Kerala High Court
Anwar vs Syrabi on 1 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 1st DAY OF JUNE 2021 / 11TH JYAISHTA, 1943
RFA NO. 788 OF 2014
AGAINST THE JUDGMENT AND DECREE IN O.S NO.1408/2008 OF
I ADDITIONAL SUB COURT, THRISSUR.
APPELLANT/5TH DEFENDANT:
ANWAR,
AGED 40 YEARS,
S/O.LATE ABDULLAKUTTY, RESIDING AT AMBALATHUVEETTIL,
PAZHUVIL POST, KURUMBILAVU VILLAGE & DESOM, THRISSUR
TALUK, THRISSUR DISTRICT.
BY ADVS.
SRI.P.SANTHOSH (PODUVAL)
SMT.R.RAJITHA
SRI.K.D.SREEVISAKH
RESPONDENTS/PLAINTIFF & DEFENDANTS 2 TO 4:
1 SYRABI,
D/O.PUTHIYAVEETTIL NAVAS,
W/O.MALIYEKKAL RAHMATHALI, THANYAM VILLAGE & DESOM,
THRISSUR TALUK, THRISSUR DISTRICT, PIN: 680 001.
2 SAMEERA,
D/O.LATE ABDULLAKUTTY,
RESIDING AT AMBALATHUVEETTIL,PAZHUVIL POST,
KURUMBILAVU VILLAGE & DESOM, THRISSUR TALUK,
THRISSUR DISTRICT, PIN: 680 564.
3 MUNEERA,
D/O.LATE ABDULLAKUTTY, RESIDING AT AMBALATHUVEETTIL,
PAZHUVIL POST, KURUMBILAVU VILLAGE & DESOM,
THRISSUR TALUK, THRISSUR DISTRICT, PIN: 680 564.
4 RASHEEDA,
D/O.ABDULLAKUTTY, RESIDING AT AMBALATHUVEETTIL,
PAZHUVIL POST, KURUMBILAVU VILLAGE & DESOM, THRISSUR
TALUK, THRISSUR DISTRICT, PIN: 680 564.
R1 BY ADV.K.C VISWAMBHARAN
BY ADV C CHANDRASEKHARAN (CAVEATOR)
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
02.02.2021, THE COURT ON 01.06.2021 DELIVERED THE FOLLOWING:
R.F.A. No. 788 of 2014
-:2:-
MARY JOSEPH, J.
------------------------
R.F.A. No. 788 of 2014
------------------------
Dated this the 1st day of June, 2021
JUDGMENT
First Additional Sub Court, Thrissur has passed a judgment and
decree in O.S. No.1408/2008 filed by Syrabi and others as plaintiffs
seeking for specific performance of contract for sale, for declaration and
in the alternative for return of advance amount with interest.
2. The reliefs granted in the suit are to the following effect :
"1. The 5th defendant shall get the plaint schedule
properties measured through a competent surveyor in the
presence of the plaintiff and ascertain the total extent, within a
period of two months from this date.
2. On such ascertainment he shall execute a conveyance
deed transferring his 2/5 shares in item Nos.1 to 9 of the plaint
schedule properties and his full right in item Nos.10 and 11, after
receiving the balance consideration to be calculated at the rate of
Rs.50,000/- (Rupees fifty thousand only) per cent and after
adjusting Rs.6,24,233/- (Rupees six lakh twenty four thousand
two hundred and thirty three only). He shall execute such
conveyance deed within a period of one month from the date of
ascertainment of actual extent of property.
3. In case the 5th defendant fails to get the property
measured and to execute the conveyance deed, the plaintiff shall
apply for issuance of a commission to ascertain the extent through
court. At the same time plaintiff shall also deposit the balance
R.F.A. No. 788 of 2014
consideration of Rs.14,56,904/- (Rupees fourteen lakh fifty six
thousand nine hundred and four only), being the balance
consideration for the tentative extent shown in the plaint, within a
period of 30 days from the expiry of the period of two months fixed
under clause 1 above. On such deposit and additional deposit if
any, on ascertainment of the extent, she is entitled to get the
conveyance deed executed through the process of court.
4. Plaintiff be also entitled to proportionate cost of the suit
from the 5th defendant."
