Partly allowed

M.P.James v. Rajeswari

Kerala HC6 Oct 2021RFA/128/2011

Case brief

AI extract

What is this about?

In this first regular appeal, the High Court noted that the claim to set aside a sale deed was barred by limitation. The Court held that under Section 54 of the Transfer of Property Act, delivery of possession is not necessary for a valid sale of immovable property. The Court set aside the award of Rs.2,000 as it lacked evidentiary support.

What did the court decide?

Appeal allowed in part; direction to pay Rs.2,000 for use and occupation deleted. Court fee to be paid in one month.

M.P.James Vs Rajeswari — Contract and Commercial Disputes | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943

¶5

RFA (INDIGENT) NO. 128 OF 2011
AGAINST THE JUDGMENT AND DECREE DATED 30/07/2009 IN OS 962/2007 OF
II ADDITIONAL SUB COURT,ERNAKULAM

¶6

APPELLANT IN R.F.A-PLAINTIFF IN SUIT:

¶7

M.P.JAMES, S/O PAILY, MANPURACKAL HOUSE, THUTHIYOOR
KARA, VAZHAKKALA VILLAGE, KANAYANNUR TALUK, KAKKANADU
P.O., ERNAKULAM DISTRICT, COCHIN - 682 030.

¶8

BY ADVS.
P.B.KRISHNAN
SRI.N.AJITH
SMT.GEETHA P.MENON
SRI.R.SURAJ KUMAR
SRI.P.M.NEELAKANDAN

¶9

RESPONDENTS IN RFA-DEFENANTS IN SUIT:

¶10

1 RAJESWARI, W/O SANGAMESWARAN, PULIKKATTU THUNDIYIL, MARADU DESOM, MARADU VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, COCHIN - 682 304.

¶11

2 N.K.SASIDHARAN, S/O N.A. KUTTAPPAN, NALOTHUKUDY HOUSE, IRINGOLE KARA, PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, IRINGOLE P.O., PIN-683 548, ERNAKULAM DISTRICT.

¶12

3 PETER SELESTINE,S/O B.P. SELESTINE, BALUMMEL HOUSE, KANNAMALI P.O., CHELLANAM KARA, KUMBALANGI VILLAGE, KOCHI TALUK, ERNAKULAM DISTIRCT.

¶13

4 C.K. ANTONY, S/O KAKKI, CHOOLACKAL HOUSE, PANANGAD P.O., PANANGAD DESOM, KUMBALAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

¶14

5 MUHAMMED MATHER, S/O. ABDULLA MATHER, KAKKANATTIL HOUSE, NO.65, EASTERN VILLAS, KOCHI-37, KAKKANADU KARA, KAKKANADU VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

¶15

R1 and R2 BY ADVS. SRI.P.SANTHALINGAM (SR.)

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 SMT.C.K.SHERIN

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R3 to R5 BY ADVS. SRI.P.MURALEEDHARAN IRIMPANAM

¶18

 SRI.S.EASWARAN
SMT.HEMALATHA (ADVOCATE COMMISSIONER)

¶19

THIS REGULAR FIRST APPEAL HAVING COME UP FOR ORDERS ON
06.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶20

R.F.A(INDIGENT) 128 OF 2011 2

¶21

JUDGMENT

¶22

A suit for declaration challenging Ext.A2 sale
deed and subsequent sale deeds Exts.A3 to A7 was
dismissed by the trial court, against which this
appeal.

¶23

2. Ext.A2 sale deed was challenged on the ground
that it is only a sham document and never came into
effect as it was executed in connection with a loan
transaction by way of security and as such, the
subsequent sale deeds Exts.A3 to A7 are null and
void. There is no relief sought in the plaint for
setting aside Ext.A2 sale deed on any vitiating
ground presumably on the reason that it would stand
barred by limitation by the lapse of more than three
years from the date of its execution. The only
ground raised is that the said document was executed
by way of security in connection with a loan
transaction and what is stated in the document by
way of sale consideration which comes to
Rs.1,00,000/- is not the actual value of the

¶24

R.F.A(INDIGENT) 128 OF 2011 3

¶25

property, for which, Exts.A24 and A25 documents and
oral evidence of PW8 were relied on. The due
execution of Exts.A3 to A7 documents would certainly
show that the buyer of the property under Ext.A2 had
exercised his ownership and right of alienation over
the property. This would take away the very case
advanced by the plaintiff that it was executed only
as a sham document. On the other hand, the
plaintiff has admitted that the sale deed was
executed after receiving the sale consideration
stated in the document, but it was only a loan
transaction, for which, necessarily, the suit must
be within a period of three years to set aside the
document on such vitiating ground. Regarding the
notice as far as executant is concerned, it would
start from the moment of its execution and the
plaintiff cannot plead ignorance about the content
of the document after the lapse of limitation
period, once the document was executed and
registered in accordance with the law in force,
Any wilful laches or gross negligence which the
plaintiff ought to have been done with respect to

¶26

R.F.A(INDIGENT) 128 OF 2011 4

¶27

the content of the registered document would also
amount to notice of its content under Section 3 of
Transfer of Property Act within the sweep of
definition “when a person is said to have notice”.

¶28

3. A counter claim was also raised for recovery
of possession, which would prima facie show that the
plaintiff is in possession of the property, but
according to the defendants, it is based on an
arrangement. In order to effect a valid sale of
immovable property under Section 54 of the Transfer
of Property Act, it is not at all necessary to
deliver possession.

¶29

4. An amount of Rs.2,000/- was fixed by the

¶30

trial court as damages for use and occupation
against the plaintiff while ordering recovery of
possession based on the counter claim raised, for
which, no evidence was adduced by either of the
parties. The court below simply allowed the same as
it was the amount claimed by the defendants without
the support of any evidence worth the name, hence
the same is liable to the set aside. I do so.

¶31

R.F.A(INDIGENT) 128 OF 2011 5

¶32

Hence, the appeal will stand allowed in part by
modifying the decree of the trial court deleting the
direction to pay Rs.2,000/- on account of damage for
use and occupation.

¶33

Since the appeal was instituted as an indigent
person, the plaintiff shall pay the court fee within
one month, failing which the decree shall be
forwarded to the District Collector under Rule 13 of
Order XXXIII C.P.C. for its recovery.

¶34

Sd/-

¶35

P.SOMARAJAN

¶36

JUDGE

¶37

msp

M.P.James v. Rajeswari

Case brief

What is this about?

What did the court decide?

M.P.James v. Rajeswari

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

Coram

Case details

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