Kerala High Court
Smt.Mariyamma C.J vs Rajappan on 23 July, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:54354
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
WEDNESDAY, THE 23RD DAY OF JULY 2025 / 1ST SRAVANA, 1947
RFA NO. 57 OF 2023
AGAINST THE JUDGMENT DATED 07.01.2023 IN OS NO.5 OF 2016 OF
SUB COURT, THIRUVALLA
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APPELLANTS/ADDITIONAL PLAINTIFFS 3 TO 5:
1 SMT.MARIYAMMA C.J,
AGED 81 YEARS,
W/O.A.S.MATHEW, APPAKOTTUMURIYIL HOUSE, THURUTHICADU
P.O., MALLAPPALLY, PIN - 689 597 REPRESENTED BY HER
POWER OF ATTORNEY HOLDER SUNNY MATHEW, S/O.MATHEW, AGED
60 YEARS, CHAMAKALAYIL, KANAKARY P.O., KOTTAYAM,
PIN - 686632.
2 SRI.PRADEEP MATHEW,
AGED 50,
S/O.A.S.MATHEW, APPAKOTTUMURIYIL HOUSE, THURUTHICADU
P.O., MALLAPPALLY, PIN - 689 597 REPRESENTED BY HIS
POWER OF ATTORNEY HOLDER SUNNY MATHEW, S/O.MATHEW,
AGED 60 YEARS, CHAMAKALAYIL, KANAKARY P.O., KOTTAYAM,
PIN - 686632.
3 PRASAD MATHEW,
AGED 52 YEARS
S/O.A.S.MATHEW, APPAKOTTUMURIYIL HOUSE, THURUTHICADU
P.O., MALLAPPALLY, PIN - 689 597, REPRESENTED BY HIS
POWER OF ATTORNEY HOLDER SUNNY MATHEW, S/O.MATHEW,
AGED 60 YEARS, CHAMAKALAYIL,KANAKARY P.O., KOTTAYAM,
PIN - 683632.
2025:KER:54354
RFA NO. 57 OF 2023 -2-
BY ADVS.
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.R.GITHESH
SHRI.AJAY BEN JOSE
SRI.MANJUNATH MENON
SHRI.SACHIN JACOB AMBAT
SMT.ANNA LINDA EDEN
SHRI.HARIKRISHNAN S.
SRI.S.SREEKUMAR (SR.)
RESPONDENTS/DEFENDANT & ADDL. 2ND PLAINTIFF:
1 RAJAPPAN,
AGED 61,
S/O.RAMAKRISHNAN, VELEKATTU, PERINGOTTUKARA,
KIZHAKKUMMURI VILLAGE, KIZHAKKUMMURI P.O.,
THRISSUR TALUK, THRISSUR DISTRICT,, PIN - 680682.
2 PREETHY MATHEW,
D/O.A.S.MATHEW, APPAKOTTUMURIYIL HOUSE, THURUTHICADU
P.O., MALLAPPALLY, PATHANAMTHITTA, PIN - 689597.
BY ADVS.
SHRI.S.ABHILASH
SRI.K.SIJU
SMT.ANJANA KANNATH
SHRI.ANIL KUMAR SREEDHARAN
SHRI.BIJOY S.
SMT.JAYALEKSHMI JAYARAJ
SRI.T.KRISHNANUNNI (SR.)
SRI.VINOD RAVINDRANATH
SMT.MEENA.A.
SHRI.GUNAVARDHANAN M.N.
SMT.M.R.MINI
SHRI.ANISH ANTONY ANATHAZHATH
SHRI.THAREEQ ANVER
SMT.NIVEDHITHA PREM.V
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
23.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:54354
SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
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R.F.A. No.57 of 2023
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Dated this the 23rd day of July, 2025
J U D G M E N T
Sathish Ninan, J.
