IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 SA.No. 48 of 1993(E) APPELLANT: APPELLANT: DEFENDANT: -------------- RAJAN, S/O.PARAMESWARAN, KARUMALPETTY HOUSE, PLAPPILLY DESOM, KULAYETTIKARA VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.T.K.VENUGOPALAN SRI.DINESH R.SHENOY RESPONDENT: RESPONDENT: PLAINTIFF: --------------- SOMAN, S/O.KUMARAN, PUTHIYAPARAMBIL HOUSE, PONNURUNNI, KOCHI - 682 032, KANAYANNUR TALUK. ADV. SRI.T.N.HAREENDRAN. SMT.LEKHA KUMARI.N. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2008, ALONGWITH S.A.NOS.53 AND 54 OF 1993, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------- S.A.NOS.48, 53 AND 54 OF 1993 ------------------------------------------------- Dated this the 24th September, 2008 JUDGMENT These Second Appeals arise out of three appeals which were disposed of by a common judgment and which arose out of three suits which were disposed of by the trial court by a common judgment. 2. The property in question, having an extent of 15.75 cents, originally belonged to Thankappan. Parameswaran (second plaintiff) and Kumaran (second defendant) are the children of Thankappan and Gowri (third defendant) . Rajan (first plaintiff) is the son of Parameswaran . Soman (first defendant) is the son of Kumaran and Rajamma (fourth defendant). ( For the sake of convenience, the parties are referred to as per their rank in O.S.No. 1047 of 1986, from which Second Appeal No. 54 of 1993 arose). 3. As per Ext. A1 partition deed executed in the year 1979 after the death of Thankappan, the properties including the property S.A. NOS.48, 53 & 54 OF 1993 :: 2 :: in dispute in these cases were divided into five shares. 'B' schedule in Ext A1 was allotted to the second defendant Kumaran. Gowri had a life interest in the property as per the terms of Ext.A1. Kumaran and Gowri assigned the plaint schedule property in favour of the first defendant Soman as per Ext.B1 sale deed dated 23.01.1985, registered as document No.239 of 1985 of the Sub Registrar's Office, Ernakulam. Kumaran executed another sale deed, Ext.A3, on 16.04.1985 in favour of the first plaintiff, Rajan, which was registered as document No.822 of 1985 of SRO., Mulanthuruthy. Soman claims title and possession to the property as per Ext.B1, while Rajan claims title and possession as per Ext.A3 sale deed. Disputes arose between the parties. O.S.No.952 of 1985 was filed by Soman against Rajan for injunction. O.S.No.565 of 1985 was filed by Rajan and his father Parameswaran against Soman and his mother Rajamma for permanent prohibitory injunction. O.S.No. 1047 of 1986 was filed by Rajan and Parameswaran against Soman, Kumaran, Gowri and Rajamma for declaration of title and possession as per Ext.A3 title deed and for consequential reliefs. There was also a prayer for declaration that Ext.B1 was created under undue influence, coercion and misrepresentation and the same is null and void and it does not bind the plaintiffs. S.A. NOS.48, 53 & 54 OF 1993 :: 3 :: 4. The trial court decreed the suit for injunction, O.S.No.952 of 1985, filed by Soman and dismissed the other suits. The Appellate Court confirmed the judgment and decree of the trial court. 5. The title of Kumaran is admitted. It is also admitted that life interest was created in favour of Gowri. If Ext.B1 dated 23.01.1985 is valid, Rajan cannot claim any title to the property as per Ext.A3 dated 16.04.1985. The case put forward by Rajan and his father is that they entered into an agreement for sale with Kumaran in respect of the property on 23.08.1984 for a consideration of Rs.15,000/- and Rs.3,500/- was paid on the date of agreement as evidenced by Ext.A2 receipt executed by Kumaran. The averment in the plaint is that to defraud the plaintiffs, (hereinafter Rajan and his father are referred to as plaintiffs and Soman and others are referred to as defendants.) defendant Nos.1 to 4 had created Ext.B1. It is also alleged that Ext.B1 is a document created under fraud, undue influence, coercion and mis- representation. Ext. B1 is not a valid sale deed. The first defendant is not a bonafide purchaser for adequate consideration without S.A. NOS.48, 53 & 54 OF 1993 :: 4 :: notice of the agreement between the plaintiffs and the second defendant. Ext.B1 was created with malafide intention to defeat the interests of the plaintiffs. 