Kerala High Court
Shibi vs Cheemadan Navas on 26 September, 2025
2025:KER:71593
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 26TH DAY OF SEPTEMBER 2025 / 4TH ASWINA, 1947
RFA NO. 446 OF 2018
AGAINST THE JUDGMENT DATED 31.01.2015 IN OS NO.477 OF 2011 OF
THE III ADDITIONAL SUB COURT, KOZHIKODE
APPELLANTS/PLAINTIFFS:
1 DAKSHAYANI
AGED 71 YEARS, W/O.LATE BALAGANGADHARAN VAIDHYAR,
MOOLATHUMKATTIL HOUSE, VELIPRAM AMSOM AND DESOM,
VYDIYARANGADI.P.O., KOZHIKODE DISTRICT-673 633.
2 SINDU
AGED 40 YEARS, D/O.LATE BALAGANGADHARAN
VAIDHYAR,MOOLATHUMKATTIL HOUSE,VELIPRAM AMSOM AND
DESOM,VYDOIYARANGADI.P.O,KOZHIKODE DISTRICT-673633.
3 SHIBI
AGED 38 YEARS, S/O LATE BALAGANGADHARAN
VAIDHYAR,MOOLATHUMKATTIL HOUSE,VELIPRAM AMSOM AND
DESOM,VYDIYARANGADI.P.O,KOZHIKODE DISTRICT-673633.
4 BIJU
AGED 34 YEARS, S/O.LATE BALAGANGADHARAN
VAIDHYAR,MOOLATHUMKATTIL HOUSE,VALIPRAM AMSOM AND
DESOM,VYDIYARANGADI.P.O,KOZHIKODE DISTRICT-673633.
5 SANDYA
AGED 30 YEARS, D/O.LATE BALAGANGADHARAN
VAIDHYAR,MOOLATHUMKATTIL HOUSE,VELIPRAM AMSOM AND
DESOM,VYDIYARANGADI.P.O,KOZHIKODE DISTRICT-673633.
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
and O.P(C) No.2479 of 2018
2
BY ADVS.
SRI.K.M.FIROZ
SMT.M.SHAJNA
RESPONDENTS/DEFENDANTS:
1 BYJU G.
AGED 41 YEARS, DEVI ESTATE, SHOLAYAR.P.O., PETTIKAL
DESOM, AGALI, MANNARKAD TALUK, PALAKKAD DISTRICT-
678 581.
2 CHEEMADAN NAVAS
AGED 40 YEARS, S/O.MUHAMMEDALI,AREEKODE.P.O,ERNAD
TALUK, MALAPPURAM DISTRICT-673639.
BY ADVS.
SRI.K.MOHANAKANNAN
SMT.T.V.NEEMA
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
17.09.2025, ALONG WITH RSA No.1240/2017, O.P(C) No.2479/2018,
THE COURT ON 26.09.2025 DELIVERED THE FOLLOWING:
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
and O.P(C) No.2479 of 2018
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 26TH DAY OF SEPTEMBER 2025 / 4TH ASWINA, 1947
RSA NO. 1240 OF 2017
AGAINST THE JUDGMENT AND DECREE DATED 04.01.2017 IN AS NO.66
OF 2015 OF THE III ADDITIONAL DISTRICT COURT, KOZHIKODE,
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.01.2015 IN OS
NO.101 OF 2013 OF THE III ADDITIONAL SUB COURT, KOZHIKODE
APPELLANT/RESPONDENT/DEFENDANT:
SHIBI
AGED 38 YEARS
S/O.LATE BALAGANGADHARAN VAIDHYAR, AGED 38 YEARS,
MOOLATHUMKATTIL HOUSE, VELIPRAM AMSOM AND DESOM,
VYDIYARANGADI P.O., KOZHIKODE DISTRICT-673633.
BY ADVS.
SRI.K.M.FIROZ
SMT.M.SHAJNA
RESPONDENT/APPELLANT/PLAINTIFF:
CHEEMADAN NAVAS
S/O.MUHAMMEDALI, AGED 40 YEARS, AREEKODE AMSOM
DESOM, AREEKODE P.O., ERNAD TALUK, MALAPPURAM
DISTRICT-673639.
