Kerala High Court
Nazirudeen vs Shaji on 17 September, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 17TH DAY OF SEPTEMBER 2025 / 26TH BHADRA, 1947
RFA NO. 228 OF 2020
OS NO.70 OF 2012 OF SUB COURT, ATTINGAL
APPELLANT/3RD DEFENDANT
NAZIRUDEEN, AGED 57 YEARS
S/O ABDUL KARIM, RESIDING AT KIZHAKKETHIL VEEDU, EDAVA
DESOM, EDAVA VILLAGE,
BY ADVS.
SRI.P.HARIDAS
SHRI.BIJU HARIHARAN
SRI.R.B.BALACHANDRAN
SRI.RENJI GEORGE CHERIAN
SRI.P.C.SHIJIN
SRI.RISHIKESH HARIDAS
SRI.NIYAS A.SALAM
RESPONDENTS/PLAINTIFF & DEFENDANTS 1 AND 2
1 SHAJI, AGED 41 YEARS,
S/O MUHAMMED ABDUL KHADER, RESIDING AT KIZHAKKEVILA,
VENKULAM DESOM, EDAVA VILLAGE, PIN-695311
NOW RESIDING AT MALAPPURAM HOUSE, PETHIRIMUKK, NEAR
ALUMMOOD VALIYAPALLI, EDAVA P O, PIN-695311.
2 PREMKUMAR, AGED 58 YEARS, S/O DHAMODHARAN, RESIDING AT
SASNTHI SAGAR, KAPPIL DESOM, EDAVA VILLAGE, PIN-695311.
3 A K JABBAR, AGED 56 YEARS
S/O ABDUL SALAM, RESIDING AT JASH LAND, PARAYIL DESOM,
EDAVA VILLAGE, PIN-695311.
BY ADV SRI.D.KISHORE
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
25.8.2025, THE COURT ON 17.09.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
Dated : 17th September, 2025
The third defendant in OS No. 70 of 2012 on the file of the Sub Court,
Attingal 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 declaration of title and
possession. The plaint schedule property consists of 30 cents of landed property
and a building situated therein. The plaintiff obtained the plaint schedule property
as per settlement deed No. 2192 of 1996 dated 07.06.1996, which is marked as
Exhibit A1. The case of the plaintiff is that when he was in dire need of money, he
approached the first defendant and availed a loan of Rs.3,00,000/- from him. At the
time of availing the loan, he had executed Exhibit A2 sale deed No.3988/1998
dated 29.10.1998 in favour of the first defendant on condition that he shall pay
interest at the rate of 36% per annum and as and when the principal amount with
interest is repaid, the property will be re-conveyed to him. Subsequently when the
first defendant demanded repayment of the loan amount, he did not have the money
and accordingly, he had approached the second defendant and the second defendant
agreed to advance the loan to him. Accordingly, the second defendant advanced a
sum of Rs.3,75,000/- and the same was given to the first defendant and the first
defendant caused to execute sale deed No. 3646 of 1999 dated 16.08.1999 (Ext.A3)
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in favour of the second defendant. The second defendant also agreed to reconvey
the property as and when the loan amount with interest is repaid. However, when
the second defendant demanded back the money, the plaintiff was not in a position
to repay the same and accordingly he had approached the third defendant, who in
turn advanced a sum of Rs. 3,75,000/- and the same was paid to the second
defendant and the second defendant executed sale deed no. 4388 of 1999 (Exhibit
A4) in favour of the third defendant. While executing Exhibit A4, the third
defendant also agreed to re-convey the property to the plaintiff when the amount
borrowed with interest is repaid.
3. According to the plaintiff, as agreed with the third defendant, he was
regularly paying monthly interest at the rate of Rs.13,125/- to the third defendant.
As per the discussion with the third defendant, the balance amount due to him as on
2.6.2001 was fixed at Rs. 3,00,000/- and a sum of Rs. 2,00,000/- was paid to the
third defendant on that day. He further agreed to pay the balance Rs. 1,00,000/- to
defendant no.3 within a short time. At that time the future interest to be paid was
reduced to 2% per month. An agreement dated 2.6.2001 was also executed with the
third defendant in that respect. In May 2009, the defendant no. 3 agreed to return
the original title deed after receiving a sum of Rs.1,92,000/-. Accordingly, a sum of
Rs. 1,92,000/- was paid to defendant no. 3 on 1.6.2009 and the plaintiff received
the original title deed from him. Then the total amount due to defendant no. 3 was
Rs.1,64,000/-. Since the land value increased considerably, the defendant no. 3
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demanded exorbitant amount for re-conveying the property. Though Exhibits A2 to
A4 documents were executed in favour of defendants 1 to 3, those documents were
never intended to be acted upon and they were executed only as security for the due
repayment of the loans availed from them. According to the plaintiff, since the
above documents were sham documents, never intended to be acted upon, he
continued to be the title holder in possession of the plaint schedule property.
According to the plaintiff, there is a brick kiln in the adjacent property belonging to
his brother and there was a building which is situated in the plaint schedule
property as well as in his brother's. Both the above properties were lying
contiguous without any demarcating boundary separating them and the building is
situated in both the above properties. A portion of the above building was used for
storing materials and another portion was used as an office and the third portion
was used as the residence of the employees. The brother of the plaintiff is using the
plaint schedule property and the building therein also as part of the brick kiln
conducted in his property. His brother was also using the plaint schedule property
as a road leading to the brick kiln conducted in his property. According to the
plaintiff, in spite of the execution of Exhibits A2 to A4 documents, all along he was
in possession of the plaint schedule property and the building therein and he was
also paying the electricity bill in respect of the building situated in the plaint
schedule property. According to the plaintiff, none of the defendants acquired any
title or possession over the plaint schedule property and as such he is entitled to get
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a decree declaring his title and possession over the plaint schedule property.
