IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 748 of 1998(B)
1. MAKRISHNAN
... Petitioner
Vs
1. SANTHAN
... Respondent
For Petitioner :SRI.P.V.CHANDRA MOHAN
For Respondent :SRI.JIJO PAUL
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :11/11/2010
O R D E R
M.N. KRISHNAN, J.
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A.S. NO. 748 OF 1998 &
A.S. NO.221 OF 2003
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Dated this the 11th day of November , 2010.
J U D G M E N T
A.S.748/98 is an appeal preferred against
the judgment and decree in O.S.1092/92 and
A.S.221/03 is an appeal preferred against the
judgment and decree in O.S.276/93 of the Sub
Court, Thrissur. Originally this appeal was
filed before the District Judge, Thrissur and
that had been withdrawn to be heard along with
the other appeal. Now the brief facts necessary
for the disposal of the appeal are stated as
follows. O.S.1092/92 is a suit filed for
declaration and consequential injunction. The
case of the plaintiff is it belonged to him by
virtue of a document in the year 1967 and he had
made improvements in the property. According to
A.S. NO. 748 OF 1998 &
A.S. NO.221 OF 2003
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him he was badly in need of money and therefore
contacted the defendant who is a money lender
and the defendant wanted the mortgage deed to be
executed. The plaintiff readily agreed, he had
gone to the Registrar’s office and executed the
document but later he came to know that the
document was an out and out sale and not a
mortgage. Thereafter he contacted a social
worker namely Sivaraman Nair who is also an
advocate clerk and he had promised to take
appropriate proceedings to get the document set
aside or corrected but later he received a
notice from Sivaraman Nair stating that he had
agreed to sell the property to Sivaraman Nair or
to return Rs.30,000/-. It is also contended
that the defendant had taken blank signed papers
and had created documents to defeat the interest
of the plaintiff. Therefore the plaintiff has
A.S. NO. 748 OF 1998 &
A.S. NO.221 OF 2003
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prayed for setting aside the document and also
for a permanent injunction.
2. The defendant in the suit contended that
it is not a mortgage it is an out out sale for
proper consideration and on the strength of the
document the other tenants had given rent to him
and that the plaintiff had even executed a lease
deed and therefore the suit is not liable to be
entertained.
3. The other suit O.S.276/93 is filed by
the defendant in O.S.1092/92 for a permanent
injunction wherein the plaintiff therein has
requested the Court to grant an injunction. On
the strength of the document filed he had
purchased the property and is enjoying the
property. The defendant in the case namely the
plaintiff in O.S.1092/92 and his son had filed
written statement contending that the plaintiff
A.S. NO. 748 OF 1998 &
A.S. NO.221 OF 2003
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in O.S.276/93 is not entitled to any relief and
therefore had prayed for dismissal of the suit.
4. In the trial court Exts.A1 to A5(b) and
B1 to B5 were marked. PW1 and DWs.1 and 3 were
marked and on analysis of the materials the
trial court granted a decree in favour of the
plaintiff in O.S.276/93 and dismissed the suit
O.S.1092/92. It is against that these decisions
the present appeals are filed.
5. Heard. The crux of the matter depends
upon the correctness of the document and the
nature of the document executed by the plaintiff
in O.S.1092/92 in favour of the defendant in
that case. Admittedly the plaint schedule
property is having an extent of 2 cents with a
row of rooms therein. It is the case of the
plaintiff that he wanted to borrow money from
the defendant who is a money lender and as per
A.S. NO. 748 OF 1998 &
A.S. NO.221 OF 2003
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his request he had executed a mortgage deed but
to his utter dismay he found it as a sale deed
later and therefore he wanted to set aside that
or to declare that the document is invalid.
6. On the other hand, the defendant would
contend that the document is a valid one
supported by actual consideration. The trial
court has elaborately considered the matter both
documentary as well as oral evidence. It has to
be remembered that Ext.A1 is a registered
assignment deed executed by the plaintiff,
Ramakrishnan in favour of the defendant, Santhan
on 25.10.84. Ext.A2 is the rent chit executed
by the plaintiff therein to the defendant for
retaining a room on rent which he was occupying.
Ext.A3 series are the basic tax receipts for the
property. Ext.A4 series are the demand notices
and building tax receipts issued in the name of
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A.S. NO.221 OF 2003
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Santhan. Ext.A5(a) and (b) are money order
receipts. The defendant’s i.e. Ramakrishnan’s
exhibits are only regarding notices and the
assignment deed. It has to be stated that the
plaintiff is not an ordinary person. He had
executed the document with both his eyes opened
and it cannot be stated that he was in a
position to be dominated by the other person.
If really it was only a mortgage deed then there
was no necessity for executing Ext.A2, the
execution of which is denied by Sri.
Ramakrishnan. The learned trial judge found
that the document has been executed and on the
basis of the document Mr. Santhan has proceeded
and has been enjoying the property and the suit
is filed admittedly in 1992 for declaration of
that document as invalid. It is interesting to
note that this Ramakrishnan has set up a case
A.S. NO. 748 OF 1998 &
A.S. NO.221 OF 2003
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that he had contacted one Sivaraman Nair who is
an advocate clerk and according to him that
advocate clerk has also cheated him after
obtaining blank signed papers and thereafter he
had issued a notice to the person for assigning
the property in his favour. So the case of the
plaintiff, Ramakrishnan appears to be that if
somebody wants some blank papers to be signed he
would readily oblige them and later face the
consequences.
7. The trial court also found that the
evidence of DW2 and DW3 are not convincing and
they are closely related and it does not carry
much weight. When confronted with the rent chit
he would say that he had also given blank signed
papers. This can never be the attitude at all.
Similarly other persons who are all occupying
the rooms as tenants after the execution of
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A.S. NO.221 OF 2003
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Ext.A1 had attorned to the purchaser and had
started paying rent to him. Therefore the sum
and substance of the entire materials would show
that Ext.A1 is a valid assignment deed executed
for consideration and possession is handed over
on the basis of which Mr.Santhan had exercised
acts of ownership and possession and therefore
the conduct of the plaintiff that it was only
intended to be a mortgage deed cannot be
accepted by any stretch of imagination. It has
also to be remembered the transaction was as
early as in 1984 and the consideration shown in
the document was Rs.15,000/- and it relates to 2
cents of property in a remote place in Thrissur
called Cherpu and therefore the plea of
inadequacy of consideration also does not loom
large in this case. So from these discussions I
concur with the finding of the trial court and
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A.S. NO.221 OF 2003
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find that the Court below has granted a decree
correctly in O.S.276/93 and dismissed
O.S.1092/92. Therefore both these appeals fail
and are dismissed but without costs.
M.N. KRISHNAN, JUDGE.
ul/-
A.S. NO. 748 OF 1998 &
A.S. NO.221 OF 2003
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M.N. KRISHNAN, J.
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A.S. No.748 OF 1998
& A.S. NO.221 OF 2003
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J U D G M E N T
11th November, 2010.