Kerala High Court
Joson @ Kunjumon vs Thresiamma Francis on 22 August, 2025
RFA 114/2014 & 417/2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 22ND DAY OF AUGUST 2025 / 31ST SRAVANA, 1947
RFA NO. 114 OF 2014
OS NO.3 OF 2011 OF PRINCIPAL SUB COURT, KOTTAYAM
APPELLANT/PLAINTIFF
JOSON JOSEPH @ KUNJUMON,
S/O.M.T.JOSEPH, RESIDING AT MARAMKUZHIYIL,
ANIKKADU P.O., PALLICKATHODU, KOTTAYAM DISTRICT.
BY ADV SRI.LIJI.J.VADAKEDOM
RESPONDENTS/DEFENDANTS
1 THRESSIAMMA FRANCIS, AGED 45 YEARS
W/O.LATE BINSON JOSEPH, RESIDING AT MARAMKUZHIYIL
LAKKATTOOR VILLAGE, KOTTAYAM TALUK, REPRESENTED BY
HER POWER OF ATTORNEY HOLDER JOSEPH, S/O.FRANCIS
AGED 60 YEARS, RESIDING AT ALLUMOOTTIL, INCHIYANI
P.O, MUNDAKAYAM VILLAGE, KANJIRAPPALLY TALUK
686512.
2 TAISA BINSON (MINOR), AGED 15 YEARS
D/O.THRESSIAMMA FRANCIS, MARAMKUZHIYIL LAKKATTOOR
VILLAGE, KOTTAYAM TALUK, REPRESENTED BY HER POWER
OF ATTORNEY HOLDER JOSEPH, S/O.FRANCIS, AGED 60
YEARS, RESIDING AT ALLUMOOTTIL, INCHIYANI P.O,
MUNDAKAYAM VILLAGE, KANJIRAPPALLY TALUK- 686512.
3 TREVA BINSON (MINOR), AGED 15 YEARS
S/O. THRESSIAMMA FRANCIS, MARAMKUZHIYIL LAKKATTOOR
VILLAGE, KOTTAYAM TALUK, REPRESENTED BY HER POWER
OF ATTORNEY HOLDER JOSEPH, S/O.FRANCIS, AGED 60
YEARS, RESIDING AT ALLUMOOTTIL, INCHIYANI P.O,
MUNDAKAYAM VILLAGE, KANJIRAPPALLY TALUK 686512.
BY ADVS.
SRI.GOKUL DAS V.V.H.
SHRI.S.RANJIT (K/250/1999)
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
18.8.2025, ALONG WITH RFA.417/2018, THE COURT ON 22.8.2025
DELIVERED THE FOLLOWING:
RFA 114/2014 & 417/2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 22ND DAY OF AUGUST 2025 / 31ST SRAVANA, 1947
RFA NO. 417 OF 2018
OS NO.27 OF 2013 OF PRINCIPAL SUB COURT, KOTTAYAM
APPELLANT
JOSON @ KUNJUMON, AGED 53,
S/O.M.T.JOSEPH, RESIDING AT MARAMKUZHIYIL HOUSE,
ANIKKAD P.O., PALLICKATHODU, KOTTAYAM DISTRICT.
BY ADV SRI.LIJI.J.VADAKEDOM
RESPONDENTS
1 THRESIAMMA FRANCIS, AGED ABOUT 45,
W/O LATE BINSON JOSEPH, RESIDING AT MARAMKUZHIYIL
HOUSE, LAKKATTOOR VILLAGE, KOTTAYAM TALUK, REP. BY
HER POWER OF ATTORNEY HOLDER JOSEPH, S/O FRANCIS,
AGED 60, RESIDING AT ALUMOOTTIL, INCHIYANI P.O.,
MUNDAKAYAM VILLAGE, KANJIRAPPALLY TALUK.
2 TAISA BINSON (MINOR), D/O THRESIAMMA FRANCIS, AGED
15. REP. BY HER POWER OF ATTORNEY HOLDER JOSEPH,
S/O FRANCIS, AGED 60, RESIDING AT ALUMOOTTIL,
INCHIYANI PO, MUNDAKAYAM VILLAGE, KANJIRAPPALLY
TALUK.
