This appeal was filed against the dismissal of a suit for specific performance of an agreement to sell property. The High Court affirmed the lower court's findings, holding that the Plaintiff's case was improbable and unbelievable despite the relationship between the parties. The appeal was dismissed with no merit found.
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 P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 8TH DAY OF MARCH 2022 / 17TH PHALGUNA, 1943
RFA NO. 65 OF 2013
AGAINST THE JUDGMENT AND DECREE DTD 22/8/2012 IN OS 198/2011 OF
II ADDITIONAL SUB COURT, ERNAKULAM
APPELLANT/PLAINTIFF:
SUSHEEL SULAIMAN AGED 38 YEARS, S/O.LATE MUHAMMED SULAIMAN, FLAT NO.12B, DD WEST WIND, NEAR LISSIE HOSPITAL, ERNAKULAM. BY ADVS.SRI.A.T.ANILKUMAR SMT.V.SHYLAJA
RESPONDENTS/DEFENDANT:
PERMANENT ADDRESS.
SUDHEER SULAIMAN, AGED 43 YEARS, S/O.MUHAMMED SULAIMAN, PRASANNA VIHAR, FLAT NO.009, MARINE DRIVE, KOCHI – 31. LEGAL HEIR OF DECEASED 1ST RESPONDENT IS IMPLEADED AS ADDL.R2 VIDE ORDER DT.18/1/2016 IN IA 989/15. BY ADVS.SRI.ASHOK B.SHENOY P.N.RAJAGOPALAN NAIR K.V.GEORGE P.S.GIREESH RIYAL DEVASSY
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 25.2.2022, THE COURT ON 08.03.2022 DELIVERED THE FOLLOWING:
R.F.A.No.65 of 2013
-2-
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
R.F.A.No.65 of 2013
Dated this the 8 th day of March, 2022
J U D G M E N T
C.S.Sudha, J.
This is an appeal filed against the judgment and decree dated
22/08/2012 in O.S.No.198/2011 on the file of the Subordinate Judge's
Court, Ernakulam. The suit is one for specific performance or in the alternative return of advance money with interest and costs from the defendant and her assets. The suit has been dismissed by the court below. Aggrieved, the plaintiff has filed the present appeal. The defendant in the suit is the respondent herein. During the pendency of the appeal, the respondent passed away and hence the additional second respondent has been impleaded as her legal representative. The parties in this appeal will be referred to as described in the suit.
per which the defendant agreed to sell and the plaintiff agreed to purchase
R.F.A.No.65 of 2013
-3-
the plaint A and B schedule property for a total sale consideration of ₹ 48 lakhs, i.e., ₹ 34 lakhs for the flat and ₹ 14 lakhs for the shop room. Out of the total sale consideration, an amount of 24,90,000/- was paid directly₹ to the defendant. The same has been mentioned in Ext.A1 agreement also. In addition to the recital in Ext.A1, Ext.A2 receipt dated 23/05/2008 was also issued by the defendant to evidence the receipt of the amount. An amount of ₹ 2,10,000/- was paid by way of cheque bearing no.222063 drawn on the Union Bank, Marine Drive Branch. It was agreed that out of the balance sale consideration, ₹ 21 lakhs would be deposited by the plaintiff in the Union Bank, Marine Drive Branch, to clear the loan liability outstanding on the plaint A schedule flat, which loan had been availed by the defendant. The balance amount of ₹ 1 lakh was agreed to be paid directly. It was also agreed that the defendant and her husband - the father of the plaintiff, would have life interest in the property and that the rent derived from plaint B schedule shop room would be collected by the defendant till her demise. The parties also agreed that the plaintiff would get absolute right over the property only after the demise of his parents. The sale deed was agreed to be executed before 24/01/2010 after accepting the balance sale consideration. On 24/12/2008 the plaintiff paid an amount of
R.F.A.No.65 of 2013
-4-
₹ 75,000/- for which receipt has been issued by the defendant. On 19/01/2010 the plaintiff cleared the loan liability outstanding on the plaint A schedule flat which is evidenced by Ext.A5 receipt. Necessary endorsement to the said effect has been made by the defendant on the reverse side of Ext.A5 also. In Ext.A5 the defendant has stated that the balance sale consideration that remains to be paid by the defendant is 25,000/- only.₹ The defendant was not in station and hence the period of agreement was extended till 31/03/2010. The plaintiff though requested the defendant several times to execute the sale deed, she is refusing to do so after having received 47,75,000/- towards the sale consideration. Only an amount of₹ ₹ 25,000/- remains to be paid. The plaintiff was always ready and willing to perform his part of the contract. The defendant is refusing to perform her part of the contract. Hence the suit.