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
and O.P(C) No.2479 of 2018
4
BY ADVS.
SRI.N.ANOOP KUMAR
SRI.K.MOHANAKANNAN
SMT.M.A.ZOHRA, FOR RESPONDENT
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
17.09.2025, ALONG WITH RFA.446/2018 AND CONNECTED CASES, THE
COURT ON 26.09.2025 THE FOLLOWING:
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
and O.P(C) No.2479 of 2018
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 26TH DAY OF SEPTEMBER 2025 / 4TH ASWINA, 1947
OP(C) NO. 2479 OF 2018
AGAINST THE ORDER DATED 26.09.2010 IN E.P No.170/2017 IN OS
NO.101 OF 2013 OF THE III ADDITIONAL SUB COURT, KOZHIKODE
PETITIONER:
SHIBI,
AGED 39 YEARS, S/O LATE BALAGANGADHARAN VYDHIAR,
MOOLATHUMKATTIL HOUSE, VELIPRAM AMSOM AND DESOM,
KOZHIKODE TALUK AND DISTRICT.
BY ADVS.
SRI.K.M.FIROZ
SMT.M.SHAJNA
RESPONDENT:
CHEEMANDAN NAVAS,
AGED 42 YEARS, S/O MUHAMMADALI, AREEKKODU AMSOM
DESOM, P.O AREEKKODU, ERNADU TALUK, PIN-673639.
BY ADVS.
SRI.K.MOHANAKANNAN
SMT.T.V.NEEMA
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17.09.2025,
ALONG WITH RFA.446/2018 AND CONNECTED CASES, THE COURT ON
26.09.2025 DELIVERED THE FOLLOWING:
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
and O.P(C) No.2479 of 2018
6
EASWARAN S., J
--------------------------------
R.F.A No.446 of 2018
R.S.A No.1240 of 2017
&
O.P (C) No.2479 of 2018
-------------------------------
Dated this the 26th day of September, 2025
JUDGMENT
The second appeal and the original petition arise
out of execution of the judgment and decree in O.S
No.101/2013 on the files of III Additional Sub Court,
Kozhikode, as confirmed by the III Additional District Court,
Kozhikode, in A.S. No.66/2015. The first appeal arises out
the judgment in O.S No.477/2011 on the files of III
Additional Sub Court, Kozhikode .
2. The fate of O.P.(C) No.2479/2018 and RSA
No.1240/2017 will depend upon the decision of this Court in
R.F.A No.446/2018 and hence it is felt expedient to consider
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
the R.F.A No.446/2018 first.
3. The brief facts necessary for the disposal of the
first appeal are as follows :-
The appellants are the legal heirs of one
Balagangadharan Vaidyar, who is the husband of the 1st
plaintiff and father of the remaining plaintiffs. Late
Balagangadharan Vaidyar derived right title and interest
over the plaint schedule property by virtue of purchase
certificate No.215/1981, issued as per order in S.M
No.257/1980 of the Land Tribunal, Beypore. He had
constructed a building and was manufacturing traditional
Ayurvedic Medicines. He had applied for a loan from the
Kerala Financial Corporation and the District Industries
Centre, Kozhikode, for purchase of machineries. On default
of the respective loans, when recovery proceedings were
initiated, the plaintiffs were approached by one Sudeesh
Babu, who agreed to finance the amount required for
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
discharging the liability and accordingly, an amount of
Rs.6,00,000/- was advanced to the 1st plaintiff to discharge
the liability. With the said amount secured by the 1st
plaintiff, the loan from the Kerala Finance Corporation was
discharged by the 1st plaintiff. However, the documents
were not released by the Kerala Finance Corporation on the
pretext that the loan from the District Industries Centre is
also required to be repaid. Accordingly, the plaintiffs
borrowed some of Rs.2,50,000/- from the 1st defendant and
settled the liabilities. Believing the words of the 1st
defendant, the original documents in relation to the plaint
schedule property was entrusted to the 1st defendant.
