sham, and other reliefs, was dismissed by the trial court.
The additional plaintiffs 3 to 5 are in appeal.
2. According to the original plaintiff, the defendant
is a businessman doing business abroad in UAE. The original
business dealings. In connection with such business, to
of the defendant on 11.03.2014. It was agreed that the
property will be reconveyed within a period of one year. No
sale consideration passed under Ext.A1. The defendant failed
to reconvey the property. Accordingly the suit is filed
3. The original plaintiff died pending the suit and his
legal heirs were impleaded as additional plaintiffs 2 to 5.
4. The defendant filed a written statement contending
any business transaction with him. He is a business man in
UAE. He understood that original plaintiff's daughter-
purchase of a property. The defendant agreed to purchase of
consideration. The property was one notified as an
Act). Preethy was to get it excluded from the notification.
to get the property excluded from the EFL notification.
5. By that time, the defendant had paid an amount of
₹ 2.25 crores to Preethy under the agreement. Thereupon
of ₹ 2.5 crores. By 24.10.2013 the defendant had paid a
total amount of ₹ 2.5 crores to Preethy. Since the property
branch, the sale could not fructify. Thereupon, the original
was required to pay an amount of ₹ 62 lakhs. The amount was
plaintiff in favour of the defendant. The alleged oral
agreement for reconveyance was denied. The contentions that
denied. It was contended that the original plaintiff is not
entitled to any of the reliefs claimed.
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6. The original plaintiff filed a replication denying
the alleged agreement between Preethy and Nilamboor
Kovilakam. So also he contended that he had no knowledge of
any agreement between Preethy and defendant's wife.
7. The trial court upheld Ext.A1 Sale Deed. The alleged
oral agreement was negatived and the suit was dismissed.
8. We have heard Sri.S.Sreekumar, the learned Senior
the learned Senior Counsel assisted by Sri.Anil Kumar
Sreedharan, learned counsel for the respondents.
9. The points that arise for consideration are:-
(v) Does the evidence on record establish that the original
plaintiff is in possession of the property in spite of execution of Ext.A1
Sale Deed.
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10. At the very outset it is to be noticed that, the
reliefs claimed in the plaint, with regard to Ext.A1 Sale
Deed, are mutually contradictory and inconsistent. Firstly,
the original plaintiff claims specific performance of an
oral agreement to reconvey. Next he seeks cancellation of
Ext.A1. Then he seeks a further relief that Ext.A1 is null
and void. Again he seeks a declaration that the document is
sham and not intended to be acted upon. The prayers are
inconsistent with each other. When the original plaintiff
seeks for specific performance, he admits the conveyance
under Ext.A1, and seeks for reconveyance of the property. On
the face of such prayer, the relief sought to cancel/set
aside Ext.A1, is apparently inconsistent. That apart, he
seeks a declaration that the document is null and void. If
the document is null and void, there is no question of
seeking reconveyance and also seeking to cancel the
document. The reliefs sought are again inconsistent. The
original plaintiff further seeks a declaration that the
document is sham and not intended to be acted upon. If the
document is sham, the question of reconveyance or
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cancellation or declaration that the document is null and
void, do not arise. Suffice to notice that the suit is not
properly framed.
11. In the plaint, the circumstances leading to the
execution of Ext.A1 are pleaded thus:- (i) That the
plaintiff's daughter Preethy and the defendant had business
dealings (ii) The defendant in the year 2013 offered Preethy a
business in import of tiles from China (iii) There was
shortage of money with the defendant (iv) Defendant offered
to give his property as security for the loan to be availed
for the business (v) Since no security documents were
available, the defendant suggested the plaintiff's property
to be offered as security (vi) However, financial
institutions did not accept third party documents (vii)
Therefore, Ext.A1 Sale Deed was executed by the original
plaintiff in favour of the defendant, to enable availing of
loan. From the circumstances set out hereunder, it is
evident that the circumstances pleaded are not liable to be
accepted.
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12. It is the claim that the defendant offered Preethy
a business; but then he pleads that he had shortage of money
and offered to give his property as security. At paragraph 3
of the plaint it is pleaded,
"During the beginning of 2013, the defendant offered plaintiff's daughter a
business of import of tiles from China and required the plaintiff's daughter to
make necessary arrangements for the business including taking order for sale
of goods and accumulation of financial back up and a space for storage of
the consignments imported."