3 TREVA BINSON (MINOR), S/O THRESIAMMA FRANCISS,
AGED 15 YEARS, MARAMKUZHIYIL HOUSE, LAKKATTOOR
VILLAGE,KOTTAYAM TALUK REP. BY HIS POWER OF
ATTORNEY HOLDER JOSEPH, S/O FRANCIS, AGED 60,
RESIDING AT ALUMOOTTIL, INCHIYANI PO, MUNDAKAYAM
VILLAGE, KANJIRAPPALLY TALUK.
BY ADV SHRI.S.RANJIT (K/250/1999)
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 18.8.2025, ALONG WITH RFA.114/2014, THE COURT ON
22.8.2025 DELIVERED THE FOLLOWING:
RFA 114/2014 & 417/2018
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JUDGMENT
Dated : 22nd August, 2025
RFA 417 of 2018 was filed by the defendant in OS No. 27 of 2013 on the
file of the Principal Sub Court, Kottayam. RFA 114 of 2014 was filed by the
plaintiff in OS No. 3 of 2011 of the file of the same court. Since the parties in both
the suits are identical and the subject matter in dispute is also the same, the trial
court tried both the suits jointly and disposed of as per common judgment dated
12.04.2013. ( For the purpose of convenience, the parties are hereafter referred to
as per their rank before the trial court in OS No.27/2013).
2. The plaintiffs are the widow and minor children of late Binson
Joseph, who died on 07.07.2006. The defendant is the brother of deceased Binson
Joseph. The plaintiffs filed this suit against the defendant for a permanent
prohibitory injunction, while the defendant filed the suit, OS No. 3 of 2011, for
specific performance of an agreement for sale. The plaint schedule property
consists of 45.75 Ares belonging to late Binson Joseph, which he obtained as per
Exhibit A5 Sale deed No. 1433 of 2004 from the defendant himself. According to
the defendant, in order to discharge his liabilities, late Binson Joseph advanced him
a sum of Rs. 8,35,000/- and accordingly, he had discharged the liabilities due to the
State Bank of Travancore, Pallikkathodu branch. The above sale deed was
happened to be executed as a security document and it was not intended to be acted
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upon. Further, according to him, Binson Joseph agreed to re-convey the said
property to him on or before 31.12.2007 after receiving Rs. 8,35,000/-. Binson
Joseph, who was employed abroad, came to India on 13.03.2006 and he breathed
his last on 07.07.2006 while under treatment in Amrita Institute of Medical
Science. According to the defendant, while Binson Joseph was suffering from
illness, at his instance, Exhibit B6 agreement was executed on 2.6.2006 and at the
time of executing the sale agreement, a sum of Rs. 1,50,000/- was received by him.
Though the 1st plaintiff, namely the widow of Binson Joseph, know that Exhibit A5
sale deed was executed as security document and Exhibit B6 sale agreement was
executed by Binson Joseph, she along with her children refused to reconvey the
scheduled property, after receiving the amount due from him. It was in the above
context that the defendant preferred the suit OS No. 3 of 2011 for specific
performance. At the same time, the plaintiffs filed O.S. No. 27 of 2013 for a decree
of permanent prohibitory injunction, alleging that the defendant is attempting to
trespass into the plaint schedule property and interfering with their peaceful
possession and enjoyment of the same. Both sides filed written statement in the
respective suits, denying the averments in the plaint.
3. The trial Court framed necessary issues. The evidence in the case
consists of the oral testimonies of PWs 1 to 4. DWs 1 to 3, Exhibits A1 to A19, B1
to B22, X1, X2 and C1. After evaluating the evidence on record, the trial court
decreed O.S. No. 27 of 2013 and dismissed OS No. 3 of 2011. Being aggrieved by
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the above judgment and decree of the trial court, the defendant preferred these
appeals, raising various grounds.
4. Now the points that arise for consideration are the following
1. Whether the Plaintiffs are entitled to get a decree for permanent statutory
injunction as prayed for in OS No. 27 of 2013 ?
2 Whether the defendant is entitled to get a decree for specific performance
as prayed for in OS No. 3 of 2011 ?
5. Heard Sri. Liji J. Vadakkedam, the learned counsel for the appellant
and Sri. S. Ranjith, the learned counsel for the respondents/ plaintiffs.