4. From the very beginning, the first defendant remained ex parte. The
defendant no. 2 filed a written statement disputing the averments in the plaint and
contending that Exhibit A2 sale deed executed by the plaintiff in his favour was a
pucca sale deed and not a document executed as security for the loan availed from
him. He denied the allegation that the transaction was only a loan transaction.
However, at the time of evidence, the defendant no. 2 abandoned the case and he
was also set ex parte.
5. The defendant no. 3 filed a written statement denying the allegations
in the plaint and contending that Exhibit A4 sale deed executed in his favour, as
well as Exhibits A2 and A3 documents executed in favour of defendants 1 and 2
are also pucca sale deeds and not documents executed as security for repayment of
loan. According to the third defendant, the allegation in the plaint that the actual
transaction was only a loan transaction is false. According to the third defendant,
by virtue of Exhibits A2 to A4 documents the defendants obtained title and
possession over the plaint schedule property. According to him, the plaintiff is not
entitled to get any decree for declaration of title or possession and therefore, he
prayed for dismissing the suit.
6. The trial court framed 13 issues. The evidence in the case consists of
the oral testimonies of PWs 1 to 4, DW1 Exhibits A1 to A13, B1, C1 and C1(a).
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After evaluating the evidence on record, the trial court decreed the suit holding that
Exhibits A2 to A4 documents are sham documents and that the plaintiff is entitled
to get a decree declaring his title and possession over the plaint schedule property.
Aggrieved by the above judgment and decree of the trial court, the third defendant
preferred this appeal, raising various grounds.
7. Now the points that arise for consideration are the following:
1. Whether Exhibits A2 to A4 documents were executed as security for the
due repayment of loans availed from the defendants as alleged?
2. Whether the plaintiff has succeeded in proving his title and possession
over the plaint schedule property?
3. Whether the impugned judgment and decree of the trial court calls for
an interference in the light of the grounds raised in the appeal?
8. During the pendency of the appeal, the appellant filed an application
as IA No. 4 of 2020 praying for amending the written statement and for remanding
the matter to the trial court for fresh disposal. He has also produced 3 additional
documents as Annexures 1 to 3 and prayed for receiving those documents as
evidence. Those IAs were also posted along with the appeal and taken up for
disposal along with this appeal.
9. Heard Sri P. Haridas, the learned counsel for the appellant and Sri.D.
Kishore, the learned Counsel for the respondents.
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10. The points: In the plaint, the plaintiff claims title over the plaint
schedule property on the basis of Exhibit A1 settlement deed No. 2192 of 1996
dated 07.06.1996. However, in Exhibit A2 sale deed No. 3988 of 1998 executed in
favour of the first defendant, the number of the prior document stated is not Exhibit
A1, but Sale Deed No. 743 of 1998, namely Annexure A3 sale deed produced by
the appellant. Exhibit A2 sale deed No. 3988 of 1998 is seen executed in favour of
the first defendant on 29.10.1998. However, it appears that before the execution of
Exhibit A2 sale deed in favour of the first defendant, three other transactions were
made in respect of the plaint schedule property. Annexures A1 to A3 are the
certified copies of the above documents.
11. Annexure A1 is the sale deed No. 3341 of 1997 dated 18.09.1997
executed by the plaintiff in favour of one Salmia. Annexure A2 is the sale deed No.
3800 of 1997 dated 21.10.1997 executed by Salmia in favour of one Gopalakrishna
Pillai. Annexure 3 document No. 743 of 1998 dated 27.02.1998 is executed by
Gopalakrishna Pillai in favour of the plaintiff. Therefore from Annexures 1 to 3 it
can be seen that before executing Exhibit A2 in favour of defendant no. 1, the
plaintiff executed Annex A1 in favour of one Salmia, Salmia executed Annexure 2
in favour of one Gopalakrishna Pillai and Gopalakrishna Pillai in turn executed
Annexure 3 sale deed, again in favour of the plaintiff. It was thereafter the plaintiff
executed Exhibit A2 sale deed in favour of the defendant, in which the prior
document was shown as Annexure A3 and not Exhibit A1.
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12. At the time of arguments, the learned counsel for the appellant
seriously raised the above issue stating that the original title deed of the plaintiff is
not Exhibit A1, but Annexure A3, sale deed No. 743 of 1998 and as such according
to him, the plaintiff suppressed material facts, withheld vital documents and
approached the court with unclean hands. Therefore, according to the legal counsel
for the appellant, the plaintiff is not entitled to get a decree declaring his title and
possession as prayed for in the plaint. The learned counsel has raised an alternate
argument that during the trial, the appellant was not aware of the execution of
Annexures 1 to 3 and that if the appellant was aware of the execution of annexes 1
to 3 he would have produced those documents before the trial court and if those
documents were produced, the trial court ought to have dismissed the suit. He has
also filed IA No. 4 of 2020 for amending the written statement to incorporate
pleadings relating to Annexures A1 to A3. He also filed I.A.2/2024 praying for
receiving the additional documents as evidence. Therefore, he prayed for
remanding the matter after receiving Annexures 1 to 3 in evidence, so that he could
adduce fresh evidence to disprove the claim of the plaintiff.
