Kerala High Court
Muralee Krishnan vs David George on 29 July, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:56160
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
TUESDAY, THE 29TH DAY OF JULY 2025 / 7TH SRAVANA, 1947
RFA (INDIGENT) NO. 472 OF 2017
AGAINST THE DECREE & JUDGMENT DATED 31.03.2016 IN OS NO.313
OF 2012 OF SUB COURT, KOTTARAKKARA
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APPELLANT/1ST DEFENDANT:
MURALEE KRISHNAN,
AGED 60 YEARS, S/O RAGHAVAN NAIR, PARVATHI MANDIRAM,
CHEMMATHOOR, THEKKEKKARA, PUNALUR P.O, KOLLAM
(DISTRICT), PINCODE 691 305.
BY ADVS.
SRI.M.RAJENDRAN NAIR (THONNALLOOR)
SHRI.A.D.SHAJAN
SRI.SREEJITH R.NAIR
RESPONDENTS/PLAINTIFF & 2ND & 3RD DEFENDANTS:
1 DAVID GEORGE
AGED 56 YEARS
S/O GEORGEKUTTY, RESIDING AT HILL PALACE, KUTHIRACHIRA,
PUNALUR MURI, PUNALUR VILLAGE, PUNALUR P.O,
KOLLAM DISTRICT, PINCODE 691 305.
2 LATHA NAIR
AGED 56 YEARS
D/O PONNAMMA, PARVATHI MANDIRAM, CHEMMANTHOOR,
THEKKEKARA, PUNALUR P.O, KOLLAM DISTRICT,
PIN CODE 691 305.
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RFA NO. 472 OF 2017 -2-
3 ANITHA
AGED 52 YEARS
W/O MURALI KRISHNAN, PARVATHI MANDIRAM, CHEMMATHOOR,
THEKKEKKARA, PUNALUR P.O, KOLLAM (DISTRICT)
PINCODE 691 305.
BY ADVS.
SRI.G.BIJU
SHRI.M.RAJAGOPALAN NAIR
THIS REGULAR FIRST APPEAL (INDIGENT) HAVING COME UP FOR
HEARING ON 29.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. (Indigent) No.472 of 2017
= = = = = = = = = = = = = = = = = =
Dated this the 29th day of July, 2025
J U D G M E N T
Sathish Ninan, J.
The decree for specific performance of an agreement for sale
is under challenge by the first defendant.
2. The plaint schedule property is described as having an
extent of 83.5 cents. Ext.A1 is the agreement entered into
between the plaintiff and the first defendant. Ext.A1 is dated
17.08.2011. As per Ext.A1, the first defendant agreed to convey
the plaint schedule property to the plaintiff. As per the title
deed, the property is described as having an extent of 72 cents.
It is not in dispute that as per measurement the extent is 83.5
cents. The property was agreed to be conveyed to the plaintiff
for a consideration of ₹ 2,75,000/- per cent. The second
defendant has life interest over the property, and she stood as a
witness to Ext.A1 agreement. An amount of ₹ 21 lakhs was paid in
installments on various dates since the execution of Ext.A1,
including the date of Ext.A1, towards advance sale consideration.
The property was a wetland. As per Ext.A1, the plaintiff was to
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reclaim the land and was free to sell it in plots. Alleging that
the defendants committed breach of contract the suit was filed.
3. The trial court granted a decree for specific performance
of the agreement against defendants 1 and 2. There is no appeal
by the second defendant.
4. In the light of the events that transpired during the
course of hearing of the appeal, a detailed reference to the
facts is avoided as unnecessary.
5. We have heard the learned counsel on either side.
6. The challenge in the appeal is essentially regarding the
readiness and willingness of the plaintiff. Sri.M.Rajendran Nair,
the learned counsel for the appellant submitted that even as of
now the defendants are willing to convey the property to the
plaintiff provided the entire balance sale consideration is paid
within a period of two months. The decree for costs may be set
aside. He further prays that a default clause is to be
incorporated providing that, on failure of the plaintiff to
deposit the balance consideration within the period, the decree
may be confined to return of the advance sale consideration.
7. The learned counsel for the plaintiff submitted that the
plaintiff may be granted three months time to deposit the balance
sale consideration. He further submitted that in the event the
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plaintiff is unable to deposit the balance consideration within
the time stipulated, the plaintiff is to be granted a decree for
compensation towards the cost incurred for reclaiming the
property, in addition to return of the advance amount, with
interest.
8. In the light of the stand adopted by both sides, there is
no scope for any further adjudication of rights inter-se in this
appeal. The plaintiff is entitled for a decree for specific
performance.
9. On failure of the plaintiff to deposit the balance
consideration, the decree for specific performance is liable to
be rescinded, and the advance sale consideration is to be ordered
to be returned with interest.
10. The trial court having had granted a decree for specific
performance, was not required to consider the question of value
of improvements. It is not in dispute that the property was a
wetland and was reclaimed by the plaintiff. The value of
improvements claimed is under the said head. The said issue
remains undetermined as it was unnecessary.
11. Regarding the decree for costs, it is common knowledge
that value of immovable property arises by passage of time.
Ordering costs is within the realm of discretion of the Court.
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Having due consideration to the various aspects as noticed above,
including the consent given for a decree for specific
performance, we are of the opinion that the decree for costs is
liable to be set aside. Since the cost portion is being set
aside, and also noticing that the trial court had granted three
months' time to deposit the balance consideration, we are of the
opinion that three months' time could be granted to the plaintiff
to deposit the balance consideration.
In the light of above, the appeal is allowed and a modified
decree is passed in the following terms:-
(i) The suit for specific performance will stand decreed
directing defendants 1 and 2 to execute a sale deed in
respect of the plaint schedule property in favour of the
plaintiff, on the plaintiff depositing the balance sale
consideration of ₹ 2,08,62,500/- within a period of
three months from today.
(ii) On the failure of the plaintiff to deposit the balance
sale consideration within the period as ordered above,
the decree for specific performance will stand
rescinded and the plaintiff shall be entitled for a
decree for realisation of ₹ 21 lakhs, with interest at
the rate of 9% per annum, from the date of suit till
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date of decree, and thereafter at the rate of 6% per
annum, charged on the plaint schedule property, and
from the first defendant personally and from his
assets.
(iii) In the event of the decree for specific performance
being rescinded as above, the trial court shall
consider the claim of the plaintiff for compensation
towards the value of the improvements effected in the
property based on the evidence on record, after hearing
both sides, and pass a decree on its merits.
(iv) The decree for costs will stand set aside.
(v) The decree being essentially on admission, one-half of
the court fee paid on the memorandum of appeal shall be
refunded to the appellant.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy//
P.S. To Judge
