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1992 DIGILAW 465 (KER)

Narayanan Moopil v. Narayanan Prabhakaran

1992-12-01

MANOHARAN

body1992
Judgment :- Plaintiff is the appellant. Plaintiff instituted the suit for setting aside Ext.A1 the original of which is Ext.B6 sale deed, and also Ext.A2 the original of which is Ext.Bl? Sale deed, and for consequential reliefs. Trial court dismissed the suit. Plaintiff preferred A.S.46 of 1986 before the lower appellate court which also was dismissed. 2. Plaintiff had 7 cents and 125 Sq. links of land in an important place in Quilon town. There was a bunk shop in the said property in which the first defendant who is the nephew of the plaintiff was conducting business. Plain-tiff had raised a loan hypothecating the said property to the Urban Co-operative Bank. He had made part payments. According to the plaintiff, the first defendant undertook to discharge the balance amount on the plaintiff executing a hypothecation with respect to the plaint schedule property (which is half a cent in the said 7 cents and 125 Sq.links) in favour of the first defendant and the first defendant agreed to surrender possession of the bunk and to construct a new bunk in the plaint schedule property. Plaintiff further alleged that, pursuant to the same he had to execute Ext.B6 on the representation by defendants 1 to 3. About one month before the institution of the suit the plaintiff came to know that the first defendant was taking steps to assign the properly to the 4th defendant; feeling suspicious about the same he took the attested copy of the document. Then only he learnt that what he executed was a sale deed. He would further allege that the balance Rs.1, 500/- due to the Urban Bank was not paid by the first defendant as represented by him. 3. Defendants 1 and 4 in (heir joint written statement denied the allegation of fraud. According to them, it was at the instance of the plaintiff that the first defendant who was conducting business in the bunk shop agreed to shift the bunk shop to the plaint schedule property and that the plaintiff with full knowledge executed Ext.B6 sale deed in his favour. Before the execution of the sale deed, he had entrusted the balance loan amount of Rs.1,500/- with the plaintiff for remittance to the bank. It was, after that, Ext.B6 was executed. The allegation of fraud and failure of consideration alleged by the plaintiff was thus denied by defendants 1 and 4. Before the execution of the sale deed, he had entrusted the balance loan amount of Rs.1,500/- with the plaintiff for remittance to the bank. It was, after that, Ext.B6 was executed. The allegation of fraud and failure of consideration alleged by the plaintiff was thus denied by defendants 1 and 4. The 51h defendant had only a subsequent charge in the plaint schedule property. The courts below did not accept the case of the plaintiff as regards fraud and on that finding the suit was dismissed. 4. Learned counsel for the appellant contended that, in view of the fact that, the balance loan amount due to the Urban Bank remained unpaid, Ext.B6 is not supported by consideration and on that ground itself the document is void. Learned counsel also contended that the non-payment of the consideration would also support the case of the plaintiff that Ext.B6 is vitiated by fraud and according to him, once it is found that Ext.B6 is vitiated by fraud, Ext.Bl? Executed by the first defendant in favour of the 4th defendant too will also become invalid. 5. The contention of the learned counsel for the appellant that once the price of the property which is the subject matter of a registered sale deed is shown to have been not paid, the document would become void, cannot be accepted. A conveyance by a registered deed cannot be placed in the same category as agreements void for want of Consideration. If the price of the property which is the subject matter of a registered sale deed is not paid, the vendor cannot on that account get the sale deed avoided. All that, he can do in such circumstance is only to sue for purchase price and that amount will get a charge on the property as unpaid purchase money under S.55(4)(b) of the Transfer of Property Act. This is particularly so where the possession also passed under the document. PW-1 admitted that the first defendant is in possession of the property though he would qualify the same stating that such possession was given on his shifting from the old bunk. Apart from the same Exts.B4, B5, B8, B9 and B10 notices from the Municipality and the payment of tax would show that the first defendant obtained possession as per Ext.B6 sale deed. 6. Apart from the same Exts.B4, B5, B8, B9 and B10 notices from the Municipality and the payment of tax would show that the first defendant obtained possession as per Ext.B6 sale deed. 6. The Supreme Court in the