Kerala High Court
Sendhilvel vs Chamathal on 29 July, 2025
A.S. No.258/1999
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 29TH DAY OF JULY 2025 / 7TH SRAVANA, 1947
AS NO. 258 OF 1999
AGAINST THE JUDGMENT AND DECREE DATED 30.06.1998 IN OS
NO.221 OF 1992 OF PRINCIPAL SUB COURT, PALAKKAD
APPELLANT/PLAINTIFF:
SENDHILVEL
S/O.KRISHNASWAMY GOUNDER,
RESIDING AT OOTHUKKUDI VILLAGE,
SENGUTHURA,POLLACHI TALUK,
COIMBATORE DISTRICT.
BY ADV SRI.T.C.SURESH MENON
RESPONDENT/LRs OF 1ST DEFENDANT/DEFENDANTS 2 & 3:
1 CHAMATHAL
WIDOW OF PAZHANI GOUNDER. (DIED RECORDED)
IT IS RECORDED THAT R1 DIED AND RESPONDENTS
2 TO 5 ALREADY IN THE PARTY ARRAY ARE THE LEGAL
HEIRS OF THE 1ST RESPONDENT VIDE ORDER DATED
5/4/19 VIDE MEMO DATED 18.11.10.
2 GOVINDAMMAL
D/O.PAZHANI GOUNDER (DELETED)
3 RUKUMANI,
D/O.PAZHANI GOUNDER
A.S. No.258/1999
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4 PAPATHI,
D/O.PAZHANI GOUNDER (DELETED)
[RESPONDENT NUMBERS 2 AND 4 ARE DELETED FROM THE
PARTY ARRAY AT THE RISK OF THE APPELLANT VIDIE
ORDER DATED 18.03.19 IN IA 1/19]
5 DORASWAMI GOUNDER,
S/O.PAZHANI GOUNDER
6 MANI,
S/O.VELUSWAMY GOUNDER
ALL ARE RESIDING AT KUNNAGATTUPATHI VILLAGE
CHITTUR TALUK, PALAKKAD DISTRICT.
BY ADVS.
SRI.P.R.VENKATESH
SRI.G.KEERTHIVAS
THIS APPEAL SUITS HAVING COME UP FOR ADMISSION ON
29.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
A.S. No.258/1999
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JUDGMENT
Dated this the 29th day of July, 2025
The plaintiff in O S. No. 221 of 1992 on the file of Sub Court,
Palakkad is the appellant. (For the purpose of convenience, the parties are
hereafter referred to as per their rank before the trial court.)
2. The plaintiff filed the above suit for specific performance of an
agreement for sale. According to the plaintiff, Exhibit A1 agreement for
sale dated 5.2.1991 was executed by him and the 1 st defendant and
thereby the defendant agreed to sell the plaint schedule property having
an extent of 7.71 Acres for a total consideration of Rs.1,25,000/-. On
the date of execution of Exhibit A1 agreement, a sum of Rs.45,000/- was
paid as advance. The period of agreement was till April, 1992.
However, even during the period of agreement, the 1 st defendant
assigned a portion of plaint schedule property in favour of his son, the
2nd defendant and another portion was assigned in favour of the 3 rd
defendant. Exhibit B4 and B5 are the documents executed by the 1 st
defendant in favour of defendants 2 and 3 respectively on 11.3.1991.
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According to the plaintiff, though he was ready and willing to perform
his part of the contract, it could not be performed due to the breach
committed by the 1st defendant. Therefore, he filed the suit on 9.4.1992
seeking specific performance.
3. The 1st defendant filed a written statement denying the
execution of any sale agreement with the plaintiff as well as receipt of
any consideration from the plaintiff. According to the 1 st defendant, the
plaint schedule property would have fetched at least a sum of
Rs.5,00,000/- at the time of the alleged date of agreement. Further
according to him, land ceiling proceedings were initiated by the Chittur
Taluk Land Board against one Chennimala Kounder. In the said
proceedings the plaint schedule property was also included. According
to the defendants, the said fact was intimated by Chennimala Kounder
to the plaintiff. In order to release his property from ceiling
proceedings, the 1st defendant passed on 4 or 5 plain papers after
affixing his thumb impression to Chennimala Kounder along with the
'Pattayam' relating to his property. It is contended that he is an illiterate
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and also that those signed papers passed on to Chennimala Kounder
were misused for creating a sale agreement, when the relationship with
Chennimala Kounder strained. Defendants 2 and 3 also filed written
statement disputing the prayer in the plaint.
4. The trial court framed five issues. The evidence in the case
consist of oral testimonies of PWs1 to 3, DWs 1 and 2 and Exhibits A1,
A2, B1 to B6, X1 and X2. After evaluating the evidence on record, the
trial court dismissed the suit holding that the plaintiff could not prove
due execution of Exhibit A1 agreement. Being aggrieved by the above
judgment and decree of the trial court, the plaintiff preferred this appeal.
5. Now, the points that arise for consideration are the following:
1) Whether Exhibit A1 agreement was executed by the 1 st
defendant in favour of the plaintiff agreeing to sell the
plaint schedule property for a sum of Rs.1.25 lakhs?
2) Whether the 1st defendant has received a sum of
Rs.45,000/- as advance sale consideration from the
plaintiff?
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3) Whether the impugned judgment and decree of the trial
court calls for any interference in the light of the grounds
raised in the appeal?
