IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 AS.No. 882 of 1997(E) --------------------- OS.382/1995 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT/PLAINTIFF: ----------------- REV.FATHER JOSEPH VELIYATHIL, REPRESENTING THE CATHOLIC DIOCESE OF PALAKKAD, RESIDING NEAR K.S.R.T.C., PALAKKAD. BY ADV. SRI.J.JULIAN XAVIER RESPONDENTS/DEFENDANTS & ADDL. RESPONDENTS 5 TO 7: -------------------- 1. APPU ALIAS SUBEER, S/O.KOYAMMU RAWTHER, KALIMANPADAM, YAKKARA DESOM, YAKKARA AMSOM, PALAKKAD TALUK. (DECEASED ON 12/7/97. LEGAL REPRESENTATIVES ARE RESPONDENT NO. 2 WIFE AND ADDL. RESPONDENTS 5 TO 7). 2. UMMUSALMA, W/O. APPU ALIAS SUBEER, KALIMANPADAM, YAKKARA DESOM, YAKKARA AMSOM, PALAKKAD. 3. JALEEL, S/O.MOIDEEN RAWTHER, RESIDING AT VALLIKKATTIL, MANJALLOOR DESOM, MANJALLOOR AMSOM, ALATHUR TALUK. 4. HAWA UMMA, W/O. MOIDEEN RAWTHER, RESIDING AT -DO- -DO- 5. SAINABA, AGED 18, D/O. LATE SUBEER, KALIMANPADAM, YAKKARA DESOM, YAKKARA AMSOM, PALAKKAD TALUK. 6. GASIMA, AGED 16YEARS, D/O. LATE SUBEER, -DO- -DO- 7. ABDULHAKKIM, AGED 15, S/O. LATE SUBEER, -DO- -DO- THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 18/01/2010,. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------- A.S.NO.882 OF 1997 -------------------------- DATED THIS THE 18TH DAY OF JANUARY, 2010 JUDGMENT Plaintiff in O.S.No.382/95 on the file of the Sub Court, Palakkad is the appellant. The suit was filed for return of the advance money paid. The court below passed a decree allowing the claim of the plaintiff and directed defendants 1 to 4 to re-pay the advance amount with interest at the rate of 12% per annum to the plaintiff. The contention of the plaintiff that the defendants are jointly and severally liable for the plaint amount was not allowed. Hence this appeal by the plaintiff. The parties hereinafter referred to as the plaintiff and defendants as arrayed in the suit. 2. The plaintiff and defendants (4 in number) entered into an agreement for sale of the plaint schedule property. Ext.A1 is the said agreement dated 20/3/1995. The total extent is 2.80 -2- A.S.No.882/97 acres. The said extent belongs to the defendants. The defendants purchased the property under different sale deeds. The properties are lying contiguous. The price agreed between the parties is Rs.6,000/-per cent. As per Ext.A1 agreement the plaintiff has paid Rs.8,00,000/- as advance. The defendants received Rs.2,00,000/- each as advance amount towards the sale of their respective properties. On the date of execution of Ext.A1 agreement, the defendants handed over four copies of the sale deeds relating to the plaint schedule properties. The defendants agreed that they will execute the sale deed within the date specified in Ext.A1 agreement. The defendants purchased their respective plots from one Janaki Amma. Before the expiry of the period for execution of the sale deed, plaintiff came to know that neither the defendants nor their vendor Janaki Amma has got title over the property. According to the plaintiff, the defendants have practiced fraud on the plaintiff. The plaintiff's case is that there -3- A.S.No.882/97 was a suit pending before the Sub Court, Palakkad against Janaki Amma for eviction and in that suit a decree was passed against Janaki Amma and that after the decree, the defendants in collusion with Janaki Amma without disclosing the true facts, got executed four sale deeds in their favour and are acting as the owners of the properties. They have executed Ext.A1 agreement for sale in favour of the plaintiff. Finding that the defendants have no right or title, the plaintiff approached the court below praying for a decree allowing him to realise Rs.8,00,000/- with 12% interest from the defendants and their assets. 3. The contention of the plaintiff that neither the defendants nor their vendor Janaki Amma is having any right over the plaint schedule property is conceded by the defendants. According to the defendants, they purchased the property from Janaki Amma believing that she is the title holder. They also denied the contention of the plaintiff that they have colluded with -4- A.S.No.882/97 Janaki Amma in executing Ext.A1 agreement in favour of the plaintiff. The trial court examined the issues on the basis of the oral evidence tendered by PW1, DW1 and Exts.A1 and A2 documents. On the basis of the pleadings, evidence and attendant circumstances, the trial court held that the defendants are unable to convey title to the plaintiff and that the plaintiff is entitled to recover the advance money paid with 12% interest from the date of payment. The trial court, after examining the testimonies of PW1 and DW1, also held that patently the acts of the defendants reveal some fraudulent play and therefore, the plaintiff is entitled to the relief claimed. The contention of the plaintiff that the defendants are jointly and severally liable for the plaint amount was not accepted by the court below and held that there cannot be any joint or several liability. 4. The learned counsel for the appellant contended before this court that since Ext.A1 agreement was executed -5- A.S.No.882/97 jointly by defendants 1 to 4 and since they have jointly promised to execute the sale deed after convincing the plaintiff that they are title holders of the property, the finding of the court below that the defendants are not jointly and severally liable for return of the plaint amount is not sustainable in law. The learned counsel for the appellant also pointed out that Section 43 of the Indian Contract Act is squarely applicable to the case on hand and therefore a decree may be passed fastening joint and several liability on the respondents. It is also contended that the circumstances show that the defendants made a concerted attempt to defraud the plaintiff, induced him to enter into an agreement to purchase the property over which the defendants had no title and compelled the plaintiff to pay Rs.8,00,000/-as advance amount and hence they are jointly and severally liable to compensate the plaintiff for the loss suffered by him. 5. This Court already referred the nature of the decree -6- A.S.No.882/97 passed by the trial court. The plaintiff is allowed to realise a sum of Rs.2,00,000/- each with interest at 12% per annum from defendants 1 to 4. Ext.A1 sale deed was executed between the plaintiff and defendants 1 to 4. At the time of execution of Ext.A1 agreement, defendants 1 to 4 are the owners of separate properties covered by different sale deeds mentioned in Ext.A1 agreement. It is stated in Ext.A1 agreement that each defendant is the owner of a particular extent of land covered by the sale deed in his favour. In Ext.A1 it is revealed that each of the defendants had received Rs.2,00,000/- towards advance sale consideration for sale of their respective properties. Instead of executing four different agreements agreeing to convey the four different properties of the defendants, they jointly executed Ext.A1 agreement. Though five persons jointly executed one document, it is clear that each defendant has agreed to convey his property to the plaintiff for the stipulated consideration. So long as the -7- A.S.No.882/97 transaction is between the separate property owners and the plaintiff, four different transactions can be spelled out from the terms of Ext.A1 agreement. Instead of preparing and executing four different agreements, the four transactions are entered into by executing a single document. Since transactions are distinct, separate and independent of each other, even if the four persons joined in one document, the transaction remained separate and therefore the liability also remained individual. Therefore, the contention of the defendants that there is no joint or several liability; but each one is personally liable for the amount they have received is accepted. The trial court also examined the respective contentions of the parties in detail and reached the conclusion that the plaintiff is entitled to a decree. At the same time, the court below held that there cannot be held any joint or several liability. I hold that the view taken by the court below is the only possible view in the given circumstances. I do not find -8- A.S.No.882/97 any reason to interfere with the findings entered by the court below. In the result, the judgment and decree passed by the court below are confirmed. The appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv.