Allowed

Sheeja v. K.Gopalakrishna Pillai

Kerala HC19 Jul 2022RFA/352/2005

Case brief

AI extract

What is this about?

Appeals filed against a decree for specific performance based on an alleged sale agreement. The High Court found no evidence to prove the source of the advance payment for the later agreement and noted the property was already sold under an earlier agreement. The appeals were allowed, the decree was set aside, and the suit dismissed.

What did the court decide?

Decree and judgment of the trial court set aside. Both appeals allowed. Suit dismissed by this court.

Sheeja Vs K.Gopalakrishna Pillai — Specific Performance | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

TUESDAY, THE 19^TH DAY OF JULY 2022 / 28TH ASHADHA, 1944

¶5

RFA NO. 352 OF 2005

¶6

AGAINST THE DECREE & JUDGMENT DATED 25/03/2004 IN OS 563/1993 OF

¶7

PRINCIPAL SUB COURT, KOLLAM

¶8

APPELLANT/1ST DEFENDANT:

¶9

SHEEJA D/O PARAMESWARA PILLAI, AGED 33 YEARS, PADMAVILASATHU,, VADAKKUMKARA KIZHAKKE CHERRY, MAYYANAD.

¶10

BY ADVS. V.JAYAPRADEEP O.A.NURIYA

¶11

RESPONDENT/PLAINTIFF & 2ND DEFENDANT:

¶12

1 K.GOPALAKRISHNA PILLAI, AGED 67 YEARS S/O. RAMAN PILLAI, LALITHA BHAVAN,, KISHAKKEKKARA, KOTTARAKKARA,, KOTTARAKKARA VILLAGE.

¶13

2 RAJENDRAN PILLAI ALIAS RAJAN AGED 43 YEARS, S/O. SIVARAMA PILLAI, SASIVILASAM VEEDU, VADKKUMKARA KIZHAKKE CHERRY,, MAYYANAD VILLAGE.

¶14

BY ADVS. SRI.SAJI.P.JOSEPH FOR R1 LEGY ABRAHAM FOR R2

¶15

THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 19.07.2022, ALONG WITH RFA.465/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

RFA 352 & 465 of 2005

¶17

¶18

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶19

PRESENT

¶20

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶21

TUESDAY, THE 19^TH DAY OF JULY 2022 / 28TH ASHADHA, 1944

¶22

RFA NO. 465 OF 2005

¶23

AGAINST THE DECREE & JUDGMENT DATED 25/03/2004 IN OS 563/1993 OF PRINCIPAL SUB COURT, KOLLAM

¶24

APPELLANT/2ND DEFENDANT:

¶25

RAJENDRAN PILLAI

¶26

AGED 45 YEARS, S/O.SIVARAMA PILLAI, SASIVILASAM VEEDU, VADAKKUMKARA KIZHAKKE CHERRY, MAYYANAD VILLAGE.

¶27

BY ADV SRI.LEGY ABRAHAM

¶28

RESPONDENTS/PLAINTIFF & 1ST DEFENDANT:

¶29

1 K.GOPALAKRISHNA PILLAI AGED 67 YEARS, S/O.RAMAN PILLAI, LALITHA BHAVAN, KISHAKKEKKARA, KOTTARAKKARA, KOTTARAKKARA VILLAGE.

¶30

2 SHEEJA D/O.PARAMESWARA PILLAI AGED 33 YEARS, PADMAVILASATHU, VADAKKUMKARA, KIZHAKKE CHERRY, MAYYANAD.

¶31

BY ADVS. SRI.SAJI.P.JOSEPH FOR R1 SRI.V.JAYAPRADEEP FOR R2 SRI.ANU SUSAN GEORGE FOR R2

¶32

THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 19.07.2022, ALONG WITH RFA.352/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶33

RFA 352 & 465 of 2005

¶34

¶35

JUDGMENT

¶36

The decree granted by the trial court for specific

¶37

performance is brought under challenge by the defendants mainly on the reason that the trial court has overlooked all the settled principles governing the due execution of a contract and also the entitlement of specific performance. Ext.A1 is the alleged contract for sale dated 7/7/1993. The agreed