If the business is to be that of Preethy, the issue of
availability of funds with the defendant or offering his
property as security, did not arise at all. Therefore, the
above stand of the original plaintiff does not stand to
reason.
13. To prove that the claim of the original plaintiff
regarding unavailability of properties to offer as security
to avail loan is not correct, the defendant has produced
Ext.B25 series to Ext.B27 title deeds (10 in number),
relating to various items of immovable properties in his
name and also in the name of his wife.
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14. So also, to disprove the plaintiffs case that the
defendant did not have sufficient funds with him, the
defendant produced his NRI Bank account statement with the
Union Bank of India, and Exts.B21 to B24 series fixed
deposit receipts. The above would prove his financial
capacity and that he was financially affluent and had no
need to avail a loan.
15. With regard to the circumstances pleaded by the
plaintiffs, there are yet other improbabilities. It is the
plaintiffs case that, though the original plaintiff offered
his property as security, the financial institutions did not
accept third party title deeds as security. Obviously the
said contention lacks bonafides. The original plaintiff
could have very well stood as a guarantor and mortgaged his
property for the proposed credit facility. To enable a loan
to be availed by his daughter Preethy or the defendant,
there was no necessity to execute a sale deed in favour of
the defendant.
16. The plaintiff appeared to make a suggestion that
the non-acceptance of his suretyship by the Bank was taking
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note of his old age. Even such a contention does not stand
to reason since, going by the plaintiff's case, what was
required was not a personal guarantee but an immovable
property security. When a mortgage was proposed to be
created, the old age of the plaintiff was irrelevant as
mortgage creates an interest in the property and the
liability runs with the property. At any rate, the plaintiff
could have very well executed the document in favour of his
daughter and not in favour of a third party, the defendant.
17. On the discussions as above it is evident that the
claim of the original plaintiff that Ext.A1 Sale Deed was
executed in favour of the defendant under the circumstances
as pleaded by him, is apparently unacceptable.
18. Now we proceed to discuss whether Ext.A1 is
supported by consideration. Ext.B14 is the Memorandum of
Expression of Interest dated 07.03.2011 entered into between
Preethy with the members of the Nilamboor Kovilakam. In the
replication filed by the original plaintiff the contention
is that Preethy did not have any agreement with the
Kovilakam. Ext.B14 was marked in evidence without any
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objection. Evidently, the denial lacks bonafides.
19. In terms of Ext.B14, Preethy was to pay an amount
of ₹ 3 crores to the Kovilakam before 07.09.2012 and enter
an agreement for purchase of the property for ₹ 27 crores.
It is the defendant's case that, he entered into an
agreement with Preethy to purchase one-half of the property
on sharing the proportionate consideration. The payments
made by the defendant since 02.08.2011 is evidenced by
Ext.X1 account statement of Preethy with the Mallappaly
Branch of Union Bank of India. As per Ext.B15, the
Memorandum of Interest between Preethy and Kovilakam was
extended for a further period. The defendant made further
payments to Preethy. Later, Preethy realised that the
property could not be got excluded from the EFL
notification. By that time the defendant had already paid an
amount of ₹ 2.25 crores to Preethy. Towards discharge of the
liability, Preethy entered into Ext.B3 agreement for sale
dated 27.06.2012 with the defendant, agreeing to convey her
51.39 Ares of property to the defendant for a total sale
consideration of ₹ 2.5 crores. The amount of ₹ 2.25 crores
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already received by her from the defendant was treated as
advance sale consideration.
20. According to the defendant, subsequently it was
realised that the property is subjected to a mortgage and
that the Bank had initiated steps against the property.
Ext.X9 is the copy of the Original Application No.157 of
2011 filed by the UCO Bank against Preethy before the Debt
Recovery Tribunal, Ernakulam. According to the defendant, at
that time the original plaintiff intervened. He agreed to
sell his 74.54 Ares of property to the defendant on payment
of a further amount of ₹ 62 lakhs.
21. The description of boundaries of original
plaintiff's property reveal that the property lies adjoining
the property of Preethy. This is relevant since, according
to the defendant's case Ext.B3 agreement for sale entered
into by Preethy for her property having an extent of 51.39
ares is for ₹ 2.50 crores, including her existing liability
of ₹ 2.25 crores, and the agreement for sale with original
plaintiff is in respect of his 74.54 Ares of property
situated adjacent to the Preethy's property on payment of a
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further consideration of ₹ 62 lakhs. It is relevant to note
that the property is lying adjoining to each other and that
the property of the original plaintiff has a larger extent
than that of Preethy's property thus making the transaction
reasonable. The defendant's case that the above resulted in
the execution of Ext.A1 is, probable.