The suit for specific performance of an oral agreement to reconvey a property, with alternate reliefs to cancel Ext.A1 Sale Deed or to declare it as null and void or as sham, and other reliefs, was dismissed by the trial court. The additional plaintiffs 3 to 5 are in appeal.
2. According to the original plaintiff, the defendant is a businessman doing business abroad in UAE. The original plaintiff's daughter-Preethy, and the defendant, had business dealings. In connection with such business, to enable the defendant to avail a loan, the original plaintiff executed Ext.A1 Sale Deed(Ext.B1 is the original) in favour of the defendant on 11.03.2014. It was agreed that the property will be reconveyed within a period of one year. No sale consideration passed under Ext.A1. The defendant failed to reconvey the property. Accordingly the suit is filed R.F.A. No.57 of 2023 2025:KER:54354 -: 2 :- claiming the following reliefs:-
(i) Specific performance of the oral agreement dated 11.03.2014 to reconvey the property, or
(ii) Cancel Ext.A1=B1 Sale Deed, or
(iii) To declare the document as null and void, and
(iv) Prohibitory injunction against trespass, and
(v) Mandatory injunction to return the original of Ext.A1 Sale Deed (Ext.B1).
3. The original plaintiff died pending the suit and his legal heirs were impleaded as additional plaintiffs 2 to 5.
4. The defendant filed a written statement contending that, original plaintiff's daughter-Preethy, did not have any business transaction with him. He is a business man in UAE. He understood that original plaintiff's daughter- Preethy had an agreement with the Nilamboor Kovilakam for purchase of a property. The defendant agreed to purchase of one-half of the property on payment of the proportionate consideration. The property was one notified as an ecologically fragile land under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (EFL R.F.A. No.57 of 2023 2025:KER:54354 -: 3 :- Act). Preethy was to get it excluded from the notification. By June 2012 it was realised that Preethy would not be able to get the property excluded from the EFL notification.
5. By that time, the defendant had paid an amount of ₹ 2.25 crores to Preethy under the agreement. Thereupon Preethy agreed to sell her property having an extent of 51.39 acres to the defendant's wife Suma for a consideration of ₹ 2.5 crores. By 24.10.2013 the defendant had paid a total amount of ₹ 2.5 crores to Preethy. Since the property was subjected to mortgage with the UCO Bank, Kottayam branch, the sale could not fructify. Thereupon, the original plaintiff intervened and agreed to sell his 74.54 Ares of property (plaint schedule property) for which the defendant was required to pay an amount of ₹ 62 lakhs. The amount was paid and Ext.A1 Sale Deed was executed by the original plaintiff in favour of the defendant. The alleged oral agreement for reconveyance was denied. The contentions that Ext.A1 is null and void and that it is a sham document, were denied. It was contended that the original plaintiff is not entitled to any of the reliefs claimed.
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6. The original plaintiff filed a replication denying the alleged agreement between Preethy and Nilamboor Kovilakam. So also he contended that he had no knowledge of any agreement between Preethy and defendant's wife.
7. The trial court upheld Ext.A1 Sale Deed. The alleged oral agreement was negatived and the suit was dismissed.
8. We have heard Sri.S.Sreekumar, the learned Senior Counsel for the appellants-plaintiffs and Sri.T.Krishnanunni the learned Senior Counsel assisted by Sri.Anil Kumar Sreedharan, learned counsel for the respondents.
9. The points that arise for consideration are:-
(i) Does the evidence on record establish that Ext.A1 Sale Deed was executed in the circumstances as claimed by the original plaintiff?
(ii) Does the evidence on record establish that Ext.A1 is not supported by consideration and is void?
(iii) Does the evidence on record establish that Ext.A1 is a sham document?
(iv) Does the evidence on record prove the alleged oral agreement to reconvey?