3. Though reliefs were sought against defendants 1 to 5, in
view of the death of the 1st defendant during the pendency of suit
and settlement of issues among the plaintiff and defendants 2 to 4
out of court and execution of a conveyance deed in favour of the
plaintiff by them as Ext.A10, the trial court has limited its
adjudication on the issue among the plaintiff and the 5 th defendant
only and granted the decree against the 5th defendant.
4. Sri.Santhosh P. Poduval advanced arguments on behalf of
the appellant and Sri.C.Chandrasekharan on behalf of the
respondent. The main argument advanced by Sri.Santhosh was
that despite raising a plea that the plaintiff had been to the Sub
Registrar's Office, Kattoor on 14.08.2008 to execute the sale deed in
her favour, she failed to establish that the amount outstanding for
payment to the defendant as balance consideration was available
R.F.A. No. 788 of 2014
with her and to deposit the same before the court in manifestation
of the factum. According to him, the execution of the sale deed
contemplated under Ext.A1 was defeated as the plaintiff insisted to
execute it ignoring Ext.B4 compromise decree passed by Munsiff
Court, Thrissur reserving proportionate rights over the 'C' Schedule
pathway in favour of the defendants and their neighbours.
According to him, the trial court while appreciating the evidence had
lost sight of the fact that the plaint schedule property was measured
at the initiative of the defendant prior to the expiry of the time
period for execution as per Ext.A1. The learned counsel vehemently
contended that the trial court undoubtedly is erred in arriving at a
finding that the plaintiff was ready and willing to perform his part of
the contract as per Ext.A1 and execution of the deed of conveyance
as stipulated under Ext.A1 was defeated solely on account of the
failure of defendant No.5.
5. Sri. C. Chandrasekharan, the learned counsel urged that the
findings being logically derived by the trial court after appreciation
of the evidence in its proper perspective, the judgment and decree
passed on its basis and under challenge deserve to be maintained.
6. The rival arguments tendered as above set forth the
necessity to have an analysis of the evidence on record in the case
R.F.A. No. 788 of 2014
on hand. Before proceeding to analyse the evidence the case set up
by the plaintiff and the contentions taken by defendant No.5 to the
contrary, need a reference in brief and is done hereunder.
7. Item Nos. 1 to 9 in the plaint schedule property devolved
on defendants 1 to 5 on the death of its owner, D1 being his wife
and D2 to D5 being his children. Item Nos. 10 and 11 exclusively
belonged to the 5th defendant. Defendants 1 to 5 entered into a
contract with the plaintiff for sale of the plaint schedule properties
after arriving at a consensus on the consideration payable per cent
as Rs.50,000/-. Rs.1,30,000/- was received by the defendants from
the plaintiff and the date of completion of the contract was fixed as
14.08.2008. As agreed, defendants have to convince the plaintiff
about the validity of his title deeds in respect of the plaint schedule
properties and extent of those by measurement prior to the
execution of the deed itself. Plaintiff was ready and willing to
perform his part of the contract all times after execution of the
agreement for sale. But the balance sale consideration payable by
the plaintiff was subject to ascertainment of the extent of plaint
schedule property by measurement. The defendant failed to
convince the plaintiff about his title over the plaint schedule property
and it's extent despite demands made by the plaintiff severally. A
R.F.A. No. 788 of 2014
lawyer notice was also caused to be served on defendants 1 to 5 on
11.08.2008 calling upon them to hand over the title deeds of the
plaint schedule properties available with him, to measure out the
properties and to execute the sale deed after receiving the balance
sale consideration. The notice though addressed to the 1 st
defendant, a request was made to show it to other defendants also.
Notice was evidenced as received by the 1st defendant. On being
informed that the defendant's attempt was to sell the plaint
schedule property to third parties for a higher price than agreed, a
petition was lodged before the local police. It was informed by the
defendants then that an inter se dispute was originated among
themselves regarding the sharing of consideration and therefore, the
performance of their part timely was defeated.
8. The plaintiff went to S.R.O., Kattoor on 14.08.2008 and
waited there for the defendants to come and execute the deed, but
for their failure to turn up, the execution of the deed was not
fructified. The 5th defendant caused a notice issued to the plaintiff
on 05.09.2008 expressing his readiness to execute the sale deed.
