IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 AS.No. 283 of 1997(E) --------------------- OS.2/1990 of SUB COURT, MAVELIKKARA .................... APPELLANT(S): -------------- A. MOHAMMED SHAW, POOVANNAN VEEDU JONAKAPPURATHU, VALIYAKADACHERRY KOLLAM VILLAGE, KOLLAM TALUK (WORKING AS CHIEF CAMARA MAN, MINISTRY OF DEFENCE, DUBAI, U.A.E.) REPRESENTED BY POWER OF ATTORNEY HOLDER NAJUMA, OF -DO- -DO- BY ADV. SRI.K.G.BALASUBRAMANIAN SRI.M.SHAHEED AHMAD RESPONDENT(S): --------------- ANNIE KOSHY, AMBIKULANGARA VEEDU, KAYAMKULAM MURI, PATHIYOOR VILLAGE, KARTHIKAPPALLY TALUK. BY ADV. SRI.P.KESAVAN NAIR SRI.K.G.CLEETUS THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07/10/2009, ALONG WITH AS NO. 285 OF 1997 THE COURT ON 15/10/2009 DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO: 4794 OF 1999 IN A.S. NO: 283 OF 1997 DISMISSED SD/- (M.L.JOSEPH FRANCIS) JUDGE 15.10.2009 /// TRUE COPY /// PA TO JUDGE dl/ M. L. JOSEPH FRANCIS J., - - - - - - - - - - - - - - - - - - - - - - - - - - - - A. S. No: 283 and 285 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the _ _ th Day of October, 2009. JUDGMENT A.S. No: 283 of 1997 is filed by the plaintiff in O.S. No: 2 of 1990 and A.S. No: 285 of 1997 is filed by the plaintiff in O.S. No: 1 of 1990 on the file of Sub Court, Mavelikkara. Respondent in A.S. No. 283 of 1997 and A.S. No: 285 of 1997 is the defendant in respective suits which were filed for specific purpose of contract for sale. The plaintiff in both suits is one and the same person. The defendant in both the suits is one and the same person. 2. The facts of the case are briefly as follows: The defendant is the owner of the plaint schedule property. The defendant and plaintiff entered into an agreement to sell the property scheduled in plaints to the plaintiff for a sale consideration of Rs.50,000/- each and has a received an advance of Rs.30,000/- each. A.S . NO: 283 and 285 OF 1997 :2: They agreed to sell the property within one year from the date of execution, i.e, 27.12.1986. The plaintiff was working abroad and he reached in December 1987. He demanded the defendant to perform her part of the agreement by executing the sale of deed after receiving balance consideration. But the defendant has not done so. 3. The plaintiff was ready and willing to perform his part. Hence the suit. 4. The defendant filed written statements contending that her brother named D.Philip who was employed in Dubai wanted a sum of Rs.60,000/- for purchasing some land. The plaintiff gave the sum by a cheque of Bank of Baroda and as security for the loan the defendant executed the agreement for sale. 5. The suit is bad for non - joinder of Sri. D Philip. Agreement for sale was executed only to avoid the expense to be incurred if a mortgage deed is executed. Actually there was no agreement for sale. An agreement was executed on the same day and it was stated that the parties does not intend coming into force of the terms of the agreement A.S . NO: 283 and 285 OF 1997 :3: for sale. The defendant who was working at Dubai returned to the native place on 16.7.1987 and paid the sum due to the plaintiff on 10.5.1987 and has registered an agreement stating that fact. 6. The allegation that the plaintiff was ready and willing to perform his part of the agreement is false. The suit is devoid of merits and is liable to be dismissed. The plaintiff filed replications and further replication after the amendment of the written statement. His case in those is as follows: The parties never intended to execute a mortgage deed. The agreement was not executed as a security. The defendant has received the consideration stated in the agreement. No undue influence was exerted on the defendant to execute the deed. The contentions taken up to assail the agreement is without any merit. 7. In the Sub Court, both the suits were tried jointly and evidence were recorded in O.S No: 1 of 1990. PW1 and PW2 were examined and Exts. A1 to A3 and B1 were marked. The learned Sub Judge on considering the evidence came to the conclusion that Ext.A2 and A3 A.S . NO: 283 and 285 OF 1997 :4: were executed as security for the loan availed by D. Philip, the brother of the defendant and both the suits were dismissed without costs. Against that judgment and decree the above appeals were filed by the plaintiff. 8. Heard the learned counsel for the appellant and the learned counsel for the respondent. 9. Learned counsel for the appellant submitted that since the defendant has admitted the execution of Ext.A2 and Ext.A3 registered agreement for sale, the learned Sub Judge ought to have decreed both the suits for specific purpose of execution of sale. The learned counsel for the respondent submitted that Section 92 of the Evidence Act is not a bar for adducing evidence to show that the documents executed by the parties were never intended to be acted upon or that they were shram transaction. 