IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 RSA.No. 1221 of 2011(D) ---------------------- AS.50/2008 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.349/2006 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- SANCHO BERTH, S/O.BERTHALOMIYA, AGED 21 YEARS, RESIDING AT ITTIPATTA HOUSE, PANAGAD DESOM KUMBALAM VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.T.V.JAYAKUMAR NAMBOODIRI RESPONDENT(S): RESPONDENTS/DEFENDANTS -------------------------------------------------------------------- 1. P.V.GOVINDA MENON, AGED 90 YEARS, PLACHERIL(PARAYAMTHIRIYIL HOUSE), PANCHAYATH VALAVU BUSSTOP, PANANGAD P.O., ERNAKULAM DISTRICT-682 506. 2. SUMA SUKUMAR, D/O.P.GOVINDA MENON, AGED 50 YEARS, RESIDING AT DO. 3. GEETHA SASIKUMAR, D/O.P. GOVINDA MENON, AGED 50 YEARS, RESIDING AT DO. 4. SHOBANA.B.NAIR, D/O.P. GOVINDA MENON, AGED 60 YERS, RESIDING AT DO. 5. PRADEEP MENON, S/O.P.GOVINDA MENON, AGED 55 YEARS RESIDING AT DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------- R.S.A No. 1221 OF 2011 ---------------------------------------- Dated this the 11th day of November, 2011 JUDGMENT Plaintiff in O.S. 349/2006 on the file of Sub Court Ernakulam is the appellant. The defendants are the respondents. Suit was filed for specific performance of Ext.A1 agreement for sale contending that 1st defendant/1st respondent had agreed to sell the plaint schedule property in favour of the appellant, who was a minor, for a consideration at the rate of Rs.25,000/-(Rupees Twenty five thousand only) per cent and Ext.A1 was executed on 02/08/2005, promising to execute the sale deed within a period of six months after satisfying the appellant about their rights and that the property is free from all encumbrance and convincing the extent by measurement. Rs.10,000/-(Rupees Ten thousand only) was paid on the date of execution of the agreement as advance. Appellant R.S.A. No. 1221 OF 2011 -2- would contend that he has always been ready and willing to perform his part of agreement. Appellant contended that as first defendant has promised to execute the sale deed along with the other respondents, his children, they are bound to execute the sale deed after receiving the balance consideration. Appellant contended that he has always been ready to perform his part of agreement. 2. Respondents resisted the suit contending that Ext.A1 was executed by undue influence, fraud and mis representation. It was contented that they are co-owners of a strip of 9 cents of land lying as a single block and the plaint schedule property forms a part of it. First respondent is very old aged about 87 years, who is not keeping good health. Father of the appellant who was examined as PW1, made him believe that the people residing on the northern side of the plaint schedule property was trying to cut open a pathway through the middle of the entire 9 cents of property and if they do so it would cause hardship to the R.S.A. No. 1221 OF 2011 -3- respondent volunteered to negotiate and settle the dispute. To enable him to settle the dispute, he got Ext.A1 prepared and and made first respondent to execute it. It was contended that father of the appellant told that one K.B. Santhosh would purchase the entire 9 cents for a consideration of Rs.40,000/-(Rupees Forty thousand only) per cent, stating that the said consideration was reasonable. On 02.08.2005 he approached the first respondent with two sets of agreements, one in respect of 5 cents in favour of the appellant showing a consideration for Rs.25,000/- (Rupees Twenty five thousand only) and the remaining 4 cents in favour of K.B. Santhosh for a consideration of Rs. 60,000/-(Rupees Sixty thousand only) per cent. It was contended that believing the words, first respondent happened to affix his thump impression on both the agreements and received Rs.25,000/-(Rupees Twenty five thousand only) from K.B. Santhosh and he had not agreed to sell the plaint schedule property in favour of the appellant R.S.A. No. 1221 OF 2011 -4- as claimed and appellant is not entitled to claim specific performance of sale. It was also contended that if at all first respondent is prepared to pay Rs.10,000/-(Rupees Ten thousand only) as claimed in the plaint. 