(v) Does the evidence on record establish that the original plaintiff is in possession of the property in spite of execution of Ext.A1 Sale Deed.R.F.A. No.57 of 2023
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10. At the very outset it is to be noticed that, the reliefs claimed in the plaint, with regard to Ext.A1 Sale Deed, are mutually contradictory and inconsistent. Firstly, the original plaintiff claims specific performance of an oral agreement to reconvey. Next he seeks cancellation of Ext.A1. Then he seeks a further relief that Ext.A1 is null and void. Again he seeks a declaration that the document is sham and not intended to be acted upon. The prayers are inconsistent with each other. When the original plaintiff seeks for specific performance, he admits the conveyance under Ext.A1, and seeks for reconveyance of the property. On the face of such prayer, the relief sought to cancel/set aside Ext.A1, is apparently inconsistent. That apart, he seeks a declaration that the document is null and void. If the document is null and void, there is no question of seeking reconveyance and also seeking to cancel the document. The reliefs sought are again inconsistent. The original plaintiff further seeks a declaration that the document is sham and not intended to be acted upon. If the document is sham, the question of reconveyance or R.F.A. No.57 of 2023 2025:KER:54354 -: 6 :- cancellation or declaration that the document is null and void, do not arise. Suffice to notice that the suit is not properly framed.
11. In the plaint, the circumstances leading to the execution of Ext.A1 are pleaded thus:- (i) That the plaintiff's daughter Preethy and the defendant had business dealings (ii) The defendant in the year 2013 offered Preethy a business in import of tiles from China (iii) There was shortage of money with the defendant (iv) Defendant offered to give his property as security for the loan to be availed for the business (v) Since no security documents were available, the defendant suggested the plaintiff's property to be offered as security (vi) However, financial institutions did not accept third party documents (vii) Therefore, Ext.A1 Sale Deed was executed by the original plaintiff in favour of the defendant, to enable availing of loan. From the circumstances set out hereunder, it is evident that the circumstances pleaded are not liable to be accepted.
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12. It is the claim that the defendant offered Preethy a business; but then he pleads that he had shortage of money and offered to give his property as security. At paragraph 3 of the plaint it is pleaded, "During the beginning of 2013, the defendant offered plaintiff's daughter a business of import of tiles from China and required the plaintiff's daughter to make necessary arrangements for the business including taking order for sale of goods and accumulation of financial back up and a space for storage of the consignments imported."
If the business is to be that of Preethy, the issue of availability of funds with the defendant or offering his property as security, did not arise at all. Therefore, the above stand of the original plaintiff does not stand to reason.
13. To prove that the claim of the original plaintiff regarding unavailability of properties to offer as security to avail loan is not correct, the defendant has produced Ext.B25 series to Ext.B27 title deeds (10 in number), relating to various items of immovable properties in his name and also in the name of his wife.
R.F.A. No.57 of 2023
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14. So also, to disprove the plaintiffs case that the defendant did not have sufficient funds with him, the defendant produced his NRI Bank account statement with the Union Bank of India, and Exts.B21 to B24 series fixed deposit receipts. The above would prove his financial capacity and that he was financially affluent and had no need to avail a loan.
15. With regard to the circumstances pleaded by the plaintiffs, there are yet other improbabilities. It is the plaintiffs case that, though the original plaintiff offered his property as security, the financial institutions did not accept third party title deeds as security. Obviously the said contention lacks bonafides. The original plaintiff could have very well stood as a guarantor and mortgaged his property for the proposed credit facility. To enable a loan to be availed by his daughter Preethy or the defendant, there was no necessity to execute a sale deed in favour of the defendant.
16. The plaintiff appeared to make a suggestion that the non-acceptance of his suretyship by the Bank was taking R.F.A. No.57 of 2023 2025:KER:54354 -: 9 :- note of his old age. Even such a contention does not stand to reason since, going by the plaintiff's case, what was required was not a personal guarantee but an immovable property security. When a mortgage was proposed to be created, the old age of the plaintiff was irrelevant as mortgage creates an interest in the property and the liability runs with the property. At any rate, the plaintiff could have very well executed the document in favour of his daughter and not in favour of a third party, the defendant.