The plaintiff received the notice only on 17.09.2008 and to her utter
dismay she came to know that the 5 th defendant had left for abroad
on 06.09.2008 itself. The plaintiff had the necessary money with
R.F.A. No. 788 of 2014
her to pay the balance sale consideration, the stamp duty and other
expenses related to the execution of the sale deed and she was
always ready and willing to perform her part for execution of the
sale deed. Therefore, seeking for assistance of the court for getting
it done through the defendant, the suit was filed.
9. The 1st defendant died and the other defendants are
recorded as his legal representatives. The 2nd defendant failed to file
a written statement. The 3rd and 4th defendants filed a joint written
statement. The 5th defendant, filed a written statement, of his own.
Since the issues between the plaintiff and defendants 2 to 4 are not
matters of concern at present, discussion is confined only to the
contentions taken by the 5th defendant in his written statement.
10. In view of the settlement of issues among the plaintiff and
defendants 2 to 4 and recording of the compromise by the court, the
plaintiff got the plaint amended and the following pleas were
incorporated additionally :
"Defendants 2 to 4 had 3/5 shares in item Nos.1 to 9 of
the plaint schedule. They have sold that right in favour of the
plaintiff for a consideration of Rs.18 lakh by a registered
document No.594/2013. The advance consideration of Rs.13
lakh under the agreement was received by the 5 th defendant
alone and therefore it was not adjusted while paying the
consideration to defendants 2 to 4. Defendant No.5 is having
R.F.A. No. 788 of 2014
2/5 shares. Said amount is to be treated as and adjusted
towards the sale consideration due to the 5th defendant. The
plaintiff is entitled to a declaration to that effect. In case the
court holds that the plaintiff is not entitled to a declaration as
above, then the share of the 5th defendant in the advance
amount is liable to be adjusted towards the sale consideration
due to him. Total extent of item No.1 to 9 is 65.561 cents. At
the time of agreement he had 14/40 rights in these items of
properties. Total consideration payable under the agreement is
Rs.39,00,000/-. Advance money represents 1/3 rd of it.
Proportionate amount due to the 5 th
defendant from this amount
is Rs.3,82,439/-. Total extent of item No.10 and 11 is 16.4375
cents. Consideration due to the 5 th defendant for this extent is
Rs.8,21,875/-. One third of this amount is Rs.2,73,598/-. Thus
proportionate advance money due to him was Rs.6,56,397/-. In
the balance consideration in respect of items 1 to 9 he has 2/5
right. After adjusting this amount, the amount due to the 5 th
defendant towards the sale consideration is Rs.14,22,063/-.
Plaintiff is ready to pay this amount and get the sale deed
executed."
11. Since the finding of the trial court on readiness and
willingness of the plaintiff in the affirmative was assailed by the
learned counsel as perverse and the outcome of appreciation of the
evidence on record in its incorrect perspective, it is incumbent upon
this Court to have an analysis of the evidence on record relied on by
the trial court, to see whether any illegality, impropriety and infirmity
is involved.
R.F.A. No. 788 of 2014
12. The prime and basic requirement in a suit seeking for a
decree of specific performance is to plead specifically and establish
that the plaintiff was always and is ready and willing to perform her
part of the agreement for sale executed among herself and the party
against whom the relief is sought.
13. The plaint in the suit on hand undoubtedly incorporates a
pleading specifically that the plaintiff had the necessary money to
meet the balance sale consideration with her and was ready and
willing to pay it to the defendant and to get the sale deed executed
on any day prior to 14.08.2008 or particularly on that day. As PW1,
the plaintiff has also spoken it precisely and strictly in tune with her
pleadings in the plaint.