13. On the other hand, the learned counsel for the plaintiff would argue
that in this case the prior title of the plaintiff was not disputed by any of the
defendants. The learned counsel would argue that, as in the instant case, the
plaintiff has availed loan from two other persons and Annexures 1 to 3 were in
respect of that loan transaction. According to him, even after the execution of those
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documents, the plaintiff continued to be the title holder of the plaint schedule
properties. According to the learned counsel, annexes 1 to 3 were also sham
documents executed in similar circumstances as in the instant case and as such,
there is absolutely no merits in the argument advanced by the learned counsel
before the appellant that Exhibit A1 is not the title deed of the plaintiff. Therefore,
according to the learned counsel, there is no merit in the argument that the plaintiff
suppressed material facts and withheld vital documents and approached the court
with unclean hands. Therefore, he prayed for dismissing the amendment
application and also for rejecting the prayer for remanding the matter to the trial
court for fresh disposal.
14. In support of the argument advanced by the learned counsel for the
appellant that the matter requires to be remanded to the trial court for fresh disposal, he
has relied upon some decisions. In the decision Remco Industrial Workers House
Building Cooperative Society v. Lakshmeesha M and Others, (2003) 11 SCC 666,
the plaintiff claims title to the land and it is submitted that it has built houses for its
members on it. The suit land was admittedly inam land. Inams were abolished by the
Karnataka (Personal and Miscellaneous) Inams Abolition Act, 1954. Under the said Act,
tenants in occupation of land are given preferential right to apply for occupancy rights
and if they fail to do so, the inamdar has been given a right to apply for grant of
occupancy rights. The Apex Court found that the basic issue of effect of earlier grant
dated 28.05.1965 (Ext.D3) in favour of the tenant Muniyappa on the subsequent grant
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dated 09.12.1969 (Ext.P1) in favour of the plaintiff/respondent was neither addressed to
by any of the courts below, nor has a decision been rendered on the same. The issue of
effect of Exhibit D3 on Exhibit P1 and the identity of the land under the two grants is
vital to the just decision of the case. It was in the above context that the Apex Court
ordered to remand the matter to the trial court for fresh disposal.
15. In the decision in Corporation of Madras and Another v. M.
Parthasarathy and Others, (2018) 9 SCC 445, the First Appellate Court took into
consideration the additional piece of evidence, while deciding the appeals on merits,
without affording any opportunity to the appellants to file any rebuttal evidence to
counter the additional evidence adduced by the respondents. The Apex Court found that
it has caused prejudice to the appellants, because they suffered the adverse order from the
appellate court on the basis of additional evidence adduced by the respondents for the
first time in appeal against them. It was in the above context, the Apex court set aside the
impugned order and remanded the matter for re-trial.
16. In C. N. Ramappa Gowda v. C.C. Chandregowda (Dead) by LRs and
another, (2012) 5 SCC 265, the trial court passed an ex parte decree for partition of
some property, holding that the property was joint family property, without verifying any
documentary evidence and merely on the basis of an affidavit filed by the plaintiff. It was
in the above context, the Apex Court remanded the matter to the trial court for re-trial,
after permitting the respondent/defendant to file the written statement. In paragraph 23,
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the Apex Court held that:
"In the light of the ratio decidendi of the cases cited hereinabove, when
we examined the judgment and order of the trial court granting a decree
of partition in favour of the plaintiff-appellant, we could notice that the
plaintiff-appellant has sought to prove his case that the suit property
was a joint family property only on the strength of affidavit which he
had filed and has failed to lead any oral or documentary evidence to
establish that the property was joint in nature. Even if the case of the
plaintiff-appellant was correct, it was of vital importance for the trial
court to scrutinize the plaintiff's case by directing him to lead some
documentary evidence worthy of credence that the property sought to be
partitioned was joint in nature. But the trial court seems to have relied
upon the case of the plaintiff merely placing reliance on the affidavit
filed by the plaintiff which was fit to be tested on at least a shred of
some documentary evidence even if it were by way of an ex-parte
assertion."
17. Here, the specific case of the appellant is that he obtained title over
the plaint schedule property from the 2 nd defendant as per Ext.A4, who obtained
title from the 1st defendant as per Ext.A3, who in turn derived title from the
plaintiff as per Ext.A2. The appellant has no case that prior to the execution of
Exhibit A2 sale deed, the plaintiff did not have title and possession over the plaint
schedule property. In that way, in effect, the appellant admits that the plaintiff was
the absolute owner in possession of the plaint schedule property prior to the
execution of Ext.A2. It is true that, before the execution of Exhibit A2 sale deed in
favour of the 1st defendant annexure 1 to 3 documents were also executed in respect
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of the plaint schedule property. Going by annexure 1 to 3 documents, though two
other persons were owners of the said property for a short period, within 6 months,
as per the third document, the plaintiff again became the owner of the schedule
property. The specific case of the plaintiff is that, Exhibits A2 to A4 documents
executed in favour of defendants 1 to 3 are sham documents executed as security
for due repayment of the loans availed from them and Annexures 1 to 3 are also
three similar documents executed in connection with another loan transaction.
Since as per Annexure 1 to 3 documents the plaintiff at first disposed of and then
received back title and possession over the schedule property, non-disclosure of
Annexures A1 to A3 in the plaint or in Ext.A2 is not fatal to the case set up by him.
Even if Annexures A1 to A3 were disclosed in the plaint and those documents were
produced before the trial court, those documents will not make any difference in
the title claimed by the plaintiff over the plaint schedule property and also in the
case pleaded by the plaintiff in the plaint. In the above circumstances, I do not find
any merit in the argument advanced by the learned counsel for the appellant that if
Annexures 1 to 3 documents were produced before the trial court, the trial court
would have dismissed the suit and that suppression of those documents before the
trial court was fatal to the case of the plaintiff. Therefore, the proposed amendment
sought for the written statement, being unnecessary, is liable to be rejected.