However, the 1st defendant made the plaintiffs to believe
that it is not sufficient, if the original documents are held as
security and that a nominal sale deed has to be executed by
the plaintiffs as a security for the amount advanced by
them. Accordingly, believing 1st defendant, the plaintiffs
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
executed a sale deed on 20.01.2011 in favour of the 2 nd
defendant. Though Rs.16,00,000/- is the sale consideration
mentioned in the sale deed, the plaintiffs allege that, they
have not received the aforesaid consideration and thus the
sale deed is vitiated and a sham document never intended
to be put in operation. The plaintiffs after realising that the
defendants had no intention to re-convey the property,
issued a lawyer's notice on 17.06.2011, requiring the
defendants to re-convey the property. Since, the defendants
refused, the suit was filed initially for declaring that the sale
deed dated 20.01.2011 is a fabricated document and signed
in the blank paper and never intended to be operated and
further the registered sale deed No.253/2011 dated
20.01.2011 executed in the name of the 2 nd defendant is
intended to be as a security. Later, the plaint was amended
and the prayer was confined to cancellation of the
document No.253/2011. The defendants appeared and
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
resisted the suit contending that none of the contentions
raised in the suit/plaint are maintainable. The plaintiffs had
in fact borrowed an amount of Rs.20,00,000/- from the 1 st
defendant and that defendants 1 and 2 had various financial
transactions and it is pursuant to which arrangement, the
1st defendant had instructed the plaintiffs to execute the
sale deed in favour of the 2nd defendant. According to the
defendants, on 04.01.2011, a notice was issued to the
plaintiff calling them to come forward for execution of the
sale deed and in compliance with the said notice, they had
appeared before the Sub Registrar office on 20.01.2011 and
the sale deed was executed. Immediately on execution of
the sale deed, the agreement dated 30.11.2010 was
destroyed. It is further contended that the entire sale
consideration was fixed at Rs.16,00,000/- to avoid the
burden of capital gains to the plaintiffs and that the
amounts were entrusted by the 2nd defendant to the 1st
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
defendant, and accordingly, the sale was plead to the
plaintiffs. On behalf of the plaintiffs, Exts.A1 to A24
documents were produced and PW1 and PW2 were
examined. On behalf of the defendants, Exts.B1 to B12
documents were produced and DW1 to DW3 were
examined. CW1 was examined as court witness and Exts.C1
and C2 are the report and plan of the Advocate
Commissioner.
4. The trial court framed the following issues for
consideration:-
1. Whether the agreement dated 30.11.2010 is a
fabricated one ?
2. Whether document; No.253/2011 of S.R.O. Feroke is
executed as a security as alleged ?
3. Whether the cancellation sought for by the plaintiffs is
allowable ?
4. Whether the injunction sought for by the plaintiffs are
allowable?
5. Whether the suit valuation and payment of court fee
are correct?
6. Reliefs and Costs ?
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
5. Immediately on institution of O.S No.477/2011,
the 2nd defendant instituted O.S No.101/2013 seeking for a
mandatory injunction, directing the defendants therein/
plaintiffs in O.S No.477/2011 to vacate the plaint schedule
property, which according to the 2 nd defendant herein, was
held by them as a licensee, consequent to the execution of
sale deed. In support of his contention, the licence deed was
produced. The appellants/the plaintiffs in O.S No.477/2011
denied the execution of the license agreement and
reiterated their contentions closely following the averments
in O.S No.477/2011. Both the suits were tried together and
in O.S No.101/2013 the following issues were framed:-
1. Has the plaintiff got right, title and interest over
plaint schedule property by virtue of document
No.253/11 of S.R.O. Feroke ?
2. Is the defendant a licensee of plaint schedule
property under the plaintiff ?
3. Is the plaintiff entitled to get any amount from
defendant as damages?
