IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 6TH JULY 2010 / 15TH ASHADHA 1932 SA.No. 538 of 1997(E) --------------------- AS.264/1996 of SUB COURT, KASARAGOD OS.448/1990 of ADDL.MUNSIFF, KASARAGOD .................... APPELLANT/RESPONDENT/PLAINTIFF: ----------------------------------------- RATNAVATHI, D/O.GOVINDA BHATTA, MUNDIMOOLE, KUMBDJE VILLAGE, KASARAGOD TALUK. BY ADV. MS.SUMATHY DANDAPANI, SENIOR ADVOCATE RESPONDENT/APPELLANT/DEFENDANT: ------------------------------------------- B.YASHODHA, D/O.CHANIYA, BARADKA OF BADIADKA VILLAGE, P.O.PERDALA, KASARAGOD TALUK. ADV. MR.K.G.GOURI SANKAR RAI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------ S.A.No.538 Of 1997 ---------------------- Dated this the 6th day of July, 2010. J U D G M E N T The plaintiff in O.S.No.448 of 1990 on the file of the Additional Munsiff Court, Kasaragod, is the appellant. Suit was filed for specific performance of an agreement for sale of the plaint schedule property. Trial court decreed the suit. In the appeal preferred by the defendant, the lower appellate court set aside the decree and judgment of the trial court and dismissed the suit. Parties are hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. Ext.A2 is the agreement dated 10.1.1990. The case of the plaintiff is that the defendant had executed Ext.A2 agreement agreeing to sell the plaint schedule property. Plaint schedule property is having an extent of 1.67 acres. The consideration fixed is Rs.5,000/-. At the time of execution of the agreement it is said that the plaintiff had paid an advance consideration of Rs.3,750/-. It is the plaintiff's case that at the time of agreement defendant delivered possession of the plaint schedule property to the plaintiff and that the defendant agreed to execute the sale S.A.No.538 Of 1997 ::2:: deed within three years from the date of agreement on payment of balance consideration. 3. The defendant denied the execution of the agreement for sale and contended that the plaintiff and her husband approached her and requested to sell three timber trees standing in the plaint schedule property and Ext.A2 agreement was executed in that connection. It is also contended that the plaint schedule property was not delivered to the plaintiff in pursuance of Ext.A2 agreement and that she did not receive the consideration shown in Ext.A2. 4. Plaintiff was examined as PW1. PW2 is the attestor to Ext.A2 agreement and PW3 is the scribe who wrote Ext.A2 agreement. Plaintiff also produced Ext.A1 assignment order passed in favour of the defendant. Exts.A1 to A4 were marked on the side of the plaintiff. The defendant was examined as DW1. Exts.B1 to B3 were produced on her side. 5. The trial court appreciated the evidence tendered by the plaintiff, her witnesses and DW1. Plaintiff testified before the court in terms of the plaint. PW2, who is the attestor, tendered evidence stating that the defendant executed Ext.A2 agreement S.A.No.538 Of 1997 ::3:: in favour of the plaintiff agreeing to transfer the plaint schedule property. The plaintiff testified before the court that she was put in possession of the plaint schedule property and that she continue to possess and enjoy the plaint schedule property. According to PW1 there is no timber trees in the plaint schedule property except one mango tree and four cashew trees and that those trees are even now existing. PW2 deposed that he is one of the attestors to Ext.A2; he knew both parties for the last several years; and that he had witnessed the execution of Ext.A2 agreement. PW3, the scribe, testified before the court that he had prepared Ext.A2 and it was executed by the parties. The trial court held that even though there is a lengthy cross- examination of the witnesses nothing has been brought out to discredit the deposition of PW1 to PW3 and that their evidence are corroborated to each other in respect of execution of Ext.A1. Trial court also found that there is no material contradiction of evidence by PWs 1 to 3 in respect of execution of Ext.A1. 6. Admittedly, the defendant is an illiterate person. She admitted her thump impression in Ext.A2 agreement. But according to her it was obtained by the plaintiff in a different S.A.No.538 Of 1997 ::4:: circumstance. As DW1 she testified before the court that she agreed to sell three timber trees situated in the plaint schedule property to one Ram Bhatt, who is the son-in-law of the plaintiff and in relation to that transaction she executed Ext.A2 agreement. Apart from her interested testimony the defendant failed to adduce any supporting evidence. No witnesses were examined to prove the different transactions alleged by her. DW1 also admitted that she handed over Ext.A1 assignment order to the plaintiff at the time of execution of Ext.A2 agreement. 