Kerala High Court
Devakiamma vs T.P.Krishnamma on 1 July, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 1ST DAY OF JULY 2024 / 10TH ASHADHA, 1946
RSA NO. 1129 OF 2014
AS NO.173 OF 2011 OF ADDITIONAL DISTRICT COURT-I,
MAVELIKKARA
OS NO.136 OF 2007 OF SUB COURT, MAVELIKKARA
APPELLANTS/APPELLANTS/DEFENDANTS
1 DEVAKIAMMA
AGED 87,D/O.KUTTY AMMA, RESIDING AT
KARIMPALAYATHU, PADEETTATHIL HOUSE, THULAMPARAMBU,
NADAVATHU MURI HARIPAD VILLAGE, KARTHIKAPPALLY
TALUK. 688 536
2 AMMINI D/O.DEVAKIAMMA
AGED 59,KARIMPALAYATHU, PADEETTATHIL HOUSE,
THULAMPARAMBU, NADAVATHU MURI, HARIPAD VILLAGE,
KARTHIKAPPALLY TALUK. 688 536.
BY ADVS.
SRI.C.S.MANILAL
SRI.S.NIDHEESH
RESPONDENT/RESPONDENT/PLAINTIFF
T.P.KRISHNAMMA
AGED 56, W/O.CHATHAN PILLAI, RESIDING AT KRISHNA
BHAVAN, CHERUTHANA THEKKUM MURI, CHERUTHANA
VILLAGE, KARTHIKAPPALLY TALUK.
BY ADV SRI.V.PREMCHAND
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY
HEARD ON 20.6.2024, THE COURT ON 01.07.2024
DELIVERED THE FOLLOWING:
RSA 1129/2014
2
C.PRATHEEP KUMAR, J.
-----------------------------------
R.S.A.No.1129 of 2014
---------------------------------
Dated : 1st July, 2024
JUDGMENT
1. This Second appeal has been preferred by the appellants in
A.S.173/2011 on the file of the Additional Distinct Judge, Mavelikkara,
who are the defendants in OS No.136/2007 on the file of the Sub Court,
Mavelikkara against the judgment and decree dated 5.4.2014 dismissing
the above appeal.
2. For the purpose of convenience, the parties are hereafter referred to as
per their rank before the trial court.
3. The plaintiff filed the suit for specific performance of an agreement for
sale. According to the plaintiff, the 1st defendant agreed to sell the
schedule property to the plaintiff for a consideration of Rs.5000/- per
cent and an agreement for sale in that respect was entered into on
27.4.2007, after receiving an advance amount of Rs.3000/-. As per the
agreement, the sale deed was to be executed within a period of six
months from the date of the agreement. Though the plaintiff was ready
and willing to perform his part of the agreement, the 1st defendant refused
to receive the balance sale consideration and to execute the sale deed.
4. The defendants would contend that the 1 st defendant, who is an old
lady, was in need of some money, that she had borrowed a sum of
Rs.3000/- from the plaintiff and as demanded by the plaintiff, she had
handed over her original title document and also affixed her signature in
a blank stamp paper. The plaintiff, by misusing the said blank stamp
paper, created a sale agreement. It was contended that when she was in
need of money for treatment, she had already sold the schedule property
to the 2nd defendant after receiving a consideration of Rs.50,000/- and
that now the 2nd defendant is the owner in possession and enjoyment of
the property.
5. The trial court after evaluating the available evidence, decreed the suit
and the same was confirmed by the 1st Appellate Court. Aggrieved by the
above judgment and decree of the 1st Appellate Court, the defendants
preferred this Second Appeal raising various contentions.
6. At the time of admission, this Court had formulated two substantial
questions of law, as follows :
"1. Whether the trial court erred in its proceedings by not
framing proper issues as to the compliance of the requirement
of Section 16 (c) of the Specific Relief Act ?
2. Whether the trial court as well as the appellate court
committed error by not considering the impact of Section 19(b)
of the Specific Relief Act as far as the 2 nd defendant is
considered ?"
7. Both sides were heard in detail, on the above substantial questions of
law.
