IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 538 of 1997(E)
1. RATNAVATHI
... Petitioner
Vs
1. B.YASODHA
... Respondent
For Petitioner :SMT.SUMATHY DANDAPANI (SR.)
For Respondent :SRI.K.G.GOURI SANKAR RAI
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :06/07/2010
O R D E R
HARUN-UL-RASHID, J.
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S.A.No.538 Of 1997
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Dated this the 6th day of July, 2010.
J U D G M E N T
The plaintiff in O.S.No.448 of 1990 on the file of the
Additional Munsiff Court, Kasaragod, is the appellant. Suit was
filed for specific performance of an agreement for sale of the
plaint schedule property. Trial court decreed the suit. In the
appeal preferred by the defendant, the lower appellate court set
aside the decree and judgment of the trial court and dismissed
the suit. Parties are hereinafter referred to as the plaintiff and
defendant as arrayed in the suit.
2. Ext.A2 is the agreement dated 10.1.1990. The case of
the plaintiff is that the defendant had executed Ext.A2 agreement
agreeing to sell the plaint schedule property. Plaint schedule
property is having an extent of 1.67 acres. The consideration
fixed is Rs.5,000/-. At the time of execution of the agreement it
is said that the plaintiff had paid an advance consideration of
Rs.3,750/-. It is the plaintiff’s case that at the time of agreement
defendant delivered possession of the plaint schedule property to
the plaintiff and that the defendant agreed to execute the sale
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deed within three years from the date of agreement on payment
of balance consideration.
3. The defendant denied the execution of the agreement
for sale and contended that the plaintiff and her husband
approached her and requested to sell three timber trees standing
in the plaint schedule property and Ext.A2 agreement was
executed in that connection. It is also contended that the plaint
schedule property was not delivered to the plaintiff in pursuance
of Ext.A2 agreement and that she did not receive the
consideration shown in Ext.A2.
4. Plaintiff was examined as PW1. PW2 is the attestor to
Ext.A2 agreement and PW3 is the scribe who wrote Ext.A2
agreement. Plaintiff also produced Ext.A1 assignment order
passed in favour of the defendant. Exts.A1 to A4 were marked
on the side of the plaintiff. The defendant was examined as
DW1. Exts.B1 to B3 were produced on her side.
5. The trial court appreciated the evidence tendered by
the plaintiff, her witnesses and DW1. Plaintiff testified before the
court in terms of the plaint. PW2, who is the attestor, tendered
evidence stating that the defendant executed Ext.A2 agreement
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in favour of the plaintiff agreeing to transfer the plaint schedule
property. The plaintiff testified before the court that she was put
in possession of the plaint schedule property and that she
continue to possess and enjoy the plaint schedule property.
According to PW1 there is no timber trees in the plaint schedule
property except one mango tree and four cashew trees and that
those trees are even now existing. PW2 deposed that he is one
of the attestors to Ext.A2; he knew both parties for the last
several years; and that he had witnessed the execution of Ext.A2
agreement. PW3, the scribe, testified before the court that he
had prepared Ext.A2 and it was executed by the parties. The
trial court held that even though there is a lengthy cross-
examination of the witnesses nothing has been brought out to
discredit the deposition of PW1 to PW3 and that their evidence
are corroborated to each other in respect of execution of Ext.A1.
Trial court also found that there is no material contradiction of
evidence by PWs 1 to 3 in respect of execution of Ext.A1.
6. Admittedly, the defendant is an illiterate person. She
admitted her thump impression in Ext.A2 agreement. But
according to her it was obtained by the plaintiff in a different
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circumstance. As DW1 she testified before the court that she
agreed to sell three timber trees situated in the plaint schedule
property to one Ram Bhatt, who is the son-in-law of the plaintiff
and in relation to that transaction she executed Ext.A2
agreement. Apart from her interested testimony the defendant
failed to adduce any supporting evidence. No witnesses were
examined to prove the different transactions alleged by her.
DW1 also admitted that she handed over Ext.A1 assignment
order to the plaintiff at the time of execution of Ext.A2
agreement.
