µfßAá ³Ùøß ÇÈÎÞÏß ÄøáÕÞX ÈßÖíºÏßºî ÎáÄW ÈßBç{Þ¿í ÕµÕºîíºîâ ÄKÄÞæµ Éxß ÉGßµ ÕØñáÕßW çÎW ®ÈßAáU ØµÜ ¥ÕµÞÖÌÞÇcÄµ{á¢ ²ÝßEíåÕØñáÕá¢ ÈßB{áæ¿ èµÕÖJßçÜAá ÕßçGWÉßºîá ¨ ÕßÜÏÇÞø¢ ®ÝáÄßJKßøßAÏÞW ÉGßµ ÕØñáÕßæa µø¢ §Ká ÎáÄW ÈßB{âæ¿ çÉøßW µâGßÄàVJá¢ ÄIçÉøá ÎÞxßºîá¢ ÉGÏ¢ ÕÞBßÏá¢ ØVÕîØbÞÄdL ¥ÕµÞÖ¹ç{Þ¿á µâ¿ß ©¿ÎØíÅÄÏ¿Aß ®KÞÃá ÕßÜÏÞÏß ¥ÈáÍÕßºîá æµÞUâKÄßÈá ØNÄßºíºßøßAáKá.”

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The passage extracted from Ext.A1 sale deed, according to the learned counsel, does not indicate that any price has been paid or promised to be paid while executing the said document. There is no substance in the argument advanced by the learned counsel for the appellants. The extracted passage in Ext.A1 sale deed indicates that the said document has been executed for a price of Rs.1,500/-.

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R.S.A.Nos.1387 & 1389 of 2012 6

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True, it is recited in the said document that the price for which the document was executed has been gifted back by the vendor to one of the purchasers who is none other than his daughter. Merely for the reason that the price received by the vendor for the sale of the property has been gifted back by the vendor to the purchaser, it cannot be said that there is no sale at all. In the said view of the matter, there is no merit in the second appeals and the same are accordingly dismissed. All the interlocutory applications in the appeals are closed.

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P.B.SURESH KUMAR, JUDGE.

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smm

Johnson Thomas v. George Mathew

Case brief

What is this about?

What did the court decide?

Johnson Thomas v. George Mathew

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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