Partly allowed

K.K.Padmakumar v. Abraham Eapen

Kerala HC8 Feb 2018RFA/45/2005

Case brief

AI extract

What is this about?

This appeal concerned a suit for specific performance of an agreement to sell land. The High Court allowed the appeal in part, holding specific performance was a discretionary relief unfit in this case due to identification issues and encroachment by a third party. The court ordered a refund of the prepaid amount.

What did the court decide?

The appeal is allowed in part. The appellant is entitled to a refund of Rs.40,000/-, charged on the plaint schedule property excluding the portions sold to the third respondent and held by a stranger.

K.K.Padmakumar Vs Abraham Eapen — 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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THURSDAY, THE 8TH DAY OF FEBRUARY 2018 / 19TH MAGHA, 1939

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RFA.No. 45 of 2005

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-------------------AGAINST THE JUDGMENT AND DECREE DATED 20-08-2003 IN OS 471/1995 OF SUB COURT, MAVELIKKARA

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APPELLANT/PLAINTIFF;

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K.K.PADMAKUMAR,SREEVILASATHU VEEDU, KURICHIMUTTOM MURI, KIDANGANNUR.

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BY ADVS.SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN

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RESPONDENTS/DEFENDANTS:

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1. ABRAHAM EAPEN,MADAVAN, KEEZHCHERIMURI, CHENGANNUR[DECEASED].

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2. ITTYAVIRA EAPPEN, S/O.EAPPEN, DO. DO.

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3. NANCY JOHN, PULIPARAHU JOHN VILLA, THITTAMEL, CHENGANNUR.

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4. MARY EAPEN, MADAVAN BUNGLOW, KEEZHCHERIMEL MURI, CHENGANNUR.

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R,R2 BY ADV. SRI.S.R.DAYANANDA PRABHU R,R4 BY ADV. SRI.T.R.RAJAN R3 BY ADV. SRI.M.KRISHNAKUMAR

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08-02-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RFA NO.45 OF 2005

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The correct address of the 3^rd respondent is incorporated in the cause title of the appeal memorandum as

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“Nancy John, aged 50 years, W/o. Sajan Joseph, Staff Nurse, Pulipurethu Johney Villa, Thittammel, Chengannur Vilalge, Chengannur Taluk, Alappuzha District, Kerala State - 689 121.

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Represented by power of attorney

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“Sri.P.V.Johney aged 72 years, Pulipurethu Johney Villa, Thittammel, Chengannur Village, Chengannur Taluk, Alappuzha District, Kerala State - 689 121.”

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Vide order dated 08/02.2018 on memo dated 13/12/2016 bearing c.f 7423/16

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Sd/ASSISTANT REGISTRAR

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K.ABRAHAM MATHEW J.

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-----------------------------------------R.F.A.No.45 of 2005

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Dated this the 8^th day of February, 2018

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JUDGMENT

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This appeal arises from the judgment and the decree passed in O.S.No.471 of 1995 on the file of Sub Judge, Mavelikkara. The suit was for specific performance of agreement for sale of the plaint schedule property. The appellant's plaint contains the following allegations. The plaint schedule property belonged to the original defendant (first respondent), whose son and daughter are defendants 2 and 4/ respondents 2 and 4. On 17.5.1994 the plaintiff/appellant and the original defendant entered into an agreement for sale of the plaint schedule property. The price is Rs. 21,000/- per cent. On the date of the agreement the appellant paid the original defendant Rs.25,000/- in advance towards the sale consideration. The agreement was that within one week of disposal of a pending litigation in respect of the plaint schedule property the original defendant would inform in writing the appellant and within fifteen days thereafter the transaction would be completed. On 23.2.1995 and on 14.4.1995 the appellant paid the original defendant Rs.10,000/- and Rs.5,000/- respectively towards the

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R.F.A.No.45 of 2005 2

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sale consideration. The pending litigation, O.S.No.138 of 1994 on the file of the Munsiff, Chengannur was disposed of on 30.9.1995. But the original defendant did not inform the appellant about it. When the latter knew about it on 10.10.1995 he issued a notice demanding the original defendant to complete the transaction. He did not comply with it. During the pendency of the suit the original defendant alienated the property to the third defendant/third respondent in violation of the order of injunction. After the filing of the suit the original defendant died. The second respondent raised the following contentions in his written statement. There were differences of opinion between the original defendant and his children namely the second and fourth respondents. After the death of his wife the original defendant became ill and stubborn and he started living alone. But he was looked after by the second respondent. The appellant exploited the situation and prevailed upon the original defendant to execute an agreement for sale. There was no intention to act upon the document. The original defendant executed it only to teach his children a lesson. The father of the appellant was one of the defendants in O.S No.138 of 1994 filed by the second respondent against his father, original defendant. So the appellant was aware of the disposal of the suit. The second respondent prayed for dismissal of the

