Dismissed

Dharmaja v. Dinesan

Kerala HC8 Mar 2018RFA/58/2018

Case brief

AI extract

What is this about?

The High Court dismissed the appeal in a specific performance suit. Upholding the lower court's finding, the Court held that the agreement was executed under coercion and fraud, the plaintiff lacked financial capacity and due diligence, and the legal burden of proving the contract remains on the plaintiff.

What did the court decide?

The appeal was dismissed. The trial court is directed to return Ext A7 to the first respondent.

Dharmaja Vs Dinesan — 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 MARCH 2018 / 17TH PHALGUNA, 1939

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RFA.No. 58 of 2018

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

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AGAINST THE DECREE DATED 20-11-2017 IN OS 64/2002 OF SUB COURT, CHERTHALA

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APPELLANTS/(LEGAL HEIRS OF THE PLAINTIFF IN THE COURT BELOW):

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1 DHARMAJA,

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W/O. VISWAMBARAN, AGED 82, PUTHANTHARA, VALAMANGALAM NORTH MURI, THURAVOOR SOUTH VILLAGE, THURAVOOR P.O.,

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CHERTHALA TALUK, ALAPPUZHA DISTRICT-688532.

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2 VASANTHI SREEDHARAN,

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D/O. VISWAMBARAN, AGED 62, KADAVIL HOUSE, PARAYAKADU, KUTHIATHODE P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT.

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3 DILEEP KUMAR V.,

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S/O. VISWAMBARAN, AGED 56, SUDHIBHAVAN, VALAMANGALAM NORTH MURI, THURAVOOR SOUTH VILLAGE, CHERTHALA TALUK,

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ALAPPUZHA DISTRICT-688532.

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4 BAIJU,

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S/O. VISWAMBARAN, AGED 54, BHASURAM, PALLIPPURAM VILLAGE AND MURI, PALLIPPURAM P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT.

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5 BINDU,

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D/O. VISWAMBARAN, AGED 49, PUTHANTHARA, VALAMANGALAM

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NORTH MURI, THURAVOOR SOUTH VILLAGE, THURAVOOR P.O.,

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CHERTHALA TALUK, ALAPPUZHA DISTRICT-688532.

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6 SINDHU SAJEEVAN,

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D/O. VISWANAMBARAN, AGED 46, THAKIDUVELI,

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KURUPPANKULANGARA P.O., CHERTHALA,

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ALAPPUZHA DISTRICT-688524.

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7 SHREEJA CHITHRA PRASAD,

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D/O. VISWAMBARAN, AGED 43, MADHAVAPURAM, MANAKODAM,

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CHERTHALA TALUK, ALAPPUZHA DISTRICT.

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BY ADVS.DR.V.N.SANKARJEE

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SRI.V.N.MADHUSUDANAN SMT.R.UDAYA JYOTHI SMT.M.SUSEELA

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RFA.No. 58 of 2018

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RESPONDENTS/(DEFENDANT IN THE COURT BELOW):

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1. DINESAN,

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S/O. PADMANABHAN, AGED 57, SANKARA BHAVAN, FROM CHENNAMKUNNEL, VALAMANGALAM NORTH MURI, THURAVOOR

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SOUTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT-688532.

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2. GEETHA,

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W/O. DINESAN, AGED 52, SANKARA BHAVAN, FROM CHENNAMKUNNEL, VALAMANGALAM NORTH MURI, THURAVOOR

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SOUTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT-688532.

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 08-03-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.ABRAHAM MATHEW, J.

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R.F.A.No.58 of 2018

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------------------------------------------Dated this the 8^th day of March, 2018

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JUDGMENT

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The appellants are the legal representatives of the plaintiff in O.S.No.64 of 2002 on the file of the Subordinate Judge, Cherthala. Respondents 2 and 3, husband and wife were the defendants. On the allegation that on 31.1.2002 the respondents entered into an agreement with the plaintiff for sale of the plaint schedule property belonging to the first respondent for Rs.3 lakhs and received Rs.1,50,000/- in advance towards the sale consideration and the first respondent failed to execute sale deed though the plaintiff had been ready and willing to perform his part of the contract he instituted the suit for specific performance of the contract and in the alternative for refund of the amount paid towards the sale consideration. In his written statement the first respondent denied the agreement and receipt of part of the sale consideration as alleged in the plaint. He admitted that the agreement relied on by the plaintiff contains the signature of himself and his wife (the 2^nd respondent). He

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contended that the plaintiff along with some others threatened and coerced them into signing the document. He prayed for dismissal of the suit. The suit was tried and dismissed by the learned Sub Judge on 26.7.2010. In RFA No.724 of 2010 the High Court set aside the judgment and the decree and remanded the suit giving liberty to the parties to adduce further evidence. Thereafter, the learned Sub Judge has dismissed the suit again.

