Research › Search › Judgment

Kerala High Court · body

2001 DIGILAW 425 (KER)

Ali Kunju v. Abdul Khathirkunju

2001-08-06

S.MARIMUTHU

body2001
JUDGMENT S. Marimuthu, J. 1.This appeal has arisen challenging the Judgment and decree delivered by the Principal Sub Judge, Quilon in O. S. No. 13 of 1986. The defendant is the appellant. The plaintiff respondent filed the above suit for declaration that Ext. A-1 document dated 26th June 1984 (sale deed) is null and void to set aside the same, to declare the title of the plaintiff, for perpetual injunction etc. The trail court decreed the suit declaring that the plaint schedule property belongs to the respondent plaintiff, that Ext. A-1 sale deed is null and void and that the appellant defendant is restrained from executing any document in respect of the plaint schedule property. Hence the appeal. 2. The averments of the respondent plaintiff are that he purchased 4 acres and 72 cents of property under Ext. A- 5 sale deed dated 1st November 1982, out of which an extent of 85 cents was given to his daughter. He wanted a loan of Rs. 15,000 from the appellant, for which the appellant wanted a security by way of a sale deed in respect of the suit property measuring 3 acres 87 cents. Accordingly, on receipt of Rs. 1,5,000 the respondent executed Ext. A-1 sale deed as a security with an agreement that on payment of the above said sum of Rs. 15,000 with interest the property would be reconveyed to the respondent. There is also a reservation in Ext. A-1 sale deed towards payment of a loan amount of Rs. 25,000 to the Bank and that amount was also paid by the respondent. It also indicates that Ext. A-1 was executed as a security. 3. The above averments of the respondent were denied by the appellant on the ground that the suit property was purchased for a sale consideration of Rs. 40,000. On the date of the execution of Ext. A-1 , Rs. 15,000 was paid to the respondent. The appellant was put in possession of the property on that day. The bank loan referred to by the appellant was paid by the appellant. Only the appellant permitted the respondent to stay in the building for some time and that does not confer any title on the respondent. The trial court as. noted above, granted the reliefs sought for. 4. The bank loan referred to by the appellant was paid by the appellant. Only the appellant permitted the respondent to stay in the building for some time and that does not confer any title on the respondent. The trial court as. noted above, granted the reliefs sought for. 4. The learned counsel appearing for the appellant contended that in view of S.92 of the Indian Evidence Act, no oral evidence can be let in to exclude or to modify the terms of the document as between the parties. Ext. A-1 is a sale deed for a consideration of Rs. 40,000 and no oral evidence can be let in to vary or contradict the contents of that document by the respondent, who being a party to the same. However the above submission of the learned counsel for the appellant was resisted by the learned counsel for the respondent that even in between the parties to the document, oral evidence can be let in by one of the parties, as against the contents of the document on the ground that he never intended to act upon the transaction between him and the other party and the document is a sham. Thus for that purpose, evidence is admissible. No doubt, the above contention of the learned counsel for the respondent is supported by the principle laid down by the Supreme Court in Smt. Gunga Bai v. Chhahubu Bai A.I.R. 1982 S.C. 20. The Supreme Court has laid down as follows: "The bar imposed by sub-section (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. 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 an agreement but that some other agreement altogether, not recorded in the document was entered into between the parties." 5. According to the learned counsel for the respondent, as noted above, Ext. A-1 was not intended to be acted upon and it was executed as a security. Ext. A-3 is a tax receipt dated 8th April 1985. Ext. A-3 (a) is a receipt for water tax and Ext. A-4 is a building tax receipt. Exts. A-3, A-3 (a) and A-4 would show that those taxes were paid after the execution of Ext. A-1. He also would rely upon the oral evidence of P.W. 2 a neighbour, who would speak that the property is in the possession of the respondent. P.W. 3 is a labourer of the respondent and his evidence would be that the respondent is in possession of the property after Ext. A-1 sale deed. P.W. 5, a teacher, who is a relative of both the appellant and respondent is an attestor of Ext. A-l sale deed. His evidence would be that Ext. A-l was executed as a security. Believing the above evidence, relied upon by the respondent, the trial court decreed the suit. 6. As noted above, it is the case of the appellant that with his permission, the respondent resided after Ext. A-1 sale deed. However, the possession and title passed on to him on the date of Ext. A-1, and it was he who paid the amount of Rs. 25,000 reserved In Ext. A-1 to the Bank. But the trial court, on examining the evidence has recorded a finding that the amount was paid by the respondent as is seen in Ext. A-2 certified copy of