4. Reliefs and Costs?
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
6. On appreciation of oral and documentary
evidence, the trial court dismissed O.S No.477/2011 and
decreed O.S No.101/2013. Aggrieved by the judgment and
decree in O.S No.477/2011, the plaintiffs, filed this appeal
with an application for condonation of representation delay
as well as an application for condonation of filing delay. As
against O.S No.101/2013, the 2nd defendant herein
approached the III Additional District Court, Kozhikode, in
A.S No.66/2015, which was allowed by judgment dated
04.01.2017. Aggrieved by the judgment, the respondent in
the A.S No.66/2015 filed R.S.A No.1240/2017 raising the
following substantial questions of law:-
a) Whether, grant of right to reside in a building
for a specified period would amount to license, as
defined under Section 52 of the Easements Act,
1882 or whether such transfer of a right to enjoy
the property for a certain time would fall within
the definition of lease, as defined under Section
105 of the Transfer of Property Act ?
b) When the right to enjoy the property absolutely,
without the respondent retaining any control or
possession over the demised premises was evident
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
from Ext-B12, the first appellate court was justified
in finding that Ext-B12 is a license deed ?
7. In the meantime, for execution of judgment and
decree in O.S No.101/2013, the plaintiffs therein preferred
an execution petition as E.P No.170/2017 before the I
Additional Sub Court, Kozhikode, and the delivery was
ordered. At that point of time, O.P(C) No.2479/2018 was
preferred, in which this Court had interdicted the orders
passed by the Execution Court for delivery of the plaint
schedule property.
8. Heard Shri.K.M.Firoz, the learned counsel for the
appellants and Smt.M.A.Zohra, the learned counsel for the
defendants.
9. As stated earlier, the fate of the Second Appeal
and Original Petition will be decided largely, how this Court
will ultimately decide R.F.A No.446/2018. According to Shri
K.M. Firoz learned counsel for the appellants, the courts
below erred egregiously in the dismissing the suit preferred
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
by them to declare the sale deed No.253/2011 as void and
not intended to operate among the parties. The learned
counsel would assert before this Court with reference to
various provisions of the Indian Contract Act, 1872,
especially under Sections 10, 16 and 25 to contend that
Ext.A1 Sale deed was intended to be only a nominal sale
deed and that there was an understanding between the
parties for re-conveyance of the property. It is further
argued by the learned counsel for the appellants, that
although the document mentions about the receipt of sale
consideration of Rs.16,00,000/-, even going by the evidence
of DW2, it is clear that the plaintiffs have not received any
such amount and therefore, going by the first proviso to
Section 92 of the Indian Evidence Act, 1872, the appellants
are entitled to succeed. It is further contended that the
position of the defendants over the plaintiffs being that of
dominant nature, the contract is vitiated by undue influence
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
as provided under Section 16 of the Contract Act. The
defendants although contended that the plaintiffs have
received a sale consideration of Rs.18,00,000/- as per
agreement dated 30.11.2010, they failed to produce the
said document. The reasons stated by the defendants that
the agreement was destroyed soon after the execution of
the sale deed cannot be believed and that even in the
absence of original sale agreement, a copy could have been
produced and marked as secondary evidence under Section
63 of the Evidence Act. Therefore, it is the specific case of
the appellants that, when the sale price does not
commensurate with the value of the property, the document
has no legal sanctity. It is further pointed out that the bona
fides of the plaintiffs is proved by the fact that they had
offered to remit an amount of Rs.8,50,000/- together with
interest from 2010 onwards, which they are borrowed for
the discharge of the loan with the Kerala Finance
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
Corporation as well as the District Industries Centre.