14. As per the pleadings of the plaintiff in the plaint and as
deposed by her in the court as PW1, the defendant failed to convince
her about the validity of his title over the plaint schedule properties
agreed to be sold and the extent, those have, by way of
measurement. The recitals in Ext.A1 calls for reference in the
context and the related portion is extracted hereunder :
"മമേലലെഴുതതിയ വകകളളും അവ സളുംബനതിച്ച എലല്ലാ അവകല്ലാശങ്ങളളും
യല്ലാലതല്ലാരു കടവളും അനന്യ മതർച്ചകളളും ഇലല്ലാലത അളനന്ന് കല്ലാണുന ലസൻറന്ന് 1
ഒനതിനന്ന് 50000 ക അമ്പതതിനല്ലായതിരളും ഉറുപതിക വതിലെകന്ന് ഒനല്ലാളും പല്ലാർടതി തതീറന്ന്
ലകല്ലാടുപല്ലാനളും രണല്ലാളും പല്ലാർടതി തതീറന്ന് വല്ലാങ്ങുവല്ലാനളും നതിശ്ചയതിച്ചതിരതിക്കുന. ഈ
R.F.A. No. 788 of 2014
കരല്ലാർപ്രകല്ലാരളും മമേപടതി വകകലള രണല്ലാളും പല്ലാർടതി തതീറന്ന് എടുക്കുലമേനതതിലന
ഉറപതിമലെകന്ന് ഒനല്ലാളും പല്ലാർടതി പകൽ 13,00,000 ക പതതിമൂനന്ന് ലെകളും ഉറുപതിക
അഡഡല്ലാൻസല്ലായതി ലകല്ലാടുതതിരതിക്കുന തതീറന്ന് നടത്തുനതതിനന്ന് 2008 ആഗസന്ന് മേല്ലാസളും
14-)0 തതിയ്യതതി വമരക്കുളും അവധതി നതിശ്ചയതിച്ചതിരതിക്കുന ടതി. കല്ലാലെല്ലാവധതി ഈ
കരല്ലാറതിലന പ്രധല്ലാന അളുംശമേല്ലാകുന. തതീറല്ലാധല്ലാരളും രണല്ലാളും പല്ലാർടതിമകല്ലാ രണല്ലാളും
പല്ലാർടതി മരഖല്ലാമൂലെളും നതിർമദേശതിക്കുനല്ലാൾമകല്ലാ എഴുതതി ഒപതിടന്ന് രജതിസല്ലാകതി
ലകല്ലാടുപല്ലാൻ ഒനല്ലാളും പല്ലാർടതി സമ്മതതിച്ചതിരതിക്കുന. തതീറതിലന മുദ്രവതിലെ, രജതിസർ
ഫതീസന്ന്, എഴുതന്ന് ഫതീസന്ന് മുതലെല്ലായ സകലെ ചതിലെവകളളും രണല്ലാളും പല്ലാർടതി
ലചമയ്യണതല്ലാകുന. തതീറതിനമുമ്പന്ന് വകകലള സളുംബനതിച്ചന്ന് മരഖകളളും മതർച്ചകളളും
രണല്ലാളും പല്ലാർടതിലയ മബല്ലാധന്യലപടുമതണതല്ലാകുന. മമേൽപറഞ
അവധതികകതന്ന് തതീറന്ന് വതിലെ സളുംഖന്യ രണല്ലാളും പല്ലാർടതി ഒനല്ലാളും പല്ലാർടതികന്ന് ലകല്ലാടുതന്ന്
തതീറല്ലാധല്ലാരലമേഴുതതി ഒപതിടന്ന് രജതിസല്ലാകതി വല്ലാമങ്ങണതളും തത്സമേയളും വകകലള
രണല്ലാളും പല്ലാർടതികന്ന് യഥല്ലാർത്ഥ കകവശളും ലകല്ലാടുമകണതമേല്ലാകുന. മമേപടതി
അവധതികകതന്ന് തതീറല്ലാധല്ലാരലമേഴുതതി രജതിസല്ലാക്കുന പകളും മമേൽപറഞ
അഡഡല്ലാൻസന്ന് സളുംഖന്യ മുഴുവൻ തതീറന്ന് വതിലെയതിമലെകന്ന് വകയല്ലാക്കുവല്ലാനളും അത കഴതിച്ചന്ന്
ബല്ലാകതി സളുംഖന്യ രണല്ലാളും പല്ലാർടതി ഒനല്ലാളും പല്ലാർടതികന്ന് ലകല്ലാടുക്കുനതന്ന് ആയല്ലാൽ
തതീരർത്ഥളും മബല്ലാധന്യലപടുവല്ലാനളും ഉഭയ സമ്മതളും ഉള്ളതല്ലാകുന."
