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2004 DIGILAW 565 (KER)

Ayanikkal Achunni (died) by LRs. v. Bhamumathi

2004-11-17

K.THANKAPPAN, R.BHASKARAN

body2004
Judgment :- Bhaskaran, J. This appeal is filed by the defendant in a suit to set aside a sale deed on the ground of fraud and misrepresentation and for injunction against trespass with respect to plaint schedule property. The trial court decreed the suit as prayed for. The main contention of the appellant is that the trial court decreed the suit not on the basis of the pleadings in the plaint or the evidence on the side of the plaintiff but on certain suspicion in the evidence adduced by the defendant. It is argued that the entire decision is vitiated by non-application of relevant considerations in a suit of this nature and of application of irrelevant considerations. Hence it is necessary to go into the pleadings in detail and discuss the evidence so as to find out whether any interference is called for in the appeal. 2. In the plaint, it is stated that the plaintiff agreed to sell 40 cents on the northern part of plaint A-schedule property for Rs.30,000/- and Rs.500/- was received in advance. The date of the agreement is not stated in the plaint. The further case is that on 28.4.1987 the defendant approached the plaintiff and stated that a portion of the consideration is ready and that the plaintiff must go to the Registrar’s Office on the next day. When the plaintiff went to the Sub Registrar’s Office, the defendant gave Rs.13,000/- and promised to pay the balance within a few days. Believing the defendant, the plaintiff signed the document brought by the defendant without reading it. Since the balance amount was not paid the plaintiff approached the defendant and he assured to pay it after his son’s marriage. Since even thereafter the amount was not paid, the plaintiff demanded the amount through mediators. Because of this, the defendant filed a suit as O.S.No.65 of 1987. The plaintiff was not aware of it. Immediately after knowing about that suit she approached Advocate and gave some signed papers to file written statement. Subsequently, after knowing that the written statement did not contain her contentions she filed an application for amendment of written statement. Only when that suit came up for hearing and the sale deed executed by the plaintiff was marked as Ext.A3, the plaintiff became aware that the document was a sale deed of the entire plaint A-schedule property and not northern part only. Only when that suit came up for hearing and the sale deed executed by the plaintiff was marked as Ext.A3, the plaintiff became aware that the document was a sale deed of the entire plaint A-schedule property and not northern part only. It is stated that she is still in possession of the southern 32 cents. The document was got executed by practicing fraud. Hence the suit was filed as an indigent person. 3. In the written statement, it is cont4ded that the plaintiff had transferred the entire plaint A-schedule property to the defendant on receipt of consideration Thereafter, one Suresh Kumar filed O.S.No.55 of 19878 on the file of the Ponnani Munsiff’s Court for partition stating that he was an adopted son of plaintiff’s mother. While that suit was pending, Suresh Kumar and the plaintiff herein trespassed into the dilapidated house in the property and then the defendant filed a suit as O.S.No.65 of 1987 for recovery of possession of the house and for injunction in respect of the land. In the original written statement what was contended was that the house was not assigned and Rs.15,000/- was with the defendant herein as balance consideration. But when the suit came up for trial the written statement was amended to contend that only 40 cents on the north was assigned to the defendant herein and the balance consideration of Rs.16,500/- was too be paid to the plaintiff. The suit filed by Suresh Kumar was dismissed. The allegation of fraud is specifically denied. The defendant has effected improvements in the entire property and has enclosed it by fencing. It is also contended that the plaintiff is well educated and capable of understanding what she was doing. She knew to work as a midwife and was attending as home nurse in maternity cases and has acted in films. The plaintiff purchased property with house in Kunnamkulam and thereafter it was sold and she has entered into an agreement for purchase of another property with one Balakrishnan Nair and his wife. 4. As already noted, the trial court after framing necessary issues decreed the suit. The point for consideration is whether the plaintiff is entitled to get such a decree and whether the plaintiff has established the case of fraud too get the registered document set aside. 5. 4. As already noted, the trial court after framing necessary issues decreed the suit. The point for consideration is whether the plaintiff is entitled to get such a decree and whether the plaintiff has established the case of fraud too get the registered document set aside. 5. In support of the plaintiff’s case, the plaintiff produced copies of the depositions in O.S.No.65 of 1987 as Ext.A1 series and the building tax register for the year 1983-84 by the Edappal Panchayat. Apart from examining herself as Pw.1. she examined Pws.2 and 3. 6. As Pw.1, the plaintiff stated that the agreement was only to sell 40 cents. The defendant represented that a portion of the consideration is ready and further wanted the plaintiff to tell the sub Registrar that she has received the full consideration and she agree. It is also stated that the document was only for 40 cents. But then she also admitted that she understood that it was for 72 cents. Later she clarified that it was only when she read the document when it was produced in the suit filed by the defendant herein that understood that it was for 72 cents. She also stated that whatever is stated in Ext.B2 which is the sale deed in respect of the property in Kunnamkulam is also incorrect. But she admitted that Ext.B2 was read over to her. She also stated that 5 cents and house in Kunnamkulam was purchased for her children to stay. 7. Pw.2 is the brother-in-law of the defendant. He said that he went for the purchase of the property of the plaintiff and 40 cents was purchased. Rs.600/- was given as advance. According to the plaintiff, the advance was Rs.500/-. He also stated that the document was not read over. He denied the suggestion that he was giving evidence against the defendant because there was a mediation by the defendant in another case between Pw.2 and Obru Menon and there was breach of mediation. When Pw.11 stated that Ext.B1 was written and registered on the same day and what is written in Ext.B1 as the date of sale deed is wrong, Pw.2 stated that Ext.B1 was written on 23rd of April. He said that he saw the defendant paying Rs.13,000/- to plaintiff. In Ext B2, it is stated that the consideration was obtained out of the sale consideration of Ext.B1. He said that he saw the defendant paying Rs.13,000/- to plaintiff. In Ext B2, it is stated that the consideration was obtained out of the sale consideration of Ext.B1. He also stated that he did not know whether on 21-4-1987 Rs.29,500/- was paid by the defendant to the plaintiff. Pw.3 is neighbour with whom the plaintiff was staying at the time of trial of the suit. He was examined only to say that the house itself was worth Rs.1,00,000/-. According to the plaint, the house and property was worth Rs.1,25,000/-. Pw.1 admitted that after O.S.No.65 of 1987 was decreed she was evicted from the house and it was demolished by the defendant. In Ext.A2, the value of the building during the year 1988-89 to 1992-93 is shown as Rs.2,500/-. According to the defendant it was a dilapidated building. It was not worth mentioning separately in the sale deed but it did contain the word to take in building also. Ext A1 series is the deposition of the plaintiff in O.S.No.65 of 1987 (the defendant in this case). That was produced to show that in that case, the case of the defendant herein was that Rs.17,000/- was paid earlier and Rs.13,000/- was paid on the date of the registration. In that case, the cross-examination would clearly show that the house alone was excluded from the sale deed. In other words, there was not even a suggestion that though the property mentioned was of 72 cents, only 40 cents was sold or given possession of. The suggestion was that only Rs.15,000/- was paid at the time of sale. The defendant as Dw.1 has admitted the role of Pw.2 in creating the document. In fact according to Dw.1, it was P.ws.2 who gave necessary instruction to write Ext.B1 document. According to the plaintiff, the balance consideration was promised to be paid after the marriage of defendant’s son. But defendant gave evidence that his son’s marriage was on 7-1-1987. Ext.B1 was executed on 21-4-1987 and registered on 29-4-1987. It is true that there are certain contradictions in the evidence of Dw.1 when compared to his evidence in the earlier suit. According to the plaintiff, the balance consideration was promised to be paid after the marriage of defendant’s son. But defendant gave evidence that his son’s marriage was on 7-1-1987. Ext.B1 was executed on 21-4-1987 and registered on 29-4-1987. It is true that there are certain contradictions in the evidence of Dw.1 when compared to his evidence in the earlier suit. In this case, his evidence given in O.S.No.65 of 1987 are marked as Exts.A1 to A1-D. While as Dw.1 he has stated that after paying the advance of Rs.500/- he paid Rs.29,500/- as balance sale consideration; in the earlier case, he has stated that Rs.17,000/- was paid earlier and Rs.13,000/- was paid on the date of registration. Similarly, he also stated in the earlier case that the building in the property was also valued, but in the present case he has stated that the house was not separately valued. According to the respondent, there is contradiction with regard to the residence of the defendant in the house. In the earlier suit, he stated as follows: according to the appellant, what he meant was he took 2 or 3 days for demolition of the building. While according to the appellant, it mean that he resided in the house for 2 or 3 days for the purpose of demolition of the building. These contradictions, even if to be accepted, have no relationship with the contention of the plaintiff that though the sale deed was got executed for 71 cents what was intended to be transferred was only 40 cents. 