The High Court dismissed an appeal against a decree for specific performance of a sale agreement. The court held that the defendants failed to prove fraud or coercion and that a subsequent alleged agreement was not validly executed, confirming the lower court's judgment.
The appeal was dismissed, and the judgment and decree of the court below were confirmed.
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.
RFA.No.577 OF 2005
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHIRCY V.
WEDNESDAY, THE 16TH DAY OF DECEMBER 2020 / 25TH AGRAHAYANA, 1942
RFA.No.577 OF 2005
AGAINST THE JUDGMENT DATED 30.7.2005 IN OS 37/1999 OF SUB COURT, PATHANAMTHITTA
APPELLANTS/DEFENDANTS 1 AND 3
1 PONNAMMA, D/O. LAKSHMY AMMA, AGED ABOUT 64, AMBALATHINAL HOUSE, KANJEETTUKARA P.O., AYROOR SOUTH (DIED)
SECOND APPELLANT AND RESPONDENTS 2 AND 3 ARE THE LRS OF THE DECEASED FIRST APPELLANT AS PER ORDER DATED 1.6.2018 VIDE MEMO DATED 7.3.2018 BEARING CF. NO.1058/2018
2 MANGALAM,
D/O.PONNAMMA, AGED 36 AMBALATHINAL, KANJEETTUKARA P.O., AYROOR SOUTH.
BY ADVS.
SRI.M.NARENDRA KUMAR
RESPONDENTS/PLAINTIFF AND DEFENDANTS 2 AND 4
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2
3
K.P.PUSHPAKUMARI D/O.PONNAMMA AGED ABOUT 34 YEARS, DO. DO.
R1 BY ADV. SRI.JACOB P.ALEX R1 BY ADV. SRI.T.SETHUMADHAVAN SR.
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 2608-2020, THE COURT ON 16-12-2020 DELIVERED THE FOLLOWING:
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JUDGMENT
Challenge in this appeal is to the judgment and
decree rendered by the learned Subordinate Judge, Pathanamthitta in a suit for specific performance of contract filed as O.S.No.37/1999.
convenience and clarity.
defendants are the owners of the plaint schedule property as per partition deed No.1403/1973 of SRO, Aranmula. The defendants 1 to 3 entered into an agreement on 10.2.1999 agreeing to alienate the property of all the defendants including the fourth defendant for a total sale consideration of Rs.6 lakhs. The time fixed for execution of the sale
deed was two months from 10.02.1999. Out of the
total sale consideration a sum of Rs.5 lakhs was
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received as advance. Since the defendants failed to
execute the sale deed, a notice was issued on 10.3.1999 showing his readiness and willingness to perform the agreement to sell. However, in spite of the receipt of the notice, the sale deed was not executed and so the plaintiff was constrained to file the suit for specific performance of contract with an alternative prayer for realization of the advance amount with interest.
heavy loss and then the plaintiff and his
associates started to terrorize the defendants 1 to
3 saying that the second defendant would be
arrested and implicated in criminal case unless he
pays a sum of Rs.6 lakhs to the wife of the
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plaintiff. The original title deed and tax receipt of the property were retained by them as security for the amount which was due from the second defendant and while so, in the night of 06.02.1999 the plaintiff and one K.P Mathew, the brother of the plaintiff's wife along with few others came to the residence of the first defendant and obtained a document from them. It was only an agreement to the effect that an amount of Rs.6 lakhs will be paid to the wife of the plaintiff within a period of two years and a job would be arranged for the second defendant in Gulf so as to enable him to pay the amount. The document was got signed without disclosing the contents of the same. Thereafter on 10.02.1999 the plaintiff and his brother in law and few others again came to the residence of the first defendant and told that some mistake had crept in the agreement and therefore, again the defendants 1
to 3 have to affix signature in the document brought by them. The defendants were threatened
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with dire consequences when they refused to sign
the same. So out of fear and anxiety they have
signed the document. The agreement for sale of the property appeared to be an act of fabrication and
in fact there was no negotiation for sale of the
property. The defendants have not received an advance amount of Rs.5 lakhs from the plaintiff and they never agreed to obtain power of attorney from Pushpakumari, the fourth defendant so as to alienate the property to the defendants. While so, due to the intervention of one Rev.Fr. K.A Cherian, the adviser of the plaintiff and his wife a discussion took place between them and another agreement was executed which superseded all the agreements between the parties. Now the whereabouts of the second defendant are not known to the other defendants. The agreement is an invalid one and the plaintiff is not entitled to get a decree for specific performance or for return of any amount as claimed in the suit.