8. One of the arguments advanced by the learned counsel for the
defendants is that the trial court ought to have framed an issue as to the
compliance of the requirement of Section 16(c) of the Specific Relief Act
(in short 'the Act'). Since no such issue was framed by the trial court and
an adjudication in that respect was not arrived at, it was contended that
the judgment and decree of the trial court as well as the 1 st Appellate
Court are unsustainable. In response, the learned counsel for the plaintiff
would argue that, in the plaint there is specific pleading regarding the
readiness and willingness of the plaintiff and also that the same was not
specifically denied by the defendants in the written statement. Therefore,
it was contended that, in the above circumstance, the pleadings in the
plaint regarding compliance of the requirement of Section 16(c) of the
Act stands proved and hence there is no scope for framing an issue in
that respect.
9. Section 16(c) of the Specific Relief Act states that :
"Specific performance of a contract cannot be enforced in
favour of a person -
(c) [who fails to prove] that he has performed or has
always been ready and willing to perform the essential
terms of the contract which are to be performed by him,
other than terms the performance of which has been
prevented or waived by the defendant."
10. In paragraph 5 and 11 of the plaint, the plaintiff has specifically
pleaded that he has performed his part of the sale agreement and that he
has always been ready and willing to perform his part of the agreement.
On a perusal of the above pleadings in paragraph Nos.5 and 11 of the
plaint, it can be seen that the plaintiff has pleaded specifically that he had
complied the requirements of Section 16(c) of the Specific Relief Act.
11. At the same time, as argued by the learned counsel for the plaintiff ,
nowhere in the written statement the defendants have denied the above
pleadings in the plaint that the plaintiff has performed his part of the sale
agreement and that he has always been ready and willing to perform his
part of the agreement. It was in the above context that the trial court has
not framed any specific issue regarding the compliance of requirements
of Section 16(c) of the Specific Relief Act.
12. It was argued by the learned counsel for the defendants that the
requirement under Section 16(c) of the Act being a statutory requirement,
even though there was no specific denial of the pleading, the trial court
ought to have framed an issue in that respect and entered into a finding in
that respect. On the other hand, the learned counsel for the plaintiff,
relying upon Order VIII Rule 5 CPC, would contend that since the
pleading regarding readiness and willingness was not specifically denied,
the same amounts to admission and as such the trial court was perfectly
justified in not raising any issue in that respect.
13. Relying upon the decision of the Allahabad High Court in Suraj
Singh and another v. Sohan Lal and others, AIR 1981 Allahabad 330,
he would argue that even though pleading regarding readiness and
willingness is not denied, the trial court is bound to frame an issue
regarding compliance of requirement of Section 16(c) of the Act.
14. On the other hand, the learned counsel for the plaintiff/respondent
relying upon the decision of the Hon'ble Supreme Court in Nedunuri
Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884 and a
decision in Kannan v. V.S.Pandurangam, AIR 2008 SC 951, would
argue that omission to frame an issue is not vital, if the parties went to
trial fully knowing the rival case and lead evidence in support of their
respective contentions.
15. In the decision in Kannan (supra) relying upon the decision in
Nedunuri Kameswaramma (supra) in paragraph 11 the Hon'ble
Supreme Court held that :
"By a series of decisions of this Court it has been settled that
omission to frame an issue as required under O.XIV R.1,
CPC, would not vitiate the trial in a suit where the parties
went to trial fully knowing the rival case and led evidence in
support of their respective contentions and to refute the
contentions of the other side vide Nedunuri Kameswaramma
v. Sampati Subba Rao, AIR 1963 SC 884"
16. In support of his argument that unless the averments in the plaint
are specifically denied in the written statement, the defendants are not
entitled to lead any evidence on those issues and that the plaint
averments stands proved, he has relied upon the decision of the Hon'ble
Supreme Court in Gian Chand & Brothers (M/s) and Another v.
Rattan Lal @ Rattan Singh, AIR 2013 SC 1078.
17. He has also relied upon the decision of the Hon'ble Supreme Court
in Jaspal Kaur Cheema and Another v. Industrial Trade Links and
Others, AIR 2017 SC 3995. In paragraph 7 of the above judgment the
Apex Court held that :
"In terms of O.8 R.3 of the Code of Civil Procedure, 1908
(for short "the Code"), a defendant is required to deny or
dispute the statements made in the plaint categorically, as
evasive denial would amount to an admission of the
allegation made in the plaint in terms of O.8 R.5 of the Code.