However, the prayer in I.A.2/2024 praying for receiving Annexures 1 to 3
documents in evidence is accepted and Annexures 1 to 3 documents are marked as
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Exhibits B2 to B4 on the part of the defendants. Since Exhibits B2 to B4
documents will not in any way affect the case pleaded by the plaintiff in the plaint
and those documents have no impact on the outcome of this suit, the prayer for
remanding the matter for fresh disposal by the trial court also is liable to be
rejected. In other words, the above decisions relied upon by the learned counsel for the
appellant in support of the argument for remand are not applicable to the facts of the
present case.
18. The plaintiff is claiming declaration of his title and possession over
the plaint schedule property. According to him, though Exts.A2 to 4 documents
were executed, those documents were not intended to be acted upon as it was only
sham documents created as security for loan advanced. In the decision in Union of
India and Others v. Vasavi Cooperative Housing Society Ltd and Others, (2014) 2
SCC 269, relied upon by the learned counsel for the appellant, the Apex court held that:
"It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff
to make out and establish a clear case for granting such a declaration and the weakness,
if any, of the case set up by the defendants would not be a ground to grant relief to the
plaintiff."
19. In the decision in Badami (Deceased) by her LRs. v. Bhali (2012) 11
SCC 574, relied upon by the learned counsel for the appellant, the Apex Court held in
paragraph 31 that: "A person whose case is based on falsehood, has no right to approach
the court. A litigant who approaches the court is bound to produce all the documents
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executed by him, which are relevant to the litigation. If a vital document is withheld, in
order to gain advantage on the other side, he would be guilty of playing fraud on court
as well as on the opposite party."
20. In the decision in Sivanarayan Gope v. Kuldeep Saraf and others,
(2022) SCC Online Cal. 4013, relied upon by the learned counsel for the appellant, the
Culcutta High Court held that: "To get an equitable relief of decree of declaration and to
get a decree for equitable distribution of the property, plaintiff must come to court with
clean hands and must disclose all the material facts and must bring all the necessary
parties on record, failing which he cannot get equitable and discretionary relief from the
court."
21. I have already found that Exhibit B2 to B4 documents produced by the
appellant during the appellate stage have not much relevance in determining the issues
involved in this suit and as such, non production of those documents before the trial court
is not fatal to the facts and circumstances of the present case. Therefore, now the crucial
question to be considered is whether Exhibits A2 sale deed executed by the plaintiff
in favour of the first defendant, Exhibit A3 sale deed executed by defendant no. 1
in favour of defendant no. 2 and Exhibit A4 sale deed executed by defendant no. 2
in favour of defendant no. 3 are sham documents executed as security for
repayment of the loan availed from them?
22. Relying upon Section 92 of the Evidence Act, the learned counsel for the
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appellant would argue that, since Exhibits A2 to A4 are registered sale deeds, oral
evidence cannot be adduced against the contents of the above registered sale deeds.
Section 92 of the Evidence Act states that:
"92. Exclusion of evidence of oral agreement.
When the terms of any such contract, grant or other disposition of
property, or any matter required by law to be reduced to the form of a
document, have been proved according to the last section, no evidence
of any oral agreement or statement shall be admitted, as between the
parties to any such instrument or their representatives in interest, for the
purpose of contradicting, varying, adding to or subtracting from, its
terms "
23. Relying upon the decisions in Hathika v. Padmanabhan, 1994 KHC 86,
Varkey and Another v. Chacko, 2012 KHC 836 and George and another v.
Annakutty and Others, 2017 4 KHC 742 the learned counsel for the plaintiff would
argue that if the document executed by the parties was never intended to be acted upon,
but some other agreement altogether, not recorded in the document was entered into
between the parties, oral evidence is admissible.
24. In Hathika (supra), a learned Single Judge of this Court held in paragraph
10 that:
"Section 92 applies when a party seeks to rely upon the document
embodying the terms of the transaction. The law declares that the nature
and intent of the transaction are to be gathered from the terms of the
document itself and no evidence of any oral agreement can be admitted
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as between the parties to such document for the purpose of contradicting
or modifying its terms. But the bar is not applicable when the case of the
party is that the transaction recorded in the document was never
intended to be acted upon and that the document is a sham transaction.
Such a question arises when the party asserts that the transaction
intended was different from the transaction embodied in the document. It
is settled law that oral evidence is admissible to show that the document
executed by the parties was never intended to operate whereas parties
had entered into some other transaction which was not recorded in the
document."
25. In the decision in Varkey (supra), another single judge of this court held in
paragraph 24 , a recital in a deed as to possession is not a 'term' of the contract. Hence
oral evidence is admissible to show that, as against the recital in the document that
possession of the property was transferred, there was no such transfer of possession. Such
evidence is not excluded by Section 91 or 92 of the Act. Nor his evidence excluded to
prove that Ext.B1 was not intended to be an agreement for sale of property.
26. In the decision in George (supra), a Division Bench of this Court referring
to the decision of the Privy Council in Tyagaraja Mudaliyar v. Vedathani, AIR 1936 PC
70 held that:
".....The next contention on behalf of the appellant is that sub-sec. (1)
of S.92 of the Evidence Act bars the respondent from contending that
there was no sale and, it is submitted, the respondent should not have
been permitted to lead parol evidence in support of the contention.
xxxx xxxx xxxx
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It is clear to us that the bar imposed by sub-sec.(1) of S.92 applies
only when a party seeks to rely upon the document embodying the
terms of the transaction. In that event, the law declares that the nature
and intent of the transaction must be gathered from the terms of the
document itself and no evidence of any oral agreement or statement
can be admitted as between the parties to such document for the
purpose of contradicting or modifying its terms. The sub-section is not
attracted when the case of a party is that the transaction recorded in
the document was never intended to be acted upon at all between the
parties and that the document is a sham. Such a question arises when
the party asserts that there was a different transaction altogether and
what is recorded in the document was intended to be of no
consequence whatever. For that purpose oral evidence is admissible to
show that the document executed was never intended to operate as an
agreement but that some other agreement altogether, not recorded in
the document, was entered into between the parties......"
