Kerala High Court
Josily Elizabeth Thomas vs Marykutty Tomas on 14 August, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:61179
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
THURSDAY, THE 14TH DAY OF AUGUST 2025 / 23RD SRAVANA, 1947
RFA NO. 88 OF 2015
AGAINST THE JUDGMENT DATED 31.01.2014 IN OS NO.362 OF 2008 OF
SUB COURT, PATHANAMTHITTA
-----
APPELLANT/ADDITIONAL 2ND PLAINTIFF:
MARYKUTTY THOMAS,
AGED 75 YEARS,
W/O.LATE M.A.THOMAS, MALAYATTOOR HOUSE, KOZHENCHERRY
MURI, KOZHENCHERRY VILLAGE, KOZHENCHERRY TALUK,
PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI.T.KRISHNANUNNI (SR.)
SRI.K.C.KIRAN
SMT.MEENA.A.
SRI.VINOD RAVINDRANATH
RESPONDENTS/DEFENDANTS AND ADDITIONAL PLAINTIFFS 3 TO 5:
1 JOSILY ELIZABETH THOMAS, AGED 59 YEARS,
W/O.LATE THOMAS MATHEW, KIZHAKKETHIKYA MANIVALLIL
HOUSE, KOZHENCHERRY MURI, KOZHENCHERRY VILLAGE,
KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT,
PIN - 689 641.
2 MALA MARY THOMAS,
AGED 34 YEARS,
D/O.LATE THOMAS MATHEW,
KIZHAKKETHIKYA MANIVALLIL HOUSE, KOZHENCHERRY MURI,
KOZHENCHERRY VILLAGE, KOZHENCHERRY TALUK,
PATHANAMTHITTA DISTRICT, PIN - 689 641.
2025:KER:61179
RFA NO. 88 OF 2015 -2-
3 MEERA MIRIAM THOMAS,
AGED 32 YEARS,
D/O.LATE THOMAS MATHEW,
KIZHAKKETHIKYA MANIVALLIL HOUSE, KOZHENCHERRY MURI,
KOZHENCHERRY VILLAGE, KOZHENCHERRY TALUK,
PATHANAMTHITTA DISTRICT, PIN - 689 641.
4 ABRAHAM THOMAS MALAYATTOR,
AGED 47 YEARS,
S/O.LATE M.A.THOMAS, POST BOX NO. 20869, NICOSIA 1664,
CYPRESS.
5 MATHEWS MALAYATTOR, AGED 45 YEARS,
S/O.LATE M.A.THOMAS, P.O.BOX 8298, SAMORA AVE,
DARES SALAM, TANZANIA.
6 DR.JILAN SAM THOMAS, AGED 40 YEARS,
S/O.LATE M.A.THOMAS, P.O.BOX 1670, ARDIYA POST, KUWAIT,
POSTAL CODE 92400.
BY ADVS.
SRI.JACOB P.ALEX
SMT.M.R.MINI
SRI.JOSEPH P.ALEX
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
14.08.2025, ALONG WITH CO.5/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:61179
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
THURSDAY, THE 14TH DAY OF AUGUST 2025 / 23RD SRAVANA, 1947
CO NO. 5 OF 2021
AGAINST THE JUDGMENT DATED 31.01.2014 IN OS NO.362 OF 2008 OF
SUB COURT, PATHANAMTHITTA
-----
CROSS OBJECTORS/RESPONDENTS 1 TO 3/DEFENDANTS 1 TO 3:
1 JOSILY ELIZABETH THOMAS,
AGED 59 YEARS, W/O LATE THOMAS MATHEW,
KIZHAKKETHIKYA MANIVALLIL HOUSE, KOZHENCHERY MURI,
KOZHENCHERY VILAGE, KOZHENCHERY TALUK, PATHANAMTHITTA,
PIN - 689641
2 MALA MARY THOMAS, AGED 38 YEARS,
D/O. LATE THOMAS MATHEW,
KIZHAKKETHIKYA MANIVALLIL HOUSE, KOZHENCHERY MURI,
KOZHENCHERY VILLAGE, KOZHENCHERY TALUK,
PATHANAMTHITTA DISTRICT, PIN-689641.
NOW RESIDING AT NARIMATTATHIL - HOUSE, ANCHERY-
PARIYARAM, PUTHUPALLY, KOTTAYAM 9DIST.), PIN-686021.
