Dismissed

Kayakkal Kanoth Soumini (Died) v. P.Ramachandran (Died)

Kerala HC19 Mar 2024RFA/267/2005

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an appeal against a trial court decree upholding a sale deed. The appellants argued it was executed to secure a loan, but the court rejected this, finding the trial court's observation that it was a genuine sale deed was supported by evidence and witness conduct.

What did the court decide?

The appeal was dismissed; the trial court's decree upholding the sale deed was affirmed.

Kayakkal Kanoth Soumini (Died) Vs P.Ramachandran (Died) — Property and Title | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SATHISH NINAN

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THURSDAY, THE 21^ST DAY OF MARCH 2024 / 1ST CHAITHRA, 1946

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RFA NO. 267 OF 2005

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AGAINST THE DECREE AND JUDGMENT DATED 29.09.2004 IN OS NO.255 OF 2001 OF PRINCIPAL SUB COURT, THALASSERY

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APPELLANTS/PLAINTIFFS:

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1 KAYAKKAL KANOTH SOUMINI (DIED; LRs RECORDED)*¹ D/O.CHEYA, AGED 84 YEARS, RESIDING AT THE UPSTAIR PORTION OF KANOTH, HOUSE, NEAR D.C.C. OFFICE, TALAP, KANNUR.

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2 ALAKKADAN KANOTH SHYLAJA, (DIED)*^{1 (a)} D/O.LATE LEELA, AGED 55 YEARS, TEACHER, RESIDING AT GROUND FLOOR OF KANOTH HOUSE, NEAR D.C.C. OFFICE, THANA, KANNUR.

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*****¹ ADDL. APPELLANTS A3 TO A5

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ADDL.A3 C.N.VIMALAN, “DEVIKRIPA”, H.No.12/90, KTRA 45 A, KUREEKAD ERUVELI ROAD, P.O. KUREEKAD-682305.

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ADDL.A4 C.V.NITHA, “DEVIKRIPA”, HOUSE NO.12/90, KTRA 45 A, KUREEKAD ERUVELI ROAD, P.O. KUREEKAD-682305.

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ADDL.A5 C.V.HITHA, “DEVIKRIPA”, HOUSE NO.12/90, KTRA 45 A, KUREEKAD ERUVELI ROAD, P.O. KUREEKAD-682305.

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*****¹ [IT IS RECORDED THAT THE 1ST APPELLANT DIED AND THE DECEASED 2ND APPELLANT AND ADDL. APPELLANTS 4 AND 5 ARE THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST APPELLANT VIDE ORDER DATED 17.10.2013 IN IA 2034/13]

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*****^{1 (a)} [THE LEGAL HEIRS OF THE DECEASED 2ND APPELLANT ARE IMLEADED AS ADDL. APPELLANTS 3 TO 5 VIDE ORDER DATED 17.10.2013 IN IA 783/11]

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BY ADV SRI.MILLU DANDAPANI

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RFA NO. 267 OF 2005 -2-

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RESPONDENT/DEFENDANT:

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**1 P.RAMACHANDRAN (DIED; LRs IMPLEADED) ***³ S/O MOHANANDAN, AGED 42 YEARS, PONNAI HOUSE, PALLIKUNNU P.O., KANNUR.

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*****² SUPPLEMENTAL RESPONDENT NOS.2 & 3

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SUPPL.R2 NOUSHAD, S/O.MOHAMMEDALI, RESIDING AT 'AYISHAS', THAYATHERU, KANNUR MUNICIPALITY, KANNUR AMSOM, DESOM,P.O.CIVIL STATION, KANNUR 670 002.

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SUPPL.R3 FAISAL KASIM,

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S/O.KASIM RESIDING AT FAISAL MANZIL, TALIPARAMBA TALUK, NEAR DSC GROUND IRIKKOR PANCHAYAT, IRIKKOR AMSOM DESOM, P.O.IRIKKOR 670593.

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*****² [SUPPLEMENTAL RESPONDENTS 2 AND 3 ARE IMPLEADED VIDE ORDER DATED 1/12/17 IN IA 180/15.]

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*****³ ADDITIONAL RESPONDENT NOS.4 TO 8 IMPLEADED

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ADDL.R4 VINU THALAVAN, RESIDING AT PONNAYI HOUSE, PALLIKKUNNU P.O., KANNUR 670 004.

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ADDL.R5 RADHA, RESIDING AT PONNAYI HOUSE, PALLIKKUNNU P.O., KANNUR-670004.

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ADDL.R6 SEETHA, RESIDING AT PONNAYI HOUSE, PALIKKUNNU P.O., KANNUR-670004.

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ADDL.R7 GOURI, RESIDING AT PONNAYI HOUSE, PALLIKKUNNU P.O., KANNUR-670004.

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RFA NO. 267 OF 2005 -3-

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ADDL.R8 SHYLA, RESIDING AT PONNAYI HOUSE, PALLIKKUNNU P.O., KANNUR-670004.

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*****³ [LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL. R4 TO R8 VIDE ORDER DATED 09/12/2022 IN IA 2157/2017]

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BY ADVS. MUBASHIRALI - R2 AND R3 P.U.SHAILAJAN M.SURESH KUMAR VIDYA KURIAKOSE SREEJITH V.

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 21.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = R.F.A. No.267 of 2005

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= = = = = = = = = = = = = = = = = = Dated this the 21^st day of March, 2024

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The suit for cancellation of Ext.A4 Sale Deed, was

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dismissed by the trial court. The plaintiffs are in appeal.

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The first plaintiff is the mother and the second plaintiff is her sister's daughter. According to the plaintiffs, the defendant is a financier. In the year 1999, the plaintiffs sought a loan of ₹ 50,000/- from the defendant. The defendant agreed to grant the same on securing the debt. He wanted a registered document to be executed in the said regard. Therefore, Ext.A4 was executed in respect of the plaint schedule property to secure the debt. It was only subsequently that it was realised that the document is in the nature of a sale deed. Thereupon the suit was filed.

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R.F.A. No.267 of 2005

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-: 2 :-

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The defendant denied the allegations and

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contended that Ext.A4 was intended to be and was an

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outright sale.

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The trial court upheld Ext.A4 Sale Deed.

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I have heard learned counsel on either side.

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The point that arises for determination is :-

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“Is the finding of the trial court that Ext.A4 document was

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executed by the plaintiffs intending it to be a sale deed, supported by the materials on record ?”

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The plaintiffs' plea is one of non est factum . The

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first plaintiff was a former Supervisor in the Department of Telecom. The second plaintiff is a retired teacher. When persons having such qualifications urge a

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plea of non est factum , that the document is not what it was intended to be, the burden is very heavy upon them to prove the contention.

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Though it is the plaintiffs' case that Ext.A4

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was executed to secure the amount to be advanced by the

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R.F.A. No.267 of 2005

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-: 3 :-

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defendant, it is their case that the defendant did not advance the amount. Ext.A4 registered document was executed on 04.11.1999 intending to secure a loan to be advanced. Though the plaintiffs allege that the defendant refused to advance the amount in spite of execution of Ext.A4 document, they did not initiate any steps against the defendant in the said regard. Even the suit is filed only on 27.11.2001. The conduct on the part of the plaintiffs in having executed a registered document to secure a loan to be advanced and keeping mum for a period of more than two years in spite of alleged non-advancing of the loan amount, speaks volumes against

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the genuineness of the plaintiffs' contention.

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PW1 has admitted that, after execution of Ext.A4

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they have not paid tax for the property. Ext.A4 is only in respect of five cents out of a larger extent of 25 cents. On 02.01.2001 the defendant had issued Ext.B2 notice to the plaintiffs referring to Ext.A4 Sale Deed

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R.F.A. No.267 of 2005

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-: 4 :-

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and requiring the plaintiffs to clear off the mortgage liability subsisting over the property. PW1 admitted receipt of the said notice. No reply was issued to the same. The said conduct justifies the defendant's contention that Ext.A4 is a genuine sale. If Ext.A4 was

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not intended as a sale, the plaintiffs would have immediately sent reply and taken steps against A4.

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PW1 in cross-examination has deposed that she admitted the receipt of consideration before the Sub Registrar. Though the burden is heavy on the plaintiffs to prove that a sale deed was not intended to be executed, the scribe or the witnesses to the document were not examined. In the light of the above evidence, the contention of the plaintiffs that Ext.A4 was executed without realising that it is a sale deed, is only to be rejected.

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The learned counsel appearing for the

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appellants would place heavy reliance on Ext.A6 notice

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R.F.A. No.267 of 2005

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-: 5 :-

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dated 24.03.1999 issued by the defendant to the plaintiffs seeking specific performance of an agreement for sale dated 30.09.1998 in respect of the property. As per Ext.A6, the property was agreed to be conveyed by the plaintiffs to the defendant for a sale consideration of ₹ 5 lakhs. Referring to the same it is argued that, evidently the property is worth at least ₹ 5 lakhs and Ext.A4 was executed for a meagre amount of ₹ 50,000/-. That by itself shows that Ext.A4 was got executed by fraud; the document is liable to be set aside, it is contended. It is to be noticed that the plaintiffs had never mentioned about the sale agreement dated 30.09.1998. It is during the cross-examination of the defendant that Ext.A6 notice was brought in evidence. It is an entirely new case set up during the crossexamination of the defendant. The sale agreement is stated to have been entered into on 30.09.1998. Here it is relevant to notice that, the plaintiffs have a case

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R.F.A. No.267 of 2005

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-: 6 :-

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that, in the year 1998 they had borrowed an amount of ₹ 10,000/- from the defendant in respect of which various documents were executed as security. All the above indicate the transactions between the plaintiffs and the defendant. It is to be borne in mind that, according to the plaintiffs though Ext.A4 was executed for granting a loan of ₹ 50,000/-, the same was not granted by the defendant in spite of execution of Ext.A4. All the circumstances taken together, probabilise that Ext.A4 was executed by the plaintiffs in favour of the defendant intending it to be a sale deed.

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Though the trial court has entered a finding

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that the property involved in Ext.A4 and referred to in Ext.A6 notice are different, the said finding is apparently incorrect. However, that does not in any manner affect the decree passed by the trial court. The finding of the trial court that Ext.A4 was executed by

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R.F.A. No.267 of 2005

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-: 7 :-

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the plaintiffs intending it to be a sale deed is based

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on materials and warrants no interference.

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Resultantly, the appeal fails and is dismissed. No

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costs.

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Sd/-

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SATHISH NINAN JUDGE

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kns/-

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//True Copy//

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P.S. to Judge

Kayakkal Kanoth Soumini (Died) v. P.Ramachandran (Died)

Case brief

What is this about?

What did the court decide?

Kayakkal Kanoth Soumini (Died) v. P.Ramachandran (Died)

Case brief

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