Kerala High Court
Baby vs Lissy on 5 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 5TH DAY OF JUNE 2024 / 15TH JYAISHTA, 1946
RSA NO. 795 OF 2005
AGAINST THE ORDER/JUDGMENT DATED 24.01.2005 IN AS NO.21 OF 2002 OF
ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL COURT,KATTAPPANA
ARISING OUT OF THE ORDER/JUDGMENT DATED 24.11.2001 IN OS NO.235 OF
1999 OF MUNSIFF COURT,KATTAPPANA
APPELLANT/S:
BABY
MANDAPATHIL HOUSE, KUNTHALAMPARA KARA,, KATTAPPANA
VILLAGE, IDUKKI.
BY ADVS.
SRI.V.CHITAMBARESH
SRI.JIBU P THOMAS
SRI.T.C.SURESH MENON
SRI.SREEKANTH.K.R
RESPONDENT/S:
1 LISSY
MANOOKKALATH HOUSE, IDINJAMALA KARA,, SANTHIGRAM P.O.,
KALKOONTHAL VILLAGE,, IDUKKI.
2 KUNJOONJU ALIAS JACOB
RESIDING AT KULANGARAYIL HOUSE,, MAKKAPADY, SANTHIGRA
P.O.,, KALKOONTHAL VILLAGE, IDUKKI.
3 SHAJI SO. KUNJOONJU RESIDING AT
KULANGARAYIL HOUSE, MAKKAPADY, SANTHIGRAM P.O.,,
KALKOONTHAL VILLAGE, IDUKKI.
BY ADV SRI.A.J.JOSEAEDAIODI
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
05.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA NO. 795 OF 2005
2
JUDGMENT
Dated this the 5th day of June, 2024
This second appeal has been preferred by the 1 st respondent
in AS No.21/2002 on the file of the District Judge, Kattappana
who is the plaintiff in OS No.235/1999 on the file of the Munsiff
Court, Kattappana against the judgment and decree dated
24.01.2005 allowing the appeal and decreeing the suit. For the
purpose of convenience, the parties are hereafter referred to as
per their rank before the Trial Court.
2. According to the Plaintiff, her husband borrowed an
amount of Rs.50,000/- from the 1st defendant in the year 1996
after issuing a cheque as security. Out of the loan amount, her
husband repaid Rs.18,000/- including interest to the 1 st defendant
till 31.12.1998. In December, 1998, the 1 st defendant demanded
that the plaintiff should execute a sale deed in respect of the
plaint scheduled property in favour of him to save her husband
from being prosecuted using the cheque issued as security. The
1st defendant agreed to release the plaint scheduled property to
the plaintiff as and when the loan amount is repaid with interest.
Accordingly, Ext.A1 sale deed was executed by her in favour of
the 1st defendant on 18.01.1999. Even though, such a sale deed
RSA NO. 795 OF 2005
was executed, the property continued to be in the possession of
the plaintiff. The sale deed was executed only as security and it
was not intended to be acted upon. However, subsequently, the
1st defendant refused to release the plaint scheduled property in
her favour and tried to assign the same in favour of defendants 2
& 3. It was in the above context, she filed this suit for a
declaration that Ext.A1 sale deed was executed only as security
and it is a sham document. She also prayed for an injunction
restraining the defendants from inducting strangers into the
scheduled property and from dispossessing the plaintiff from
there.
3. The 1st defendant appeared and filed a written
statement denying the averments in the plaint. According to the
1st defendant, Ext. A1 is a pucca sale deed and that he had
purchased the plaint scheduled property from the plaintiff after
paying the due consideration. He denied having any money
transaction with the plaintiff. After appreciating the available
evidence, the trial Court dismissed the suit. However the 1 st
appellate court reversed the findings of the Trial Court and
decreed the suit. Dissatisfied with the above judgment and
decree of the 1st appellate court, the 1st defendant preferred this
RSA NO. 795 OF 2005
second appeal, raising various contentions.
4. At the time of admission, the following substantial
questions of law were formulated by this Court:
i) Whether the lower appellate court was justified in law
in reversing the well-founded decree of the trial court when
Ext.A1 sale deed was duly executed and fully supported by
valuable consideration?
ii) Has not the lower appellate court erred in holding that
Ext.A1 sale deed is a sham document not intended to be acted
upon for the mere reason that the property had been undervalued
therein?
iii) Whether the lower appellate court was correct in law
in finding that Ext.A1 sale deed has not been validly executed
when no vitiating factors such as coercion or fraud have been
established?
iv) Has not the lower appellate court erred in decreeing
the suit after coming to the conclusion that the property would
have been undervalued to reduce stamp duty payable by
assignee?
5. Both sides were heard in detail on the above
RSA NO. 795 OF 2005
substantial questions of law.
6. According to the plaintiff, her husband borrowed a sum
of Rs.50,000/- from the 1st defendant in the year 1996, after
issuing a cheque as security. He had repaid a sum of Rs.18,000/-
and interest to the 1st defendant till 31.12.1998. In December
1998, the 1st defendant demanded her to execute a sale deed in
respect of the plaint scheduled property in order to save her
husband from being prosecuted using the cheque. It was
accordingly, she had executed Ext.A1 sale deed in respect of the
plaint scheduled property in favour of the 1st defendant. However,
the 1st defendant totally denied having any money transaction
with the plaintiff.
7. The plaintiff could not produce even a scrap of paper to
prove that there was any such money transaction with the 1 st
defendant as claimed. Though she had claimed that she had
executed Ext.A1 sale deed as security and as demanded by the 1 st
defendant, to save her husband from being prosecuted using the
cheque issued as security, she has not even produced the said
cheque, allegedly issued to the 1st defendant. If she had executed
Ext.A1 sale deed as security to save her husband from being
prosecuted using the cheque, on execution of Ext.A1 sale deed,
RSA NO. 795 OF 2005
she would have received back the above cheque leaf, which was
given as security. However, without offering any explanation, she
has not produced even that cheque.