the memo in O.S. 51/74 on the file of the Sub Court, Quilon. It was a suit filed by the Bank for recovery of the money from the respondent. As against the conclusions reached by the trial court, on all issues relying on the testimony and proposition of law with reference to S.91. A-2 certified copy of the memo in O.S. 51/74 on the file of the Sub Court, Quilon. It was a suit filed by the Bank for recovery of the money from the respondent. As against the conclusions reached by the trial court, on all issues relying on the testimony and proposition of law with reference to S.91. and 92 of the Indian Evidence Act, the learned counsel for the appellant submitted that in view of the statutory and the settled proposition of law in S.9 and 34 of the Specific Relief Act, S.54 of the T.P. Act and the latest principle of law laid down by this court in Moosa v. Moideen 2000 (1)K.L.T. 183 the suit could not be decreed. 7. In view of the above submission of the learned counsel for the appellant, I feel that there arises an important question of law in this appeal. The execution of Ext. A-1 is admitted and the reconveyance of the property to the respondent is also admitted by the respondent. When it is a case of the respondent that the appellant agreed for a reconveyance of the property, it is obviously clear that the title has passed on the date of Ext. A-1 apart from the fact whether possession has passed or not. In such circumstance when the title has passed on the date of the execution, whether a plea of security can be taken up by the respondent is an important aspect for decision. 9. In the present case on hand, admittedly, Rs. 15,000 out of the sale consideration was paid on the date of the execution of Ext. A-1. document. S.9 of the Specific Relief Act reads as follows: "Defences respecting suits for relief based on contracts Except as otherwise provided herein where any relief is claimed under this Chapter in respect of a contract, the person against whom the relief is claimed may plead by way of defence any ground which is available to him under any law relating to contracts." Section 34 of the Specific Relief Act reads as follows: "Discretion of court as to declaration of status or rights. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so." The principle laid down by this court in Moosa v. Moideen(2) is as follows: "I shall first consider the contention that the suit as framed is not maintain able which is framed as one of the substantial questions of law arising for decision in this Second Appeal. On a reading of the plaint it is clear that what the plaintiff has set up in a case of an agreement to reconvey the property on his paying a sum of Rs. 2,000 recited as consideration for the sale in Ext. A-1. In the context of the plea raised by him what the plaintiff had to sue for is for specific performance of the agreement to reconvey. If the plaintiff has a case that no time for execution of the reconveyance was fixed in the agreement, he could have pronounced the theory of demand and refusal to bring the suit within time. Clearly time was of the essence of the contract in an agreement for reconveyance. Having specifically pleaded that the defendant insisted on a sale deed being executed and a sale deed was executed and having set up a parol agreement outside the sale transaction to the effect that the defendant had agreed to reconvey the property to the plaintiff on payment to him of the amount due, the plaintiff was bound to include a prayer for the relief on specific performance in the plaint. In the absence of such a prayer for specific performance clearly the suit as framed is not maintainable." On the basis of the above principle laid down by this court as well as the statutory provisions in the Transfer of Property Act and the Specific Relief Act, the learned counsel for the appellant contended that even the suit itself is not maintainable and therefore the decree of the trial court needs an interference by this court. 10. The relief sought for as noted above is for a declaration that Ext. A-1 sale deed is null and void etc., and it is the definite case of the respondent that there was an agreement for reconveyance of the property on payment of Rs. 15,000 with interest. Having admitted such an agreement for reconveyance, as per the principle laid down in the above said decision, the suit has to be one for specific performance. S.9 and the proviso to S.34 of the Specific Relief Act provide that no declaration can be granted when the plaintiff has to seek further relief than the declaration and when he omits to do so. In view of the law both statutory and settled, I opine that the present suit for the relief sought for is not maintainable. Therefore, I feel that an elaborate examination of the oral evidence as well as the findings recorded thereon by the trial court becomes not necessary. In the above circumstances, the appeal has to be allowed. However, it is left open to the respondent if he so chooses, to file a suit on the footings of law laid down by this court in Moosa's Case 2000 (1) KLT 183 and also in accordance with provisions of the statutory laws. In the result, the appeal is allowed by setting aside the Judgment and decree of the Trial Court.