15. As per the above extract, the right and interest of the
defendant in the plaint schedule properties alongwith any
encumbrance or liability exist, was agreed to be conveyed to the
plaintiff. As made clear by the recitals, the total sale consideration
payable for the plaint schedule property could be ascertained only
after measurement and identification of it's extent. Ext.A1 being an
agreement involving reciprocal promises of the parties subscribing
it's terms, the measurement of the plaint schedule properties by the
defendant stands as the prime obligation to be performed. The
R.F.A. No. 788 of 2014
defendant being the title holder in possession of the plaint schedule
properties, undoubtedly he has to measure those and convince the
plaintiff. He being the holder of the title deeds and other collateral
documents supportive of his title and possession over the plaint
schedule properties agreed to be sold, it is incumbent upon him to
make those available to the plaintiff to get convinced of.
16. The merits of the contention of the learned counsel that
readiness can only be established by depositing the money
outstanding as balance sale consideration before the court and not
by raising a claim that he was present before the S.R.O on 14.08.2008,
assumes relevance in the context. According to the learned counsel
the specific case put forth by the plaintiff itself being that the defendant
failed to convince her of the title deeds and the total extent of the
plaint schedule property, her claim of presence before the SRO, Kattoor
on 14.08.2008 for getting the sale deed executed is difficult to be taken
for granted. According to him, a prudent man will not proceed to get
the sale deed in respect of a particular property registered in his favour
without having any, definite and precise information about the validity
of it's title and extent. It is pertinent to note that the trial court had
endorsed a view strictly based on the argument advanced as above and
this court finds every justification in endorsing that view.
R.F.A. No. 788 of 2014
17. But, the recital extracted above provides that the balance
sale consideration payable could only be ascertained on measuring
out the plaint schedule property and finding it's actual extent.
Therefore, the defendant is obliged by the terms of Ext.A1 to
convince the plaintiff that the title held by him in respect of the
plaint schedule property is valid and that he holds that much extent.
Therefore, the plaintiff would get an idea about the balance sale
consideration payable only on measuring it out. As rightly pleaded
by the learned counsel for the plaintiff, the balance sale
consideration could not be paid due to failure of the defendant to
convince her about the validity of the title and extent of the plaint
schedule properties by production of the title deeds for her perusal
and measurement of the same.
18. The defendant had taken a plea that the plaint schedule
property was measured out as agreed. But, he failed to make a precise
stand on his plea during examination as DW1. His stand initially was
that he got the property already measured by the village officer but at
a later point of time, he has spoken that he got it measured by the
Taluk Surveyor. When the inconsistency was put to his notice, he did
not respond. Therefore by his inconsistent versions in the witness box,
DW1 has made himself a witness unworthy of credence.
R.F.A. No. 788 of 2014
19. Since the determination of balance sale consideration
payable by the plaintiff to the defendant is subject to ascertainment
of its extent by measurement and when the measurement itself was
not convincingly established, the plaintiff having not been acquainted
of the exact quantum payable, as balance sale consideration cannot
be said to be defeated in establishing her readiness and willingness
by depositing the amount before the court. It is pertinent to note
that by marking Exts. A7 and A8 in evidence the plaintiff was
successful in establishing that sufficient money was available with
her to meet the payment of the balance sale consideration.
20. It is made clear by Ext.A2 notice that the defendant was
called upon by the plaintiff to perform his part of the contract.
According to the defendant, Ext.A2 was not sent to him but to
defendant No.1. A reading of Ext.A2 would make it clear that the
plaintiff had appealed to the 1st defendant to inform the contents of
the notice to other defendants also. Defendants 2 to 4 had not raised
a contention in their written statement that they were not
acquainted of Ext.A2. Moreover, the specific stand of defendant No.5
itself would make it clear that he was informed of Ext.A2.
21. In the light of the discussion made as above, this Court has
no hesitation to hold that the court below is perfectly justified in
R.F.A. No. 788 of 2014
granting the impugned decree in favour of the plaintiff. Interference
on merits, is strictly uncalled for.
In the result, the appeal is dismissed. The impugned judgment
and decree is maintained by extending the date of measurement
contemplated in Clause (1) thereof, to a date within a period of two
months from the date on which a certified copy of this judgment is
made available to the trial court. No order as to costs.
Sd/-
MARY JOSEPH, JUDGE
ttb/jj