10. Per contra, Smt.M.A.Zohra, the learned counsel
for the defendants, vehemently countered the submission of
the learned counsel for the plaintiffs and contended that the
suit preferred by the appellants is nothing but an
experimental one. According to the learned counsel, on
04.01.2011, the 1st defendant in O.S No.477/2011 had
caused to issue a lawyer's notice to the plaintiffs to come
forward for an execution of sale deed. If the plaintiffs had
any objection or apprehension regarding the none receipt of
sale consideration or that they never intended to execute
the sale deed, they could have restrained themselves from
presenting before the Sub Registrar office for execution of
the sale deed. In fact, the plaintiffs had caused to issued a
reply notice on 17.06.2011 only and that to after execution
of the sale deed. A reading of Ext.A1 sale deed would
explicitly make it clear that the plaintiffs had received the
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
sale consideration of Rs.16,00,000/- and therefore, it is only
impermissible to them to adduce evidence to show that they
have not received the sale consideration. No importance
could be attached to the oral testimony of DW2. According
to the learned counsel for the defendants, it has come out in
evidence that both defendants 1 and 2 have some financial
transactions and that it is under instructions from the 1 st
defendant that the plaintiffs executed the sale deed in
favour of the 2nd defendant. The learned counsel for the
defendants further submitted that the courts below had
correctly appreciated the possession of the plaintiffs after
execution of the sale deed, on the basis of the license
agreement and that both courts have concurrently found
that the appellants do not have any locus standi to continue
in the property after execution of the sale deed and thus
correctly decreed the suit preferred by the defendants for
mandatory injunction.
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
11. I have considered the rival submissions raised
across the Bar, perused the judgments and decree rendered
by the courts below and the records of the case.
12. The registered document certainly carries a
presumptive value and the registration is a prima facie
proof regarding its execution. The Supreme Court in Prem
Singh and others Vs Birbal and others [(2006) 5 SCC
353] held that a registered document has a presumptive
value and is prima facie proof regarding its execution. No
doubt, the said presumption is rebuttable. But the question
before this Court is to what extent the plaintiffs can adduce
evidence against the contents of Ext.A1 sale deed.
13. It must be remembered that, the plaintiffs do not
have a case that they were misrepresented while executing
Ext.A1 sale deed. In short, there is no case made out
regarding misrepresentation of character of Ext.A1 sale
deed. In such circumstances, the extent of adducing oral
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
evidence is limited. Of course, Section 92 of the Evidence
Act, 1872, permits to a limited extent to lead evidence to
disprove the contents of an instrument. Section 92 of the
Evidence Act reads as under:-
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:
Proviso (1): Any fact may be proved which
would invalidate any document, or which would
entitle any person to any decree or order relating
thereto; such as fraud, intimidation, illegality,
want of due execution, want of capacity in any
contracting party, want or failure of
consideration, or mistake in fact or law:
Proviso (2): The existence of any separate
oral agreement as to any matter on which a
document is silent, and which is not inconsistent
with its terms, may be proved. In considering
whether or not this proviso applies, the court
shall have regard to the degree of formality of the
document:
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
Proviso (3): The existence of any separate
oral agreement, constituting a condition
precedent to the attaching of any obligation
under any such contract, grant or disposition of
property, may be proved:
Proviso (4): The existence of any distinct
subsequent oral agreement to rescind or modify
any such contract, grant or disposition of
property, may be proved, except in case in which
such contract, grant or disposition of property is
by law required to be in writing, or has been
registered according to the law in force for the
time being as to the registration of documents:
Proviso (5): Any usage or custom by which
incidents not expressly mentioned in any contract
are usually annexed to contracts of that
description may be proved:
PROVIDED that the annexing of such
incident would not be repugnant to, or
inconsistent with, the express terms of the
contract:
Proviso (6): Any fact may be proved which
shows in what manner the language of a
document is related to existing facts.
14. The question is whether the plaintiffs is O.S
No.477/2011 had discharged their burden and were
successful in disproving the contents of Ext.A1 sale deed.
The plea of the appellants that Ext.A1 sale deed is vitiated
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
for various factors including one, under Section 16 of the
Indian Contract Act does not inspire confidence in the
minds of this Courts for various reasons. Section 16 of the
Indian Contract Act, 1872, reads as under:-
16. "Undue influence" defined.―(1) A
contract is said to be induced by "undue
influence" where the relations subsisting
between the parties are such that one of the
parties is in a position to dominate the will of
the other and uses that position to obtain an
unfair advantage over the other.
(2) In particular and without prejudice to
the generality of the foregoing principle, a
person is deemed to be in a position to dominate
the will of another―
(a) where he holds a real or apparent
authority over the other, or where he stands in a
fiduciary relation to the other; or
(b) where he makes a contract with a
person whose mental capacity is temporarily or
permanently affected by reason of age, illness, or
mental or bodily distress.
(3) Where a person who is in a position to
dominate the will of another, enters into a
contract with him, and the transaction appears,
on the face of it or on the evidence adduced, to
be unconscionable, the burden of proving that
such contract was not induced by undue
influence shall lie upon the person in a position
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
to dominate the will of the other.
Nothing in this sub-section shall affect the
provisions of section 111 of the Indian Evidence
Act, 1872 (1 of 1872).
15. The plaintiffs have sought to sustain their plea
because of dominant position of the defendants over the
plaintiffs by virtue of the loan advanced by them to the
plaintiffs. But, it must be remembered that the plaintiffs
does not have a case that the 1st defendant had not
advanced any money, but on contrary admit that the 1 st
defendant had come forward to clear the liabilities over the
plaint schedule property. In the present case, though the
parties are at serious variance as regards the existence of
an agreement of sale, once the sale deed has been
executed, the agreement of sale loses its relevancy. It is
pertinent to mention that on 04.01.2011, a lawyer's notice
was issued to the plaintiffs, calling them to appear before
the Sub Registrar office to execute a sale deed. The
plaintiffs have no case that they were forced to appear
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
before the Sub Registrar office to execute the sale deed. A
contract could be said to be induced by undue influence,
when the relationship subsisting between the parties is
such that one of the parties is able to dominate the Will of
the other. The aforesaid condition forms the backbone of
the principle under Section 16(1) of the Indian Contract
Act, 1872.
16. On a close scrutiny of the averments in the plaint, it
is evident that ingredients of Order 6 Rule 4 as regards
pleading in a case where fraud or undue influence is
conspicuously absent. What is contended is, that the
plaintiff never intended to convey their right over the
property and they intended to execute only a nominal sale
deed. Admittedly, Ext A1 is a registered sale deed.
17. In Raja Ram Vs Jai Prakash Singh and others,
[(2019) 8 SCC 701], the Supreme Court held that in a
Registered sale deed there is a presumption regarding its
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
validity and that the onus is on the plaintiff who alleges that
the sale deed is vitiated by undue influence to prove the
said fact and then only the burden shits to the defendants.
18. Except an assertion that defendants were in a
dominant position, pleadings in the plaint is bereft of the
requirement of law. Still further, it has come out in evidence
that till the execution of the sale deed, the plaintiffs did not
have a case that the 1st defendant was in a dominant
position over the plaintiffs by virtue of the loan advanced by
him to clear the liabilities outstanding in the plaint schedule
property. Therefore, when the principles governing Sub-
Section 3 of Section 16 of the Indian Contract Act, 1872,
are read and applied to the facts of this case, this Court
cannot remain oblivious of the fact that the plaintiffs had
come forward voluntarily on 20.01.2011 before the Sub
Registrar officer to execute Ext.A1 sale deed. There is no
explanation given by the Appellants for the same.
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
19. However, in the appeal what is projected to
support their claim under Sub-Section 3 of Section 16 of the
Contract Act, is the testimony of DW2. DW2, in whose
favour Ext.A1 sale deed was executed, deposed in cross-
examination that, he had not tendered any amount to the
plaintiffs as stated in Ext.A1 sale deed. But on contrary,
entrusted the amount to the 1st defendant for payment to
the plaintiffs. But when we turn to evidence of DW1, the 1 st
defendant clearly deposed that on receipt of the sale
consideration from the 2nd defendant, he had passed on the
consideration to the plaintiffs, because the contract of sale
of the plaint schedule property was between the plaintiffs
and the 1st defendant.
20. It is wholly impermissible for this Court to read
the evidence of the DW2 in isolation to frame an opinion
that the circumstance sited under Sub-Section 3 of Section
16 of the Contract Act has been made out so as to declare
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
Ext.A1 sale deed as a void document. At any rate, the
plaintiffs were never under any obligation to present
themselves before the Sub Registrar office for Ext.A1
execution. No reasons are forthcoming from the side of the
plaintiffs as to why they chose to appear before the Sub
Registrar office to execute Ext.A1 sale deed. Therefore, this
Court is of the considered view that when the evidence of
DW1 and DW2 are read in cumulative along with the
contents of Ext.A1 sale deed, the plaintiffs have failed
miserably to discharge the onus to prove the circumstances
existing as per proviso (1) to Section 92 of the Indian
Evidence Act, 1872.