¶38

sale consideration comes to Rs.3,00,000/-, out of which Rs.2,90,000/- was paid in advance. The second defendant is the person who had purchased the property prior to the institution of the suit based on an earlier contract for sale Ext.B1 dated 9.6.1993. In order to prove the due execution of Ext.A1 contract

¶39

for sale and receipt of the advance amount of

¶40

Rs.2,90,000/-, PW2 and PW3 were examined by the plaintiff. PW2 while in the box has admitted that on receipt of summons, he met with the plaintiff and

¶41

collected information regarding the due execution of the alleged contract including the date on which it was executed. It was also noticed by the learned

¶42

RFA 352 & 465 of 2005

¶43

¶44

Munsiff that during his examination, he had taken a scrap of paper from his pocket in order to verify the date of execution of the agreement as deposed by him. The admission made by him during his examination would sufficiently show that he is an interested witness and he had contacted with the plaintiff and collected information before giving direct evidence before the court. Hence, no reliance can be placed on the oral evidence tendered by PW2. Regarding PW3, inconsistent versions were given regarding payment of advance amount. No satisfactory or acceptable evidence was adduced by the plaintiff in order to show the source of advance amount which comes to Rs.2,90,000/-. The entire entries during the relevant period would show

¶45

that all transactions are below Rs.25,000/-. Yet

¶46

another document, Ext.B8 was also produced to show the source of amount. It is pertaining to grant of PF

¶47

loan which comes to Rs.62,000/-. Even going by

¶48

Ext.B8, it is clear that he had received the said amount in piecemeal during the period 1990-1991 and not pertaining to the period in which Ext.A1 agreement was executed in the year 1993. In fact, no acceptable

¶49

RFA 352 & 465 of 2005

¶50

¶51

or plausible evidence was adduced by the plaintiff to

¶52

show atleast his capacity to collect such a huge amount during the relevant period. He is a retired servant depending on the pension amount for his

¶53

livelihood.

¶54

Further, the property was already sold prior

¶55

to the institution of the suit based on an earlier

¶56

agreement for sale. The contract, Ext.A1 is a subsequent one. Defendant No.2 is the bonafide

¶57

purchaser without noticing the existence of any

¶58

contract as on the date of Ext.B1. Though the defendant tried to advance a case that it is a forged

¶59

one, no evidence worth the name was tendered in that behalf. On the other hand, the earlier agreement - Ext.B1 was acted upon subsequently by executing a sale

¶60

deed in favour of the second defendant, that too, prior to the institution of the suit for specific performance of the contract. Hence, no liability can

¶61

be fastened against the second defendant. The

¶62

impleadment of the second defendant in the suit is really unwarranted when Ext . B4 sale deed was executed

¶63

RFA 352 & 465 of 2005

¶64

¶65

in furtherance of an earlier contract for sale. So the

¶66

suit is liable to be dismissed as against the 2^nd

¶67

defendant who is the present owner of the property in question.

¶68

In so far as the advance amount paid, in fact, no

¶69

evidence was adduced except what is stated in Ext.A1 agreement and as regards the source of amount, no acceptable evidence was adduced by the plaintiff in

¶70

that behalf. On the other hand, Ext.A1 agreement is a

¶71

forged one and no reliance can be placed on it especially when there is no source of such an huge amount of Rs.2,90,000/-. Hence, the decree and

¶72

judgment of the trial court will stand set aside. The suit will stand dismissed by allowing both appeals. No costs.

¶73

Sd/-

¶74

P.SOMARAJAN

¶75

Sheeja v. K.Gopalakrishna Pillai

Case brief

What is this about?

What did the court decide?

Sheeja v. K.Gopalakrishna Pillai

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Subhash Vasu Vs Sree Gurudeva Charitable and Educational Trust

Deepa K.Kartha Vs Thulasilekshmi Ammal

Thulasilekshmi Ammal Vs Deepa.K Kartha

Rajendran Pillai Vs K.Gopalakrishna Pillai

Moosa Vs Veeran Haji

Suseelan Vs Vijayakumar