7. The defendant contended that the consideration shown in Ext.A2 agreement is a nominal amount; at the time of agreement the price of the property was Rs.300/- per cent. The written statement is silent about the value of the property. It is not stated that the value shown in Ext.A2 agreement is inadequate. The defendant also did not chose to adduce any evidence in order to show that the value shown in Ext.A2 agreement is inadequate. Trial court also observed that no independent witnesses were examined by the defendant to corroborate the contentions raised by the defendant in her S.A.No.538 Of 1997 ::5:: written statement as well as while she was examined as DW1. In these circumstances, the trial court decreed the suit and directed the defendant to execute the sale deed in favour of the plaintiff. 8. The lower appellate court reversed the findings of the trial court. The lower appellate court held that merely because Ext.A2 contains thump impression of the defendant, it cannot be held that the defendant has put the same after understanding the contents. The lower appellate court observed that the plaintiff has to prove that the defendant has affixed her thump impression in Ext.A2 after understanding its contents properly. PW2, the attestor and PW3, the scribe testified before the court that the contents of Ext.A2 agreement was read over and explained to the plaintiff and defendant in Kannada and Tulu. This fact was not taken note of by the lower appellate court. The appellate court also held that the evidence of PWs 1 to 3 do not inspire confidence of the court regarding the execution of Ext.A2 agreement and regarding the affixture of thump impression on the proper understanding of what is stated in the document. The reasons stated for not relying on the evidence of PWs 1 to 3 and the further conclusion that the contents of Ext.A2 was not S.A.No.538 Of 1997 ::6:: properly explained to the defendant is not supported by evidence. It is also not correct to say that the learned Munsiff has not borne in mind the provisions governing specific performance of contract. The learned Sub Judge reversed the findings of the trial court stating the above said reasons and took the view that the defendant had not executed Ext.A2 agreement after understanding its contentions properly and hence there was no due execution of agreement for sale. In the facts and circumstances discussed above, I find that the reasons and conclusions arrived at by the learned Sub Judge cannot be upheld. 9. Learned counsel for the defendant submitted that Ext.A1 order of assignment contains a provision not to alienate the property for a period of three years. He also submitted that Ext.B1 patta contains a similar provision. The learned counsel also brought to my notice Rule 8A of the Kerala Land Assignment Rules which prohibits alienation for a period of three years from the date of issuance of patta. 10. Learned counsel also submitted that the conditions referred to in Ext.A1 assignment order was neither referred to S.A.No.538 Of 1997 ::7:: nor discussed by both the courts. The extent of property is 1.67 acres. The learned Sub Judge held that this property is sold for a paltry consideration of Rs.5,000/-; it is highly difficult to assume that the defendant has agreed to sell the same for a nominal consideration of Rs.5,000/-; no centage value has been agreed upon and no reasonable explanation has been spoken by the plaintiff for fixation of the consideration at Rs.5,000/-. The lower appellate court observed that even assuming that Ext.A2 agreement is lawful, specific performance has to be refused in this case in view of the unfair advantage that would result to the plaintiff. Learned counsel for the appellant/plaintiff submitted that the written statement does not contain any pleadings to the effect that the consideration shown in Ext.A2 agreement is inadequate or is a paltry amount. According to him so long as there is no pleading regarding the inadequacy of consideration it is not open to the defendant to contend that Ext.A2 agreement is not acceptable for want of sufficient consideration. Learned counsel also submitted that the adequacy or inadequacy of consideration cannot be a ground for refusing the relief of specific performance. S.A.No.538 Of 1997 ::8:: 11. Taking into consideration of all the facts and circumstances which I have discussed in the preceding paragraphs, this Court is of the view that re-appreciation of facts, evidence and consideration of law on the points referred above is necessary. The lower appellate court shall advert to all the questions referred above and also other contentions, if any, urged before it by the counsel on both sides. In the result, the appeal is allowed. The judgment and decree passed by the lower appellate court is set aside. The case is remanded to the lower appellate court for fresh consideration. The lower appellate court shall dispose of the case afresh at an early date after issuing notice to the parties. The appellant is entitled to refund of the court fee. There will be no order as to costs. HARUN-UL-RASHID, Judge. bkn/-