6. The defendants denied the allegations of fraud, coercion, undue influence etc. They contended that there was no agreement between the second defendant and the plaintiffs to assign the property. Ext.A2 was not executed by the second defendant. Ext.A3 was not executed by the second defendant with his free will and volition. The second defendant was taken to the Sub Registrar's office under the pretext that he had to execute a document as a surety. The plaintiffs intoxicated the second defendant , who was an alcoholic. The signature in Ext.A3 was obtained without disclosing the contents. The second defendant did not receive the consideration of Rs.15,000/- or the consideration shown in Ext.A3. Ext.A3 was procured by the plaintiffs by fraud and mis- representation. 7. The courts below found that the plaintiffs failed to prove their contention that Ext.B1 was executed by fraud, coercion and mis-representation or undue influence. It was also held that Ext.A2 S.A. NOS.48, 53 & 54 OF 1993 :: 5 :: does not disclose an agreement for sale in respect of the property in favour of the plaintiffs. The courts below held that the plaintiffs failed to prove that Ext.A2 was executed by Kumaran. Having held that the plaintiffs failed to prove the contentions raised by them in challenge of Ext.B1, it was not necessary to consider the contentions of the defendants that fraud was played by the plaintiffs in the matter of execution of Ext.A3. As regards possession, the courts below, on the basis of the contentions raised by the parties, held that the first defendant is in possession of the property. The question of title was considered as the main issue in the case and in view of the rival claims for title, the courts below held that the plaintiffs did not get any title under Ext.A3 because the title had already been conveyed by the vendor as per Exhibit B1. 8. Learned counsel for the appellants contended that the courts below did not consider the question whether Section 53 (2) of the Transfer of Property Act is attracted. In the light of the admitted and proved facts of the case, he also submitted that, the courts below were not justified in holding that the pleadings are not sufficient to prove the contention of fraud, mis-representation, undue influence etc. S.A. NOS.48, 53 & 54 OF 1993 :: 6 :: 9. Section 53(2) of the Transfer of Property Act deals with fraudulent transfer. Section 53(2) of the Transfer of Property Act reads as follows: “53. Fraudulent transfer:- (1) xx xx xx xx xx xx (2) Every transfer of immoveable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee. For the purpose of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.” To attract Section 53(2) of the Act, the transfer of immovable property must be without consideration and with intent to defraud subsequent transferee. The transaction is only voidable but not void. A voidable transaction has to be got avoided by instituting a suit. The plaintiffs have not filed a suit invoking Section 53(2) of the Transfer of Property Act. There is no case that the transaction, as evidenced by Ext.B1, was without consideration. The pleadings would disclose that the contention of the plaintiffs was that Ext.B1 was got executed by exercising fraud, undue influence, coercion and mis-representation. The absence of consideration was not S.A. NOS.48, 53 & 54 OF 1993 :: 7 :: pleaded. Ext.B1 shows that a sum of Rs.1,000/- was fixed as consideration, out of which Rs.900/- was paid to the second defendant and Rs.100/- was in respect of life interest of Gowri. In these circumstances, evidently, Section 53(2) of the Transfer of Property Act does not apply. 