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R.F.A.No.45 of 2005 3

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suit. In his written statement the third respondent contended that it was not the plaint schedule property that was purchased by her; she entered into an agreement with the original defendant for purchase of 9 ½ cents. The sale was to take place on 22.9.1997. A few days before the stipulated date she knew that the property was being proceeded against under the Revenue Recovery Act. So execution of the sale deed was postponed. The original defendant agreed to execute the sale deed if the third respondent issued a cheque for Rs.50,000/-. The understanding was that if the amount payable to the government was discharged by him, the original defendant could encash a cheque. But he did not discharge the debt. The third respondent discharged the debt. She is a bona fide purchaser. The trial court found that the property cannot be identified though there was an agreement for sale between the appellant and the original defendant. Accordingly, it dismissed the suit.

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The following points arise for consideration in this appeal. i) Whether the plaint schedule property can be identified ? ii) Is the appellant entitled to a decree for specific

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performance ?

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Ext A1 is the agreement for sale entered into between the appellant and the original defendant. Notwithstanding the order of

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R.F.A.No.45 of 2005 4

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injunction, the original defendant executed a sale deed in respect of 9 ½ cents in favour of the third respondent. It is contended by the latter the property purchased by her is not the one covered by Ext A1 agreement for sale. Ext B2 is the certified copy of the sale deed executed by the original defendant in favour of the third respondent. The original defendant had 10.10 ares in his ownership. The properties covered by Ext A1 and Ext B2 are comprised in the same Survey No.257/18. A commissioner was deputed by the trial court to identify the two properties. Ext C6 is the plan attached to the report. The commissioner identify the properties covered by Ext A1 and Ext B2. The property covered by Ext A1 is marked A G H I J K L and the property covered by Ext B2 M N O P J Q R I. The property covered by Ext B2 sale deed executed in favour of the third respondent takes in a portion of the property agreed to be sold to the appellant by Ext A1 agreement.

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The commissioner found that 10 square meters out of the property agreed to be sold to the appellant is in the possession of a stranger. This plot is marked G H I M in Ext C6 plan. The extent of A G H I J K L plot which has been identified as the property covered by Ext A1 is 8 cents minus 10 square meters.

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Though the extent of the property agreed to be sold is shown

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R.F.A.No.45 of 2005 5

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as 8 cents in Ext A1, in Ext A2 letter sent by the original defendant to the appellant the extent is shown as 8 ½ cents. The testimony of the appellant (PW1) is that the property had been measured when the agreement was entered into. The side measurements of the property given in the agreement is 100 feet into 30 feet. This will only come to 6.88 cents. That apart, no side of the property has a length of 100 feet or 30 feet.

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Learned senior counsel appearing for the appellant submits that it is not necessary that the property can be identified and it is sufficient that there is means to identify it. There is no dispute with regard to it. The question is even after the measurement how a wrong description happened to be shown in the agreement for sale. It is in these circumstances, the contention of the second respondent that the appellant exploited the situation which arose from the strained relationship of the original defendant and his children is to be appreciated. It is also significant that the appellant's father is a signatory to Ext A1 agreement for sale. He was one of the defendants in O.S No.138 of 1994 filed by the second respondent.

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The piece of land shown as A M N O P K L is shown as part of the property covered by Ext A1 agreement. But this is said to be a

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R.F.A.No.45 of 2005 6

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way which gives access to the properties lying east to the property covered by Ext A1 agreement. If this is sold to the appellant, the way to those properties will be cut off. Moreover, there is a structure the south west corner of A M N O P K L. The agreement does not show existence of such a structure in the property agreed to be sold. This also indicates that the agreement was executed in some special circumstances.

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Specific performance is a discretionary relief. Merely

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because it is lawful to pass a decree for specific performance, the court need not do so. Having regard to the facts discussed above, I think this is not a fit case to grant a decree for specific performance. The lower court rightly held so.

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The appellant prayed for the alternative relief of refund of the prepaid purchase price. That was not granted by the trial court. But I do not find any reason to refuse it. So the appellant is entitled to get back the amount of Rs.40,000/- (Rupees fourty thousand only) paid by him to the first defendant. It will be charged on the plaint schedule property excluding the portion covered by Ext B2 sale deed executed in favour of the third respondent and the portion which is in the possession of a stranger.

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R.F.A.No.45 of 2005 7

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In the result, this Appeal is allowed in part. The suit is decreed in part and the appellant is allowed to realise from the plaint schedule property excluding the portion covered by Ext B2 sale deed in favour of the third respondent and the portion which is in the possession of a stranger. The parties will bear their costs.

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Sd/-

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K.ABRAHAM MATHEW JUDGE

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K.K.Padmakumar v. Abraham Eapen

Case brief

What is this about?

What did the court decide?

K.K.Padmakumar v. Abraham Eapen

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

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