3 MEERA MIRIAM THOMAS,
AGED 32 YEARS, D/O. LATE THOMAS MATHEW,
KIZHAKKETHIKYA MANIVALLIL HOUSE, KOZHENCHERY MURI,
KOZHENCHERY VILLAGE, KOZHENCHERY TALUK,
PATHANAMTHITTA DISTRICT, PIN-689641.
BY ADV SRI.JACOB P.ALEX
2025:KER:61179
CO NO. 5 OF 2021 -2-
RESPONDENTS/APPELLANT & RESPONDENTS 4 TO 6/ADDITIONAL PLAINTIFFS 2
TO 5:
1 MARYKUTTY TOMAS,
AGED 75 YEARS,
W/O LATE M.A. THOMAS, MALAYATTOOR HOUSE,
KOZHENCHERY MURI, KOZHENCHERY VILLAGE,
KOZHENCHERY TALUK, PATHANAMTHITTA, PIN - 689641.
2 ABRAHAM THOMAS MALAYATTOOR,
AGED 47 YEARS,
S/O.LATE. M.A. THOMAS, POST BOX NO. 20869,
NICOSIA 1664, CYPRESS.
3 MATHEWS MALAYATTOOR,
AGED 45 YEARS,
S/O. LATE M.A. THOMAS, P.O. BOX 8298, SAMORA AVE,
DARES SALAM, TANZANIA.
4 DR. JILAN SAM THOMAS,
AGED 40 YEARS,
S/O. LATE. M.A. THOMAS, P.O. BOX 1670, ARDIYA POST,
KUWAIT, POSTAL CODE 92400.
BY ADV SRI.VINOD RAVINDRANATH
THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR HEARING
ON 14.08.2025, ALONG WITH RFA.88/2015, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:61179
SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. No.88 of 2015
&
Cross Objection No.5 of 2021
= = = = = = = = = = = = = = = = = =
Dated this the 14th day of August, 2025
J U D G M E N T
Sathish Ninan, J.
The suit for specific performance, with an alternative
relief for return of advance sale consideration, was decreed
for the alternative relief. Seeking a decree for the main
relief, the additional second plaintiff is in appeal.
Defendants are in cross objection, challenging the adverse
findings by the trial court.
2. The original plaintiff died pending the suit. His
legal heirs, the wife and children, were originally
impleaded as additional second plaintiff and additional
defendants 4 to 6. Subsequently as per order dated
07.09.2011 in I.A. No.1338/2012 the additional defendants 4
to 6 were transposed as additional plaintiffs 3 to 5. The
first defendant is the mother of defendants 2 and 3.
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3. Ext.A1 is the agreement dated 16.08.2008, which is
sought to be specifically enforced. The agreement is entered
into between the original plaintiff and the defendants. In
Ext.A1, defendants 2 and 3 were represented by the first
defendant on the strength of Ext.B1 power of attorney dated
11.08.2008. Under Ext.A1, the extent of property agreed to
be conveyed is 54 cents. The sale consideration fixed is
₹ 1,50,000/- per cent. The period fixed for performance is
up to 31.03.2009. An amount of ₹ 17 lakhs was paid towards
advance sale consideration. The plaintiff seeks for specific
performance of the agreement.
4. The defendants filed a joint written statement.
While the signature of the first defendant on Ext.A1 was
admitted, it was contended that blank signed stamped and
unstamped papers obtained from the plaintiff while availing
a loan for the marriage of the second defendant was
fabricated into Ext.A1 agreement. The trial court upheld
Ext.A1 agreement. However, the plaintiff was granted a
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decree only for the alternate relief of return of advance
sale consideration.
5. We have heard Sri.T.Krishnanunni, the learned Senior
Counsel on behalf of the appellant and Sri.Joseph. P. Alex
and Smt.M.R.Mini the learned counsel for the respective
respondents.
6. The points that arise for determination are :-
(i) Is Ext.A1 agreement true and genuine or was it signed under the
circumstances pleaded by the defendants?
(ii) Is the discretion under Section 20 of the Specific Relief Act
liable to be exercised in favour of the plaintiff, to grant a decree for
specific performance?
(iii) Does the decree and judgment of the trial court warrant any
interference?
