Allowed

Jose Mathew v. James Avirah

Kerala HC22 Feb 2016RSA/850/2015

Case brief

AI extract

What is this about?

The High Court allowed second appeals and restored the trial court's judgment. It held that literate plaintiffs who were not infirm failed to establish non est factum regarding registered sale deeds executed 12 years prior. The suit was therefore barred by limitation, and the transfer of property was upheld.

What did the court decide?

The impugned decisions of the lower appellate court were set aside, the decision of the trial court was restored, and the second appeals were allowed.

Jose Mathew Vs James Avirah — 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 P.B.SURESH KUMAR

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MONDAY, THE 22ND DAY OF FEBRUARY 2016/3RD PHALGUNA, 1937

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RSA.No. 850 of 2015 (A)

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----------------------(AGAINST THE JUDGMENT IN AS.NO. 49/2012 OF II ADDL. DISTRICT COURT, THODUPUZHA DATED 30-06-2015)

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(AGAINST THE JUDGMENT IN OS.NO. 76/2010 OF SUB COURT, THODUPUZHA DATED 10-02-2012)

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APPELLANTS IN R.S.A/RESPONDENTS IN A.S DEFENDANTS IN O.S:

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1. JOSE MATHEW, S/O. MATHEW, AGED 63 YEARS, EZHOLIL HOUSE, EDAPPADY KARA, BHARANANGANAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT

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2. GEETHAMMA, W/O. MATHEW, AGED 50 YEARS, IN - DO- DO-

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BY ADVS.SRI.P.B.KRISHNAN

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SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.S.NITHIN (ANCHAL)

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RESPONDENTS IN R.S.A/ APPELLANTS IN A.S/PLAINTIFFS IN OS:

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1. JAMES AVIRAH, S/O. AVIRAH, AGED 72, RESIDING AT KALAMBBUKATTU HOUSE, VELLIYAMATTOM, VELLIYAMATTOM KARA,

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THODUPUZHA TALUK, IDUKKI DISTRICT -683 001

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2. ANNAKUTTY,

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W/O. JAMES AVIRAH, AGED 74, IN DO- DOPIN-683 001

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R1 & R2 BY SRI.P.G.PARAMESWARA PANICKER,SENIOR ADVOCATE ADVS. SRI.M.D.SASIKUMARAN

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SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW SRI.SUNIL KUMAR A.G SRI.DIPU JAMES

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02-02-2016 , ALONG WITH RSA.NO. 851/2015, THE COURT ON 22-02-2016 DELIVERED THE FOLLOWING:

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sts

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P.B.SURESH KUMAR, J.

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= = = = = = = = = = = =

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R.S.A.Nos.850 & 851 of 2015.

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= = = = = = = = = = = =

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Dated this the 22^nd day of February, 2016.

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J U D G M E N T

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These second appeals are preferred challenging the common judgment in A.S.Nos.48 and 49 of 2012 on the file of the District Court, Thodupuzha. Among the said appeals, A.S.No.48 of 2012 was an appeal preferred against the decision

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in O.S.No.1 of 2011 and A.S.No.49 of 2012 was an appeal preferred against the decision in O.S.No.76 of 2010. The suits referred to above were suits on the file of the Sub Court, Thodupuzha. The suits were tried jointly treating O.S.No.76 of 2010 as the lead case. As such, I am referring to the parties in this judgment as they appear in O.S.No.76 of 2010.

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O.S.No.76 of 2010 is a suit for declaration,

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cancellation of documents and for injunction. The first plaintiff is the husband of the second plaintiff. The second defendant is the daughter of the plaintiffs and the first defendant is the husband of the second defendant. Two items of properties are involved in

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RSA.Nos.850 & 851/2015.

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the suit, of which the plaint A schedule property belonged to the first plaintiff and the plaint B schedule property belonged to the second plaintiff. The plaintiffs have another daughter named Beena. She married one George on her own volition against the wishes of the plaintiffs. Later, Beena instituted a suit as O.S.No.103 of 1990 against the plaintiffs and defendants seeking partition of the properties of the plaintiffs including the plaint schedule properties. The case set up by Beena in the said suit was that the properties sought to be partitioned belonged to the father of the first plaintiff and that since the first plaintiff murdered his father, he is not entitled to inherit the suit properties therein. According to Beena, she has, therefore, acquired a right in the suit properties being the daughter of the first plaintiff. Though the said suit was dismissed by the trial court, Beena challenged the decision of the trial court in A.S.No.15 of 1997. During the pendency of the said appeal, a compromise was arrived at between Beena and the plaintiffs by which the first plaintiff agreed to settle an item of property owned by him in favour of Beena. Later, in terms of the

