M.D.John @ Babu vs Joseph John
2022 Latest Caselaw 11241 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MR. JUSTICE SATHISH NINAN
FRIDAY, THE 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944
                          RSA NO. 849 OF 2014
   AGAINST THE JUDGMENT IN AS 262/2010 OF 3RD ADDITIONAL
                      DISTRICT COURT, ERNAKULAM
        OS 148/2009 OF II ADDITIONAL SUB COURT,ERNAKULAM
APPELLANT/RESPONDENT/PLAINTIFF:

           M.D.JOHN @ BABU,AGED 65 YEARS
           S/O LATE M.L DEVASSY, MANAYATHARA THYPPODATH,
           KADAVANTHRA PO, COCHIN - 20.
           BY ADVS.
           SRI.P.MARTIN JOSE
           SRI.P.PRIJITH


RESPONDENTS/APPELLANTS/DEFENDANTS:

    1      MR.JOSEPH JOHN,AGED 52 YEARS,S/O JOSEPH, KULAVELI
           HOUSE, CHERANELLOOR VILALGE, VADUTHALA PO,
           KANAYANNUR TALUK, ERNAKULAM DISTRICT.
    2      SMT. V.V.LUCY,AGED 51 YEARS,W/O JOSEPH JOHN,
           KULAVELI HOUSE, CHERANELLOOR VILLAGE, VADUTHALA
           PO, KANAYANNUR TALUK, ERNAKULAM DISTRICT.
           BY ADVS.
           SRI.K.J.KURIACHAN
           SRI.SUNIL JACOB


THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
02.12.2022,     THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                          Sathish Ninan, J.
                  ==============================
                       R.S.A No.849 of 2014
                    ==========================
             Dated this the 2nd day of December, 2022

                                 JUDGMENT

The plaintiff in a suit for recovery of unpaid

sale consideration is the appellant. The suit was

decreed by the trial court. However, the first appellate

court set aside the decree and dismissed the suit.

2. The plaint schedule property belonged to the

father of the plaintiff under a Will. As per Ext A1, the

plaintiff's father sold the property to the defendants.

At the time of executing Ext A1, there was an agreement

between the parties (Ext.A2) that, from out of the total

sale consideration an amount of Rs. 76,000/- would be

retained by the defendants and would be paid on

obtaining probate of the Will under which the

plaintiff's father obtained title. A probate proceeding

as O.P No.267 of 1994 was pending at that time.

Subsequently, on the death of the father, the probate

proceeding was dismissed for default. The defendants R.S.A No.849 of 2014

have effected mutation of the property and is in

enjoyment of the property as absolute owner. There is no

cloud on their title. It is accordingly that the suit

has been filed for realisation of the unpaid sale

consideration with interest.

3. The defendants admitted Ext A1 and A2. However,

they maintained that, in terms of Ext A2 agreement,

unless probate certificate is obtained, they have no

liability to pay the amount.

4. The trial court held that Section 213 of the

Indian Succession Act was amended in the year 1997 and

that probate for Christian Will is optional. Since

probate was not required at the time when Ext A1 sale

deed was entered into, the defendants are bound to pay

the unpaid sale consideration. The first appellate court

held that, the terms of Ext A2 cannot be given a go by

the parties, and accordingly the suit was dismissed.

5. Heard the learned counsel on either side on the

following Substantial question of law: R.S.A No.849 of 2014

"Was the first appellate court right in dismissing the suit for

recovery of advance sale consideration for non-production of

the probate of the Will under which the vendor obtained title to

the property?

6. The learned counsel for the appellant-plaintiff

would contend that Ext A2 agreement was entered into

between the parties under the impression that the

parties being Christians, a probate of the Will is

necessary for conveyance of valid title. It was under

that mistaken impression that a portion of the sale

consideration was agreed to be retained to be paid on

production of the probate. The parties were at a mistake

of fact regarding necessity of a probate. Such mistake

of fact which may have its roots on law but is still a

mistake rendering the contract void, it is contended.

The learned counsel relies on the judgment of this Court

in Vasu Nambisan v. Kesavan Nair [1963 KLT 872] to

canvas his contention.

7. It is not in dispute that at the time of

entering into Exts A1 and A2 Sale Deed and Agreement, R.S.A No.849 of 2014

obtaining probate for a Christian Will was not mandatory

in terms of Section 213 of the Indian Succession Act.

There is nothing in Ext A2 or in Ext A1 to indicate that

the parties were under a mistaken belief that a

Christian Will was mandatorily required to be probated.

But, for the submission of the learned counsel for the

appellant, there is no pleading that the parties were

under a mistake of fact with regard to the necessity of

probating a Christian Will. A reading of Ext A2

agreement indicates that, in order to secure an

indefeasible title the defendants insisted for obtaining

probate for the Will under which the vendor had obtained

title.

8. There is yet another way of looking at the

transaction. The plaint schedule property was conveyed

for a total sale consideration of Rs.1,50,300/- out of

which half was paid by the purchasers. If the parties

had the impression that obtaining a probate was

mandatory, then, without obtaining the same no purchaser

would have parted with so much amount. It is all the R.S.A No.849 of 2014

more the reason to find that the parties were aware that

probate was not mandatory, but still the purchasers felt

that obtaining of probate would give further authority

to their title, and accordingly insisted for the same,

and was thus made a part of the bargain. Without having

obtained the probate, the plaintiff is not entitled to

claim the amount. The parties are bound by Ext A2

agreement. Substantial question of law is answered

accordingly.

The Regular Second Appeal fails and is accordingly

dismissed.

Sd/-

Sathish Ninan, Judge

vdv