8. One of the circumstances relied upon by the 1 st
Appellate Court to set aside the judgment and decree of the trial
court is that the consideration shown in Ext.A1 is only Rs.15,000/-
for 50 cents of landed property. At the time of evidence, the
plaintiff as PW1 claimed that the said property is worth
Rs.20,000/-. However, she has not specifically stated that the
value of the property is Rs.20,000/- per cent. According to the
defendant, he had purchased the plaint schedule property for
Rs.75,000/-, but the consideration was shown in Ext.A1 as only
Rs.15,000/-. The above claim of the defendant was not challenged
in cross-examination. It is notorious that the parties show a lesser
sale consideration in registered documents to save stamp duty.
The 1st appellate court also found that in Ext.A1 a lesser
consideration was shown to reduce the stamp duty paid. Even
then, the 1st appellate court found that since the consideration
shown is less, the document was not intended to be acted upon.
9. For the mere reason that the sale consideration shown
in Ext.A1 is less, we cannot presume that such a document was
RSA NO. 795 OF 2005
executed as a sham document. Ext.A1 being a registered sale
deed, registered before the competent Sub-Registrar, as per law,
it is to be presumed that it was duly executed after complying all
the legal formalities. Therefore, the prima facie presumption is
that Ext.A1 is a duly executed sale deed. In the above
circumstances, it is the burden of the plaintiff to prove that
Ext.A1 was executed as a sham document and that it was not
intended to be acted upon.
10. One of the contentions raised by the plaintiff is that
though Ext.A1 was executed, the possession of the plaint
scheduled property is retained by the plaintiff. However, the
above claim of the plaintiff was stoutly denied by the 1st
defendant. According to him, immediately after the execution of
Ext.A1, he had mutated the property in his name, prepared a
survey sketch and availed a loan from the Bank after mortgaging
the scheduled property. He has produced Exts.B1 to B3
documents to substantiate the above claim. Ext.B1 is the
certificate issued by the Secretary, Kattappana Service Co-
operative Bank on 01.11.2001 stating that the original of Ext.A1
is deposited in the said Bank. Ext.B2 is the Basic Tax Receipt in
respect of the plaint scheduled property issued from Kalkoonthal
RSA NO. 795 OF 2005
village dated 11.04.2001. Ext.B3 is the survey sketch of the plaint
scheduled property prepared by the village officer, Kalkoonthal.
From Ext.B1 to B3, it can be seen that after the execution of
Ext.A1 sale deed, the 1st defendant has effected mutation in his
favour, prepared a survey sketch in respect of the said property
with the help of the village officer and availed a loan by
mortgaging the plaint scheduled property.
11. In order to substantiate the claim that the plaintiff is in
possession of the plaint scheduled property, except the oral
testimony, there is absolutely no other evidence. There is no
building in the property and both sides claim possession over the
same. When the plaintiff examined PW2, he has not deposed that
the plaint scheduled property is in the possession and enjoyment
of the plaintiff. On the other hand, he has only stated that he does
not know whether there is any demarcating boundary, separating
the plaint scheduled property and the property belonging to the
plaintiff. The above evidence of PW2 will not help the plaintiff in
any way to prove that the plaintiff is in possession and enjoyment
of the plaint scheduled property.
12. The 1st defendant as DW1 deposed evidence in tune
with his case as pleaded in the written statement. According to
RSA NO. 795 OF 2005
him, immediately after the execution of Ext.A1 sale deed, he had
taken possession of the plaint scheduled property and thereafter
he has been enjoying the same. Exts.B1 to B3 documents
substantiates the above claim of the defendant. Moreover, the
above oral testimony of DW1 was not seriously challenged in
cross-examination. Not even a suggestion was put to DW1 that it
was executed in the circumstances alleged in the plaint and that
it was not intended to be acted upon. Therefore, the above
evidence of DW1 practically remains unchallenged.
13. As I have already noted above, the burden is heavily
upon the plaintiff to established that Ext.A1 sale deed was
executed by her as a sham document. Though she claimed that it
was executed as a sham document in connection with the loan
availed by her husband from the 1st defendant, she could not
produce any evidence to substantiate the above claim. There is
absolutely no evidence in this case to prove that the plaintiff's
husband had any money transaction with the 1st defendant. In the
above circumstances, for the mere reason that the sale
consideration shown in Ext.A1 is less than the actual market
value, it cannot be presumed that Ext.A1 is a document executed
as security and as such it is a sham document. Moreover, as I
RSA NO. 795 OF 2005
have already noted above, there is also no evidence to prove that, in
spite the execution of Ext.A1 sale deed, the plaintiff continues to
possess and enjoy the plaint scheduled property. On the other hand,
Exts.B1 to B3 documents substantiates the unchallenged oral
testimony of the 1st defendant that immediately after the execution
of Ext.A1 he has effected mutation, took possession of the property,
mortgaged the same and availed a loan. Moreover, the oral
testimony of DW1 was not seriously challenged in cross-
examination. Those circumstances probabilises the defence case
that Ext.A1 is not a sham document.
14. In the above circumstance, the 1st appellate Court was
not justified in reversing the well-reasoned judgment of the trial
court, on the ground that the sale consideration shown in Ext.A1
document is less. In the light of the above discussions, the questions
of law formulated are liable to be found against the plaintiff and the
Second Appeal is liable to be allowed.
In the result, the Second Appeal is allowed. The impugned
judgment and decree of the 1 st Appellate Court is set aside and that
of the trial court is restored.
sd/-
C.PRATHEEP KUMAR
JUDGE
Nsd