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compromise entered into between the parties in the said appeal, the item of property agreed to be settled by the first plaintiff in favour of Beena was settled in her favour. The plaint schedule properties are the properties remaining with the plaintiffs after the execution of the settlement deed in favour of Beena. According to the plaintiffs, at that point of time, they wanted to bequeath the plaint schedule properties to their daughter, the second defendant and consequently directed the defendants to make arrangements for the same. It is alleged by the plaintiffs that thereupon, the defendants took the plaintiffs to Arakkulam Sub Registry on 28.5.1998 and made them sign on two documents. The specific case of the plaintiffs is that they have subscribed their signatures in the documents on the belief that they are Wills executed by them in respect of the plaint schedule properties in favour of the second defendant. It is alleged by the plaintiffs that they have been in possession of the plaint schedule properties and residing in the building in the plaint B schedule property all throughout and during 2009, the defendants engaged some brokers for the sale of the plaint schedule properties.

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According to the plaintiffs, when prospective buyers of the properties started visiting the properties at the instance of the brokers, the plaintiffs made enquiries and consequently it was revealed during February, 2010 that the documents executed by them on 28.5.1998 are sale deeds in respect of the plaint schedule properties in favour of the first defendant. It is also alleged by the plaintiffs that the plaint schedule properties being the only properties available to them and the income from the said properties being their only source of income, there was no reason for the plaintiffs to sell the same to the first defendant. It is also alleged by the plaintiffs that they have not received any consideration for the execution of the disputed documents though it is recited in the documents that the plaintiffs have received a total sum of Rs.1,00,000/- towards sale consideration. According to the plaintiffs, since they never intended to sell the plaint schedule properties to the first defendant, the disputed documents are void. The plaintiffs have, therefore, claimed a declaration to that effect. Alternatively, they also claimed a decree for cancellation of the disputed documents. Consequential

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reliefs were also claimed in the suit.

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The defendants resisted the suit. In the written

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statement, the defendants have denied the allegation of the plaintiffs that they have subscribed their signatures in the disputed documents without knowing the nature of the documents as also its contents. According to the defendants, the disputed documents are documents executed by the plaintiffs for consideration with the intention of transferring the plaint schedule properties to the first defendant. They also contended that the suit filed several years after the execution of the documents is barred by limitation. The defendants have further contended that the mutation in respect of the plaint schedule properties has been effected in favour of the first defendant; that he is paying all the statutory and other dues in respect of the plaint schedule properties and that he is in possession of the plaint schedule properties. The defendants have further contended that after the purchase of the plaint schedule properties, the first defendant has constructed a residential building in the plaint B schedule property and the plaintiffs are

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permitted to reside in the said residential building. According to the defendants, the relationship between the plaintiffs and defendants was cordial all along and the suit was instituted by the plaintiffs at the instance of Beena who is contemplating to snatch the property.

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There was an earlier suit as O.S.No.119 of 2010

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before the Munsiff Court, Thodupuzha by the first defendant against the plaintiffs and others seeking a decree of injunction restraining them from trespassing into the plaint schedule properties. The said suit was transferred to the Sub Court, Thodupuzha and re-numbered as O.S.No.1 of 2011 to be tried along with O.S.No.76 of 2010. Thereupon, as stated above, the suits were tried jointly treating O.S.No.76 of 2010 as the lead case.

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The trial court, on an elaborate consideration of the evidence on record, dismissed O.S.No.76 of 2010. In the light of the decision in O.S.No.76 of 2010, O.S.No.1 of 2011 was decreed. The plaintiffs took up the matter in appeal. The appellate court, however, reversed the decision of the trial court

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and decreed O.S.No.76 of 2010 declaring that the disputed documents are void. Consequently, O.S.No.1 of 2011 was dismissed. In the matter of rendering the said judgment, the appellate court found that the plea of non est factum is available to the plaintiffs. It also found that in the facts and circumstances of the case, it was for the defendants to establish that the disputed documents are genuine documents. The appellate court further found that the defendants have not established that the plaintiffs have executed the disputed documents being aware of its nature and contents. In the matter of arriving at the finding that the disputed documents are not genuine, the appellate court held, (i) that there is no material to indicate that the documents were prepared at the instance of the plaintiffs, (ii) that there is no material to indicate that the documents were handed over to the plaintiffs after its preparation for their perusal, (iii) that there is no material on record to indicate the need of the plaintiffs to sell the plaint schedule properties at the relevant time, (iv) that there is no evidence to indicate that the first defendant has paid the consideration shown in the disputed documents to the

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plaintiffs and (v) that the plaintiffs continued to reside in the plaint schedule properties even after the disputed documents. The defendants are aggrieved by the said decision of the appellate court and hence these appeals.