8. In this con section, it has also to be noticed that the plaintiff had studied upto S.S.L.C. She had contested in the Panchayat election and acted in films and that she was also doing the work of midwife. Therefore, it cannot be assumed that she would execute a document without knowing its contents. Even if the full consideration was not received on the date of the registration, that will not invalidate the document as the remedy of the plaintiff was only to claim the balance amount. It is in this connection that the contention of the plaintiff in the earlier suit becomes relevant. In the original written statement, their contention was that the document was executed in respect of the entire property except the house. It is in this connection that the contention of the plaintiff in the earlier suit becomes relevant. In the original written statement, their contention was that the document was executed in respect of the entire property except the house. It was by way of amendment that she wanted to introduce a new case that the entire property was not sold but only 40 cents. There is no dispute before us on this aspect when the case was argued. It is also evident from the trend of cross-examination of the present defendant who was the plaintiff in the earlier suit and whose evidence is marked as Ext.A1. In Ext B2, it is specifically stated that the purchase of he property covered by Ext.B2 was with the consideration obtained by the sale of the plaint schedule property. The consideration for Ext.B2 property was only Rs.17.000/- and Ext.B2 was executed on 23-4-1987 and registered on the same date; while Ext.B1 2 was executed on 21-4-1987 and registered on 29-4-1987. Ext.B3 is copy of the plaint in O.S.No.65 of 1987. In that plaint the defendant herein had stated about Suresh Kumar filing O.S.No.55 of 1987 and obtaining an order for maintaining status quo and the defendants in O.S.No.65 of 1987 was trespassing into the building on the basis of the court order and the prayer of the plaintiff was for recovery of possession of the building. Though he had claimed damages at the rate of Rs.500/- per year, it was the probable income on account of the residence in the building. In the body of the plaint, he has also stated that the house was in a dilapidated condition and it was intended to be demolished and nobody was residing in the house. Ext.B4 is the judgment in that suit. Though the case was posted for cross-examination of the plaintiff it was adjourned as requested by the defendant. The defendant was absent on the adjourned date and the counsel reported “no instruction”. The suit was decreed ex parte. It is stated that an appeal is pending against this judgment. But the fact remains that the decree was executed and the building was recovered and it was subsequently demolished. Ext.B5 is the delivery account in execution of that decree. Ext.B6 is the written statement in O.S.No.65 of 1987 as amended as per I.A.No.1419 of 1988. It is stated that an appeal is pending against this judgment. But the fact remains that the decree was executed and the building was recovered and it was subsequently demolished. Ext.B5 is the delivery account in execution of that decree. Ext.B6 is the written statement in O.S.No.65 of 1987 as amended as per I.A.No.1419 of 1988. Ext.B7 is the affidavit in support of the application for amendment of written statement. In that affidavit., it is stated that the original written statement was not filed as per the instructions. In the prayer portion, it is stated that the entire paragraph 2 of the written statement has to be struck off and a new paragraph introduced in which the contention too be raised is that only 40 cents was sold and the house and 32 cents was not sold and the document was created by fraud. In the normal course, if this was the case of the defendant in that suit, one would expect that aspect to be stated in the original written statement itself and the amendment after the case came up for trial introducing a new case cannot be viewed except with suspicion. The conduct of the defendant in that suit who is the plaintiff in the present suit remaining ex parte and suffering a decree and allowing the decree too be executed cannot alsob3e ignored. 9. The defendant was examined as Dw.1. He has stated that what was assigned under Ext.B1 was the entire 71 cents. The house in the property was in a dilapidated condition and was not fit for residence. After the execution of the document, the plaintiff trespassed into the house an Suresh Kumar alleging to be an adopted so of plaintiff’s mother also joined her and he filed a suit for eviction and got the building evicted in execution of the decree. He also stated that the property was measured at the time of sale in the presence of plaintiff and Pw.2, and it was Pw.2 who gave instruction for writing the document. The draft was read over to the plaintiff and since she agreed, the original was written. He also stated that the plaintiff wanted to reside at Kunnamkulam and she had found out a place to purchase and it was thereafter that the agreement to sell the plaint schedule property was arrived at. The draft was read over to the plaintiff and since she agreed, the original was written. He also stated that the plaintiff wanted to reside at Kunnamkulam and she had found out a place to purchase and it was thereafter that the agreement to sell the plaint schedule property was arrived at. As already noticed, there are some contradictions in his evidence with regard to the payment of consideration when compared to other evidence in the earlier suit. But these contradictions are only with respect to payment of consideration and not with respect to the actual extent involved in the transaction. According to he learned counsel for the respondent, there was no necessity for a measurement of the property if the entire property remaining after the earlier assignment has been sold to the defendant; We do not think that it is possible to accept this contention as it was necessary to measure a property which was subject-mater of the sale deed. The evidence of Dw.1 also shows that there is no entry to the 40 cents which according to the plaintiff was the only property purchased from the defendant from the main road and it was unlikely that a person would purchase a property without any access. 