27. In the decision in Aboobacker N.M and Another v. Sunil, 2018 (1)
KHC 57, another Division Bench of this Court also held that: "Obviously, therefore, the
bar under Section 92 may not be attracted when a transaction recorded in the document
is contended to be sham and never intended to be acted upon. Such questions will arise
when a party asserts that there was a completely different transaction and that what is
recorded in the document is of no consequence."
28. The meaning of the word 'sham transaction' was elaborately considered by
a learned single judge of this court in the decision in Naduvatheyath Sulochana v.
Syndicate Bank Branch Manager Thalassery and another 2022 (2) KHC 253. In
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paragraphs 14 to 19, the Court held that:
"14. The 'sham' transaction regarding a document refers to the execution of
such document by the parties to the sham with intent to give to the third parties
the appearance of creating between them legal rights and obligations different
from the actual legal rights and obligations which the parties intended to
create. Moreover, the parties to the 'sham' must have the common intention that
the documents are made to create the legal rights and obligations that they give
the appearance of creating.
15. The intention of the parties to the 'sham' in entering into the transaction is
the true test to decide whether the transaction is 'sham'.
16. It is trite that the burden of proving that a particular sale is sham and the
apparent purchaser is not the real owner always rests on the person asserting it
to be so. This burden must be strictly discharged by adducing legal evidence of
a definite character, which would either directly to prove the factum of 'sham' or
establish the circumstances unerringly and reasonably raising an inference of
that fact.
17.For determining whether a transaction is a sham or not, there cannot be any
absolute formula or acid test uniformly applicable in all situations.
18. In Halsbury's Laws of England (fifth edition - volume 77 - page 108), the
learned author writes thus :
"There are two routes by which the legal nature of the transaction can
be ascertained : the external route is to show by extrinsic evidence that a
writteh agreement is a sham intended to mask the true agreement; the internal
route is to ascertain from the terms of the agreement itself whether it amounts to
a transaction of the legal nature the parties ascribe to it."
19. The extrinsic evidence includes the following :
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(1) the nature and possession of the property after the purchase;
(2) motive, if any, for making the sham transaction;
(3) the position of the parties and the relationship, if any between the claimant
and the alleged 'shammer';
(4) custody of the title deeds after the sale and the conduct of the parties
concerned in dealing with the property after the sale."
29. Therefore, it can be seen that the bar under Section 92 of the Evidence Act does
not apply when a transaction recorded in the document is contended to be sham and never
intended to be acted upon between the parties and when a party asserts that what was intended
was a completely different transaction. In other words, in such circumstances, oral evidence is
admissible.
30. The learned counsel has relied upon several circumstances to substantiate
the contention that Exts.A2 to A4 were not intended to be acted upon, but only sham
documents. One such circumstance is that, though Exhibits A2 to A4 documents were
executed, the plaintiff continued to be in exclusive possession and enjoyment of the entire
plaint schedule property consisting of 30 cents of land and a portion of the building
situated therein. At the same time, in the written statement the appellant claimed that he is
in exclusive possession and enjoyment of the plaint schedule property. In order to prove
exclusive possession and enjoyment over the plaint school property, the plaintiff relied
upon the evidence of Pws 1 to 4 and Exhibits C1 and C1(a) commission report and sketch.
31. From the evidence of PW 1 to 4 and Exhibit C1 and C1(a) commission
report and sketch it is revealed that the plaint schedule property and the adjacent property
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belonging to the plaintiff's brother are lying contiguously without any demarcating
boundary separating them. The plaint schedule property situates on the eastern side of the
property belonging to the plaintiff's brother, who was examined in this case as PW2.
There is a concrete building having No.EP XIV-79 with 3 rooms, which situated partly in
the plaint schedule property and partly in the property belonging to PW2. In fact, almost
half portion of the building situates in the plaint schedule property and the remaining half
portion of the building situates in the property belonging to PW2. In the property
belonging to PW2, a concrete brick manufacturing unit by name "Mughal Thavuk
Industries" is being conducted and the access to the said unit is through the plaint schedule
property. Out of the 3 rooms in the building, one room which is situated in the plaint
schedule property is used as store room, another room which is situated in the property of
PW2 is used as office room and the middle room which is situated partly in the plaint
schedule property and partly in the property of PW2 is used for the residence of the
employees in the manufacturing unit conducted by PW2. Several yielding coconut trees
are there in the plaint schedule property. There is also a toilet in the said property.
32. The Commissioner as PW4 deposed that when she visited the plaint
schedule property on 10.03.2012, the room which situated in the plaint schedule property
was opened by using the key furnished by the plaintiff's father. Though the Commissioner
noted a survey stone at the south western corner of the plaint schedule property, the entire
plaint schedule property and the property belonging to PW2 lying on its west are lying
contiguously without any separating boundaries and the concrete building referred above
situated partly in the plaint schedule property and partly in the property belonging to PW2.
From the evidence of the plaintiff as PW1, it is also revealed that the electricity charge for
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the said building has been paid by the plaintiff himself since the year 2003. In this context,
it is also to be noted that the appellant has not produced any documents to prove that he
had mutated the property in his favour or that he is paying land tax or building tax to the
plaint schedule property and to the building situated therein. Therefore, it is evident that,
in spite of the execution of Exhibit A2 to A4 documents, the plaintiff continues to pay the
building tax, property tax and electricity charge.