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The learned counsel for the appellants/ defendants as also the learned Senior Counsel for the

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respondents/plaintiffs have addressed their arguments elaborately.

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The learned counsel for the appellants contended

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that the lower appellate court has acted illegally in holding that the burden of proof to establish that the disputed documents are documents intended by the plaintiffs is on the first defendant. The learned counsel asserted that the materials on record would indicate beyond doubt that the plaintiffs were aware of the nature of the disputed documents at the time of its execution itself. The learned counsel for the appellants also contended that since the plaintiffs were aware of the nature of the disputed documents at the time of its execution itself, the suit filed beyond three years of the execution of the disputed documents is barred by

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limitation. The learned counsel for the appellants further contended, referring to the facts and circumstances of the case, that the finding rendered by the appellate court that the first defendant has not established possession over the suit properties is also unsustainable. In the light of the submissions made by the learned counsel for the parties, the following questions of law

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are formulated for decision in these second appeals:

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(i) Is not the finding of the lower appellate court that the plaintiffs have established the plea of non est factum set up by them perverse in law?

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(ii) Has not the lower appellate court erred in law in proceeding as though the onus and burden of proof to establish the genuineness of the disputed documents is on the defendants?

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(iii) Is not the suit barred by limitation?

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(iv) Is not the finding of the lower appellate court that the plaintiffs are in settled possession of the suit properties perverse in law?

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The common law defence of non est factum

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enables illiterate persons to contend that the documents executed by them under mistake as to its nature and contents are not their documents. In its modern application, the doctrine of non est factum is extended to all cases where documents are

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executed without there being any intention to execute the same. However, in Gallie v. Lee (1969(1) All ER 1062), it was clarified that where a man of full age and understanding, who can read and write, signs a legal document which is put before him for signature, then if he does not take the trouble to read it, but signs it as it is, relying on the word of another as to its character or contents or effect, he cannot be heard to say that it is not his document. The relevant portion of the said judgment reads thus:

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“Whenever a man of full age and understanding, who can read and write, signs a legal document which is put before him for signature - by which I mean a document which, it is apparent on the face of it, is intended to have legal consequences - then, if he does not take the trouble to read it, but signs it as it is, relying on the word of another as to its character or contents or effect, he cannot be heard to say that it is not his document. By his conduct in signing it he has represented, to all those into whose hands it may come, that it is his document; and once they act on it as being his document, he cannot go back on it, and say it was a nullity from the beginning.”

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Earlier, in Muskham Finance Ltd. v. Howard (1963(1) All ER 81), it was also clarified that the plea of non est factum is a plea which must necessarily be kept within narrow limits, for, if executants of documents are permitted to try to disown their

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signatures simply by asserting that they did not understand the documents which they signed, much confusion and uncertainty would result in the field of contracts and elsewhere. The aforesaid decisions were approved in Saunders v. Anglia Building Society (1970(3) All ER 961) and the law relating to the doctrine of non est factum was restated thus:

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“In my opinion, the plea of non est factum ought to be available in a proper case for the relief of a person who for permanent or temporary reasons (not limited to blindness or illiteracy) is not capable of both reading and sufficiently understanding the deed or other document to be signed......... There would not be a proper case if: (a) the signature of the document was brought about by negligence of the signer in failing to take precautions which he ought to have taken; or (b) the actual document was not fundamentally different from the document as the signer believed it to be..... .”

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This Court, in Mathu v. Cherchi (1990(1) KLT 416), referring to

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Saunders v. Anglia Building Society (supra) held as follows:

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“In a case where the person executing the deed is not blind, infirm or otherwise incapacitated and no fraudulent misrepresentation is made to him and he had opportunity of reading the deed, the plea of non est factum is not available. It is immaterial whether he read or not. He is bound by the deed because it operates as a conclusive bar against him not because he read or understood, but because he has chosen to execute it. That is so in equity as at law except in special cases where there is an

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equitable ground. The plea can rarely be established by a person of full capacity. Though it is not confined to blind or illiterate alone, any extension of the scope of the plea will have to be kept within specified limits. The plea must be proved by the person setting it up. He must show that he acted with care.”