10. The burden of proof would certainly be on the plaintiffs who wanted to avoid Ext.B1 transaction. The ingredients of Section 53(2) of the Transfer of Property Act must be pleaded and proved. Even if it is to be assumed that Ext.A3 was executed in favour of the first plaintiff for consideration, it cannot be assumed that Ext.B1 was a transaction hit by Section 53(2) since Section 53(2) specifically provides that no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made. Apart from all these things, the plaintiffs have not raised such a contention based on Section 53 (2) of the Transfer of property Act either in the trial court on in the lower appellate court. For the first time, such a contention is raised in the Second Appeal without any sufficient ground made out in the pleadings and in evidence. Therefore, I reject the contention of the appellant based on Section 53(2) of the S.A. NOS.48, 53 & 54 OF 1993 :: 8 :: Transfer of Property Act. 11. The plea of fraud, undue influence and other vitiating circumstances has to be clearly made out in the pleadings. In United India Insurance Co. Ltd. vs. Andrew Vivera [1989 (2) K.L.T. 348], it was held : “6. Order 6 Rule 4 C.P.C. provides that in all cases in which the party pleading relies on any mis-representation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars ( with dates and items if necessary) shall be stated in the pleading. The position admits no doubt that allegation of 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. There cannot be any departure from what has been ordained under Order 6 Rule 4.” In Bishundeo v. Seogeni Rai (AIR 1951 S.C. 280) it was held that in cases of fraud, undue influence and coercion, the parties S.A. NOS.48, 53 & 54 OF 1993 :: 9 :: pleading it must set forth full particulars and the case can only be decided on the particulars as laid. 12. The burden of proof in respect of the plea of misrepresentation, fraud, undue influence or coercion is upon the person who alleges the same. That burden can be discharged only by putting forth sufficient plea in the pleadings and by proving the same in accordance with law. Weakness of the opposite party's case would not be a substitute for discharging the burden of proof cast on a party. It is well settled that without the necessary pleadings, any amount of evidence would not be a substitute. (See Siddik Mahomed Shah vs. Mt. Saran and others [AIR 1930 Privy Council 57] and Rosily Mathew vs. Joseph [ 1986 K.L.T. S.N. 38, Case No. 62). The pleadings contained in paragraph 8 of the plaint, as rightly stated by the courts below are not sufficient to constitute a plea of fraud, undue influence and mis-representation. At one place, the plaintiffs have stated that to defraud them, defendant Nos.1 to 4 have created Ext.B1. In yet another place in the same paragraph, it is stated that Ext.B1 was created under fraud, undue influence, coercion and mis-representation. The plea of fraud would not go along with the plea of undue influence in the facts and S.A. NOS.48, 53 & 54 OF 1993 :: 10 :: circumstances. Ext.B1 was executed by Kumaran. There is no specific pleading that any undue influence was exerted on him. There is no specific plea of any coercion or mis-representation. The plea of the plaintiffs that all the defendants were responsible for defrauding the plaintiffs by executing Ext.B1 is quite contrary to the plea of undue influence, coercion and mis-representation. Those pleas are mutually contradictory and mutually destructive. The necessary facts to found the plea of fraud or mis-representation or undue influence should be clearly made out in the pleadings. The opposite party must be made aware of the necessary facts in support of the plea. A vague plea of fraud, mis-representation etc. would not be sufficient. Mere suspicion would not be a substitute for proof. In Union of India vs. Chaturbhai M. Patel & Co. [AIR 1976 SC 712] it was held: “It is well settled that fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt. ....................... However suspicions may be the circumstances, however strange the coincidences, and however grave the doubts, suspicion alone can never take the plea of proof. In our normal life we are S.A. NOS.48, 53 & 54 OF 1993 :: 11 :: sometimes faced with unexplainable phenomenon and strange coincidences, for, as it is said , truth is stranger than fiction.” 