33. From the evidence of PWs1 to 4 and from Exhibit C1 and C1(a), it is
revealed beyond any reasonable doubt that in spite of execution of Exhibits A2 to A4
documents, the entire plaint schedule property and the building situated therein continued
to be in the possession of the plaintiff and it is being enjoyed by the plaintiff's brother
PW2 for conducting the brick manufacturing unit by name "Mughal Thavuk Industries".
Exhibits A8 to A10, A12 and A13 are the electricity bills and telephone bills, in respect of the
building in the plaint schedule property produced by the plaintiff. The above electricity bills and
telephone bills produced by the plaintiff also substantiate the plaintiff's case that even after filing
the suit, the plaintiff is in possession and enjoyment of the plaint schedule property and the
buildings situated therein. The third defendant has absolutely no explanation as to why, in
spite of execution of Exhibits A2 to A4 documents, the plaintiff continued to be in
exclusive possession and enjoyment of the plaint schedule property and why he has not
obtained possession over the plaint schedule property, as claimed in the written statement.
The fact that in spite of the execution of Exhibits A2 to A4 documents, even in the year
2012 when the Commissioner visited the plaint schedule property, the plaintiff continued
to be in possession and enjoyment of the plaint schedule property, is a strong
circumstance, probabilising the case of the plaintiff that Exhibits A2 to A4 documents
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were sham documents never intended to be acted upon and were executed only as security
documents and improbabilising the case of the third defendant that those documents were
pucca sale deeds.
34. As per S.55(3) of the Transfer of Property Act, when the whole of the
purchase money has been paid to the seller, he is bound to deliver to the buyer all
documents of title relating to the property which are in the seller's possession or power,
especially when he has not retained any part of the property comprised in such documents.
In this case, Ext.A1 is one of the original title deeds of the plaint schedule property and it
is with the plaintiff. From the evidence of PWs1 and 3 and from Exts.A5 to 7 it is revealed
that the originals of A1 to 3 were in the possession of the appellant and out of which
Ext.A1 was returned to the plaintiff on 1.9.2009, as per Ext.A7, while receiving part
payment. The appellant has not offered any explanation as to why Ext.A1 is in the
possession of the plaintiff.
35. The specific case of the appellant is that he is a bona fide purchaser for
valid consideration. Normally a bona fide purchaser of immovable property will not
purchase the property without verifying the encumbrance over the property. In this case,
within a short span of little more than 3 years, 6 documents were executed in respect of
the plaint schedule property, namely Exhibits A2, A3, A4, as well as Exhibits B2 to B4.
According to the appellant, he was not aware of Exhibits B2 to B4 documents even during
the trial stage and that is why those documents were produced as annexures here. If the
appellant had verified the encumbrance of the plaint schedule property for a period of 3
years prior to Ext.A4, he would have noticed the execution of Exhibits B2 to B4
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documents. The appellant has no explanation as to why he purchased the property without
verifying its encumbrance even for a period of 3 years. The fact that the appellant
obtained Ext.A4 in his favour even without ensuring that it is free from encumbrance, is
another crucial circumstance improbabilising the defence case and probabilising the case
put forward by the plaintiff.
36. The specific case of the plaintiff is that at the time of executing Exhibit A2
in favour of the first defendant, he had executed a separate agreement in his favour,
agreeing to reconvey the property after receiving the loan amount. Similarly, according to
him, while executing Exhibit A3 in favour of defendant no. 2, a similar document was
executed by defendant no. 2 in his favour. The case of the plaintiff is that, Exhibit A11 is
the agreement executed by defendant no. 2 in his favour, agreeing to reconvey the
property after receiving the loan amount. Further, according to the plaintiff, the appellant
also executed similar documents namely Exts.A5 to A7 in his favour, promising to
reconvey the property after receiving the loan amount. The appellant stoutly denied the
execution of Exhibits A5 to A7 documents and would contend that those documents were
forged by the plaintiff to suit his case.
37. In order to prove Exts.A5 to A7 documents, the plaintiff examined himself
as PW1, his brother as PW2 and another witness as PW3. PW1 and PW3 in clear terms
deposed that Exhibits A5 to A7 documents were executed by the appellant in favour of the
plaintiff, promising to reconvey the property and at the same time after receiving part of
the loan amount. On the side of the appellant, except the oral testimony of the appellant as
DW1, there is no other evidence. Though the appellant has taken a contention that
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Exhibits A5 to A7 are fabricated documents, no steps were taken by him to get those
documents examined with the help of an expert. Though PWs 1 and 3 were cross
examined in detail, nothing material could be brought out to discredit their testimony. In
this context, it is to be noted that the appellant has not disputed the genuineness of Exhibit
A11 executed by the second defendant in favour of the plaintiff. Defendants 1 and 2 also
have not contested the suit. Since the second defendant who is the vendor of the appellant
has not disputed Exhibit A11 document executed by him in favour of the plaintiff, it is
binding on the appellant also. In Exhibit A11, the defendant no. 2 admits that the
transaction was only a loan transaction and that after receiving the loan amount, with
interest, he is ready to reconvey the plaint schedule property in favour of the plaintiff.
When the appellant was examined as DW1, he was not even aware of the number of the
building in the plaint schedule property. According to him, since it was an unauthorised
building, no number was allotted. Though he agreed to produce electricity bills, tax
receipts etc., they were not produced. From his evidence it became more clear that he is
not in possession and enjoyment of the plaint schedule property. Therefore, in the light of
the evidence of PW1 to PW3, the plaintiff has succeeded in proving that Exhibits A5 to A7
documents were executed by the appellant in favour of the plaintiff.