7. The following facts are not in dispute. The
plaintiff and the defendants are relatives and belong to the
same larger family. The subject matter of the suit is the
only property of the defendants. The property contains a
residential house wherein the first defendant, a widow, is
residing. The defendants were in need of money for the
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marriage of the second defendant. One Mr.Thomas Varghese,
who was an elder member of the family, had intervened to
help the defendants to raise the money. Ext.B1 power of
attorney dated 11.08.2008 was executed by defendants 2 and 3
in favour of the first defendant to deal with the property.
They had received ₹ 17 lakhs from the plaintiff.
8. According to the plaintiff, to raise funds for the
marriage of the 2nd defendant, the defendants proposed to
sell the property. The maximum offer that they received from
third parties was ₹ 1,40,000/- per cent. On the intervention
of Sri.Thomas Varghese (the elder member in the family) the
plaintiff agreed to purchase the property at ₹ 1,50,000/-
per cent. The consideration for the same was to proceed from
his son who was employed abroad at Cyprus. It is in
furtherance thereof that Ext.B1 power of attorney and Ext.A1
agreement for sale were executed. On the date of betrothal
of the second defendant viz. 16.08.2008, Ext.A1 agreement
was executed. However, after the marriage the defendants
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retracted from the agreement, is the contention.
9. The defendants would on the other hand contend that
the plaintiff, his wife (the additional second plaintiff)
and Thomas Varghese had given them ₹ 17 lakhs on the date of
betrothal. At that time, signed blank stamped and unstamped
papers of the first defendant were obtained by them.
According to the defendants, such papers have been
fabricated into Ext.A1.
10. Ext.B1 power of attorney is dated 11.08.2008. It is
the defendants' case that Ext.B1 power of attorney was
executed as advised by Sri.Thomas Varghese. The brother of
the first defendant-mother, who is abroad, had agreed to
help repay the amount. Sri.Thomas Varghese advised that in
case her brother failed to provide, she could deal with the
property and raise funds. According to the defendants, it is
thus, that the power of attorney was executed. It is
pertinent to note that, Ext.A1 agreement for sale is dated
16.08.2008. The stamp papers for Ext.B1 power of attorney
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and Ext.A1 agreement for sale are both dated 08.08.2008 and
were purchased from the same stamp vendor. The stamp papers
for Exts.B1 and A1 are in the names of the first defendant.
It is the case of the defendants that, on 16.08.2008, after
the betrothal ceremony at a hall, and before the bridegroom
and family reached the defendant's home, the plaintiff, his
wife and Thomas Varghese came to the defendant's house
advanced the amount to them and obtained signed blank
stamped and unstamped papers. It is also alleged that the
title deed relating to the property and also copy of the
power of attorney Ext.B1 were handed over to them.
Pertinently, there is no explanation for the purchase of the
stamp paper of Ext.A1 on the very date of purchase of stamp
paper for Ext.B1.
11. So also, it is the claim of the defendants that a
notary attested copy of the power of attorney was also given
to the plaintiff. There is no explanation as to why after
execution of Ext.B1 the defendants should have obtained and
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notorised a copy of the power of attorney and kept it with
them. It could have only been to be handed over to the
plaintiff along with the sale agreement since the first
defendant was to sign it on behalf of defendants 2 and 3.
12. It is interesting to note that, two months after
Ext.A1 agreement, on 13.10.2008, the defendants issued
Ext.A2 lawyer notice to the plaintiff alleging that on
11.10.2008 the plaintiff had approached the first defendant
seeking conveyance of the property and then it was realised
that the blank signed papers were fabricated into an
agreement for sale. The said story is highly unbelievable.
The period of Ext.A1 was up to 31.03.2009, ie., seven
months, and there was no reason to demand performance within
two months of execution. There is no evidence to
substantiate such demand by the plaintiff. There was no
occasion for the defendants to have come to know that an
agreement for sale was fabricated on the signed blank
papers. The preemptive action on the part of the defendants
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in issuing Ext.A2 notice alleging fabrication of an
agreement for sale, casts doubt on the genuineness of the
defendants case.
13. If the arrangement between the parties was purely a
loan transaction, nothing prevented the parties from
executing a document to secure the liability. Though the
defendants claimed that during the relevant period the
property was worth ₹ 1.5 crores, no material is produced to
prove the value of the property. Such material would have
been a very important piece of evidence to corroborate the
defendants case.