13. The plaintiffs failed to adduce evidence to prove fraud or undue influence or coercion or mis-representation. The evidence adduced by P.W.1, the first plaintiff is to the following effect : This is the only statement made in the chief examination of P.W.1 on that aspect. While D.W1 was cross examined, the only suggestions made to him are the following: S.A. NOS.48, 53 & 54 OF 1993 :: 12 :: These suggestions would not disclose any fraud on the part of the second defendant in the matter of execution of Ext.B1. On the other hand these suggestions would disclose the case of coercion or undue influence to which the second defendant was subjected to . If so, the case of fraud to which all the defendants were alleged to be parties, would have no substratum. Section 53(2) of the Transfer of Property Act would not be attracted to such a case. Learned counsel for the appellant submitted that there are circumstances which would indicate that Ext.B1 was executed to defeat the rights of the plaintiffs. These circumstances are the following: i) The consideration shown in Ext.B1 is only Rs. 1,000/- ii) Though the property is situated within the jurisdiction of S.R.O. Mulanthuruthy, Ext.B1 was executed at the S.R.O., Ernakulam. iii) The assignee under Ext. B1 is none other than the son of the second defendant . 14. The insufficiency of consideration in Ext.B1 would not be a S.A. NOS.48, 53 & 54 OF 1993 :: 13 :: substitute for the proof of fraud, misrepresentation, undue influence or coercion. That the consideration was low would not be a ground by itself for the subsequent transferee to impugn the earlier transaction on the ground of fraud. It has come out in evidence that the document was executed at the S.R.O., Ernakulam after getting due permission for the same to enable the aged grandmother (third defendant) to execute the document. The fact that Ext.B1 was executed in favour of the son of the second defendant is not by itself a relevant circumstance to impugn Ext.B1. The parties are close relations. The second defendant is the paternal uncle of the first plaintiff. The second plaintiff is the brother of the second defendant. Therefore the fact that Ext.B1 was executed in favour of the son of the executant is not a very relevant fact to be taken note of. 15. There is yet another circumstance which is relevant. Life interest in favour of Gowri is an undisputed fact. The plaintiffs do not claim any right under Gowri. Gowri was alive at the time of institution of the suit and she died only during the pendency of the Second Appeal. The first defendant claims right under Gowri also as Gowri was one of the executants of Ext.B1. S.A. NOS.48, 53 & 54 OF 1993 :: 14 :: 16. As rightly held by the courts below, Ext.A2 does not disclose an agreement for sale between the plaintiffs and the second defendant. Ext.A2 does not show as to who is the purchaser. The consideration fixed and the terms and conditions of the transaction are also not stated in Ext.A2. If Ext.A2 is taken as a receipt, it must be taken that there was an earlier agreement for sale. The plaintiffs have failed to prove any such earlier agreement. No independent evidence is adduced to show that the second defendant agreed to sell the property to the plaintiffs. 17. For the aforesaid reasons, I am of the view that the Second appeals are devoid of merit and accordingly, they are liable to be dismissed. 18. Learned counsel for the appellants submitted that Ext.A1 settlement deed shows that the property in dispute is situated on either side of a pathway. Ext.A3 assignment deed also shows the same. He pointed out that the schedule in Ext.B1 is written in such a way as to deny the right of way of the plaintiffs through the pathway which is described in the B Schedule in Ext.A1 partition deed and the schedule in Ext.A3. The suits were not being S.A. NOS.48, 53 & 54 OF 1993 :: 15 :: prosecuted by the parties with reference to the pathway and no contention was raised or denied on that aspect. It is also submitted by the counsel for the respondents that O.S.No.406 of 2007 was filed by the appellants claiming right over the pathway and that suit is pending. It is made clear that the rights, if any, of the appellants in respect of the pathway are not considered in these Second Appeals, as they did not arise for consideration in the suits from which the Second Appeals arose. The Second Appeals are dismissed with the above observations. (K.T.SANKARAN) Judge lk/ahz/ K.T.SANKARAN, J. ---------------------------------------- ---------------------------------------- S.A.NOS.48, 53 & 54 OF 1993 JUDGMENT 24th September, 2008 ----------------------------------------