decision in State of Kerala v. Cochin Chemical Refineries Ltd. (AIR 1968 SC 13C1 = 1968 (3) SCR 556) was considering the effect of a mortgage where the mortgageee failed to advance the amount of money undertaken to be advanced by the mortgagee. Referring to the principles laid down by Farran, C.J. in Tatia v. Babaji, (ILR 22 Bom.176) and Karamat Hussain, J. in Rashik Lalv. Ram Narain and others (ILR 34 All. 273) with approval Supreme Court held: - "A transaction of mortgage formally executed does not become void or ineffective merely because the mortgagee fails to advance the amount of money undertaken to be advanced by him". In 7af/a's case (ILR 22 Bombay 176) Farran, C.J. observed: - "I am not, however... prepared to assent to the train of thought which puts conveyances of land in the mofussit perfected by possession or registration where the consideration expressed in the conveyance to have been paid has not in fact been paid in the same category as contracts void for want of consideration". 7. As regards the allegation of fraud, the burden or proof is on the plaintiff. The second defendant is stated to be the scribe of Ext.B6. According to the plaintiff, the document was not read over to him; but he would admit that the second defendant was the scribe of all the documents that he had executed. He also would claim that the Sub Registrar did not ask him as to the execution of the sale deed. The second defendant did not enter appearance. The burden of proof is on the plaintiff; it was up to him to have cited and examined the scribe or the attest or of the document to show that as a matter of fact, the document was not read over to him. He did not also take any steps to examine the Sub Registrar. Under S. I14 Illustration (e) of the Evidence Act, there is a presumption of regularity for official acts. Therefore, it is for the plaintiff to prove the contrary. 8. He did not also take any steps to examine the Sub Registrar. Under S. I14 Illustration (e) of the Evidence Act, there is a presumption of regularity for official acts. Therefore, it is for the plaintiff to prove the contrary. 8. In the absence of any evidence, it is not possible to hold that the plaintiff had to execute Ext.B6 thinking that the same is only a hypothecation. 9. As regards the argument that there was mis-representation as the loan due to the Urban Bank was not discharged, in Ext.A1 the consideration is recited to have been adjusted against the remittance of Rs.1, 500/- to the Urban Bank. The evidence of PW-3 and Exts.X1 and X1 (a) are relied on to show that the balance loan amount is due to the bank. As noticed, the contention of the first defendant is that being his uncle he gave the money due to bank to the plaintiff and it was on account of the same, such a recital was made in Ext.A1. Certain circumstances are relied on to support the contention that, as a matter of fact, the case of the first defendant is the probable case. PW-3 stated that the last notice from the Bank was issued on 5-11-1982. Ext.AS is the copy of the plaint filed by the bank before the Joint Registrar under the Co-operative Societies Act for realization of the amount. That was on 15-3-1983. This suit was instituted only on 16-6-1983. No notice was issued before the institution of the suit. According to the first defendant, the plaintiff became annoyed on learning that the first defendant is about to sell the property to the 4th defendant who was in inimical terms with the plaintiff. In paragraph 6-H of plaint it is alleged that the 4th defendant is in inimical terms with the plaintiff. First defendant as DW-1 said that, he gave the amount to the plaintiff for payment to the bank four days before execution of Ext.B6. This has to be appreciated with due regard to the relationship of the plaintiff with the first defendant and also the aforesaid circumstances. If the alleged fraud played on the plaintiff by defendants 1 to 3 was of such a magnitude as is alleged by the plaintiff, on receipt of the notice from the bank on 5-11-1982, he would not have normally waited till 16-6-1983 to in stitutc the suit. If the alleged fraud played on the plaintiff by defendants 1 to 3 was of such a magnitude as is alleged by the plaintiff, on receipt of the notice from the bank on 5-11-1982, he would not have normally waited till 16-6-1983 to in stitutc the suit. The relationship of the plaintiff and first defendants of material importance in judging this particular aspect. When the said circumstances are also taken into account, it is not possible to agree with the learned counsel for the appellant that the conclusion reached by the lower appellate court is not on the basis of evidence. In that view, the dismissal of the suit by the court below is only to be confirmed and the appeal is liable to be dismissed. In the result the appeal fails and the same is dismissed.