22. The consideration shown in Ext.A1 is ₹ 62 lakhs.
Original plaintiff's daughter Preethy is a witness to Ext.A1
Sale Deed. Ext.A9 is the statement of the original
plaintiff's bank account maintained at the South Indian
Bank. It shows payments of various amounts by the defendant
to the original plaintiff. When this was pointed out by the
defendant in the written statement, the original plaintiff
in his replication stated that the amounts were paid by the
defendant towards a charity program of the Panchayat, to
give food for the needy. The plea in the replication goes
thus:-
"Food program organised by the plaintiff was associated with by the defendant
through financial helps by paying the monthly amount for the charity work thus
from 09.09.2012 onwards till January 2014 he had associated with the
program by paying money through the account of this plaintiff. The said
program was locally managed by the then ward member of Kalloopara Grama
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Panchayat 5th ward Mr.Gopi."
23. In the proof affidavit of the original plaintiff it
is sworn to,
"ഞഞാൻ എനന്റെ പഞഞായതഞായ കലല്ലൂപഞാറ ഗഗഞാമ പഞഞായതത്തിൽ സഞാധധ
ജനങ്ങൾകക്ക് അന്നദഞാനനം നൽകധന്നതത്തിനക്ക് പഞഞായതധമഞായത്തി ചചേർന്നക്ക്
നടപത്തിലഞാകത്തിയ പദ്ധതത്തിയത്തിൽ എതത്തിർ കകത്തി എചന്നഞാടക്ക് സഹകരത്തികധകയധനം
മഞാസഞാമഞാസനം ഒരധ തധക ആ കഞാരര്യതത്തിചലകഞായത്തി എനത്തികക്ക് അയചച
തരത്തികയധനം നചേയക്ക്തത്തിടചള്ളതഞാണക്ക്."
PW3 is a person who claims to have been a Panchayat member
during the period from 2010-2015. In his cross-examination
he deposed,
"പദ്ധതത്തികക്ക് പഞഞായതധമഞായത്തി ബന്ധമത്തിലഞായത്തിരധന്നധ."
So while the original plaintiff claims that it was a
Panchayat sponsored program, PW3 the alleged Panchayat
member during the relevant period deposed that Panchayat was
not involved. Further, PW1 would depose in his cross
examination that only he and the defendant were involved in
the same. With regard to the alleged charity work, what he
deposed reads thus,
"അന്നദഞാനനം സനംബന്ധത്തിചക്ക് തഞാങ്കൾ അതത്തിനന്റെ സനംഘഞാടകചനഞാ മചറഞാ
ആയത്തിരധചന്നഞാ (Q) അല (A) അന്നദഞാനതത്തിൽ ഞഞാനധനം രഞാജപനധനം
മഞാഗതചമ ഉൾനപടത്തിടചള്ളല്ലൂ. Beneficieries-നന കണധപത്തിടത്തിചതക്ക് Panchayat
2025:KER:54354
Member ആണക്ക്. ഇതത്തിനന സനംബന്ധത്തിചക്ക് Panchayat ൽ നത്തിന്നധനം
അനംഗഗീകഞാരചമഞാ തഗീരധമഞാനചമഞാ ഉണഞായത്തിടത്തില. പണനം വത്തിനത്തിചയഞാഗത്തിചതത്തിനന
സനംബന്ധത്തിചക്ക് ഗപതത്തികക്ക് കണകധകൾ നലക്ക്കത്തിയത്തിടത്തില. ഗപതത്തി
ആവശര്യനപടത്തിടചമത്തില. അന്നദഞാനനം എന്നധ മധതൽ എന്നധവനര നടതത്തി
എന്നധ പറയധവഞാൻ അറത്തിയത്തില".
To prove that there was any such program as claimed by the
original plaintiff, there is no evidence. Therefore, the
claim of the original plaintiff that the credits made into
Ext.A9 account from the defendant was for a social work as
stated above, fails.