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Heard the learned counsel for the appellants.

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The plaintiff had filed O.S.No.215 of 2002 in Munsiff's Court, Cherthala on the basis of the agreement relied on by him in this suit. The prayer was for a perpetual injunction prohibiting the first respondent from alienating the property to strangers. During the pendency of that suit, he filed this suit for specific performance on the basis of the very same agreement. The trial court found that the present suit is barred by the provisions in Order II Rule 2 CPC. The learned counsel submits that the finding is wrong in as much as the first respondent did not raise such a plea and that the court did not frame an issue also.

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Ext A4 is a copy of the plaint in the previous suit, O.S.No.215

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of 2002 of Munsiff's Court, Cherthala. It was filed on the basis of the

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agreement relied on by the plaintiff in this suit. Before the institution of the previous suit the plaintiff had issued Ext A2 notice informing the first respondent that he was attempting to alienate the property to strangers notwithstanding the agreement. The plaintiff requested him to perform his part of the contract by executing the sale deed after receiving the balance sale consideration. The first respondent sent Ext A3 reply notice denying the agreement and raising the contention that the signature of himself and his wife were obtained in the agreement by coercion. So it is very clear that before the institution of the previous suit the cause of action for instituting a suit for specific performance had arisen. The facts constituting the cause of action for the previous suit and the present suit are identical.

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Though the first respondent did not raise a contention that the present suit is barred by the provisions in Order II Rule 2 CPC the plaintiff himself alleged the material facts in his plaint and produced documents which would attract Order II Rule 2 CPC. But it is not proper for the court to hold that the present suit is barred under Order II Rule 2 CPC in the absence of a contention by the respondents and in view of the failure of the court to frame an issue with regard to it.

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The learned counsel for the appellants submitted that since the first respondent admitted his signature in Ext A1 agreement for sale the burden is on him to prove that it was obtained in vitiating circumstances as alleged by him in his written statement. It is true that under Section 102 of Indian Evidence Act the initial burden is on the party who would fail if no evidence were adduced on either side. But that becomes practically insignificant after both parties adduced evidence. So the appellants cannot be heard to say that the court may not take into account the evidence given on the part of the appellants.

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The plaint schedule property belongs to the first respondent alone. His wife was an unnecessary party to the agreement. The plaintiff (PW1) could not give any reason for her being made a party to the agreement and the suit. In the witness box, he set up a case that he intended to purchase the property for his son Byju. Byju was available in the locality. The plaintiff did not give any reason why Byju himself did not enter into the agreement. The plaintiff, who was examined as PW1, deposed that the amount of Rs.1,50,000/- he allegedly paid towards the sale consideration was the sale proceeds of the ornaments of the wife of

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his son Byju. But PW1 did not know where the ornaments were sold; Byju had not come to the court in connection with the case not even a single occasion. PW1 admitted that there was no help from Byju in connection with the transaction. He would say that he was not on good terms with Byju after the transaction was not materialised. On the other hand, PW2 who claimed to be the broker of the transaction and who resided very close to the parties to the suit would say that there was active participation of Byju in the transaction. It is pertinent to note that PW1 deposed that he intended to purchase the property for his son Byju only when he was asked about his financial capacity to pay the consideration. He had in his ownership only 7 cents and there is no house on it. He lived in the house situated on the 10 cent plot belonging to his wife. He retired as a worker from PWD. Until three years before the trial of the suit he had worked as an accountant in the office of a temple. His monthly income was just Rs.1000/-. It was when these facts were brought out in his cross-examination, he testified that he intended to purchase the property for his son and the amount paid by him towards the price was given by Byju.

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In answer to a question put in his cross-examination PW2 stated that he did not know the contentions raised by the respondents. He also stated that he had not even read completely his affidavit filed in lieu of the examination in-chief before he signed it. Admittedly, there is a house in the plaint schedule property. PW1 stated that it was an old one. It came out in the evidence that it was the first respondent who built the house. He was only 42 when the suit was instituted. So the statement of PW1 that the house was an old one does not appear to be true. PW1 did not deny the suggestion in the cross-examination that there are three or four rooms, the roof of which is RCC, and two or three rooms the roof of which is tiled and there is another room the roof of which is 'sheets'. If that is true, the house is a big one. The consideration shown in Ext A1 agreement for the plaint schedule property, which has an extent of 32 cents on which there is a very big building, is only Rs.3 lakhs. Questions were put to PW1 as to how the consideration was fixed. His response was that there was no basis for fixing it. He had no idea about the area of the house. He did not know whether the property has road access. He could not say anything about

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the cultivation in the property. Her did not enquire whether there was any encumbrance on the property. He deposed that for the first time he went to the plaint schedule property after the execution of Ext A1 agreement. His definite case is that his son Byju for whom he allegedly wanted to purchase the property was not at all involved in the transaction. Is it believable that the plaintiff who had no idea about the property agreed to purchase it.