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In other words, the plea of non est factum is available to persons who are not blind, infirm or otherwise incapacitated and who had the opportunity of reading the document, only if they establish a case of fraudulent misrepresentation. In the light of the aforesaid principles, the facts of this case are to be analyzed to ascertain whether the plaintiffs are entitled to contend that the disputed documents are not their documents.

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Exts.A1 to A3 are documents executed by the plaintiffs in favour of the defendants at the time of the marriage of the second defendant. Ext.A7 is another document executed by the first plaintiff simultaneous to Exts.A1 to A3 in favour of the second plaintiff. Ext.A8 is another document executed by the first plaintiff in favour of his younger daughter Beena as per the terms of the compromise entered into in the suit filed by her against the plaintiffs. It has come out in evidence that the first plaintiff has made arrangements for the execution of the

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aforesaid documents. As such, it cannot be contended that the first plaintiff is not a person who has a general idea about execution and registration of documents pertaining to properties. The explanation offered by the first plaintiff for having executed Ext.A7 document in favour of his wife, namely, that the said document was executed to compensate her for having conveyed her only property in favour of the second defendant at the time of her marriage, demonstrates that the first plaintiff is a person who takes minute care in the matter of divesting his properties. Ext.A4 is the compromise arrived at between the plaintiffs and their younger daughter Beena for resolving the disputes between them which was the subject matter of O.S.No.103 of 1990. Ext.A4 compromise was entered into on 6.4.1998. Ext.A4 compromise categorically recites that Beena will not have any more rights in the remaining properties of the plaintiffs, namely, the plaint schedule properties. It is evident from the said document that the plaintiffs wanted to prevent Beena from claiming any rights in the plaint schedule properties. It is beyond dispute that the plaintiffs could not have prevented Beena from

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claiming any rights in the plaint schedule properties without executing appropriate documents. The plaintiffs themselves admit that they have decided to execute documents bequeathing the plaint schedule properties to the second defendant as she was their only remaining issue. True, the plaintiffs could have achieved the said objective by bequeathing the plaint schedule properties to the second defendant. But, can it be said that having been placed in a situation of that nature, the plaintiffs would not have executed sale deeds in respect of the plaint schedule properties in favour of the first defendant who is none other than the husband of their daughter to whom they wanted the plaint schedule properties to be given. The learned counsel for the appellants pointed out that since Beena had gone even to the extent of contending that the first plaintiff is not entitled to a share in the properties of his father as he had murdered his father, the conduct on the part of the plaintiffs in conveying the plaint schedule properties to the first defendant to prevent their younger daughter from claiming rights in the plaint schedule properties cannot be said to be an unusual conduct, especially in

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the light of the fact that the first plaintiff is a person who takes minute care in the matter of executing documents. I find force in this argument.

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Exts.B3 and B4 are the disputed documents. The said documents were executed by the first plaintiff on 28.5.1998. The plaintiffs were at their prime age of 55 and 53 respectively at

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the time of execution of Exts.B3 and B4 documents. The plaintiffs are literate and were not suffering from any illness or infirmity at the time of execution of the disputed documents. The disputed documents indicate that the plaintiffs have subscribed their signatures in the said documents in English. Exts.B1 and B2 are the prior documents in relation to the suit properties. The said documents were produced in court by the defendants. The first plaintiff as PW1 has admitted in his evidence that he had occasion to instruct the document writers to prepare documents and he used to read the documents before he

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subscribes his signature on the same. It has come out in evidence that after Exts.B3 and B4 sale deeds, mutation has been effected in respect of the suit properties in favour of the

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first defendant and he has been remitting land tax in respect of the suit properties thereafter. It has also come out in evidence that the new building admittedly constructed in the plaint B schedule property after the disputed documents is in the name of the first defendant and the property tax in respect of the same is being remitted by the first defendant. It has also come out in evidence that the electricity and telephone connections in the building in the plaint B schedule property are in the name of the first defendant. No documents whatsoever in the name of the plaintiffs in relation to the suit properties are available for the period after the disputed documents. Both the plaintiffs have conceded in their cross examination that they have paid land tax in respect of the plaint schedule properties only till 1998. In so far as the plaintiffs are admittedly residing in the building in the plaint B schedule property, it cannot be said that there was no occasion at all for them to know the nature of the documents executed by them on 28.5.1998, especially when all the communications such as electricity bills, telephone bills etc. are served in the house where the plaintiffs were residing. It is seen