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pleadings necessary issues were raised and the parties adduced evidence. In support of the case
of the plaintiff two witnesses were examined i.e. himself as PW1 and an attesting witness as PW2. Exts.A1 to A7 were also marked for the plaintiff. The first defendant examined herself as DW1 and two witness were examined as DW2 and DW3. Ext.B1 was also marked. The court below after evaluation of the entire evidence found that Ext.A1 agreement
is a genuine one and thereby a decree for specific performance of contract with respect to the shares of the defendants 1 to 3 was granted. The said judgment and decree are challenged mainly contending that Ext.A1 is not enforceable as it was never intended to be acted upon as an agreement for sale.
counsel for the appellants/defendants 1 and 3 and
Sri.Sethumadhavan, the learned senior counsel and
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Sri.Jacob P.Alex the learned counsel for the respondent/plaintiff.
agreement dated 10.2.1999 executed by the defendants 1 to 3 in favour of the plaintiff
agreeing to sell an extent of 47 cents out of a larger extent of 64 cents. The genuineness of the agreement though challenged by the contesting
defendants, admitted their signature in the document. Ext.A6 is the original title deed of the suit property in the name of the defendants but it was produced by the plaintiff. It is a partition deed by which the 1st defendant as well her three children, ie; the defendants 2 to 4 have obtained 64 cents of land. Relying on Ext.A1 it is alleged
that the defendants 1 to 3 have executed the sale agreement agreeing to alienate the plaint schedule property of 47 cents in favour of the plaintiff by executing the sale deed by them by getting a power
of attorney in their favour for the fourth
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defendant within a period of two months from the date of execution of the document. An amount of Rs.5 lakhs was also received out of the total sale consideration fixed for the property as Rs. 6 lakhs, is the definite case of the plaintiff but they failed to execute the sale deed.
defendants 1 and 3 alone filed written statement in the case and the defendants 2 and 4 remained absent in the suit. Though it is contended that the plaint schedule property is not properly described in the
plaint, a perusal of the title deed marked as Ext.A6 and the plaint description shows that the description of the property is in tune with the description of the same in the original title deed.
son of the first defendant conducted a financial business by name “A & T” investments but it fell
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in loss and as a result there was some settlement talk and finally the liability was fixed as Rs.10 lakhs and out of the same, it was agreed to give Rs.5 lakhs to the plaintiff by the second defendant and to facilitate payment the agreement was executed. But it was stoutly denied by the plaintiff and the definite case of the plaintiff was that the agreement was to execute the sale deed within a period of two months of the agreement and
Rs.5 lakhs was received as part of the sale consideration and the balance was only Rs.1 lakh. It was contended that Ext.A2 notice was issued within the period prescribed expressing his readiness and willingness to perform the agreement
to sell. It is significant to note that in the
written statement the contesting defendants ie, defendants 1 and 3 have raised a contention that on 6.7.1999 the plaintiff and his brother-in-law, one K.P Mathew came to their residence and obtained a document and they told that the second defendant
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had to pay the amount and they could arrange a job for him abroad to clear off his liability and if the document is not signed he will be put in
difficulty and so without reading the contents, they signed the document brought by them. Later on 10.2.1999 the plaintiff along with his brother-inlaw and his friends again came to their residence and forced them to sign a new agreement saying that some mistake had crept in the first document and thus got the document signed by them. So, the execution of the document for sale of the plaint schedule property was denied and they also denied
the receipt of Rs.5 lakhs as part of the sale consideration. But it is interesting to note that in the reply notice marked as Ext.A5 the defendants
have contended that the agreement is void and unenforceable and not supported by consideration
and that the document is a fabricated one obtained by committing fraud and coercion. So in short, the execution of Ext.A1 sale agreement was admitted by
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the contesting defendants in the written statement
though contended that the contents were not disclosed to them. A mere reading of the written statement would reveal that by misrepresentation of material facts the agreement to sell the property was obtained by the plaintiff. But at the first instance it was alleged in the reply notice that the plaintiff committed fraud and thus induced them to enter into the agreement to sell the property and in fact they never had the intention to sell the property. The recitals in the agreement would show that as the fourth defendant was out of India
the defendants 1 to 3 would get her power of
attorney so as to execute sale deed in favour of the plaintiff.
