IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 11TH APRIL 2011 / 21ST CHAITHRA 1933 RSA.No. 219 of 2011() ------------------- AS.279/2010 of DISTRICT COURT, THRISSUR OS.253/2007 OF PRINCIPAL SUB COURT, THRISSUR ................. APPELLANT / APPELLANT / PLAINTIFF : ---------------------------------------------------------- RAGHAVAN, AGED 60 YEARS, S/O. CHELLARI MADHAVAN, V/573, PANANCHERY PANCHAYAT, CHOOLIPADAM DESOM, P.O.POOVANCHIRA, THRISSUR DISTRICT. BY ADVS. SRI.K.P.DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI RESPONDENTS / RESPONDENTS / DEFENDANTS : ----------------------------------------------------------------------- 1. RAMACHANDRAN, AGED 57 YEARS, S/O. KUNDIL KANDARU, KUNDIL HOUSE, KUNNATHUMKARA DESOM, OLLUKKARA P.O., OLLUKKARA VILLAGE, THRISSUR DISTRICT-680 655. 2. RAMAVATHI RAMACHANDRAN, AGED 54 YEARS, W/O. RAMACHANDRAN, KUNDIL HOUSE, -DO- -DO-, PIN-680 655. CAVEATORS FOR R1 & R2 BY ADVS. SRI. DR. K.P. SATHEESAN SRI. K.K. GOPINATHAN NAIR SRI. M.R. JAYAPRASAD SRI. P. MOHANDAS SRI. MATHEW SUNNY SRI. ANOOP V. NAIR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn M.SASIDHARAN NAMBIAR, J ........................................... RSA .NO. 219 OF 2011 ............................................ DATED THIS THE 11th DAY OF APRIL, 2011 JUDGMENT Plaintiff in O.S.253 of 2007 on the file of Principal Sub Court, Thrissur is the appellant. Defendants are the respondents. Appellant instituted the suit to cancel Ext.A2 assignment deed executed by him in favour of second respondent contending that though the document is styled as a sale deed, in fact it is a mortgage deed executed as security for the loan advanced. The plaint schedule property admittedly originally belonged to the appellant and the second respondent under Ext.A1 partition deed. First respondent is the husband of the second respondent. Subsequently, under Ext.A2 assignment deed, appellant transferred his rights in the plaint schedule properties in favour of the second respondent. Appellant would contend that though the document is styled as a sale deed, Rs.60,000/- was received from respondents as loan and Ext.A2 was executed only as a security with an understanding that on payment of the amount of Rs.60,000/- received by the RSA 219/2011 2 respondents, appellant would reconvey the property. It is contended that it was executed as security for the amount advanced and the respondents have an obligation to execute a retransfer deed, once the amount is received. Respondents resisted the suit contending that Ext.A2 is a sale deed by which appellant transferred his rights in the plaint schedule property in favour of the second respondent and it was not executed as security and it is not a mortgage deed and appellant is not entitled to the decree sought for. 2. Learned Sub Judge, on the evidence of Pws 1 to 6, DW1, Exts.A1 to A24, B1 and B2, C1 and C2, dismissed the suit finding that Ext.A2 is a sale deed and it is not a document executed as security as claimed by appellant. Appellant challenged the judgment before District Court, Thrissur in A.S.279 of 2010. Learned District Judge, on re-appreciation of evidence, found that appellant is not entitled to the decree sought for and learned Sub Judge rightly found that Ext.A2 is a sale deed and not a conditional sale deed or a document executed as security. The second appeal is filed challenging the judgment. 3. On hearing the learned counsel appearing for appellant RSA 219/2011 3 and respondents, who lodged a caveat, accepting the submission of the learned counsel appearing for appellant, the case was sent for mediation. Mediation did not succeed and a report is submitted to that effect. The appeal was again heard. 4. On hearing the learned counsel appearing for appellant, I do not find any substantial question of law involved in the appeal. Ext.A2 is a sale deed executed by the appellant in favour of second respondent whereunder his entire rights were transferred in favour of second respondent for a consideration of Rs.60,000/-. The learned counsel argued that the property is very valuable and is adjacent to the National Highway and is inclusive of a terraced building and when the total consideration paid under Ext.A2 for more than three acres of land is Rs.60,000/-, it establishes that it was not a sale deed but executed as security as canvassed by appellant and at that time there was also a charge over the property. The second respondent is the sister of the appellant. Both appellant and second respondent obtained properties under Ext.A1 partition deed. It is the property obtained by the appellant, which was transferred under Ext.A2 in favour of the second respondent. RSA 219/2011 4 When transfer is between close relatives like brother and sister, for want of insufficient consideration alone, sale cannot be challenged on the ground that it is not a sale deed but a document executed as security. A perusal of Ext.A2 does not give any indication that it was executed as security. As rightly found by courts below under Section 90 of the Indian Evidence Act, appellant is not entitled to let in evidence against the terms of Ext.A2 assignment deed, when he has no case that it was executed as a sham and nominal document. Though it was contended that it was not intended to be acted upon, the very case is that on receipt of the consideration shown in Ext.A2, the property is to be re-conveyed. If the property is to be re- conveyed, Ext.A2 sale deed cannot be a sham and nominal document as canvassed by appellant. 5. Going through the judgments of the courts below, I find that all aspects were correctly considered and decided by the courts below and no substantial question of law is involved. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk RSA 219/2011 5 RSA 219/2011 6 M.SASIDHARAN NAMBIAR, J ........................................... RSA.NO. 219 OF 2011 ............................................ DATED THIS THE 24th DAY OF MARCH, 2011 ORDER The learned counsel appearing for the appellant submitted that if the appeal is sent for mediation, there is likelihood of a settlement. The learned counsel for the respondent submitted that he has no objection for a settlement, if possible. Both parties submitted that they will appear before the High Court Mediation Centre at 11 am on 1.4.2011 and no notice need be sent to them. Appeal is referred to the High Court Mediation Centre with a direction to the parties to appear on 1.4.2011 at 11 am. If the case is not settled on mediation, it is to be posted immediately. M.SASIDHARAN NAMBIAR, JUDGE RSA 219/2011 7 lgk