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that there is conspicuous silence and inaction on the part of the plaintiffs to protect their interests for a long period of about twelve years, if as a matter of fact, they were not aware of the nature and contents of the disputed documents. Above all, Exts.B3 and B4 are registered documents. Section 34 of the Registration Act empowers the Registrar to ensure the correctness of the nature and contents of the documents registered by him. True, Section 34 of the Registration Act does not preclude a party from contending that the documents concerned are not documents intended by him. But, there is a presumption that the Registrar has made enquiries and ensured the correctness of the nature and contents of the documents. In the aforesaid facts and circumstances, I have no hesitation in my mind to hold that the plaintiffs were aware of the nature and contents of the documents at the time of its execution.

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Now, I shall deal with the findings rendered by

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the appellate court. It is settled that once the parties places on record the evidence which they rely on and if the evidence available on record are sufficient for deciding the issues in

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dispute between the parties, then the burden of proof would lose its significance. [See Prem Lata v. Arhant Kumar (1973) 3 SCC 718]. I have held based on the evidence on record that Exts.B3 and B4 are documents executed by the plaintiffs knowing fully of its nature and contents. As such, according to me, it is not necessary to examine the correctness of the view taken by the lower appellate court that it was for the first defendant to establish that Exts.B3 and B4 are genuine documents. As noted above, the reasons stated by the appellate court for holding that the first defendant has not established that Exts.B3 and B4 are genuine documents, are (i) that there is no material to indicate that the documents were prepared at the instance of the plaintiffs, (ii) that there is no material to indicate that the documents were handed over to the plaintiffs after its preparation for their perusal, (iii) that there is no material on record to indicate the need of the plaintiffs to sell the plaint schedule properties at the relevant time, (iv) that there is no evidence to indicate that the first defendant has paid the consideration shown in the disputed documents to the plaintiffs

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and (v) that the plaintiffs continued to reside in the plaint schedule properties even after the disputed documents. According to me, none of the reasons stated by the lower appellate court are relevant in the context of deciding the issue in dispute namely whether Exts.B3 and B4 are genuine documents. In so far as the disputed documents are sale deeds, normally, documents are prepared at the instance of the purchasers and therefore the reason stated by the lower appellate court that there is nothing on record to indicate that the plaintiffs have instructed the document writer to prepare the said documents is irrelevant. The fact that the plaintiffs have subscribed their signatures in the disputed documents is not in dispute. As such, the view that the plaintiffs did not have opportunity to peruse the disputed documents before its registration is equally irrelevant. The purpose for which the disputed documents have been executed by the plaintiffs is known only to the plaintiffs. It is beyond dispute that the purpose for the sale of the property varies from person to person. Merely for the reason that the plaintiffs apparently did not have any need to sell the suit

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properties in the point of view of others may not be relevant in the matter deciding the issue as to whether the plaintiffs intended to sell the suit properties to the first defendant. Similarly, if it is found that the plaintiffs had intended to transfer the suit properties to the first defendant and executed the disputed documents knowing fully well of its nature and contents,

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the question as to whether the plaintiffs received the consideration shown to have been paid to them as per the documents is of no significance. If the consideration shown to have been paid as per the documents is not paid, in so long as it is not established that the plaintiffs never intended to transfer the suit properties to the first defendant, they can only seek to recover the consideration from the first defendant. The parties are close relatives. The plaintiffs are none other than the parents of the second defendant. As such, merely for the reason that the plaintiffs are residing in the building in the property, it cannot be said that they are in possession of the property. Except the oral testimony of the plaintiffs that they never intended to transfer the suit properties to the first defendant, there is nothing on

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record to infer that the plaintiffs have not intended to transfer the suit properties to the first defendant. The conclusion arrived at by the appellate court that the plaintiffs have not intended to transfer the suit properties to the first defendant, in the circumstances, is perverse.