17. On the discussions as above it is evident that the claim of the original plaintiff that Ext.A1 Sale Deed was executed in favour of the defendant under the circumstances as pleaded by him, is apparently unacceptable.
18. Now we proceed to discuss whether Ext.A1 is supported by consideration. Ext.B14 is the Memorandum of Expression of Interest dated 07.03.2011 entered into between Preethy with the members of the Nilamboor Kovilakam. In the replication filed by the original plaintiff the contention is that Preethy did not have any agreement with the Kovilakam. Ext.B14 was marked in evidence without any R.F.A. No.57 of 2023 2025:KER:54354 -: 10 :- objection. Evidently, the denial lacks bonafides.
19. In terms of Ext.B14, Preethy was to pay an amount of ₹ 3 crores to the Kovilakam before 07.09.2012 and enter an agreement for purchase of the property for ₹ 27 crores. It is the defendant's case that, he entered into an agreement with Preethy to purchase one-half of the property on sharing the proportionate consideration. The payments made by the defendant since 02.08.2011 is evidenced by Ext.X1 account statement of Preethy with the Mallappaly Branch of Union Bank of India. As per Ext.B15, the Memorandum of Interest between Preethy and Kovilakam was extended for a further period. The defendant made further payments to Preethy. Later, Preethy realised that the property could not be got excluded from the EFL notification. By that time the defendant had already paid an amount of ₹ 2.25 crores to Preethy. Towards discharge of the liability, Preethy entered into Ext.B3 agreement for sale dated 27.06.2012 with the defendant, agreeing to convey her 51.39 Ares of property to the defendant for a total sale consideration of ₹ 2.5 crores. The amount of ₹ 2.25 crores R.F.A. No.57 of 2023 2025:KER:54354 -: 11 :- already received by her from the defendant was treated as advance sale consideration.
20. According to the defendant, subsequently it was realised that the property is subjected to a mortgage and that the Bank had initiated steps against the property. Ext.X9 is the copy of the Original Application No.157 of 2011 filed by the UCO Bank against Preethy before the Debt Recovery Tribunal, Ernakulam. According to the defendant, at that time the original plaintiff intervened. He agreed to sell his 74.54 Ares of property to the defendant on payment of a further amount of ₹ 62 lakhs.
21. The description of boundaries of original plaintiff's property reveal that the property lies adjoining the property of Preethy. This is relevant since, according to the defendant's case Ext.B3 agreement for sale entered into by Preethy for her property having an extent of 51.39 ares is for ₹ 2.50 crores, including her existing liability of ₹ 2.25 crores, and the agreement for sale with original plaintiff is in respect of his 74.54 Ares of property situated adjacent to the Preethy's property on payment of a R.F.A. No.57 of 2023 2025:KER:54354 -: 12 :- further consideration of ₹ 62 lakhs. It is relevant to note that the property is lying adjoining to each other and that the property of the original plaintiff has a larger extent than that of Preethy's property thus making the transaction reasonable. The defendant's case that the above resulted in the execution of Ext.A1 is, probable.
22. The consideration shown in Ext.A1 is ₹ 62 lakhs. Original plaintiff's daughter Preethy is a witness to Ext.A1 Sale Deed. Ext.A9 is the statement of the original plaintiff's bank account maintained at the South Indian Bank. It shows payments of various amounts by the defendant to the original plaintiff. When this was pointed out by the defendant in the written statement, the original plaintiff in his replication stated that the amounts were paid by the defendant towards a charity program of the Panchayat, to give food for the needy. The plea in the replication goes thus:-
"Food program organised by the plaintiff was associated with by the defendant through financial helps by paying the monthly amount for the charity work thus from 09.09.2012 onwards till January 2014 he had associated with the program by paying money through the account of this plaintiff. The said program was locally managed by the then ward member of Kalloopara Grama R.F.A. No.57 of 2023 2025:KER:54354 -: 13 :- Panchayat 5th ward Mr.Gopi."
