IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 11TH AUGUST 2008 / 20TH SRAVANA 1930 WP(C).No. 17285 of 2007(G) ----------------------------------------- (O.S.NO.528/2002 OF SUB COURT, IRINJALAKUDA) PETITIONER: ( DEFENDANT IN OS): ---------------------------------------------------- SUKUMARAN NAIR, S/O. NARAYANAN PILLAI, AGED 53, NARAYANA BHAVAN, KAVUTHARA DESOM, KODAKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT. GEETHA P.MENON RESPONDENT: (PLAINTIFF IN OS): ----------------------------------------------------- KRISHNANKUTTY NAIR, S/O. NARAYANA PILLAI, AGED 65, *(NARAYANA BHAVAN, NEAR POONILARKAVU TEMPLE, KODAKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT) -CORRECTED *THE ADDRESS OF THE RESPONDENT IS CORRECTED AS: “NARAYANA BHAVANAM”, MANAKULANGARA P.O., ASHARIMULA, KODAKARA, THRISSUR DISTRICT, PIN – 680 684 – AS PER ORDER DTD. 4/06/08 IN I.A.NO.6717/08. BY ADV. SRI.RENJITH THAMPAN – R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.17285/2007 G APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE DOCUMENT DTD. 20/04/1990 STYLED AS 'AGREEMENT'. EXT.P2: COPY OF THE ORDER DTD. 09/03/2007 PASSED BY THE LEARNED ADDL.SUBORDINATE JUDGE, IRINJALAKUDA IN O.S.NO.528/2002. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.17285 of 2007 ------------------------------- Dated this the 11th August, 2008. J U D G M E N T This petition is filed under Article 227 of the Constitution of India challenging Ext.P2 order passed by Sub Judge, Irinjalakuda, in O.S.No.528 of 2002, rejecting the contention raised by petitioner- defendant that Ext.P1 document is not a bond, but an agreement. 2. The learned senior counsel appearing for the petitioner and learned counsel appearing for respondent were heard. 3. Learned senior counsel argued that Ext.P1 is not an admitted document and its genuineness is disputed. Learned Senior Counsel also pointed out that the document is dated 20.4.1990 and is written in a stamp paper worth Rs.50/=, though under Article 5 of Schedule I is amended by Act 23 of 1996, stamp duty payable for an agreement is only Rs.15/=, and stamp paper is purchased from a vendor at Thrissur and Vendor No.9, Sankaran Kutty is doing business of stamp at Kodakara and his place of business is just opposite to the residence of the petitioner, and the suit infact is instituted to wreck vengeance on the petitioner who had deposed W.P.(C) No.17285 of 2007 2 against respondent in O.S.No.65 of 1985, on the file of Sub Court, Irinjalakuda, in a suit filed by P.C.Ammukkutti, the wife of respondent for partition of two items of properties. It was pointed out that said Ammukkutti was thrown out from matrimonial house in 1985, and later respondent married the present wife and in O.S.No.65 of 1985, petitioner deposed that respondent had married Ammukkutti and she is entitled to one half share and it is for that reason Ext.P1 was created with the help of George. Petitioner is the brother of the respondent. Learned Senior Counsel also argued that in view of sub-section (1) of Section 4 of Benami Transactions (Prohibition) Act, 1988, respondent is not entitled to claim any right in the property which stands in the name of the petitioner, on the basis that it was purchased Benami in the name of petitioner, and if that be so, the recital in Ext.P1 cannot be treated as a statement about existence of an antecedent debt and hence Ext.P1 is to be treated as a bond, as defined under sub- section (a) of Section 2 of Kerala Stamp Act. Learned senior counsel also argued that in such circumstances finding in Ext.P2 order that Ext.P1 is an agreement and not a bond is not sustainable. 4. Learned counsel appearing for the respondent argued that the suit is not in respect of the property, but for the W.P.(C) No.17285 of 2007 3 amount due to the respondent from the petitioner and Ext.P1 is not a bond as defined under sub-section (a) of Section 2 of Kerala Stamp Act, and it is only an agreement, and there is no illegality or irregularity in Ext.P2 order, and in any case, Ext.P2 order is not perverse warranting interference in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India. 5. The question whether the transaction evidenced by Ext.P1 is hit by the provisions of sub-section (1) of Section 4 of Benami Transactions (Prohibition) Act, 1988, is not to be decided in this writ petition. The only question to be considered is whether finding of learned Sub Judge that Ext.P1 is an agreement and not a bond as provided under Kerala Stamp Act is legal and correct. 6. A reading of Ext.P1 shows that petitioner and respondent as a result of mediation agreed to settle the disputes by executing an agreement incorporating the terms of settlement. It shows that parties agreed that the property worth Rs.6 lakhs was purchased in the name of petitioner, utilising the amount advanced by the respondent. It further shows that parties agreed that Rs.3 lakhs, which was due to the respondent, will be paid as provided thereunder. W.P.(C) No.17285 of 2007 4 Ext.P1 does not incorporate a condition that the condition shall be void, if a specified act is performed or is not performed as mandated under sub-section (i) of Section 2 (a) of Kerala Stamp Act. Therefore, it cannot be said that Ext.P1 is a bond. I do not find any reason to interfere with Ext.P2 order on the finding that it is an agreement. Though stamp duty payable for an agreement is only Rs.15/=, it is written in a stamp paper worth Rs.50/=. Therefore, the document is sufficiently stamped. The question whether Ext.P1 is hit by the provisions of Benami Transactions (Prohibition) Act, 1988, is to be decided by learned Sub Judge, on the evidence, if that question arises for consideration. Petitioner is also entitled to challenge Ext.P1 on all other grounds taken in this writ petition. The writ petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.