R.F.A.No.65 of 2013
-5-
plaintiff, who was laid up due to serious ailments. He had kidney failure, requiring lifesaving dialysis on a regular basis. The said period was quite traumatic for the defendant, who had only the plaintiff, her son, to help her in all her needs including the treatment of her husband. During this period, the defendant was made to sign in several blank papers by the plaintiff under the guise that they were required for the treatment of her husband. The defendant was completely dependent on her son, a very short-tempered person and also a person with criminal background. In such circumstances, she was compelled to obey all what he said, lest he refused to help her in the treatment of her husband. The blank signed papers obtained from her, have been forged and fabricated into Ext.A1 agreement. The property was purchased by her husband in her name and there was never any occasion for her to agree to sell the property to her son, who would any way get one half right in the property on her demise. The plaintiff wanted to start a printing press for which he wanted money. As the defendant and her husband did not have the necessary resources/funds, they agreed to mortgage the plaint A schedule flat for raising the necessary finance. As the plaint A schedule is in the name of the defendant, the loan was availed in her name. The entire loan amount of 20 lakhs was utilised by the plaintiff for his printing press. The₹
R.F.A.No.65 of 2013
-6-
said amount of 20 lakhs and much more was given by the defendant to the₹ plaintiff by way of cheques. The loan was defaulted by the plaintiff. There reached a stage when the bank started taking steps to take possession of the flat. After much persuasion, the plaintiff repaid the loan amount of ₹ 20 lakhs. When he repaid the loan amount, he made her issue Ext.A2 receipt which has got nothing to do with the fictitious sale agreement produced in this case. Ext.A2 receipt was given by the defendant as insisted by the plaintiff on the ground that he wanted proof, in the event of the other members in the family raising dispute regarding the repayment of the loan amount. Thereafter on several occasions the plaintiff deposited money in the defendant's account and later on he obtained cheques for the amounts deposited in her account. After the demise of the defendant, the plaintiff is entitled to one half right in the property. In such circumstances it is improbable and unbelievable that he would pay the market price for the entire property and wait till the demise of the defendant to obtain absolute right over the property. The plaintiff obtained possession of plaint B schedule shop room by playing fraud on her. He had obtained possession of the keys by misleading and misrepresenting that he had to remove some furniture from the shop room. Thereafter he filed a suit claiming possession
R.F.A.No.65 of 2013
-7-
and for injunction against forcible eviction. On several occasions, money was borrowed by the plaintiff and when he returned the same, he would insist for receipts, which have now been used in support of his false case.
were framed by the court below. On the side of the plaintiff, PW1 was examined and Exts.A1 to A10 documents were marked. Dws.1 and 2 were examined and Exts.B1 to B7(a) were marked on the side of the defendant.
also hearing both sides, the court below dismissed the suit finding that the case put forward by the plaintiff is improbable and unbelievable.
appellant.
is whether there is any infirmity in the findings of the court below.
that the court below was completely prejudiced and has taken a one-sided
view, turning a blind eye to the circumstances and the documents produced by the plaintiff to substantiate his case. The court below was carried away
by the relationship between the parties and under the mistaken belief that
R.F.A.No.65 of 2013
-8-
the defendant is a hapless mother and an old lady, believed her story and totally ignored the case of the plaintiff. The findings were arrived at on a complete misappreciation of the oral and documentary evidence on record. The court below was unnecessarily moved by the tears of the defendant in the box and took a prejudiced stand against the plaintiff. The inability of the plaintiff to explain how his mother had spent the sale consideration given by him was found fault with by the court below. This was pointed out as another major flaw committed by the court below. Hence the learned counsel for the plaintiff/appellant canvassed for a reversal of the judgment and decree of the court below.
plaintiff and defendant who were examined before the court below as PW1 and DW1 respectively. The court below is seen to have meticulously and in depth gone through the oral and documentary evidence before arriving at its conclusion. The court below has pointed out the circumstances borne out from the oral and documentary evidence to disbelieve the case of the plaintiff. It is true that the court below has noted/recorded the demeanor of the defendant in the box when she burst into tears when questioned about
Ext.A1 agreement. But that is not the sole consideration or circumstance for
R.F.A.No.65 of 2013
-9-
the court to come to its conclusion. Each and every allegation of the plaintiff and the contentions raised by the defendant in reply to the same, have been considered in detail with reference to the oral and documentary evidence adduced by both sides to arrive at its conclusion. The transactions evidenced by the entries in the passbooks produced by both sides have also been examined in detail, discussed and conclusions arrived at.
10. It is true that the court below has found fault with the
plaintiff for being unable to explain how the defendant had spent the sale consideration, which he is alleged to have given to her. But that again is not the sole ground for the court below to arrive at its conclusion. The court below has made it clear that normally the plaintiff cannot be expected or required to explain how the amount received towards the sale consideration was spent. However, in this case the defendant is none other than the mother of the plaintiff and at the relevant time, both parties were staying together and so in such circumstances, the court held that the plaintiff would in all probability know how she had spent the amount of 48 lakhs which he is₹ supposed to have given her towards the sale consideration. That is only one among the various other circumstances that was found against the plaintiff by the court below and not the sole ground. We do not intend to repeat each
R.F.A.No.65 of 2013
-10-
and every allegation and counter allegation of the parties because the same have been dealt with in detail and conclusions arrived at by the court below after appreciating the oral and documentary evidence adduced in the case.
We do not find any infirmity in the said findings warranting an interference by this Court.
In the result, the appeal is found to be without any merits and hence the same is dismissed.
All interlocutory applications, if any pending, shall stand
disposed of.
Sd/-
P.B.SURESH KUMAR
JUDGE
Sd/-
C.S.SUDHA JUDGE
ami/
3 issues framed by the court
whether there is any infirmity in the findings of the court below dismissing the suit for specific performance.
whether the Plaintiff's case regarding the sale agreement is probable and believable given the evidence.
whether the lower court was prejudiced or misappreciated the oral and documentary evidence.
1 provisions across 1 enactments
SUSHEEL SULAIMAN
SELMA SULAIMAN
SUDHEER SULAIMAN
P.B.SURESH KUMAR
C.S.SUDHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