10. Dw.2 is the scribe who write Ext.B1. He has stated that he had measured the property on the request of the plaintiff and defendant. He has also stated that there was no request from anybody to exclude any portion of the property from the entire property owned by the defendant. He has further stated that he has read over the document to the parties. He has deposed that the registration was postponed after 29-4-1987 since the defendant wanted to purchase the property at Kunnamkulam. Ext.B1 shows that it was prepared by P.P. Narayanan and written by Dw.2. In cross-examination, he has admitted that he did not know the comparative table between square feet and cent and he did not use to measure the property by links. He was not the only person who was responsible for the measurement of the property. There was a village officer. The trial court has commented upon the ignorance of Dw.2 for calculating the area on the basis of the measurements in metres. He was not the only person who was responsible for the measurement of the property. There was a village officer. The trial court has commented upon the ignorance of Dw.2 for calculating the area on the basis of the measurements in metres. But Dw.2 was examined mainly to show that the intention of the parties was to transfer the entire property owned by the defendant and not a portion of it. when the property as a whole is transferred and the plaintiff contends that it was only a portion that was intended to be transferred, the burden is on the plaintiff to establish the same. In this case, not only that the plaintiff hoes not established this fact but the defendant has tried to adduce evidence to show that the entire property was intended to be assigned by examining Dw.2. there is no reason to disbelieve Dw.2 11. Dw.3 knew the plaintiff and her mother closely and he was residing adjacent to the residence of the plaintiff’s mother and he had arranged a loan for her from the Federal bank. He was the Manager of the Federal bank. He was involved in Ext. B1 transaction also. He was also closely known to the defendant. He has stated that the entire property belonging to the plaintiff was sold to the defendant. He was a witness to the document. He has also stated that an amount of Rs..29,000/- was paid at the time of execution of the document. He has denied the suggestion that there was fraud in creating the document. In cross-examination, he has stated that he did not know who prepared the document. But it was written by Dw.2. He has stated that he has no knowledge about the details of the plaintiff’s children. He has also denied the suggestion that only 40 cents was agreed to be sold. 12. The trial court has mainly relied on the difference in the version of the defendant with regard to the payment of consideration as stated in the two suits. The trial court also pointed out the discrepancies in the evidence of Dws.1 to 3. Though the trial court stated that the burden is entirely on the plaintiff to establish that the document was executed by playing fraud, the trial court has not referred to any pleadings or proof with regard to this aspect while setting aside the document. The trial court also pointed out the discrepancies in the evidence of Dws.1 to 3. Though the trial court stated that the burden is entirely on the plaintiff to establish that the document was executed by playing fraud, the trial court has not referred to any pleadings or proof with regard to this aspect while setting aside the document. The minor discrepancies in the evidence of defence witnesses is no sufficient to discharge the burden of proof cast on the plaintiff. In Union of India v. C.M. Patel & Co. (AIR 1976 SC 712), the Supreme Court has stated as follows: “It is well settled that fraud like another charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt: per Lord Atkin in A.L.N. Narayanan “Chettiyar v. Official Assignee, High Court Rangoon, AIR 1841 PC 93. However suspicious maybe the circumstances, however strange the coincidences, and however grave the doubt, suspicion alone can never take the place of proof. In our normal life we are some times faced with unexplainable phenomenon an strange coincidences, for, as it is said, truth is stranger than fiction.” In Chacko Joseph v. Varghese Markose (1957 KLT 485), it is stated that the burden is undoubtedly on the plaintiff to make out the case of fraud alleged by him by adducing satisfactory and convincing evidence. He cannot rest content by merely alleging fraud on the part of the defendants and then hoping that he can succeed incase the defendants do not adduce evidence to disprove such an allegation. The defendants are not obliged to lead any evidence in that direction. In United India Insurance Co., Ltd. v. Aandrew Vivera (1989 (2) KLT 348), a Division bench of this court has stated that the position admits no doubt that allegation fraud, undue influence and coercion must be set forth in full particulars and not vaguely. The allegation must be fully stated so that the case can be decided on the particulars pleaded. Any allegation in a sweeping manner will hardly suffice for the court to act. Where allegations are made in a vague and sweeping manner the Court cannot act on it for lack of specific pleadings. In this case, a reading of the plaint shows that the pleadings are totally insufficient to make out a case of fraud inexecut8ng Ext.B1. Any allegation in a sweeping manner will hardly suffice for the court to act. Where allegations are made in a vague and sweeping manner the Court cannot act on it for lack of specific pleadings. In this case, a reading of