have also taken a different contention in the written statement that another agreement was
executed by Susamma Thomas, the wife of the plaintiff and the second defendant as a result of
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the compromise arrived on 16.4.1999 in the presence
of DW3, Rev.Fr.K.Cherian and that agreement supersedes all previous agreements and therefore they are not bound to execute the sale deed in favour of the plaintiff. But the original document is not available on record. Instead of that Ext.B1 a photocopy of an agreement dated 16.4.1999 was produced so as to avoid the execution of the sale deed.
he has verified the accounts of “A & T”
investments and fixed the liabilities of the said business as claimed by the defendants. Most importantly, Ext.B1 is only a photocopy which is not even signed by both parties in the presence of DW3 and DW3 has admitted that he has signed the same only as the photocopy of a document and that will not show that such a document was executed in
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his presence. In fact he did not testify in favour of the agreement. So the evidence of DW3 will not show that a document was executed by both parties ie, Susamma Thomas and the second defendant and that document will supersede Ext.A1. Therefore, Ext.B1 has no validity at all in the eye of law and it cannot be treated as a document executed with the intention to show that there was an agreement or some arrangement between the parties to settle the dispute of the firm run by Susamma thomas and the second defendant at any point of time and that the document would supersede Ext.A1.
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binding on them. It is well settled that when fraud is alleged regarding the execution of a document so as to avoid the same, definitely materials and evidence must be there. Under the law, it is
absolutely necessary to plead fraud specifically and give particulars of the fraud. The burden of proof is on the person who alleges fraud, which should be proved by direct cogent evidence. Mere assertion by the defendants without any material to show that the document is vitiated by fraud or misrepresentation, are not all sufficient to discard or reject the agreement. In the absence of specific pleadings and evidence regarding the fraud
played by the plaintiff to get Ext.A1 sale agreement, it could only be treated as a genuine document. There is also difference between fraud and misrepresentation. Fraud as defined in Section
17 of the Indian contract Act is an act done to deceive the other party, but misrepresentation as
defined in Section 18 is a bonafide representation
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believing it to be true which turns out to be
untrue. To discard a document as vitiated by fraud
or misrepresentation and to hold it as void,
definite and specific pleadings and stringent standards of evidence must be there, which is
quite lacking in this case. Conjectures and
suspicions cannot take the place of proof. Mere assertion by the party without any material to
support is not all sufficient to arrive at a conclusion of fraud or misrepresentation but material had to be placed and evidence had to be led by the party alleging the same to avoid a contract. (See State of Kerala and another v. M.A.Mathai [(2007) 10 SCC 195)].
Procedure makes it clear that the pleadings must be specific with material facts on which the party
relies on. The particulars regarding fraud, undue influence, misrepresentation etc must be pleaded
and established by positive and tangible evidence.
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All those aspects are quite lacking in the pleadings as well in evidence in this case.
must be materials to rescind a contract and mere assertion by party is not at all sufficient. It is further held that a heavy duty lies upon the party who seeks to avoid a contract on the ground of misrepresentation, fraud or coercion to prove any such allegation.
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unable to disprove the testimony of PW2 who fully supported the evidence of the plaintiff that the execution of the agreement was for sale of the property and not for any other purpose. The defendants does not deny their signatures on the agreement to sell the suit property but takes the
plea that it was only an agreement to pay Rs.6,00,000/- to the plaintiff's wife and the plaintiff fabricated it as a sale agreement. But they took no action against the plaintiff till date. It is pertinent to note that the first defendant as DW1 has admitted that the second attesting witness of the document was none other than the son of her sister Meenakshi. He was in
military service and at present working as a supervisor in a private firm at Kozhenchery. The fact that Sasidharan Nair the second witness is
a close relative of the defendants was not
mentioned in the written statement and she had to admit the said fact only in cross examination. The
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non examination of him by the defendants itself is a ground to show that the document was executed without any fraud, coercion or misrepresentation on the side of the plaintiff. If the document was obtained by exerting pressure on the defendants or misrepresenting the facts, the defendants ought to have examined him as a witness before the court to establish their case. When the document was signed by him as an attesting witness it could correctly be presumed that he stood as an attesting witness as requested by the defendants. It is also pertinent to note that all the defendants are educated persons. In this background their case that they have signed the document without knowing its content appears to be quite unbelievable and it
would show that such a contention was raised as an attempt to avoid the contract. Therefore, the failure to examine one of the attesting witness from their side is fatal to their case. In the
absence of definite pleadings and reliable evidence
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that Ext.A1 was executed by playing fraud, coercion or misrepresentation, I find that Ext.A1 document was voluntarily executed by the defendants in favour of the plaintiff with the intention to alienate the property.
only Rs.1 lakh. PW1 had proved the agreement to sell the property by tangible evidence and also proved the fact that he was always ready and
willing to perform his part of the obligations. Of course it has come out in evidence that the
defendants have not obtained any power of attorney from the fourth defendant though she was employed abroad. But her absence is not sufficient to show
that Ext.A1 is an incomplete or in executable document.