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According to the plaintiff (PW1) there were two brokers for the transaction. They were PW2 Sasidharan and one Prakasan. In response to a question put in the cross-examination, PW1 said that there was no agreement with regard to the commission payable to the brokers. He said that he paid Rs.10,000/-, but he added that he paid only Rs.1000/-. This has been totally belied by the evidence of PW2. He said that his commission was 3%. First, he said that it was payable by the plaintiff. Immediately he added that it was payable by the first respondent and that the plaintiff did not give him or Prakasan any money towards commission. There cannot be any doubt that PW2 or Prakasan was not a broker in the transaction. The evidence of plaintiff is false.

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It is seen from Ext A1 that the stamp paper was issued from the treasury, and sold by the vendor on 31.1.2002. The document is seen to have been executed on the same day. It dropped from PW3 the scribe of Ext A1 that PW1 reached his office by 10.30 a.m. According to PW1 when he reached the office of PW3 the agreement had already been written. The evidence of PW2 is that even the draft was prepared after the plaintiff reached the office of the scribe. After the draft was prepared it was read over and the plaintiff and the first respondent approved it. Thereafter, Ext A1 was prepared and signed.

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There is also conflicting evidence with regard to the documents on the basis of which PW3 prepared the agreement for sale. He would say that the first respondent handed over to him a photocopy of his title deed and his original prior title deed. But the evidence given by PW2 is that only the prior title deed was given. This document was marked Ext A7. This is actually not prior title deed of the first respondent, but of his vendor. In Ext A7 there are two items of properties. The first item has an extent of 61 cents and the other 88 cents. The case of the plaintiff that it was based on Ext A7 the

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agreement for sale was prepared is false.

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The testimony of PW3 scribe is that it was the plaintiff who purchased the stamp paper and handed it over to him. This was denied by the plaintiff (PW1). According to him he did not buy the stamp paper.

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It is not in dispute that PW3 was a licenced document writer. But this is not mentioned in Ext A1. Under Rule 18 of the Document Writers Licence Rules he was bound disclose his identity and licence number in the document. Under Rule 19 his transactions were required to be entered in a register. These two Rules were violated. It is evident that Ext A1 was not prepared in the ordinary course of business of PW3.

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The definite case of the first respondent is that he was conducting an unauthorised chitty and some persons in the locality including the son of the plaintiff were entitled to get some money from him and when he could not pay the money those persons including PW2 along with some goondas forcibly took him and his wife to the office of PW3 and forced him to sign Ext.A1. It was brought out in the crossexamination of PW3 that on the same day on which the respondents allegedly executed Ext.A1 agreement for sale he (PW3) wrote a receipt. He would say that it was on the basis of the agreement between the

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plaintiff and the first respondent the document was prepared; a photocopy of this document was handed over to the first respondent. PW3 admitted that Ext B1 is the photocopy handed over to the first respondent. It allegedly bears the signature of PW2. But this was not shown to PW2. This document was tendered in evidence only in the cross-examination of PW3. But its contents was admitted by PW3 in his cross-examination. 15 persons have signed it apart from the first respondent. The document says that the first respondent had received certain amount from each of them in a chitty transaction. The first respondent is shown to have agreed to pay Rs.9,000/- to each of them. The total amount is 1,35,000/-. Those 15 persons are shown to have acknowledged receipt of the amount out of the amount the first respondent allegedly received towards the sale consideration of his property. These facts speak volumes. PW3 was not declared hostile by the plaintiff. It was suggested to him that his evidence with regard to execution of Ext B1 is false, but he denied it. The plaintiff is bound by his evidence. This evidence of PW3 definitely proves that it was in vitiating circumstances the signatures of the respondents were obtained in Ext A1. The plaintiff was only a tool in the hands of some others. The

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presence of PW2 and Ramesan who were not brokers - along with several others at the office of PW3 goes with the defence version that they forced the respondents to sign Ext A1 agreement for sale.

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The conclusion is this: The facts available in the case disclose that the allegation that there was an agreement between the plaintiff and the respondents is false and it was in vitiating circumstances the signatures of the respondents were obtained in Ext A1 agreement for sale. The learned Sub Judge rightly dismissed the suit. The appeal has no merits.

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In the result, this appeal is dismissed. The trial court shall return Ext A7 to the first respondent.

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Sd/-

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K.ABRAHAM MATHEW JUDGE

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Dharmaja v. Dinesan

Case brief

What is this about?

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Dharmaja v. Dinesan

Case brief

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