the plaint shows that the pleadings are totally insufficient to make out a case of fraud inexecut8ng Ext.B1. In Mathu v. Cherchi (1990 (1) KLT 416), Padmanabhan, J., has held as follows: “7. Plea of mistake of fact is peculiar to the law of written contract due to the existence of the common law defence of non-est-factum, which permits one who has signed a document, which is essentially different from what he intended to sign to plead that, notwithstanding his signature, it is not” his deed in contemplation law”. The defence of being too lazy or too busy to read is not available. The plea must be kept within narrow limits in order to avoid confusion and uncertainty in the field of contract if a man is permitted to disown his signature simply by asserting that he did not understand what he signed. He must show that the transaction which the document purports is essentially different in substance or kind from the transaction intended. In a case where the person execute the deed is not blind, inform or otherwise incapacitated and no fraudulent misrepresentation is made to him and he had opportunity of reading the deed, the plea of non-est factum is not available. It is immaterial whether he read or not. He is bound by the deed because it operates as a conclusive bar against him not because he red or understood, but because he has chosen to execute it. That is so in equity as at law except in special case where there is an equitable ground (Martin Cashin and others v. Peter J. Cashin (AIR 1938 PC 103). The plea can rarely he established by a person of full capacity. Though it is not confined to blind or illiterate alone, any extension of the scope of the plea will have to be kept within specified limits. The plea must be proved by the person setting it up. He must show that he acted with care (Sunders v, Angila Building society (1970 A.E.R. 961). The plea of non-est factum is not available in this case. When vitiating circumstances are there, the rule has no application also.” 13. The plea must be proved by the person setting it up. He must show that he acted with care (Sunders v, Angila Building society (1970 A.E.R. 961). The plea of non-est factum is not available in this case. When vitiating circumstances are there, the rule has no application also.” 13. The learned counsel for the respondent contended that a fraud is incapable of direct proof and has to he inferred from the circumstances. For this purpose he relied on the decision in Yeshwant v. Walchasnd (AIR 1951 SC 16). In that case, the evidence adduced was so strong that it was possible for the Court to draw an inference of fraud. The learned counsel for the respondent also relied on the decision of the Supreme Court in Ram Sarup gupta v. Bishun Narain Inter College (AIR 1987 SC 1242) wherein the supreme court stated that the pleadings should receive a liberal construction and it is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. It is also stated that if it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, intact event it would not be open to a party to raise the question of absence of pleadings in appeal. In Ram Chandra Singh v. Savitri Devi (2003) 6 SCC 319), it is held that fraud vitiates every solemn act. It is also held that misrepresentation itself amounts to fraud. 14. The learned counsel also referred to the schedule of Ext.B1 and the description of the property in 7 thaks and stated that there was no necessity to measure all the 7 thaks when the entire property was sold and it was easy to find out the exact extent of the property sold by reading the schedule of the document. If there was any such case of fraud detected by the plaintiff, we are of opinion that it would have been the first contention which the plaintiff would have raised in O.S.No.65 of 1987 when the defendant filed the suit for recovery of the building only stating that the plaintiff has trespassed and occupied the building after it was sold too the defendant. In that case, the contention in the original written statement admittedly was that the house was excluded from the sale and not 32 cents and the house were excluded. From the sale and not 32 cents and the house were excluded. It was only when the case came up for trial that the defendant applied for amendment of written statement stating that the earlier written statement was prepared by counsel against the instructions of the defendant. Prima facie such a contention is difficult to believe. There is no reason to think that even if the defendant wanted to deceive the plaintiff, the document writer, the Sub Registrar and Dw.2 will become party to the fraud as they have no reason to give evidence against the interest of the plaintiff. It is therefore a case where the plaintiff has miserably failed either to allege or to prove the case of fraud in showing that the entire property which belonged to the plaintiff in the schedule to Ext.B1 was not really sold to the defendant. The finding of the trial court based on minor discrepancies in the evidence of the defence witnesses is not sufficient to decree the suit. In the result the judgment and decree of the trial court are set aside and the appeal is allowed and the suit is dismissed. The plaintiff in O.S.No.65 of 1987 has filed a cross-objection in A.S.No.16 of 1994 in so far as the decree for injunction is declined by the trial court. In view of the fact that the decree has been set aside even with respect to the declaration sought for by the plaintiff, the cross-objection is dismissed. In the peculiar facts of these cases, the parties shall bear their costs in these appeals. November 17, 2004.