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It is beyond dispute that the present suit is one governed by Article 59 of the Limitation Act. Since it is found that the disputed documents have been executed by the plaintiffs knowing fully aware of the nature and contents of the same, the suit filed after about 12 years of execution of the said documents can only be held to be barred by limitation. Likewise, once it is held that the disputed documents are genuine documents, merely for the reason that the plaintiffs are residing in a portion of the suit property, it cannot be said that the first defendant is not in possession of the suit properties. It is all the more so, in the light the evidence which I have referred to in paragraph 11 above. I have, therefore, no hesitation to hold that the first defendant is in possession of the suit properties.

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Now, I shall deal with the arguments advanced

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by the learned Senior Counsel for the plaintiffs one by one. The learned Senior Counsel contended that the first plaintiff is an introvert and the plaintiffs were therefore depending on the first defendant for all their requirements and further that the first defendant was accordingly taking care of the affairs of the plaintiffs for several years. According to the learned Senior Counsel, in the circumstances, the plaintiffs have reposed complete trust and faith in the first defendant and the relationship between the plaintiffs and the first defendant thus became fiduciary in nature. It is pointed out by the learned Senior Counsel that in so far as Exts.B3 and B4 sale deeds are demonstrably unconscionable, it is for the first defendant to establish that the transactions impugned in the suit were genuine. Several judgments of the Apex Court where the Apex Court upheld the plea of undue influence, were cited by the learned Senior Counsel in support of the said contention. The said judgments include the judgments in Krishna Mohan Kul v. Pratima Maity [(2004)9 SCC 468], A.V.Palanivelu Mudaliar v. Neelavathi Ammal and another (AIR 1937 PC 50), Pratima

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Chowdhury v. Kalpana Mukherjee and another [(2014)4 SCC 196], Joseph John Peter Sandy v. Veronica Thomas Rajkumar [(2013)3 SCC 801], Sethani v. Bhana (AIR 1993 SC 956) and in Dularia Devi v. Janardan Singh and others (AIR 1990 SC 1173). I do not agree with the said argument of the learned Senior Counsel for the plaintiffs. As noted above, the plaintiffs were aged 55 and 53 at the time of execution of Exts.B3 and B4 sale deeds. In other words, the plaintiffs were at their prime age when the disputed documents were executed. There is nothing on record to indicate any reason for any dependency for the plaintiffs on the first defendant. There is also nothing on record to indicate that the plaintiffs were suffering from any infirmity at the relevant point of time. The plaintiffs are also not illiterate persons. True, the first defendant is none other than the son-in-law of the plaintiffs. Merely for the reason that the first defendant was the son-in-law of the plaintiffs, it cannot be inferred that he was in a position to dominate the Will of the plaintiffs and that therefore they were in a fiduciary relationship. Since it is found that the materials on record are not sufficient to

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hold that the relationship between the plaintiffs and the first defendant was fiduciary, it is not necessary to consider the question as to whether the transaction is unconscionable or not. The question as to whether the relationship between two persons is fiduciary or not is a question of fact to be established on the facts and circumstances of each case. As such, I am not referring to the decisions cited by the learned Senior Counsel in support of his contention that the relationship between the plaintiffs and the first defendant is fiduciary.

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The next contention advanced by the learned Senior Counsel for the plaintiffs to support the impugned judgment is that Exts.B3 and B4 sale deeds cannot be considered as sale deeds within the meaning of Section 54 of the Transfer of Property Act. According to the learned Senior Counsel, Exts.B3 and B4 sale deeds are not supported by consideration. It was pointed out by the learned counsel that though it was categorically pleaded by the plaintiffs in the plaint that they have not received any consideration while executing Exts.B3 and B4 sale deeds, the first defendant has not adduced any evidence to

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establish that the consideration shown in the said documents have been in fact paid by him to the plaintiffs. It was contended by the learned Senior Counsel that notwithstanding an admission in a sale deed that the price has been paid, it is open to the vendor to prove that no consideration has in fact been paid. According to the learned Senior Counsel, in the absence of any evidence to show that the consideration shown in Exts.B3 and B4 sale deeds has been paid by the first defendant to the plaintiffs, it can only be held that there was no sale at all of the suit properties to the first defendant. The learned Senior Counsel has relied on the decisions of the Apex Court in Kaliaperumal v. Rajagopal [(2009)4 SCC 193] and the decisions of this Court in Suresh C.V. v. Tobin (minor) and another (2013(1) KHC 369) as also in Kavukutty and another v. Baby and others (2015 (5) KHC 642)and Retnamma and others v. Mehaboob and others (2013(2) KLT 648) in support of the said arguments.

