IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 882 of 1997(E)
1. REV.FR.JOSEPH VELIYATHIL
... Petitioner
Vs
1. APPU
... Respondent
For Petitioner :SRI.J.JULIAN XAVIER
For Respondent :SRI.V.GIRI
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :18/01/2010
O R D E R
HARUN-UL-RASHID,J.
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A.S.NO.882 OF 1997
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DATED THIS THE 18TH DAY OF JANUARY, 2010
JUDGMENT
Plaintiff in O.S.No.382/95 on the file of the Sub Court,
Palakkad is the appellant. The suit was filed for return of the
advance money paid. The court below passed a decree allowing
the claim of the plaintiff and directed defendants 1 to 4 to re-pay
the advance amount with interest at the rate of 12% per annum to
the plaintiff. The contention of the plaintiff that the defendants
are jointly and severally liable for the plaint amount was not
allowed. Hence this appeal by the plaintiff. The parties
hereinafter referred to as the plaintiff and defendants as arrayed
in the suit.
2. The plaintiff and defendants (4 in number) entered into
an agreement for sale of the plaint schedule property. Ext.A1 is
the said agreement dated 20/3/1995. The total extent is 2.80
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acres. The said extent belongs to the defendants. The defendants
purchased the property under different sale deeds. The properties
are lying contiguous. The price agreed between the parties is
Rs.6,000/-per cent. As per Ext.A1 agreement the plaintiff has
paid Rs.8,00,000/- as advance. The defendants received
Rs.2,00,000/- each as advance amount towards the sale of their
respective properties. On the date of execution of Ext.A1
agreement, the defendants handed over four copies of the sale
deeds relating to the plaint schedule properties. The defendants
agreed that they will execute the sale deed within the date
specified in Ext.A1 agreement. The defendants purchased their
respective plots from one Janaki Amma. Before the expiry of the
period for execution of the sale deed, plaintiff came to know that
neither the defendants nor their vendor Janaki Amma has got title
over the property. According to the plaintiff, the defendants have
practiced fraud on the plaintiff. The plaintiff’s case is that there
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was a suit pending before the Sub Court, Palakkad against Janaki
Amma for eviction and in that suit a decree was passed against
Janaki Amma and that after the decree, the defendants in
collusion with Janaki Amma without disclosing the true facts, got
executed four sale deeds in their favour and are acting as the
owners of the properties. They have executed Ext.A1 agreement
for sale in favour of the plaintiff. Finding that the defendants
have no right or title, the plaintiff approached the court below
praying for a decree allowing him to realise Rs.8,00,000/- with
12% interest from the defendants and their assets.
3. The contention of the plaintiff that neither the
defendants nor their vendor Janaki Amma is having any right
over the plaint schedule property is conceded by the defendants.
According to the defendants, they purchased the property from
Janaki Amma believing that she is the title holder. They also
denied the contention of the plaintiff that they have colluded with
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Janaki Amma in executing Ext.A1 agreement in favour of the
plaintiff. The trial court examined the issues on the basis of the
oral evidence tendered by PW1, DW1 and Exts.A1 and A2
documents. On the basis of the pleadings, evidence and attendant
circumstances, the trial court held that the defendants are unable
to convey title to the plaintiff and that the plaintiff is entitled to
recover the advance money paid with 12% interest from the date
of payment. The trial court, after examining the testimonies of
PW1 and DW1, also held that patently the acts of the defendants
reveal some fraudulent play and therefore, the plaintiff is entitled
to the relief claimed. The contention of the plaintiff that the
defendants are jointly and severally liable for the plaint amount
was not accepted by the court below and held that there cannot be
any joint or several liability.
4. The learned counsel for the appellant contended
before this court that since Ext.A1 agreement was executed
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jointly by defendants 1 to 4 and since they have jointly promised
to execute the sale deed after convincing the plaintiff that they
are title holders of the property, the finding of the court below
that the defendants are not jointly and severally liable for return
of the plaint amount is not sustainable in law. The learned
counsel for the appellant also pointed out that Section 43 of the
Indian Contract Act is squarely applicable to the case on hand
and therefore a decree may be passed fastening joint and several
liability on the respondents. It is also contended that the
circumstances show that the defendants made a concerted attempt
to defraud the plaintiff, induced him to enter into an agreement to
purchase the property over which the defendants had no title and
compelled the plaintiff to pay Rs.8,00,000/-as advance amount
and hence they are jointly and severally liable to compensate the
plaintiff for the loss suffered by him.
5. This Court already referred the nature of the decree
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passed by the trial court. The plaintiff is allowed to realise a sum
of Rs.2,00,000/- each with interest at 12% per annum from
defendants 1 to 4. Ext.A1 sale deed was executed between the
plaintiff and defendants 1 to 4. At the time of execution of
Ext.A1 agreement, defendants 1 to 4 are the owners of separate
properties covered by different sale deeds mentioned in Ext.A1
agreement. It is stated in Ext.A1 agreement that each defendant is
the owner of a particular extent of land covered by the sale deed
in his favour. In Ext.A1 it is revealed that each of the defendants
had received Rs.2,00,000/- towards advance sale consideration
for sale of their respective properties. Instead of executing four
different agreements agreeing to convey the four different
properties of the defendants, they jointly executed Ext.A1
agreement. Though five persons jointly executed one document,
it is clear that each defendant has agreed to convey his property
to the plaintiff for the stipulated consideration. So long as the
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transaction is between the separate property owners and the
plaintiff, four different transactions can be spelled out from the
terms of Ext.A1 agreement. Instead of preparing and executing
four different agreements, the four transactions are entered into
by executing a single document. Since transactions are distinct,
separate and independent of each other, even if the four persons
joined in one document, the transaction remained separate and
therefore the liability also remained individual. Therefore, the
contention of the defendants that there is no joint or several
liability; but each one is personally liable for the amount they
have received is accepted. The trial court also examined the
respective contentions of the parties in detail and reached the
conclusion that the plaintiff is entitled to a decree. At the same
time, the court below held that there cannot be held any joint or
several liability. I hold that the view taken by the court below is
the only possible view in the given circumstances. I do not find
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any reason to interfere with the findings entered by the court
below.
In the result, the judgment and decree passed by the court
below are confirmed. The appeal fails and accordingly dismissed.
No order as to costs.
HARUN-UL-RASHID,
JUDGE.
kcv.