In other words, the written statement must specifically deal
with each of the allegations of fact made in the plaint. The
failure to make specific denial amounts to an admission."
18. Rule 5 of Order VIII CPC reads as follows :
"Every allegation of fact in the plaint, if not denied
specifically or by necessary implication, or stated to be not
admitted in the pleadings of the defendant..., shall be taken
to be admitted."
19. Sub-rules (1),(2) and (3) of Order XIV Rules 1 CPC dealing with
framing of issues states that:
(1) Issues arise when a material proposition of fact or law is
affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or
fact which a plaintiff must allege in order to show a right to
sue or a defendant must allege in order to constitute his
defence.
(3) Each material proposition affirmed by one party and
denied by the other shall form the subject of a distinct issue.
20. Since the defendants have not denied the pleadings in the plaint
regarding readiness and willingness of the plaintiff, by virtue of Order
VIII Rule 5 CPC the above pleadings stands proved and as such, there
was no obligation on the part of the trial court to frame a separate issue in
that respect. The defendants have no case that in this case the parties
have not went to trial fully knowing the rival case and led evidence in
support of their respective contentions and to refute the contentions of
the other side. In the above circumstance, I do not find any merit in the
contention of the learned counsel for the defendants that, even though the
pleading regarding readiness and willingness in the plaint is not
specifically denied in the written statement, the trial court is bound to
frame an issue regarding compliance of requirement of Section 16(c) of
the Specific Relief Act. In the above circumstance, I am not persuaded
by the decision of the Allahabad High Court in Suraj Singh (supra),
which says otherwise.
21. The other contention raised by the learned counsel for the defendants
is that the 2nd defendant is a bona fide purchaser of the plaint schedule
property for valid consideration and without notice about the existence of
the sale agreement with the 1st defendant, and as such she is entitled to
get the benefit of Section 19(b) of the Specific Relief Act.
22. In reply, the learned counsel for the plaintiff would argue that the 2 nd
defendant is none other than the daughter of the 1 st defendant and that the
defendants 1 and 2, in collusion with each other created a sale deed in
order to defeat the rights of the plaintiff. Therefore, according to him, the
2nd defendant is not a bona fide transferee for valid consideration and
without notice and hence according to him, the contention of the
defendants in that respect is liable to be rejected.
23. Relying upon the decision of the Hon'ble Supreme Court in Prem
Singh v. Birbal, AIR 2006 SC 3608, the learned counsel for the
plaintiff/appellant would argue that there is a presumption that a
registered document is validly executed and that the burden is on the
respondent to rebut the above presumption. He has also relied upon the
decision of the Hon'ble Supreme Court in Jagan Nath v. Jagdish Rai
and Others, AIR 1998 SC 2028, in support of his argument that as
against bona fide purchaser for value without notice of earlier agreement
relief of specific performance cannot be granted.
24. Section 19 (b) of the Specific Relief Act states that specific
performance of a contract cannot be enforced against a transferee for
value who has paid his money in good faith and without notice of the
original contract.
25. As contended by the learned counsel for the plaintiff, in the instant
case, the 2nd defendant is none other than the daughter of the 1 st
defendant. Exhibit A1 is the sale agreement dated 27.4.2007 executed
between the plaintiff and the 1st defendant agreeing to sell the plaint
schedule property to the plaintiff for a consideration of Rs.5,000/- per
cent. In Exhibit A1 sale agreement, a period of six months was provided
for its performance. Exhibit A8 is the sale deed dated 15.5.2007 executed
by the 1st defendant in favour of the 2nd defendant. It shows that though
Exhibit A1 sale agreement was entered into between the plaintiff
stipulating a period of six months for its execution, on the 19 th day itself,
she had executed Exhibit A8 sale deed in the name of one of her
daughters, the 2nd defendant.