10. Ext.A1 is the photostat copy of the power of attorney executed by the plaintiff in favour of his sister who is examined as PW1. Ext.A2 is the registered agreement for sale executed by the A.S . NO: 283 and 285 OF 1997 :5: defendant in favour of the plaintiff in O.S.1 of 1990. Ext.A3 is the registered agreement for sale executed by the defendant in favour of plaintiff in O.S. No: 2 of 1990. The defendant admits the execution of Ext.A2 and A3 agreements for sale. The main contention of the defendant is that Ext.A2 and A3 were executed by her as a security for the loan availed by her brother D.Philip from the plaintiff. The defendant is examined as DW1. DW1 deposed that at the time of execution of Exts. A2 and A3 agreements, there was no intention to sell the plaint schedule property to the plaintiff and that the real intention was to execute the documents as a security for Rs.60,000/- received by her brother D.Philip from the plaintiff as loan and to avoid huge expenses for executing mortgage deeds and to avoid the problems pertaining to the income tax clearance. In Ext.A2 and A3, it is stated that an advance of Rs.30,000/-in each agreements was received by the one and the same cheque. According to DW, the amount covered by the cheque mentioned in Exts.A2 and A3 was received by her brother D.Philip who is now not in good terms with her. PW1 deposed in cross A.S . NO: 283 and 285 OF 1997 :6: examination that the cheque was given to Philip, the brother of DW1 with the consent of DW1. PW1 admits that at the time of registration of Ext.A2 and A3 agreement, the plaintiff was abroad and his mother got registered those documents on behalf of the plaintiff. In the replication filed by the plaintiff, it is stated that Ext.A2 and A3 were executed and handed over to mother of the plaintiff at the instruction of the plaintiff. DW1 deposed that Ext.B1 is an agreement executed by the mother of the plaintiff after one week of the execution of Ext.A2 and A3. DW1 deposed that Ext.B1 is written in the hand-writing of the same scribe who prepared Ext.A2 and A3. DW1 deposed that plaintiff's mother, signed Ext.B1 in her presence and the plaintiff did not sign it, as he was in Dubai at that time. DW2 is the scribe who prepared Exts. A2, A3 and B1. DW2 deposed that for the purpose of writing Exts.A2, A3 and B1, the plaintiff's mother and another person and DW1 came to his office and the plaintiff's mother gave the draft instructions for preparing Exts.A2 and A3 and that she told that the transactions involved an amount of Rs.60,000/- and instructed to write A.S . NO: 283 and 285 OF 1997 :7: two seperate agreements as income tax clearance is required for executing the documents for the value above Rs.50,000/-. DW2 deposed that the parties to Exts.A2, A3 and B1 signed those documents in his presence and that Ext.B1 could not be registered as the plaintiff is out of India. In Ext.B1 it is stated that the plaintiff at present has no intention to get sale deed executed as per Exts.A2 and A3 agreement and if the defendants repays Rs.60,000/- within one year, the plaintiff will issue receipt and if defendant fails to repay Rs.60,000/- within one year, the plaintiff is entitled to file suit for specific purpose of contract for sale. The plaintiff has not taken any steps to examine his mother to disprove the contentions in Ext.B1. Since the mother of the plaintiff was present at the time of execution of Exts.A2, A3 and B1 respectivelyand as the plaintiff fails to examine his mother to disprove Ext.B1, the learned Sub Judge is perfectly justified in finding that Ext.A2 and A3 were executed as security for the loan obtained for D.Philip from the plaintiff and the parties treated Exts.A2 and A3 only as security for the loan and not agreement for sale. In both these A.S . NO: 283 and 285 OF 1997 :8: appeals, the appellant filed petitions for examining as witness for the purpose of proving the case of the plaintiff. That petition cannot be allowed at this stage as the examination of the plaintiff will not improve the case of the plaintiff on considering the facts and circumstances of the case and those petitions are dismissed. Since the learned Sub Judge arrived at a conclusion based on evidences on record, I find no reason to interfere with the common judgment and decree in O.S. No. 1 of 1990 and 2 of 1990 on the file of Sub Court Mavelikkara. Accordingly, both the above appeals are dismissed. The judgment and decree in dismissing O.S. No: 1 of 1990 and O.S. No.2 of 1990 on the file of Sub Court Mavelikkara are confirmed. Parties are directed to suffer their respective costs in this appeal. M. L. JOSEPH FRANCIS, JUDGE. dl/