38. Exhibit A5 is an agreement executed between the appellant and the plaintiff on
05.10.1999, in which the appellant admits that he had advanced a sum of Rs. 3,75,000/- to the
plaintiff on a monthly interest of Rs.13,125/- and undertakes further that when the plaintiff
repays the amount with interest within a period of 20 months, he will reconvey the plaint
schedule property to the plaintiff. Exhibit A6 is a receipt dated 2.6.2001 issued by the appellant to
the plaintiff, acknowledging receipt of a sum of ₹ 2,00,000. In Exhibit A6, the balance amount
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due to the appellant is stated as Rs. 1,00,000/-. In Exhibit A6, he further admits that he is in
possession of Exhibits A1, A2, A3 and A4 documents. Exhibit A7 is the receipt dated 1.6.2009 in
which the appellant admits that as per the agreement dated 05.10.1999 and 2.6.2001 he is
entitled to get a total sum of Rs. 2,92,000/- and that on that day he received a sum of
Rs.1,92,000/- and returned Exhibit A1 document to the plaintiff. In Exhibit A7 he further admits
that the balance amount due to him is only Rs. 1,00,000/- and future interest for the above Rs.
1,00,000/- is limited to 2% per month. He also undertakes in Exhibit A7 that on repayment of the
balance amount, he will return the remaining documents also. The fact that even after the
execution of Exts.A2 to 4 the plaintiff is in possession of the prior title deed namely Ext.A1 also
substantiates the genuineness of Ext.A7, which acknowledges return of Ext.A1 to the plaintiff
after receiving part payment.
39. Another argument advanced by the learned counsel for the appellant is that since
Exhibits A2 to A4 documents are of the year 1998 and 1999, the present suit filed for declaration
on 2.03.2012 is barred by limitation. According to the learned counsel, as per Article 58 of the
Limitation Act, the period of limitation of three years commences when the right to sue first
accrues. According to the learned counsel, as per the case of the plaintiff, the cause of action for
filing the suit for declaration commenced at least on the date of execution of Exhibit A4 on
05.10.1999 and as such, the suit filed in 2012 is barred by limitation. In support of his argument,
he has relied upon the Following decisions:
40. In the decisions Rajeev Guptha and Others v. Prashant Garg and Others,
2025 SCC Online SC 889, relied upon by the learned counsel for the appellants, the Apex Court
held that as per Article 58 of the Limitation Act, the cause of action for filing the suit for
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declaration commences when there was a clear and unequivocal threat of infringement of the
plaintiff's right.
41. In the decision in Leela and others v. Vasu and others 2018 (1) KHC 876, the
validity of a gift deed executed in the year 1975 was under challenge. The suit was filed only in
the year 1988, after a period of 13 years from the date of the impugned gift deed. It was in the
above context that a learned single Judge held that the suit is hopelessly barred by limitation.
42. In the decision in Jayesh Dinesh Kadam and Anr. v. Andrew David
Fernandez 2024 SCC Online Bom 2549, the suit was filed on 2.5.2023, seeking a declaration
that two sale deeds of 1969 and 2008 be declared null, void and illegal. The contention taken by
the plaintiff in the above suit is that he came to know about the above sale deeds for the first time
in the year 2022.
43. In the decision in Sajitha v. Abdul Kareem 2025 SCC Online Kerala 404, the
Original Petition was filed by a husband against his wife seeking declaration of his title over the
property and for a direction to execute a reconveyance in his favour in respect of the property
which stands in the name of his wife. From the facts in the above case, it appears that the
husband was aware of the fraud played by his wife as early as in the year 2006. However, he filed
the Original Petition only in the year 2012. It was in the above context that the Court found that
the Original Petition filed after 6 years of noticing the fraud is barred by limitation.
44. In the decision in N. P. Khadeeja v. N.P. Sulaikha, 2019 SCC Online Ker.
2485, the plaintiff claimed that she had executed a sale deed in favour of defendants 3 and 4, as a
sham document without receiving any consideration. The said document was executed on
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17.10.1989. She filed the suit for declaration on 23.06.2004, about 15 years after its execution. It
was in the above context that this Court held that the suit for declaration is barred by limitation.
45. In the decision in Khatri Hotels Private Limited and another v. Union of
India and another (2011) 9 SCC 126, the cause of action pleaded in the plaint is to the effect
that: "on 10.08.1990 when the officials of the defendants came to the suit premises and
threatened to demolish the same and that the cause of action is continuing till the threat of the
defendants to demolish the suit property persists." Thereafter, the suit was filed only 14.02.2000.
In the above circumstance the Apex Court held that if a suit is based on multiple causes of action,
the period of limitation will begin to run from the date when the right to sue first accrues. To put
it differently, successive violation of the right will not give rise to fresh cause and the suit will be
liable to be dismissed if it is beyond the period of limitation counted from the day when the right
to sue first accrued.
46. On a perusal of the facts involved in the above referred cases, it can be seen that
the facts in the present case are entirely different. In the instant case, the case of the plaintiff is
that, Exhibits A2 to A4 documents in favour of the defendants 1 to 3 are not intended to be acted
upon, but executed as security for prompt repayment of the loan advanced by them. Defendants 2
and 3 performed the promise and executed Exts.A3 and A4. Then he continued to pay interest
and part of the principal amount to the appellant, till 1.6.2009 and finally when the third
defendant refused to reconvey the property demanding a huge amount, he filed the suit for
declaration. He also filed the suit within a period of 3 years from the date of final payment.
