The High Court of Kerala dismissed the plaintiff's appeal against the dismissal of a suit for specific performance. Upholding the trial court's finding, the Court held that the evidentiary discrepancies regarding the stamp paper seal, district names, and vendor details proved the agreement to be fabricated, failing to establish the sale.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
FRIDAY, THE 2ND DAY OF AUGUST 2019 / 11TH SRAVANA, 1941
RFA.No.45 of 2008
AGAINST THE JUDGMENT AND DECREE IN OS 71/2005 of SUB COURT, KOCHI, DATED 21-08-2007
APPELLANT/PLAINTIFF:
N.X.JOSEPH, AGED 66 YEARS, S/O N.T.XAVIER, RESIDING AT NEDUNILATH HOUSE, EDAKOCHI DESOM, EDAKOCHI VILLAGE, KOCHI TALUK.
BY ADVS.
SRI.P.VISWANATHAN (SR.) SRI.C.S.YESUDAS SRI.SHIJU VARGHESE
RESPONDENTS/DEFENDANTS:
1 MR.XAVIER JULIAN, AGED ABOUT 40 YEARS, S/O.LATE N.X.AUGUSTINE, RESIDENT OF C-8,, DR.S.RADHAKRISHNAN SALAI, BLOCK-12, NEYVELI-3, TAMILNADU-607803.
2 MRS.MARY JULIET N.A., AGED ABOUT 37 YEARS, D/O.LATE N.X.AUGUSTINE, W/O.VINCESS, RESIDENT OF NO.10-B, JYOTHI NAGAR, VADALOOR, CUDDALORE DIST., TAMILNADU.
3 MRS.ANCY MINI N.A., AGED ABOUT 35 YEARS, D/O.LATE N.X.AUGUSTINE, W/O.PREM, RESIDENT OF CHIRAMEL HOUSE, KOOTTUNGAL LANE, KOCHUPALLY ROAD, THOPPUMPADY, COCHIN - 682 005.
4 MRS.REENA N.A., AGED ABOUT 33 YEARS, D/O.LATE N.X.AUGUSTINE, W/O.JOSEPH ROY, KUMBALANGHI DESOM, KUMBALANGHI VILLAGE, COCHIN 682007.
BY ADVS. SRI.B.KRISHNA MANI - R2 & R4 SRI.T.C.GOVINDA SWAMY - R3
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = = RFA No.45 of 2008
= = = = = = = = = = = = = = = = = = Dated this the 2nd day of August, 2019
J U D G M E N T
The dismissal of a suit for specific
performance is under challenge in this appeal by the plaintiff.
are the wife and children of the said Augustine. They denied the agreement. The trial court held against the genuineness of Ext.A1 and dismissed the suit.
RFA No.45 of 2008
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the official round seal “STAMP DEPARTMENT, CUDDALORE”. Ext.B3 communication from the Treasuries and Accounts Department, Cuddalore, obtained under the Right to Information Act indicates that the aforesaid official round seal came into force only after 27.03.2000. Therefore, on the date of Ext.A1 viz. 02.05.1996 such a seal mark cannot find a place on stamp paper of Ext.A1. From Ext.B3 it is further evident that on the date of Ext.A1, the official seal that was in force was “STAMP DEPARTMENT SOUTH ARCOT”. The evidence of PW3, who was examined to prove Ext.A5 document claimed to have been executed by him on 03.09.1999, which also bears the official round seal “STAMP DEPARTMENT, CUDDALORE” was rightly rejected by the trial court. The stamp paper of Ext.A5 shows that the vendor of the stamp paper is one Bakthavalsalan. But Ext.B6 list of stamp vendors indicate that there is no such vendor in Cuddalore. 5. Ext.B7 Gazette Notification shows that South Arcot District was changed as Cuddalore District with effect from 01.07.1997. Therefore, the
RFA No.45 of 2008
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presence of the seal of stamp Department, Cuddalore on Ext.A1 shows that it is only a fabricated document. DW1 is the Treasury Officer, District Treasury, Cuddalore and DW2 is the District Registrar, Cuddalore. Their evidence coupled with Exts.B2 and B6 reveals that as per official records, stamp paper bearing Sl. No.4742 (on which Ext.A1 is prepared) relates to a rupee 5 nonjudicial stamp paper issued to one “A.Annu Durai Kallakurachi” on 16.02.1996. The trial court has rightly found that Ext.A1 is a fabricated document. 6. Though the plaintiff claims that the entire sale consideration of `4 lakhs was paid to Augustine, no details regarding the same is available. The trial court noticed that it is in evidence that during the said period, the plaintiff was short of funds and had availed a loan for construction of his residential house. There is nothing to show that any amounts were paid by the plaintiff to the predecessor-in-interest of the defendants.
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concur with the finding of the trial court that Ext.A1 is a fabricated document.
In the result, the appeal fails and is dismissed with costs.
Sd/SATHISH NINAN JUDGE
kns/-
//True Copy//
P.S. to Judge
2 issues framed by the court
Whether the trial court correctly found the executed agreement to be a fabricated document based on evidentiary inconsistencies.
Whether the impleaded plaintiffs established their case for specific performance when the foundational agreement was defective.
N.X.Joseph
Mr.Xavier Julian
Mrs.Mary Juliet N.A.
Mrs.Ancy Mini N.A.
Mrs.Reena N.A.
Sathish Ninan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