24. Ext.A9 account statement reveals several payments
by the defendant to the original plaintiff during the period
09.09.2012 till 08.01.2014. It is the case of the defendant
that the monthly payments reflected in the original
plaintiff's account (Ext.A9) were made by him at the request
of Preethy towards the original plaintiff's treatment
expenses. Citing that the original plaintiff is a cardiac
patient, he had, as per I.A. No.72/2018 sought permission
for his examination through a commissioner. The Court had
allowed the application. DW2 is the Manager of the
defendant. He deposed that he was managing the affairs of
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the defendant for the past twenty years. He deposed that the
consideration for Ext.A1 included the amounts paid into
Ext.A9 account, an amount of ₹ 22,54,640/- paid to the
original plaintiff through him and an amount of ₹ 35 lakhs
paid to Preethy through Ext.X7 cheque on the date of Ext.A1,
as directed by the plaintiff. Ext.X1 Preethy's Bank account
statement reveals that ₹ 35 lakhs has been credited into her
account on that date. DW2 deposed that an amount of ₹ 6
lakhs was withdrawn from the Bank and he was in possession
of an amount of ₹ 20 lakhs to the defendant. Thus it is
evident that, as on the date of execution of Ext.A1 Sale
Deed there was outstanding liability in favour of the
defendant from Preethy, and further payments were paid by
the defendant to the original plaintiff and Preethy. This
probabilises the defendant's case with regard to execution
of Ext.A1 Sale Deed and that it is supported by
consideration.
25. It is relevant to note that, while even according
to the original plaintiff, the transaction in question was
centered around his daughter Preethy, she was neither
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impleaded as a party to the suit nor was examined as a
witness. It is revealed that the defendant had cited Preethy
as a witness. However, in spite of issuance of summons, she
did not appear before the Court. During the trial of the
suit the original plaintiff expired. Preethy was impleaded
as additional second plaintiff along with other legal
representatives. Even thereafter she did not care to mount
the witness box. Under the circumstances an adverse
inference is to be drawn against the plaintiff.
26. Regarding the possession of the property also, the
finding of the trial court is well founded. The original
plaintiff maintains that, in spite of Ext.A1 he is in
possession of the property. Exts.B6 and B7 reports of the
Village Officer evidences that mutation was effected on
04.07.2014. The original plaintiff as PW1, in his cross
examination, did not deny the suggestion that the defendant
is paying tax for the property on effecting mutation, since
the year 2014. DW3 is the driver and supervisor of the
defendant. He has deposed that he is managing the
cultivation in the property since the sale. As noted by the
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trial court, nothing could be brought out to discredit the
witness.
27. The trial court which had the benefit of watching
the demeanor of the witnesses found the evidence of the
defence witness to be reliable than that of the original
plaintiffs. The original plaintiff has admitted that Preethy
is a real estate dealer. Though not of much relevance, we do
incidentally note that several criminal cases were
registered against the original plaintiff and his daughter
for cheating in relation to property and other transactions
at the instance of the third parties. Though in the cross
examination he attempted to plead ignorance about the same,
the defendant proved the same through Exts.B17,18,19,20,29
and 30.
28. We have re-appreciated the entire evidence in the
case along with the pleadings of the rival parties. We find
that the conclusions arrived at by the trial court regarding
the validity of Ext.A1 and possession of the property are
justified and warrant no interference. We do not find any
merit in the appeal.
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Resultantly, the appeal fails and is dismissed.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy//
P.S. To Judge
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RESPONDENT ANNEXURES
Annexure R1(e) True copy of Annexure R1(d)
Annexure R1(a) Readable/typed copy of Ext. R1
Annexure R1(h) Order of the Sub Court, Thiruvalla in I. A.
No.1/2023 in O.S. No.5/2016 dated
12-01-2023
Annexure R1(c) True copy of chief examination of DW3 in O.S.
Annexure R1(g) True Copy of judgment dated 04- 12-2021 in
Annexure R1(b) True Copy of reply affidavit of petitioner in
W.P.(C) No.16837/2016 (Ext. B12 in O.S.
No.5/2016, Sub Court, Thiruvalla
Annexure R1 True Copy of report of Village Officer dated
20- 01-2016, (Ext. B7 in O.S. No. 5/2016, Sub
Court, Thiruvalla
Annexure R1(d) True Copy of cross examination of DW3 in O.S.
Annexure R1(f) Copy of proceedings in O.S. No.5/2016, Sub
Court, Thiruvalla from 05-02-2016 to 08-01-
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