Therefore, the above decisions referred to by the learned counsel for the appellant are not
applicable to the facts of the present case.
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47. In Exhibit A5 to A7, the appellant admits that the transactions entered into
through Exts.A2 to A4 are only loan transactions and not intended to be acted upon, as stated
therein. From the evidence of PW1 to PW3 and from Exhibits A5 to A7 documents it is also
revealed that even after the execution of Exts.A2 to A4, the parties treated the transaction as a
loan transaction, the plaintiff continues to possess and enjoy the plaint schedule property, plaintiff
used to pay interest as well as part of the loan amount to the appellant periodically and appellant
issued receipts for those payments and finally through Exhibit A7 he admits that the balance
amount due from the plaintiff as on 1.6.2009 is only Rs. 1,00,000/- with future interest at the rate
of 2 % per month. Since, on 01.06.2009 the appellant received interest due to him till then,
along with part of the principal amount and undertook to reconvey the property to the plaintiff
after receiving the balance amount of Rs. 1,00,000/- with future interest at the rate of 2 % per
month, the suit filed for declaration on 2.3.2012, within a period of three years from the date of
Exhibit A7. Since the suit was filed within a period of 3 years from the last written
acknowledgement issued by the appellant namely Ext.A7, it is not barred by limitation.
48. In the decision in Naduvatheyath Sulochana (supra), this Court held that the
extrinsic evidence, which can be relied upon to ascertain whether a document is sham, includes
the nature and possession of the property after the purchase, motive, if any, for making the sham
transaction, the position of the parties and the relationship, if any, between them and custody of
the title deeds after the sale, and the conduct of the parties concerned in dealing with the property
after the sale.
49. In the instant case, in spite of the fact that Exhibits A2 to A4 documents were
executed in favour of defendants 1 to 3 during the period 1998 - 1999, even now the plaint
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schedule property continues to be in the exclusive possession and enjoyment of the plaintiff. The
original prior title deed of the plaint schedule property (Ext.A1) is in the possession of the
plaintiff, even though the entire property covered by it was involved in Exhibits A2 to A4. PW2
is conducting a concrete brick manufacturing unit in his property utilising the plaint schedule
property also. The plaintiff himself is paying the electricity and telephone bills with respect to the
building situated in the plaint schedule property. The appellant could not produce any documents
to prove that he had mutated the property or paid land tax or building tax for the plaint schedule
property or the building situated therein. The plaintiff also has given the reason for executing
such a sham document, namely the actual transaction was only a loan transaction and that
Exhibits A2 to A4 were sham documents executed as security for the prompt repayment of the
loan amount. Exhibits B2 to B4 documents produced by the appellant also show that another
round of similar transactions were held in respect of the plaint schedule property. The oral
testimonies of PWs 1 to 4, Exhibits A1, A5 to A13, C1 and C1(a) also substantiates and
probabilises the case of the plaintiff that Exhibits A2 to A4 were sham documents and
improbabilises the defence case.
50. Going by the dictum laid down in the decision in Naduvathayath Sulochana
(supra) also, it is evident that Exhibits A2 to A4 documents are sham documents, never intended
to be acted upon and as such, the trial court was perfectly justified in holding that the plaintiff has
title and possession over the plaint schedule property and also in decreeing the suit. I do not find
any irregularity or illegality in the impugned judgment and decree passed by the trial court so as
to call for any interference. Points answered accordingly.
51. In the result, this appeal stands dismissed. Considering the facts, I direct both
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parties to suffer their respective costs.
IA No. 4 of 2020 for amending the written statement is dismissed. I.A.2/2024 allowed.
All other pending interlocutory applications shall stand dismissed.
C.Pratheep Kumar, Judge
Mrcs/8.9.
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PETITIONER ANNEXURES
Annexure A4 THE CERTIFIED COPY OF THE SALE DEED
3646/1999 DATED 16.8.1999 OF SRO VARKALA
Annexure A5 THE CERTIFIED COPY OF THE SALE DEED
3988/1998 DATED 29.10.1998 OF SRO
VARKALA
Annexure A6 CERTIFIED COPY OF THE SALE DEED
2192/1996 OF SRO VARKALA DATED 7.6.1996
Annexure A7 ORIGINAL POSSESSION CERTIFICATE DATED
25.9.2018 ISSUED BY EDAVA VILLAGE
OFFICER
Annexure A8 ORIGINAL OF SALE DEED NO. 3646/1999
DATED 16.8.1999 OF THE VARKKALA SU
REGISTRAR OFFICE
Annexure A9 3. ORIGINAL COPY OF THANDAPPER ACCOUNT
NO. 16193 OF NAZIRUDEEN, S/O. ABDUL
KARIM DATED NIL ISSUED BY THE VILLAGE
OFFICER, EDAVA DATED 18.1.2025
ANNEXURE 3 CERTIFIED COPY OF THE SALE DEED NO
743/1998DATED 27.02.1998 EXECUTED IN
FAVOUR OF PLAINTIFF BY MR GOPALAKRISHNA
PILLAI AT SRO VARKALA.
ANNEXURE -2 CERTIFIED COPY OF THE SALE DEED NO
3800/1997 DATED 21.10.1997EXECUTED IN
FAVOUR OF MR.GOPALAKRISHNA PILLAI BY SMT
SALMIYA AT SRO VARKALA.
ANNEXURE- I CERTIFIED COPY OF THE SALE DEED NO
3341/1997 DATED 18.09.1997 EXECUTED IN
FAVOUR OF ONE SMT SALMIYA BY THE
PLAINTIFF AT SRO VARKALA.