6. Heard Sri. B. Deepak, learned counsel for the appellant and Sri.
P.R. Venkatesh, the learned counsel for the respondent.
7. The Points: The original of Exhibit A1 is in Tamil and its
translated copy was marked as Exhibit A1(a). The plaintiff as PW1
adduced evidence to the effect that the 1 st defendant executed Exhibit A1
sale agreement on 5.2.1991, agreeing to sell the plaint schedule property
for a total consideration of Rs.1,25,000/-. Further according to him, on
the date of the agreement itself, a sum of Rs.45,000/- was paid as
advance and also that Exhibit A2 purchase certificate in respect of plaint
schedule property was also handed over to the plaintiff on the same day.
The plaintiff also examined PW2, the scribe, who prepared Exhibit A1
and PW3, a witness to prove Exhibit A1. PWs 2 and 3 also gave
evidence supporting the claim of the plaintiff.
8. However, at the time of evidence, it is revealed that as early as
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on 11.3.1991, the 1st defendant had executed Exhibits B4 and B5
assignment deeds in favour of defendants 2 and 3 assigning portions of
the plaint schedule property. Though the plaintiff has impleaded
defendants 2 and 3 in the party array, no relief was sought against
defendant 2 and 3 and there was also no prayer for setting aside Exhibits
B4 and B5 assignment deeds. At the same time, there was an alternate
relief for return of advance amount, which was also denied by the trial
court on the ground that the plaintiff failed to prove the due execution of
Exhibit A1.
9. In this context, it is to be noted that the 1 st defendant, who
allegedly entered into Exhibit A1 agreement with the plaintiff was not
examined as a witness. Instead, his power of attorney holder and a
relative, who has no direct knowledge about the transaction with the
plaintiff and the 1st defendant was examined as PW1. Even the trial
court found that DW1 has no direct knowledge about the transaction
with the plaintiff and the 1st defendant.
10. It is true that Exhibit A1 is seen executed on white papers. The
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1st defendant admits his thumb impression appearing on both pages of
Exhibit A1. In addition to the same, the original Pattayam in respect of
the plaint schedule property in favour of the 1st defendant is also
produced by the plaintiff and marked as Exhibit A2. According to the 1 st
defendant, he had entrusted Exhibit A2 purchase certificate and few
signed blank papers to one Chennimala Kounder as there was a ceiling
proceedings against Chennimala Kounder, in which the plaint schedule
property was also included. According to the plaintiff, when
relationship between himself and Chennimala Kounder strained, in order
to wreak vengeance, Chennimala Kounder misused the signed blank
papers and original pattayam for fabricating Exhibit A1 agreement.
11. As I have already noted above, the 1 st defendant, who alone
has direct knowledge with regard to the contention taken by him in the
written statement, has not entered the witness box to swear his case on
oath and to offer himself to be cross examined by the plaintiff. Though
he had examined one of his relative and power of attorney holder as
DW1, he had no direct knowledge about the transaction. In the above
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circumstances, the evidence of DW1 is not sufficient to prove the
pleadings in the written statement. In the above circumstances, an
adverse inference is to be drawn against the 1st defendant.
12. Therefore, in the light of the evidence of PWs 1 to 3 and in the
absence of any direct evidence from the side of the 1 st defendant, it is to
be held that the plaintiff has succeeded in proving the execution of
Exhibit A1 agreement as well as payment of a sum of Rs.45.000/- to the
1st defendant as advance on the date of Exhibit A1.
13. In this case, though the agreement was dated 5.2.1991, the
suit was filed only on 9.4.1992. It is true that the period of the
agreement was there, till April 1992 and as such the suit was filed within
the period provided in the agreement. However, the plaintiff was aware
of the fact that on 11.3.1991 the 1st defendant executed Exhibits B4 and
B5 documents in respect of part of plaint schedule property in favour of
defendants 2 and 3. In spite of that the suit for specific performance was
filed only more than one year after the execution of Exhibits B4 and B5.
Though defendants 2 and 3 were subsequently impleaded in the suit, no
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prayer was sought against them and there was also no prayer for setting
aside Exhibits B4 and B5 documents. Before filing the suit, not even a
notice was sent by the plaintiff to the 1st defendant demanding specific
performance.
14. From the above conduct of the plaintiff, it is to be held that
he was not at all ready and willing to perform his part of the contract all
along the period of Exhibit A1. In the above circumstances, at this
belated stage, the plaintiff is not entitled to get the discretionary relief of
specific performance. At the same time, since from the evidence of
PW1 to 3 and from Exhibits A1 and A2, it is revealed that the plaintiff
paid a sum of Rs.45,000/- to the 1 st defendant as advance amount on the
date of Exhibit A1, he is entitled to get return of the advance amount
with reasonable rate of interest. Considering the facts, I hold that
interest @8% per annum will be reasonable interest in this case. Point
answered accordingly.
15. In the result, this appeal is allowed. The impugned judgment
and decree of the trial court is set aside. The suit is decreed by allowing
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the alternate prayer of return of advance amount. The plaintiff is
allowed to realise a sum of Rs.45,000/- along with interest @8% per
annum from the date of the suit till realisation, with proportionate costs
from the 1st defendant and his assets.
16. Within one month of receipt of the said amount, the plaintiff
shall return Exhibit A2 purchase certificate to the defendant. In case of
default, the defendant could get the said document from the plaintiff
through the process of the court and realise the expense from the
plaintiff.
All pending interlocutory applications shall stand dismissed.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
