Allowed

Shaji and Another v. Sunil Chandran and Another

Kerala HC5 Mar 2018RFA/328/2011

Case brief

AI extract

What is this about?

This appeal challenged a decree for specific performance of an alleged agreement to sell land. The High Court found the trial court failed to appraise evidence. The plaintiff could not prove the agreement's execution or payment of purchase money due to inconsistencies and unreliable testimony. The appeal was allowed.

What did the court decide?

The appeal was allowed and the suit was dismissed with costs.

Shaji and Another Vs Sunil Chandran and Another — Specific Performance | Kerala HC (2018)

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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 K.ABRAHAM MATHEW

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MONDAY, THE 5TH DAY OF MARCH 2018 / 14TH PHALGUNA, 1939

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RFA.No. 328 of 2011

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AGAINST THE JUDGMENT AND DECREE IN OS 383/2006 OF PRINCIPAL SUB COURT, THRISSUR DATED31.8.2010

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APPELLANTS/DEFENDANTS 1 & 3

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1 SHAJI, AGED 42,

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S/O.LATE SREEDHARAN, KOSSERY HOUSE, OLLUR VILLAGE, THRISSUR TALUK, NOW RESIDING AT THIKKATHUSSERY P.O., EDAKUNNI VILLAGE, THRISSUR TALUK AND DISTRICT.

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2 SAJITH, AGED 39 YEARS, S/O.KOSSERY LATE SREEDHARAN, OLLUR VILLAGE, THRISSUR TALUK,

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WITH PERMANENT ADDRESS - THIKKATHUSSERY P.O., EDAKUNNI VILLAGE, THRISSUR TALUK & DISTRICT, REP. BY HIS POWER OF

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ATTORNEY HOLDER HIS BROTHER

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SHAJI, AGED 42, S/O.LATE SREEDHARAN,

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KOSSERY HOUSE, OLLUR VILLAGE, THRISSUR TALUK, NOW

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RESIDING AT THIKKATHUSSERY P.O., EDAKUNNI VILLAGE,

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THRISSUR TALUK AND DISTRICT.

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BY ADVS.SRI.PHILIP ANTONY CHACKO

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SRI.P.M.SEBASTIAN

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RESPONDENTS/PLAINTIFF & 2ND DEFENDANT:

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SUNIL CHANDRAN , AGED 39 YEARS,

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S/O.THOTTIPARAMBIL CHANDRAN, KUTTANELLUR DESOM, OLLUR

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VILLAGE, THRISSUR TALUK & (DT)

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MANOJ, AGED 40 YEARS,

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S/O.LATE SREEDHARAN, KOSSERY HOUSE, OLLUR VILLAGE,

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THRISSUR TALUK & (DT)

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R1 BY ADV. SRI.B.JAYASANKAR R2 BY ADV. SRI.M.R.MOUNISH

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: cms

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K.ABRAHAM MATHEW J.

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R.F.A.No.328 of 2011

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Dated this the 5^th day of March, 2018

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JUDGMENT

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The appellants and the second respondent, who are brothers had in their joint ownership 19 ½ cents of land. On the allegation that on 19.12.2003 they entered into an agreement with him for its sale to him for Rs.8,10,000/- and received from him Rs.5,00,000/- towards the sale consideration and though he has been ready and willing to perform his part of the contract they failed to execute the sale deed, the first respondent instituted O.S.No.383 of 2006 in Sub Court, Thrissur for specific performance of the agreement. He also prayed for the alternative relief of refund of the purchase price paid in advance with interest at 12% per annum. The appellants and the second respondent denied entering into an agreement for sale and receiving money from the first respondent towards the sale consideration. The trial court decreed the suit allowing specific performance. Its legality and correctness are challenged in this appeal.

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Heard the learned counsel for the appellants and the first respondent.

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In the impugned judgment there is neither discussion, nor analysis of evidence. Non application of mind is clear.

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In their written statement the appellants and the second respondent denied having entered into an agreement for sale with the first respondent for sale of their property described in the plaint schedule and receiving Rs.5,00,000/- towards the sale consideration on the date of the agreement as alleged in the plaint. There cannot be any doubt that the burden is on the first

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R.F.A.No.328 of 2011 2

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respondent to prove the agreement for sale and payment of Rs.5,00,000/towards the sale consideration. He was examined as PW1. PW2 to PW4 were examined in support of his case. On the other hand, the first appellant was examined as DW1. In the witness box also he denied the transaction alleged in the plaint. He denied the suggestion in the cross-examination that he entered into an agreement for sale and received from the first respondent Rs.5,00,000/- towards the sale consideration.

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In the cross-examination of PW1 he (first respondent) stated that his enquiry revealed that the title deed pertaining to the plaint schedule property is in the name of the appellants and the second respondent, and that he had seen its photocopy. He added that what he understood was that it was a document executed by their father in their favour. But he could not say what the document was or its number. Ext A1 agreement itself reveals that the property originally belonged to the father of the appellants and the second respondent and on their death it devolved on them and their sister, who later relinquished her rights. Can it be believed that without even knowing anything about the title deed of the appellants and the second respondent the first respondent entered into an agreement for sale and paid them Rs.5,00,000/- in advance towards the sale consideration.

