Kerala High Court · 2012

A.S.NO.490/1998-2-2.VARGHESE,S/O. LATE OUSEPH,AGED 59, RESIDING AT KANNAMPILLIL HOUSE,UDAYAMPEROOR DESOM,MANAKUNNAM VILLAGE,KANAYANNUR TALUK.*ADDL.RESPONDENTS Nos.3 TO 7 ARE IMPLEADED.ADDL.R3.MARY, W/O.LATE JOSEPH RESIDING AT KANAMPILLY, PUTHENPURACKAL, UDAYAMPEROOR, MANAKKUNNAM VILLAGE.ADDL.R4. JOBY, S/O. DO-IN-DO.ADDL.R5. POULOSE, S/O. DO-IN-DO.ADDL.R6. GEORGE, S/O. DO-IN-DO.ADDL.R7. JOHNSON, S/O. DO-IN-DO.(*LEGAL REPRESENTATIVES OF DECEASED R1 ARE IMPLEADED AS ADDL.R3 TOR7 AS PER ORDER DATED 13.4.2012 IN I.A. 3857/2011.) BY ADV. SRI.ABRAHAM JOHN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09-08-2012,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:al. HARUN-UL-RASHID, J. ---------------------------------------A.S.No. 490 of 1998 ---------------------------------------Dated this the 9th day of August 2012.JUDGMENTPlaintiffs in O.S.349/1995 on the file of the Principal Sub Court,Ernakulam are the appellants. The appeal is directed against thejudgment and decree dated 29.9.1997 in the suit. The suit was filedfor specific performance of an agreement of sale. The court below heldthat the plaintiffs are not entitled to get plaint schedule propertyassigned to them on deposit of the balance of sale consideration. Theparties hereinafter are referred to as plaintiffs and defendants asarrayed in the suit. 2. Originally there was only one defendant in the suit who is thesole defendant. As per order dated 19.6.1996 in I.A.4312/1995, thefirst defendant's brother was impleaded as additional 2nd defendant.The suit was filed stating that the original defendant executed anagreement dated 19.12.1994 undertaking to sell to the plaintiffs, theplaint schedule property on or before 31.1.1995. Rs.15,000/- percent is the consideration fixed for the property. The property is a small A.S.No.490/1998+ 2bit of land having approximately 2 cents. It is recited in theagreement that Rs.3,000/- was received by the defendant as advancetowards the total sale price. The suit was filed on the allegation thatthough the plaintiffs were ready and willing to pay the balance saleconsideration and to get the sale deed registered, at their expenses,the defendant was not ready to comply with the stipulations in thekarar and refused to execute the sale deed. The plaintiffs sent lawyernotice on 31.1.1995. Ext.A1 is the agreement. Ext.A2 is the copy ofthe lawyer notice and Ext.A3 is the reply notice dated 21.2.1995. Inthe reply notice, the defendant denied the execution of the karar andreceipt of advance amount. In the written statement filed by theadditional 2nd defendant, it is inter alia contended that originaldefendant has no absolute saleable right over the plaint scheduleproperty, that the additional 2nd defendant has in fact right over theplaint schedule property and so the original defendant is not entitledto enter into an agreement for the sale of plaint schedule property toany one. Therefore, the plaintiffs are not entitled to get the plaintschedule properties assigned to them. 3. PWs.1 and 2 were examined on the side of the plaintiffsand Exts.A1 to A3 were marked. DW1 is the additional 2nd defendantand DW2 is the original defendant. The defendants did not produceany documents.4. The court below did not place any reliance on the oral A.S.No.490/1998+ 3evidence of the 2nd plaintiff who was examined as PW1. PW2 is theattesting witness to Ext.A1 agreement. The court held that Ext.A1 is amutual agreement that, none of the plaintiffs has signed Ext.A1 andthat PW2, the attester to Ext.A1 is interested towards the plaintiffs.The trial court also recorded the findings against plaintiffs for thereason that the plaintiffs failed to examine the scribe who is the sonof the first plaintiff. The trial court by observing that there is noindependent or cogent evidence to find that first defendant hasexecuted Ext.A1 karar, denied reliefs to the plaintiffs. The trial courtdid not accept the case of the plaintiffs that the defendant receivedRs.3000/- as advance. The court also did not place reliance on Ext.A1agreement for the reason that it is prepared in white paper. Anotherreason stated by the court below is that the property in question doesnot absolutely belong to the first defendant so as to enable him tosell the property. It is stated by the learned Judge that the property inquestion includes a pathway which is set apart for the use of both thedefendants. The court held that unless it is established that the firstdefendant has absolute right to sell the property, the karar, even if itis held that it is executed by the first defendant cannot be said to beone which is enforceable and that as per Section 56 of the ContractAct, an agreement to do an act impossible in itself is void. In short,the court held that if the property belongs to defendants 1 and 2, oneof them alone cannot sell it or to enter into a contract of sale and A.S.No.490/1998+ 4that even if one of them can enter into a contract to sell the same,such contract is not having any legal validity. For the said reasons,the court below dismissed the suit. 5. Ext.A1 is the agreement executed by the defendant (soledefendant) in favour of the plaintiffs undertaking to sell the plaintschedule property on or before 31.1.1995. The agreement is dated19.12.1994. It is recited in Ext.A1 that the plaintiffs paid Rs.3,000/-as advance towards the sale price. Rs.15,000/- is the amount fixed asconsideration for the sale. I have gone though the evidence of PW1and PW2. PW1 testified before the court that first defendant executedthe karar on 19.12.1994 receiving Rs.3000/- as advance and agreedto execute the sale deed on or before 31.1.1995. PW2 is the attestingwitness to Ext.A1. He testified before the court that he had signedExt.A1 agreement in the presence of the parties and witnessed theexecution of the agreement. I have also examined the admittedsignature of the defendant in the acknowledgment card signed by himon receipt of the notice and the signature in Ext.A1 agreement. I findsimilarity in