21. It is next contended before this Court by the
learned counsel for the appellants that under Section 25 of
the Indian Contract Act, an agreement without
consideration is void, unless it is in writing and registered
or is a promise to compensate for something done or is a
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
promise to pay a debt barred by limitation. The learned
counsel for the appellants referred extensively to the
explanation to Section 25 of the Indian Contract Act, and
asserted before this Court that the moment it is held that
the plaintiffs did not receive the sale consideration as stated
under Ext.A1 sale deed, the agreement is deemed to be
void. This court is unable to subscribe to the aforesaid
argument for multiple reasons. Even going by the
averments contained in the plaint, the receipt of
Rs.8,50,000/- as sale consideration from the 1 st defendant is
admitted. The point of dispute is whether the plaintiffs have
received any further amount as stated in Ext.A1.
Unfortunately, the quality of evidence adduced by the
plaintiffs is not sufficient to hold that there is no passing of
consideration while executing Ext.A1 sale deed. Still
further, the most compelling fact being, the plaintiff's
presenting themselves before the Sub Registrar office on
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
20.01.2011 in pursuance to lawyers notice issued on
04.01.2011. Therefore, it cannot be said that the condition
stipulated under Section 25 of the Contract Act are made
out in the facts of the present case.
22. The learned counsel for the appellants, however,
placed strong reliance on the decision of the Privy Council
in Tyagaraja Mudaliyar and others v. Vedathanni [AIR
1936 PC 70] to contend that oral evidence to disprove an
agreement is admissible to prove that the document was
never intended to be operated, but was brought into
existence solely for the purpose of creating evidence of
some other matter. This Court fails to comprehend as to
how the principles laid down in the judgment as aforesaid
would apply to the facts of the present case. The one
compelling fact which would deter this Court to admit any
sort of oral evidence against Ext.A1, is the handing over of
the original title deeds relating to the plaint schedule
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
property to the 1st defendant. It is beyond one's
comprehension to hold that, the 1 st defendant would have
advanced money to the plaintiffs solely for the purposes of
discharging the liability over the plaint schedule property.
Had such been the intention, then the transaction would
have been accompanied by the execution of a demand
promissory note followed by any other mode of security.
Rather, in the present case, the plaintiffs themselves
concede that they had handed over the original documents
in relation to the plaint schedule property to the 1 st
defendant. It is hard to believe that, if the plaintiffs
intended to create a security over the plaint schedule
property for the value received by them for discharging the
loan amount, they would have simply handed over the
original documents to the 1st defendant. Therefore, all the
characteristics of an agreement of sale between the 1 st
defendant and the plaintiffs is present in the case.
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
23. In Svenska Handelsbanken Vs M/s Indian
Charge Chrome and others [(1994) 1 SCC 502], the
Supreme Court held that oral evidence has to be excluded
when there is a written agreement between the parties.
Mere assertion of fraud is not sufficient to invalidate the
written agreement and it has to be proved through material
evidence.
24. In this case, except for the assertion of the
plaintiff's there is no other evidence to substantiate the plea
of the plaintiff's. Perhaps, realising the lacuna, the learned
Counsel for the Appellant made a valiant attempt to stress
the point that the 1st defendant failed to produce the
agreement of sale dated 30.11.2010 and the same should be
held against him. However, this court is not impressed by
the aforesaid argument. As stated earlier, the plaintiffs
voluntarily presented themselves before the Sub Registrar
Office pursuant to the lawyer's notice dated 04.01.2011 and
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
executed the sale deed. Therefore, the 1st defendant had no
reason to disbelieve the plaintiffs, and the consequential act
of destroying the agreement of sale, which has lost its
relevance, is a plausible act. Therefore, the failure of the 1 st
defendant to produce the sale agreement before the trial
court cannot be held against him.