23. In the proof affidavit of the original plaintiff it is sworn to, "ഞഞാൻ എനന്റെ പഞഞായതഞായ കലല്ലൂപഞാറ ഗഗഞാമ പഞഞായതത്തിൽ സഞാധധ ജനങ്ങൾകക്ക് അന്നദഞാനനം നൽകധന്നതത്തിനക്ക് പഞഞായതധമഞായത്തി ചചേർന്നക്ക് നടപത്തിലഞാകത്തിയ പദ്ധതത്തിയത്തിൽ എതത്തിർ കകത്തി എചന്നഞാടക്ക് സഹകരത്തികധകയധനം മഞാസഞാമഞാസനം ഒരധ തധക ആ കഞാരര്യതത്തിചലകഞായത്തി എനത്തികക്ക് അയചച തരത്തികയധനം നചേയക്ക്തത്തിടചള്ളതഞാണക്ക്." PW3 is a person who claims to have been a Panchayat member during the period from 2010-2015. In his cross-examination he deposed, "പദ്ധതത്തികക്ക് പഞഞായതധമഞായത്തി ബന്ധമത്തിലഞായത്തിരധന്നധ." So while the original plaintiff claims that it was a Panchayat sponsored program, PW3 the alleged Panchayat member during the relevant period deposed that Panchayat was not involved. Further, PW1 would depose in his cross examination that only he and the defendant were involved in the same. With regard to the alleged charity work, what he deposed reads thus, "അന്നദഞാനനം സനംബന്ധത്തിചക്ക് തഞാങ്കൾ അതത്തിനന്റെ സനംഘഞാടകചനഞാ മചറഞാ ആയത്തിരധചന്നഞാ (Q) അല (A) അന്നദഞാനതത്തിൽ ഞഞാനധനം രഞാജപനധനം മഞാഗതചമ ഉൾനപടത്തിടചള്ളല്ലൂ. Beneficieries-നന കണധപത്തിടത്തിചതക്ക് Panchayat R.F.A. No.57 of 2023 2025:KER:54354 -: 14 :- Member ആണക്ക്. ഇതത്തിനന സനംബന്ധത്തിചക്ക് Panchayat ൽ നത്തിന്നധനം അനംഗഗീകഞാരചമഞാ തഗീരധമഞാനചമഞാ ഉണഞായത്തിടത്തില. പണനം വത്തിനത്തിചയഞാഗത്തിചതത്തിനന സനംബന്ധത്തിചക്ക് ഗപതത്തികക്ക് കണകധകൾ നലക്ക്കത്തിയത്തിടത്തില. ഗപതത്തി ആവശര്യനപടത്തിടചമത്തില. അന്നദഞാനനം എന്നധ മധതൽ എന്നധവനര നടതത്തി എന്നധ പറയധവഞാൻ അറത്തിയത്തില".
To prove that there was any such program as claimed by the original plaintiff, there is no evidence. Therefore, the claim of the original plaintiff that the credits made into Ext.A9 account from the defendant was for a social work as stated above, fails.
24. Ext.A9 account statement reveals several payments by the defendant to the original plaintiff during the period 09.09.2012 till 08.01.2014. It is the case of the defendant that the monthly payments reflected in the original plaintiff's account (Ext.A9) were made by him at the request of Preethy towards the original plaintiff's treatment expenses. Citing that the original plaintiff is a cardiac patient, he had, as per I.A. No.72/2018 sought permission for his examination through a commissioner. The Court had allowed the application. DW2 is the Manager of the defendant. He deposed that he was managing the affairs of R.F.A. No.57 of 2023 2025:KER:54354 -: 15 :- the defendant for the past twenty years. He deposed that the consideration for Ext.A1 included the amounts paid into Ext.A9 account, an amount of ₹ 22,54,640/- paid to the original plaintiff through him and an amount of ₹ 35 lakhs paid to Preethy through Ext.X7 cheque on the date of Ext.A1, as directed by the plaintiff. Ext.X1 Preethy's Bank account statement reveals that ₹ 35 lakhs has been credited into her account on that date. DW2 deposed that an amount of ₹ 6 lakhs was withdrawn from the Bank and he was in possession of an amount of ₹ 20 lakhs to the defendant. Thus it is evident that, as on the date of execution of Ext.A1 Sale Deed there was outstanding liability in favour of the defendant from Preethy, and further payments were paid by the defendant to the original plaintiff and Preethy. This probabilises the defendant's case with regard to execution of Ext.A1 Sale Deed and that it is supported by consideration.