26. The total extent of property involved in Ext. A1 sale agreement is
24.25 cents and the total sale consideration agreed to be paid by the
plaintiff to the defendant was Rs.1,23,030/-. However, in Exhibit A2, the
total sale consideration shown is only Rs.50,000/-. Going by those
documents it appears that the 1st defendant has sold the plaint schedule
property to the 2nd defendant for a sale consideration, which is less than
half the sale consideration offered by the plaintiff in Exhibit A1.
27. At the time of evidence, it is also revealed that the sister of the 2 nd
defendant and another daughter of the 1st defendant namely
Subhadramma is a common witness in Exhibit A1 and Exhibit A8. In the
ordinary course of nature, no reasonable and prudent man will sell his
property for a price of Rs.50,000/- immediately after entering into a sale
agreement to sell the same to another person for more than Rs.1,23,000,
unless there is sufficient reasons. It is quite natural that a man may sell
his property to his near relative or friend, who are in very good terms, for
a price much less than the actual market price. However, in such a case,
their contention that they were not at all aware of the sale agreement
entered into with another person, immediately before the above
assignment could not be believed.
28. In this context, it is also to be noted that in the plaint, the plaintiff has
taken a specific contention that the 2 nd defendant was aware of Ext.A1
agreement and that defendants 1 and 2 in collusion with each other and
with the intention to defraud the plaintiff, executed Exhibit A8 sale deed,
without receiving any consideration. It is surprising to note that the
above specific pleading in the plaint was not denied by the defendants in
the written statement. Therefore, the allegation regarding knowledge of
the 2nd defendant about the sale agreement and collusion and fraud
between defendants 1 and 2 to defraud the plaintiff as alleged in the
plaint remains unchallenged.
29. It is also interesting to note that none of the defendants have
entered the witness box to swear their case on oath and to offer
themselves to be cross examined by the plaintiff. In the above
circumstances, an adverse inference is liable to be drawn against the
defendants, in the light of the decision of Hon'ble Supreme Court in
Vidhyadhar v. Manikrao and Another, 1999 (3) SCC 573.
30. On the basis of the documentary evidence as well as oral evidence of
PWs 1 to 7, the trial court as well as the First Appellate Court found that
the plaintiff has succeeded in proving the execution of Exhibit A1 sale
agreement. Though the defendants have taken a contention that when the
1st defendant was in need of money, she had borrowed a sum of
Rs.3,000/- from the plaintiff on 24.1.2007 and that at that time, she had
affixed her signature in a blank stamp paper as security, cannot be
believed even for a moment. If there was any merit in the above
contention of the 1st defendant, she would have repaid or at least tendered
the amount she borrowed from the plaintiff, immediately on executing
Exhibit A8 sale deed on 15.5.2007. In this context, it is to be noted that
the plaintiff filed the suit only on 20.6.2007.
31. As I have already noted above, the contention of the plaintiff that
Exhibit A8 sale deed was entered into between defendants 1 and 2, with
the intention to defeat the rights of the plaintiff stands unchallenged. In
the above circumstance, the pleading to the effect that the 2 nd defendant
was very much aware of Exhibit A1 sale agreement entered into between
the plaintiff and the 1st defendant stands proved. Therefore, the
contention of the defendants that the 2nd defendant is a bona fide
purchaser without knowing about the existence of Exhibit A1 sale
agreement cannot be accepted.
32. Therefore, there is no merit in the contention that the trial court as
well as the First Appellate Court has committed error in not considering
the impact of Section 19 (b) of the Specific Relief Act as far as the 2 nd
defendant is concerned. The substantial questions of law formulated are
answered accordingly.
33. No other substantial questions of law were raised by the counsel, at
the time of arguments.
34. In the light of the findings on the substantial questions of law, it can
be seen that the trial court as well as the First Appellate Court were
perfectly justified in decreeing the suit. The plaintiff has already
deposited the balance sale consideration of Rs.1,18,250/- before the SBT,
Mavelikkara main branch, on 5.8.2011, as directed by the trial court. I do
not find any irregularity or illegality in the finding of the First Appellate
Court, so as to call for any interference.
In the result, the Regular Second Appeal is dismissed. Considering
the facts, I order no costs.
All pending interlocutory applications stand closed.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/sou/25.6