25. Another compelling factor which persuaded this
Court to not accept the argument of the appellants is, the
oral testimony of the 1st plaintiff. PW1, when cross-
examined, categorically deposed that she had full faith and
belief in the 1st defendant, till the execution of the sale
deed. Therefore, the above testimony would go a long way
to disprove the argument now raised before this Court that,
the 1st defendant was in a dominant position to dominate
over the will of the plaintiffs, thereby coercing them to
execute Ext.A1 sale deed. This Court cannot but conclude
that the entire case set up by the plaintiffs is only an
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
afterthought, after the execution of the sale deed.
26. The learned counsel for the appellant as a last
resort contended that the execution of Ext.A1 sale deed is
found to be vitiated by fraud and coercion, is further
fortified by a fact that subsequent to the filing of the suit, on
a complaint raised against defendants 1 and 2 under
Section 420 read with Section 34 of the Indian Penal Code,
1860, and Section 3(1)(v) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989
(hereinafter referred to as the 'SC/ST Act'), the Sessions
Court, Kozhikode, in S.C.No.387/2016 had found defendants
1 and 2 as guilty of the offences charged against them and
had convicted them to undergo imprisonment. This Court
fails to understand what relevancy could be attached to the
judgment of the Criminal Court convicting the defendants 1
and 2 for offences under Section 420 read with Section 34
of Indian Penal Code and Section 3(1)(v) of the SC/ST Act in
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
a civil proceeding. Admittedly, an appeal is carried forward
by defendants 1 and 2 against the said judgment, which is
pending before this Court. Therefore, this Court is of the
view that the appeal preferred by the defendants 1 and 2
will have to be taken into a logical conclusion and it will be
wholly impermissible for this court to comment its view on
the same.
27. Suffice to say, when this Court considers the
entire gambit of evidence adduced by the parties, it
becomes irresistible to conclude that the plaintiffs failed
miserably to prove any amount of coercion or fraud in
execution of Ext.A1 sale deed in favour of the 2 nd defendant.
On contrary, the plaintiffs cannot resile from the execution
of the sale deed after presenting themselves voluntarily
before the Sub Registrar office on 20.01.2011 pursuant to
the lawyer's notice dated 04.01.2011. Resultantly, the
judgment and decree passed in O.S No.477/2011 does not
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
suffer from any infirmities or irregularities, warranting
interference by this Court in exercise of its appellate
powers.
Accordingly, the first appeal fails, and the same is
dismissed. Respondents are entitled to costs throughout.
In view of the findings rendered by this Court
confirming the judgment and decree in O.S.No.477/2011, it
is inevitable for this Court to answer the substantial
questions of law raised in the appeal against the appellant
and finding that the concurrent findings of fact based on
Ext.B12 license agreement dated 22.01.2011 do not call for
any interference. Alternatively, even if it is found that the
plaintiffs did not execute the license agreement, their
continuation over the properties became unauthorized
after they had parted with right title and interest.
Therefore, the demand of the respondent/plaintiff in
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
requiring the defendant/appellant to vacate the plaint
schedule property cannot be said to be improper.
Consequently, the substantial questions of law framed in
this appeal are answered against the appellant and in
favour of the respondent holding that the appellant are
bound to vacate the plaint schedule property and hand over
vacant possession of the same to the respondent/2 nd
defendant in O.S No.477/2011. Accordingly, the judgment
and decree passed by the Sub Court, Kozhikode, in
O.S.No.101/2013 as affirmed in A.S.No.66/2015 by the III
Additional District Court, Kozhikode is confirmed and the
appeal fails, and accordingly, the same is dismissed with
costs.
In view of the findings of this Court in RFA
No.446/2018 and RSA No.1240/2017, nothing remains
further to be adjudicated in the original petition. The
R.F.A No.446 of 2018, R.S.A No.1240 of 2017 2025:KER:71593
judgment and decree in O.S.No.101/2013 is required to be
executed, and the subsequent challenge to the order of
delivery is only to be declined.
Accordingly, O.P(C) No.2479/2018 will stand
dismissed. Cost will follow.
Sd/-
EASWARAN S.
JUDGE
AMR