25. It is relevant to note that, while even according to the original plaintiff, the transaction in question was centered around his daughter Preethy, she was neither R.F.A. No.57 of 2023 2025:KER:54354 -: 16 :- impleaded as a party to the suit nor was examined as a witness. It is revealed that the defendant had cited Preethy as a witness. However, in spite of issuance of summons, she did not appear before the Court. During the trial of the suit the original plaintiff expired. Preethy was impleaded as additional second plaintiff along with other legal representatives. Even thereafter she did not care to mount the witness box. Under the circumstances an adverse inference is to be drawn against the plaintiff.
26. Regarding the possession of the property also, the finding of the trial court is well founded. The original plaintiff maintains that, in spite of Ext.A1 he is in possession of the property. Exts.B6 and B7 reports of the Village Officer evidences that mutation was effected on 04.07.2014. The original plaintiff as PW1, in his cross examination, did not deny the suggestion that the defendant is paying tax for the property on effecting mutation, since the year 2014. DW3 is the driver and supervisor of the defendant. He has deposed that he is managing the cultivation in the property since the sale. As noted by the R.F.A. No.57 of 2023 2025:KER:54354 -: 17 :- trial court, nothing could be brought out to discredit the witness.
27. The trial court which had the benefit of watching the demeanor of the witnesses found the evidence of the defence witness to be reliable than that of the original plaintiffs. The original plaintiff has admitted that Preethy is a real estate dealer. Though not of much relevance, we do incidentally note that several criminal cases were registered against the original plaintiff and his daughter for cheating in relation to property and other transactions at the instance of the third parties. Though in the cross examination he attempted to plead ignorance about the same, the defendant proved the same through Exts.B17,18,19,20,29 and 30.
28. We have re-appreciated the entire evidence in the case along with the pleadings of the rival parties. We find that the conclusions arrived at by the trial court regarding the validity of Ext.A1 and possession of the property are justified and warrant no interference. We do not find any merit in the appeal.
R.F.A. No.57 of 2023
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Sd/-
SATHISH NINAN JUDGE Sd/-
P. KRISHNA KUMAR JUDGE kns/-
//True Copy// P.S. To Judge 2025:KER:54354 APPENDIX OF RFA 57/2023 RESPONDENT ANNEXURES Annexure R1(e) True copy of Annexure R1(d) Annexure R1(a) Readable/typed copy of Ext. R1 Annexure R1(h) Order of the Sub Court, Thiruvalla in I. A. No.1/2023 in O.S. No.5/2016 dated 12-01-2023 Annexure R1(c) True copy of chief examination of DW3 in O.S. No.5/2016 Annexure R1(g) True Copy of judgment dated 04- 12-2021 in O.P.(C) No.20 of 2019 Annexure R1(b) True Copy of reply affidavit of petitioner in W.P.(C) No.16837/2016 (Ext. B12 in O.S. No.5/2016, Sub Court, Thiruvalla Annexure R1 True Copy of report of Village Officer dated 20- 01-2016, (Ext. B7 in O.S. No. 5/2016, Sub Court, Thiruvalla Annexure R1(d) True Copy of cross examination of DW3 in O.S. No.5/2016 Annexure R1(f) Copy of proceedings in O.S. No.5/2016, Sub Court, Thiruvalla from 05-02-2016 to 08-01- 2019
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