3. Learned Sub Judge on the evidence, found that PW1 got Ext.A1 agreement executed by the first respondent, by making false representation and execution of undue influence and therefore, held that it is void. The learned Sub Judge on the submission of the first respondent that he is prepared to re-pay Rs.10,000/-(Rupees Ten thousand only), granted a decree for realisation of Rs.10,000/- (Rupees Ten thousand only) to the appellant. Appellant challenged the decree before District Corut Ernakulam in A.S. 50/2008. The learned District Judge on re-appreciation of the evidence confirmed the finding of learned Sub Judge and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for the appellant was R.S.A. No. 1221 OF 2011 -5- heard. 5. Argument of the learned counsel is that Ext.A2 copy of the power of attorney, establishes that respondents 2 to 5 had authorised the first respondent, their father to sell the property on their behalf and therefore, Ext.A1 agreement was executed by the first respondent on behalf of their children also and on the evidence finding of the courts below that Ext.A1 agreement is vitiated is not sustainable. The learned counsel made available copy of Ext.A1 as well as the depositions of the witnesses examined. 6. On hearing the learned counsel and going through the judgments of courts below and the evidence, I find no substantial question of law involved in the appeal. Plaint schedule property is 5 cents being part of 9 cents which jointly belong to the respondents. First respondent is the father. He was aged about 87 years at the time of execution of Ext.A1. Respondents 2 to 5 are his children. Admittedly, the property jointly belongs to them. Ext.A1agreement R.S.A. No. 1221 OF 2011 -6- shows that 5 cents jointly belongs to the respondents and it was agreed to be sold by the first respondent for a consideration of Rs.25,000/- per cent. It is admitted by PW1 who entered Ext.A1 agreement, on behalf of the appellant who was a minor at that time, that on the date of execution of Ext.A1 agreement, Ext.B2 agreement was also executed. It was in favour of K.B. Santhosh. It was in respect of the remaining 4 cents. Ext.B2 shows that the said agreement was to sell the remaining 4 cents for a consideration at the rate of Rs.60,000/- per cent. If Ext.A1 and B2 are genuine agreements for sale intended to be acted upon as agreements for sale, out of the 9 cents, 5 cents was agreed to be sold for Rs.25,000/-per cent, while the remaining 4 cents at the rate of Rs.60,000/-per cent. These discrepancies are sufficient to cause serious suspision on the genuineness of Ext.A1 agreement, which was sought to be enforced by the appellant. Though PW1 claimed that there was a dispute with regard to the way in respect of the R.S.A. No. 1221 OF 2011 -7- plaint schedule property agreed to be sold to the appellant, evidence of PW1 makes it absolutely clear that there was no claim for right of way as alleged. PW1 admitted that he had earlier instituted another suit against another person claiming right of way and in that suit he admitted that he is not having any other way. Ext.A1 does not show that first respondent executed the agreement for sale, as authorised by his children, much less as their power of attorney. Ext.A1 establishes that it is a joint property belonging to the first respondent and his children. The promise made by the 1st respondent is that he will see that his children will execute the sale deed. If Ext.A1 was executed as the power of attorney holder of the children, there was no necessity to provide in Ext.A1 that the children will execute the document along with the first respondent. That itself is sufficient to hold that first respondent did not execute Ext.A1 as the power of attorney holder by the other respondents. If that be so, when respondents 2 to 5 the R.S.A. No. 1221 OF 2011 -8- children, are not party to Ext.A1 sale deed and they did not enter into an agreement to sell the plaint schedule property, appellant is not entitled to specific performance sought for. If that be so, even if the argument of the learned counsel appearing for the appellant is accepted and it is found that Ext.A1 sale deed is not vitiated by undue influence, fraud and misrepresentation, in law appellant is not entitled to the specific performance of Ext.A1 agreement. Therefore, courts below grant a decree for return of advance amount alone. In such circumstance the appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE. Kp/-