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that the plaintiff has no source of income or funds with him to pay the advance amount or the balance sale consideration as per the terms of the contract. The plaintiff was employed abroad and it has come out in evidence that as he has to proceed to Saudi Arabia in connection with his job, he has entrusted his wife to get the document executed in
his favour by paying the balance sale consideration. When the evidence on record is evaluated, it could be seen that the plaintiff had entered into the agreement with the defendant to purchase the property of all the defendants. But
the court below has not granted a decree for specific performance of contract of the entire property owned by the defendants. As the fourth
defendant was abroad, and she could not contest the matter the court below had excluded her share from
the sale and a decree for performance of sale was granted with respect to the shares of defendants 1
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to 3 alone. As it has come out in evidence that Ext.B1 document is not a valid or genuine one, so as to discard Ext.A1, the argument raised by the contesting defendants that the execution of Ext.B1 would supersede Ext.A1 is not legally supported by evidence. Moreover the evidence of DW1 is not at all sufficient to prove the execution of Ext.B1 and in fact DW3 has not supported the execution of the agreement.
to prove fraud or misrepresentation could be easily
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discharged. A party alleging fraud or
misrepresentation must prove the same by cogent
evidence as law does not envisage raising of a presumption in favour of fraud or
misrepresentation. As referred above the parties are not illiterate but on the other hand are well educated. Their case that they simply affixed their signature in Ext. A1 without knowing the contents is an unbelievable story. The true intention of the parties could be gathered from the language employed in the document itself. Moreover the fact
that Ext.B1 was not executed in presence of DW2 stares against the case of the defendants. There is nothing on record to indicate that the original of
Ext.B1 was with DW2, Susamma Thomas so as to apply
Section 65 of the Evidence Act in favour of the defendants. As per Section 61 of the Evidence Act,
the contents of a document are supposed to be
proved either by primary or by secondary evidence. Primary evidence is the document itself. Existence
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of such document has not been proved by the defendants. Though the wife of the plaintiff when examined as DW2 denied of having executed such a document, the defendants have not cared to examine any witness in support of its execution. DW3 though admitted of having transaction with A&T investments has not deposed that Susamma Thomas had affixed her signature in the original of Ext B1 and he has no case that he had verified the assets of the business. But according to him, he has neither seen the original of Ext.B1 nor signed the same. He has also no case that the copy of the document was handed over to the first defendant. As stated by DW3 he has only signed a document as a photo copy and therefore no agreement was executed so as to supersede Ext.A1. It has to bear in mind that DW3
has filed a case against A&T investments in connection with certain money transaction, but
there is no material on record to show that his
transaction had any connection with the agreement
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of sale of the suit property between the plaintiff and the defendants. Therefore, his transaction was not in relation with the sale of the suit property as it was an agreement between the plaintiff and the defendants. The defendants failed to bring the original of Ext.B1 on record and thus took the frivolous plea that the same superseded Ext.A1.
dismissal. Therefore, I hereby confirm the decree and judgment rendered by the court below.
In the result, the appeal is dismissed. Parties
shall bear their respective Costs.
SHIRCY V JUDGE
smm
3 issues framed by the court
Whether the agreement to sell was vitiated by fraud or coercion requiring specific performance to be denied.
Whether a subsequent purported agreement superseding the main agreement was validly executed.
Whether specific performance should be granted despite one co-owner being absent.
Colour shows how this judgement treated each authority
State of Kerala and another v. M.A.MathaiReferred¶12
[(2007) 10 SCC 195] · Who else cites this
Alva Aluminium Ltd, Bangkok v. Gabriel India LtdRelied on¶14
[(2011) 1 SCC 167] · Who else cites this
4 provisions across 3 enactments
Ponnamma
Mangalam
Thomas Thomas
Adithya Kumar K.C.
Shircy V
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