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Section 54 of the Transfer of Property Act defines sale as a transfer of ownership in exchange for a price paid or promised or part paid and part promised. The price, therefore, constitutes an

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essential element of sale. The words 'price paid or promised' indicate that the actual payment of price is not sine qua non for completion of the sale, if the parties intend to transfer the property. Even if the document is executed and registered without payment of price, the sale would be complete. If payment of price for the sale is disputed, mere production of the document which contains a narration of payment of price will not prove that there was payment of price. If the court finds that the price shown in the document has not been paid by the purchaser to the vendor, the remedy of the vendor would be to institute a suit for recovery of the sale price. Normally, the ownership and title to the property will pass to the purchaser on registration of the sale deeds. The same, however, is not an invariable rule. The real test is the intention of parties. In order to constitute a sale, the parties must intend to transfer the ownership of the property and to pay the price either in praesenti or in futuro . In case of disputes, the intention is to be gathered from the recitals in the sale deed, conduct of parties and other evidence on record. [See Vidhyadhar v. Mankikrao (AIR 1999 SC 1441) and

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RSA.Nos.850 & 851/2015.

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Kaliaperumal v. Rajagopal (AIR 2009 SC 2122)]. It is thus evident that what is to be seen in a case of this nature is as to whether the owner of the property intended to transfer the property to the purchaser. As far as the present case is concerned, I have found on the basis of the materials on record that the plaintiffs have intended to transfer the plaint schedule properties to the first plaintiff. Since the plaintiffs have intended to transfer the plaint schedule properties to the first defendant, according to me, the question as to whether the first defendant has actually paid any consideration for the transfer of ownership of the plaint schedule properties is irrelevant in this case. Even if it is found that no consideration was paid by the first defendant at the time of execution of Exts.B3 and B4 sale deeds, the documents cannot be held to be void.

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The learned Senior Counsel also contended that

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the suit properties being the only properties of the plaintiffs and the income from the said properties being their only source of income, in the absence of any evidence as to their need to sell the same, it can only be held that there was no intention at all

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RSA.Nos.850 & 851/2015.

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for the plaintiffs to sell the suit property to the first defendant. There is no substance in this argument. True, the suit properties were the only properties of the plaintiffs at the time when they executed Exts.B3 and B4 sale deeds and they have stated that the income from the said properties was their only source of income at the relevant time. There can be innumerable instances

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of sale of this nature. Merely for the reason that the suit properties were the only remaining properties of the plaintiffs and that the plaintiffs were depending on the income from the said properties for their survival, it cannot be said that they will not sell the said properties at all. The question as to whether persons placed in such situations would sell their property depends on their state of mind. Coming to the need of the plaintiffs to sell the suit properties, I am of the view that the contemplation of the plaintiffs while deciding to sell the suit properties to the first defendant is known only to the plaintiffs. Merely for the reason that similarly placed persons would not sell their properties in the manner in which the plaintiffs did is no reason to contend that the plaintiffs have not intended to transfer

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RSA.Nos.850 & 851/2015.

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the suit properties to the first defendant.

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The learned Senior Counsel for the plaintiffs made a comparison of the price of the property shown in the disputed documents with the value of the property shown in Ext.A8 settlement deed in favour of Beena and contended that the disputed sale deeds do not reflect the true price of the property. According to the learned Senior Counsel, the said fact would indicate that there was no intention at all for the plaintiffs to transfer the suit properties to the first defendant. As noted above, the parties are close relatives. There cannot any dispute to the fact that the plaint schedule properties were intended to be given to the wife of the first defendant. As such, merely for the reason that the sale considerations shown in the documents do not conform to the market price of the property, it cannot be said that the plaintiffs had never intended to transfer the plaint schedule properties to the first defendant.

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In the result, the substantial questions formulated for decision are answered in favour of the defendants. Consequently, the impugned decisions of the lower appellate

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RSA.Nos.850 & 851/2015.

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court are set aside and the decisions rendered by the trial court are restored. The second appeals are allowed as above. All the interlocutory applications in the appeals are closed.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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Kvs/-

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// true copy //

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PA TO JUDGE.

Jose Mathew v. James Avirah

Case brief

What is this about?

What did the court decide?

Jose Mathew v. James Avirah

Case brief

What is this about?

What did the court decide?

What the court decided

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