6. The points: The plaint schedule property originally belonged to the
defendant, who is the brother of deceased Binson Joseph. In the year 2004, as per
Exhibit A5 sale deed, Binson Joseph purchased the plaint schedule property from
the defendant. The contention taken by the defendant is that it was only a money
transaction and as a security for the repayment of the loan amount, he had executed
Exhibit A5 sale deed as a security document on the understanding that when the
loan amount is repaid, the property will be re-conveyed in his favour. His
contention is that, Exhibit B6 sale agreement was executed by Binson Joseph after
receiving a sum of Rs. 1,50,000/- from him, and promising to re-convey the plaint
schedule property in his favour. Therefore, according to the learned counsel for the
appellant, the trial court was not justified in dismissing the suit for specific
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performance and decreeing the suit filed by the plaintiffs and granting a decree for
injunction against him.
7. On the other hand, the learned counsel for the plaintiffs would argue
that the trial court found that Exhibit B6 agreement is a forged document and as
such there is no grounds to interfere with the findings of the trial court in both the
suits. The specific case of the defendant is that, Exhibit A5 sale deed was executed
as a security document when he received a sum of Rs. 8,35,000/- from Binson
Joseph. The trial court disbelieved the above claim of the defendant on the ground
that at the time of executing Exhibit A5 sale deed, the prior title deeds and tax
receipts in respect of the plaint schedule property, namely Exhibit A6, A7 and
Exhibit A8 were also handed over to Binson Joseph and before the court, those
documents were produced by the plaintiffs. As observed by the trial court, if
Exhibit A5 was only a sham document, not intended to be acted upon, and executed
as a security, there was no necessity for handing over the prior title deeds and land
tax receipts to Binson Joseph. With regard to handing over of the prior title deeds
and land tax receipts to the purchaser, namely Binson Joseph, no explanation is
forthcoming from the side of the defendant.
8. The learned counsel for the plaintiffs would further argue that, since
the defendant filed the suit, O.S. No. 3 of 2011, seeking specific performance of
Exhibit B6 sale agreement, he indirectly admits the title of Binson Joseph over the
plaint schedule property. In support of the above argument, the learned counsel has
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relied upon the decision of the Hon'ble Supreme Court in Madhavan (Dead)
Through LRs v. Kanakavally, 2023 KHC 7528. In the above decision, in
paragraph 10, the Apex Court held that: "When a prayer for specific performance
of agreement for sale or agreement to execute a re-conveyance is made in a suit
and when the plaintiffs seek execution of the sale deed from the defendant, it is
implicit that the plaintiff has to accept the title of the defendant". In the above
circumstance, the trial court was justified in holding that Exhibit A5 sale deed was
not a sham document.
9. The learned counsel for the appellant has relied upon Exhibits B1 to
B5 emails allegedly sent by the 1st plaintiff to him, in support of his argument that
in those emails, the 1st plaintiff has agreed to re-convey the plaint schedule
property to him. The trial court has not relied upon Exhibits B1 to B5 email
printouts, as it was not supported by Section 65B certificate. Even assuming that
those emails are admissible in evidence, those emails do not make it clear that
Exhibit A5 sale deed is a sham document as claimed by the defendant. On the other
hand, from the evidence of PW4, a handwriting expert, it is revealed that the
signature in Exhibit B6 sale agreement does not belong to Binson Joseph. At the
time of evidence, PW4, the expert categorically deposed that on comparison of the
questioned signatures with the admitted signatures of Binson Joseph, it was found
that the questioned signatures were not that of the author of the admitted
signatures. He has also given detailed reasons for arriving at such a conclusion.
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Exhibits X1 and X2 are the reports filed by him in their respects. Though PW4 was
cross-examined in detail, nothing material could be brought out to discredit his
testimony that Exhibit B6 agreement was not executed by Binson Joseph. Since
from the evidence of PW4, it is revealed that Exhibit B6 sale agreement was not
executed by Binson Joseph, the trial court was justified in dismissing the suit for
specific performance.
10. At the same time, from the evidence adduced by the plaintiff, it is
revealed that the defendant is interfering with the plaintiffs' peaceful possession
and enjoyment of the plaint schedule property, and as such, the trial court was also
justified in decreeing O.S. 27 of 2013 and granting a decree of permanent
prohibitory injunction in favour of the plaintiffs. I do not find any irregularity or
illegality in the impugned judgment and decree of the trial court in both the suits,
so as to call for any interference. Points answered accordingly.
In the result, both these appeals are dismissed with costs.
All pending interlocutory applications in both the appeals stand dismissed.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/19.8.