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No evidence has been adduced by the first respondent to prove that there were any negotiations before the alleged agreement was entered into. There was not even a suggestion to DW1 (the first appellant) in his crossexamination that there were negotiations before the agreement was entered into.

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R.F.A.No.328 of 2011 3

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Ext A1 is said to be the agreement for sale executed by the first appellant on behalf of himself and the second appellant and the second respondent in his capacity as their power of attorney holder also. Under Section 60 of the Evidence Act a fact which can be seen should be proved through the person who claims to have seen it. In the evidence of the first respondent (PW1) there is not even a whisper that he saw the first appellant sign Ext A1 agreement for sale. His assertion that it is a document executed by the first appellant is not an evidence of its execution by the latter. PW2 is the scribe of Ext A1. He does not claim to have witnessed the first appellant sign Ext A1. PW4 is none other than the father of the first respondent. In his affidavit filed in-lieu of his examination-in-chief he stated that he witnessed execution of Ext A1 agreement for sale and payment of money. But he did not disclose the identity of the persons who allegedly executed the document and received the money. His statement that he saw execution of the document and payment of the money does not prove its execution by the first appellant or payment of Rs.5,00,000/- by the first respondent. In the beginning of the cross-examination PW4 is shown to have said that he did not see execution of Ext A1 or payment of Rs.5,00,000/-. This appears to be a mistake. But his evidence does not prove execution of Ext A1 by the first appellant or the first appellant's receiving Rs.5,00,000/- from the first respondent.

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PW3 claims to have seen the first appellant put his signature in Ext A1. His name appears in the document as an attesting witness. According to him, he attested the document at the request of PW4, father of the first respondent. But the presence of PW4 is not deposed to by PW1.

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R.F.A.No.328 of 2011 4

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The evidence of PW1 to PW4 is to the effect that Ext A1 was prepared at the office of a document writer by name Bosco. It is in the handwriting of PW2 who was a document writer attached to the office of Bosco. It was by asking leading question in his examination-in-chief it was brought out that he is the scribe of the document. The document does not reveal that he is its scribe. Rule 18 of the Kerala Document Writers Licence Rules provides that every nontestamentary document prepared by a Document Writer and transcribed by a Scribe shall be attested by them in the manner provided in the Rule. The rule makes it mandatory for them to write their names in full with license numbers and to put their signatures in it. Under Rule 19 the document writer is duty bound to maintain a register for the documents prepared by him and to maintain a receipt book for the moneys received by him as his fees. Obviously, those rules were not followed in this case. It is clear that the document was not written in the ordinary course of business of PW2. This is a highly suspicious circumstance. It is clear that the register maintained at the office of the scribe will not show preparation of Ext A1 as claimed by him (PW2). This goes a long way to disproving the first respondent's case that it was executed at the office of PW2 on the date shown in it.

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In the cross-examination of the first respondent (PW1) questions were put to him with regard to the source of payment of Rs.5,00,000/- in advance towards the sale price. He deposed that he had the money received by pledging his ornaments. He further stated that he did not remember the amount received by him. He added that he had some amount in his bank account and in cash also. But towards the fag end of his examination he stated

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that he received Rs.5,00,000/- from his bank. There were 50 one thousand rupee currency notes. If he had received Rs.5,00,000/- from bank what was the necessity of his pledging his ornaments in order to pay the amount to the appellants. The evidence of PW1 stands disproved by the evidence given by his father (PW4). According to him, he took a loan of Rs.5,00,000/- from Catholic Syrian Bank in the first week of December. The allegation of the first respondent that he paid Rs.5,00,000/- in advance towards the sale price is false.

¶48

Ext A1 agreement for sale on the basis of which the suit was filed has two parts. One is handwritten and the other printed, in which some entries are handwritten. In the first part the date stipulated for completion of the transaction by executing sale deed is shown as 19.11.2004. But there is a provision that if the buyer was unable to perform his part of contract 28.1.2006 shall be deemed to be the stipulated date and in that case the buyer would be liable to pay interest at 12% per annum on the balance sale consideration. This is a very strange term. Now, the second part stipulates that the date for completion of the transaction is 19.11.2004 and time is of the essence of the contract. It is silent about deemed extension. Thus the terms of the agreement are very strange and the agreement contains inconsistent terms.

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Before institution of the suit the first respondent issued Ext A2 notice to the first appellant informing his readiness and willingness to take the sale deed paying the balance sale consideration and asking him to execute the sale deed. In his cross-examination the first respondent was asked about the

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source to pay the balance sale consideration of Rs.3,10,000/-. He stated that he had money in his bank account. But he did not produce a copy of the statement of his accounts. An adverse inference has to be taken.

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The evidence discussed and analysed above unerringly proves that the first respondent's allegation of the appellants and the second respondent's entering into an agreement with him for sale of the plaint schedule property is false. The trial court passed a decree in favour of the first respondent in a mechanical manner. The decree is liable to be set aside.

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In the result, this appeal is allowed with costs to the appellants and the suit is dismissed with costs.

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K.ABRAHAM MATHEW JUDGE

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cms

Shaji and Another v. Sunil Chandran and Another

Case brief

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Shaji and Another v. Sunil Chandran and Another

Case brief

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