14. A reading of the evidence of the witnesses on the
rival side reveal that Sri.Thomas Varghese the elder member
of the family was a man of great repute and was a well
accepted member in the family. No reason is even suggested
as to why the said Thomas Varghese should collude with the
plaintiff and aid in fabrication of any document. PWs.3 and
4 are members of the family involved in the discussions for
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sale of the property. PW3 is a witness to Ext.A1.
15. On appreciation of the entire evidence and
circumstances we concur with the trial court in having
negatived the defence version and holding Ext.A1 to be a
genuine agreement for sale.
16. Having upheld Ext.A1 agreement, we proceed to
consider whether the plaintiff is entitled for a decree for
specific performance.
17. As per Ext.A1 the extent of the property is 54
cents. The value fixed is on centage basis. According to the
plaintiff, after Ext.A1 agreement the property was measured
and was found to have an extent of only 48.76 cents. The
factum of measurement and the alleged deficit in extent are
denied by the defendants. The plaint schedule describes the
extent as 48.76 cents. The plaintiff seeks for conveyance of
the plaint schedule property having an extent of 48.76
cents. The plaintiff does not name the surveyor who measured
the property. There is no evidence to prove that the
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property was measured, that there is deficit in extent, and
that the extent available is only 48.76 cents instead of 54
cents. In the suit, the plaintiff did not care to have the
extent of the property ascertained by taking out a survey
commission. Having failed to prove the extent of property,
the plaintiff is not entitled for a decree for specific
performance.
18. It is in evidence that the property in question is
situated in a very important locality. PW1 has admitted that
the value of the property has been escalating. After the
death of the original plaintiff the legal heirs came on
record only after a delay of 644 days, ie. almost after a
period of two years. By the passage of time the value of the
property has increased. As was noticed earlier, the first
defendant is a widow residing in the residential building in
the property. This is their only property. The parties are
relatives. Going by the case of either side, the raising of
money, be it by way of sale agreement or as loan, was for
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the marriage of the 2nd defendant. In the above circumstances
we find that the trial court was justified in having
exercised discretion not to grant a decree for specific
performance.
19. The plaintiff has an alternative prayer for return
of the advance sale consideration with interest at the rate
of 12% per annum and also for damages of ₹ 5 lakhs. Ext.A1
agreement provides for forfeiture of ₹ 5 lakhs from the
advance sale consideration in case the plaintiff is at fault
and for payment of damages of ₹ 5 lakhs in case the
defendants commit breach. It is the plaintiff's case that
the arrangement was that the plaintiff's son who is abroad
at Cyprus would raise amounts to be given to the defendants.
He is the third plaintiff in the suit, having been impleaded
on the death of the original plaintiff. He was examined as
PW2. He deposed that he had managed to raise amounts by
availing loans from the Bank wherein he was working. Ext.A6
is a communication from the Bank (FBME Bank) to PW2 with
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regard to the sanction of loan on 12.08.2008 for purchasing
the property at Kozhenchery. Ext.A1 is dated 16.08.2008.
Obviously, Ext.A6 referred to the property in question. The
agreement having not gone through, damages has resulted. In
Ext.A1 agreement the parties have pre-estimated the damages
at ₹ 5 lakhs. In the plaint there is a specific claim for
the said amount of ₹ 5 lakhs as damages. The said claim is
included in the valuation, and court fee is also paid for
the same. On the facts and circumstances of the case we are
of the opinion that the plaintiff is entitled for a decree
for the said amount of ₹ 5 lakhs as damages.
20. Now coming to the claim for return of the advance
sale consideration, the entitlement of the plaintiff is
beyond challenge. The decree of the trial court in the said
regard is not assailed by the defendants. The trial court
has granted interest at the rate of 9% per annum. On the
totality of the circumstances we are of the opinion that
interest could be awarded at the rate of 12% till date of
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decree and thereafter at the rate of 6%. The decree and
judgment of the trial court are liable to be modified to the
above extent.
Resultantly, the appeal is allowed in part. The rate of
interest decreed by the trial court will stand re-fixed at
12% per annum till the date of decree, and thereafter at 6%
till realisation. So also, in addition to the decree for
return of advance sale consideration, the plaintiff is also
granted a decree for ₹ 5,00,000/-, which shall bear interest
at 6% from the date of suit till recovery. In all other
respects the decree and judgment of the trial court are
affirmed. The plaintiffs shall be entitled for proportionate
costs throughout. The cross objection is dismissed.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy// P.S. To Judge