the signatures. Ext.A1 is a unilateral agreement and is nota mutual agreement. Therefore, the plaintiffs cannot be find fault withnot signing Ext.A1 agreement. I have gone through the oral evidenceof PW2. Nothing has been brought out to discredit his testimonythough he was cross examined at length. The court belowdisbelieved the versions of PW2 stating that he is interested towards A.S.No.490/1998+ 5the plaintiffs. This Court finds no sustainable reasons to hold so. Thecourt below also found fault with plaintiffs for not examining the scribeof Ext.A1. The execution of Ext.A1 agreement can be proved by theexamination of the attesting witnesses. The non-examination of scribeis not fatal to the merits of this case. Competent witness to beexamined is the attesting witness to the karar. He was examined inthis case. Therefore, the finding that there is no independent orcogent evidence to hold that the first defendant has executed Ext.A1karar is without any basis. Further, the court below held that theproperty does not absolutely belong to the first defendant andtherefore, he has no right to sell the property and the karar cannot beone which is enforceable. The 2nd defendant though contended thatthe property was not the absolute property of the first defendant, noevidence was adduced to prove his right over the said property.Nothing has been produced before the court to prove that additional2nd defendant has any right over the property. Both defendants didnot adduce any evidence in support of their contentions. 6. In such circumstances, finding of the court below thatproperty belongs to both defendants is without any substance andwithout any evidence. Even if the property belongs to two personsthere is nothing wrong, in the first defendant to convey his title byExt.A1 karar. If the transferee has only fractional interest he has gotevery right to convey his fractional interest to any 3rd person. A.S.No.490/1998+ 6Therefore, even if, it is found that the first defendant has got onlyfractional right over the property, then also, Ext.A1 karar isenforceable.7. Learned Senior counsel contended that the court below wentwrong in holding that there is difference in the signature of defendantNo.1 in Ext.A1, in the vakalath and in the written statement. LearnedSenior counsel for the appellant submits that signatures in thevakalath and written statement are similar to that of Ext.A1. 8. Learned Senior counsel also submits that the AdvocateCommissioner appointed, by the Court to examine defendant No.1 hasnot discharged his duty by not deciding the question of admission ofthe postal acknowledgment card in evidence. According to him, theAdvocate Commissioner should have admitted the acknowledgmentcard in evidence and should have granted an opportunity to theappellants to cross examine defendant No.1. Learned Sr. Counsel alsopointed out that the findings of the court below that the firstdefendant has no right to convey plaint schedule property asdefendant No.2 has a right of way through plaint schedule property isnot sustainable in law. It is pointed out that even if plaint scheduleproperty was conveyed to the appellants the right of way claimed bydefendant No.2 will not be extinguished. The counsel also contendedthat finding of the court below that plaint schedule property includesa pathway which is set apart for the use of both the defendants as per A.S.No.490/1998+ 7partition effected in their family is wrong and that such an observationwas without any pleadings and evidence. The counsel for theappellants submits that the court below went wrong in holding thatthe respondent No.1 can sell the plaint schedule property only withthe juncture of 2nd defendant and that the right of way to thedefendant No.2 if any will not be affected by conveying the title andinterest of respondent No.1.9. I have examined the findings recorded by the court. Learnedcounsel for the appellant also relied on the decisions reported inKammana Sambamurthy (deceased by L.Rs) v. KalipatnapuAtchutamma(deceased by L.R) and Ors. (AIR 2011 SUPREMECOURT 103), Aloka Bose v. Parmatma Devi & Ors. (AIR 2009SUPREME COURT 1527) and Thiruvengada Pillai v.Navaneethammal 2008 (2) KLT 267 (SC) in support of theircontentions. Learned counsel also brought to the notice of this Courtthe relevant passages in the Indian Contract Act & Specific Relief Act(Vol.II Pollock &Mulla) 14th Edition and the decisions reported inKundan Lal Rallaram, Appellant v. Custodian, Evacuee Property,Bombay, Respondent (AIR 1961 Supreme Court 1316),K.S.Nanji and Co.,Appellants v. Jatashankar Dossa and others,Respondents (AIR 1961 Supreme Court 1474), A.C.Arulappan,Appellant v. Smt.Ahalya Naik, Respondent AIR 2001 SUPREMECOURT 2783. Learned counsel also brought to the notice of this A.S.No.490/1998+ 8Court Page No.1864 of Sarkar on Evidence 17th Edition Vol.II insupport of his contention that burden of proof lies on the defendant. Ihave examined the findings of the court below and contentions raisedby the appellants. In the facts and circumstances noticed in theprevious paragraphs, this Court is of the view that the court belowfailed to appreciate the facts and circumstances on the rightperspective and failed to follow the correct principles of law. In thesecircumstances, this Court is of the view that the matter will have to bereconsidered afresh and a decision shall be taken afterreappreciating the evidence. In the result, the appeal is allowed. The judgment and decreepassed by the court below is set aside. The case is remanded for freshconsideration in accordance with law and untrammeled by any of theobservations and findings in the judgment under appeal and thisjudgment. Parties shall appear before the court below on 12.9.2012.The court below shall dispose of the case as expeditiously as possibleat any rate, within a period of nine months from the date ofappearance of the parties. No order as to costs. Sd/-HARUN-UL-RASHID JUDGEalTrue copyP.A. To Judge A.S.No.490/1998+ 9 HARUN-UL-RASHID,JA.S.490/1998 JUDGMENT 9.8.2012