7. The defendant contended that the consideration shown
in Ext.A2 agreement is a nominal amount; at the time of
agreement the price of the property was Rs.300/- per cent. The
written statement is silent about the value of the property. It is
not stated that the value shown in Ext.A2 agreement is
inadequate. The defendant also did not chose to adduce any
evidence in order to show that the value shown in Ext.A2
agreement is inadequate. Trial court also observed that no
independent witnesses were examined by the defendant to
corroborate the contentions raised by the defendant in her
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written statement as well as while she was examined as DW1. In
these circumstances, the trial court decreed the suit and directed
the defendant to execute the sale deed in favour of the plaintiff.
8. The lower appellate court reversed the findings of the
trial court. The lower appellate court held that merely because
Ext.A2 contains thump impression of the defendant, it cannot be
held that the defendant has put the same after understanding the
contents. The lower appellate court observed that the plaintiff
has to prove that the defendant has affixed her thump impression
in Ext.A2 after understanding its contents properly. PW2, the
attestor and PW3, the scribe testified before the court that the
contents of Ext.A2 agreement was read over and explained to the
plaintiff and defendant in Kannada and Tulu. This fact was not
taken note of by the lower appellate court. The appellate court
also held that the evidence of PWs 1 to 3 do not inspire
confidence of the court regarding the execution of Ext.A2
agreement and regarding the affixture of thump impression on
the proper understanding of what is stated in the document. The
reasons stated for not relying on the evidence of PWs 1 to 3 and
the further conclusion that the contents of Ext.A2 was not
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properly explained to the defendant is not supported by evidence.
It is also not correct to say that the learned Munsiff has not borne
in mind the provisions governing specific performance of
contract. The learned Sub Judge reversed the findings of the trial
court stating the above said reasons and took the view that the
defendant had not executed Ext.A2 agreement after
understanding its contentions properly and hence there was no
due execution of agreement for sale. In the facts and
circumstances discussed above, I find that the reasons and
conclusions arrived at by the learned Sub Judge cannot be
upheld.
9. Learned counsel for the defendant submitted that
Ext.A1 order of assignment contains a provision not to alienate
the property for a period of three years. He also submitted that
Ext.B1 patta contains a similar provision. The learned counsel
also brought to my notice Rule 8A of the Kerala Land Assignment
Rules which prohibits alienation for a period of three years from
the date of issuance of patta.
10. Learned counsel also submitted that the conditions
referred to in Ext.A1 assignment order was neither referred to
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nor discussed by both the courts. The extent of property is 1.67
acres. The learned Sub Judge held that this property is sold for a
paltry consideration of Rs.5,000/-; it is highly difficult to assume
that the defendant has agreed to sell the same for a nominal
consideration of Rs.5,000/-; no centage value has been agreed
upon and no reasonable explanation has been spoken by the
plaintiff for fixation of the consideration at Rs.5,000/-. The lower
appellate court observed that even assuming that Ext.A2
agreement is lawful, specific performance has to be refused in
this case in view of the unfair advantage that would result to the
plaintiff. Learned counsel for the appellant/plaintiff submitted
that the written statement does not contain any pleadings to the
effect that the consideration shown in Ext.A2 agreement is
inadequate or is a paltry amount. According to him so long as
there is no pleading regarding the inadequacy of consideration it
is not open to the defendant to contend that Ext.A2 agreement is
not acceptable for want of sufficient consideration. Learned
counsel also submitted that the adequacy or inadequacy of
consideration cannot be a ground for refusing the relief of specific
performance.
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11. Taking into consideration of all the facts and
circumstances which I have discussed in the preceding
paragraphs, this Court is of the view that re-appreciation of facts,
evidence and consideration of law on the points referred above is
necessary. The lower appellate court shall advert to all the
questions referred above and also other contentions, if any,
urged before it by the counsel on both sides.
In the result, the appeal is allowed. The judgment and
decree passed by the lower appellate court is set aside. The case
is remanded to the lower appellate court for fresh consideration.
The lower appellate court shall dispose of the case afresh at an
early date after issuing notice to the parties. The appellant is
entitled to refund of the court fee. There will be no order as to
costs.
HARUN-UL-RASHID,
Judge.
bkn/-