IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 AS.No. 551 of 1997() ----------------------------- OS.421/1994 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT(S): PLAINTIFFS ----------------------- THOMAS JOSEPH, RESIDING AT NADUVELEDATHU, PUTHAMACKAL, NEDUMKUNNAM KARA, KARUKACHAL VILLAGE. BY ADV. SRI.K.RAMACHANDRAN SRI.K.MANU RAJ RESPONDENT(S): DEFENDANTS ------------------------ 1. THOMMI, S/O. THOMA , PATHAMMACKAL, KIZHAKKEKUTTU, NEDUMKUNNAM KARA, KARUKACHAL VILLAGE NOW RESIDING AT CHILLKUNNU ALUMKKAL.(DIED) 2. CHACKO, S/O. MATHAIL, RESIDING AT KIZHAKKEKUTTU, PUTHUMMACKAL, NEDUMKUNNAM KARA, KARUKACHAL VILLAGE. 3. ALEKUTTY, W/O. JOSEPH, RESIDING AT NADUVELADATHU, PATHAMMACKAL, NEDUMKUNNAM KARA, KARUKACHAL VILLAGE. *ADDL. R4 TO R8 IMPLEADED 4. MONCY, W/O. CHACKO, THADATHIL, ELANPPILLY KAR, ANICKADU VILLAGE. 5. KUNJAMMA PHILIP W/O. PHILIP, ALUMKAL HOUSE, CHELLAKUNNU JUNCTION, MUNDATHANAM, KOTTAYAM DIST. 6. MEYAMMA THOMAS, KOTTARATHIL HOUSE, PUNNAKKUNNU, JUNCTION, THENGANA P.O. A.S. NO.551/1997 7. ANNAMMA THOMAS, KAVUNKAL HOUSE, CHETTUTHODU P.O., PINNUKKUNADU, KANJINAPPALLY. 8. THANKAMMA THOMAS, NADUVELADATHU, PATHAMACKAL, KOOTHRAPALY P.O., KAVUKACHAL. ADDL. RESPONDENTS 4 TO 8 IMPLEADED AS THE LR'S OF THE DECEASED IST RESPONDENT, VIDE ORDER DTD. 10.1.07 ON IA. 3709/2006. R2 BY ADV. SRI.JOMY GEORGE R3 BY SRI.V.PHILIP MATHEW R6 BY SRI.TITUS MANI , SRI.SURAJ SUKUMARAN . THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 24/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN, J ===================== A.S. No.551 OF 1997 ===================== Dated this the 24th day of May 2010 JUDGMENT This appeal is preferred against the judgment and decree passed by the Prl.Sub Court, Kottayam in O.S.No.421 of 1994. The brief facts necessary for the disposal of the appeal are as follows: It is the case of the plaintiff that he had purchased properties by virtue of Ext.A3 document for a valid consideration from the first defendant and later it was found that the first defendant did not have valid title to the property and so the plaintiff has claimed reimbursement of Rs.70,000/- paid by him to the first defendant. On the other hand, the contesting defendants would contend that Ext.A3 is a document not supported by consideration and it is a document intended to defeat the real owner of the property and so the plaintiff is not entitled to any relief. 2. In the court below Exts.A1 to A5 and B1 to B5 were marked and PW1 and DW1 were examined. The court below on appreciation of the materials dismissed the case of the plaintiff. It is against that decision, the plaintiff has come up in appeal. AS 551/1997 -:2:- 3. The point that arises for determination in the appeal are :(1) Whether the plaintiff is entitled to the amount claimed in the suit. (2) Is there anything to interfere with the decision of the court below. 4. Points 1 and 2: It is the case of the plaintiff that he had purchased the property covered by Ext.A3 for a valid consideration from the first defendant and it has later turned out that the first defendant did not have any valid title over the property and therefore reimbursement of Rs.70,000/- is claimed in the suit. Learned counsel for the appellant very strongly contends before me that the absence of consideration is a matter which the defendants have to prove in the light of the recitals in Ext.A3. Now before proceeding into this aspect, it is always desirable to refer to the back history of the case. The first defendant has got two sons-in-law. One son-in- law is the plaintiff and the other son-in-law is the second defendant. The first defendant by virtue of a gift deed in the year 1984 gifted this property in favour of the second defendant. There was a reservation in the document to the effect that the first defendant can enjoy the property by taking usufructs and further the second defendant has to look after a disabled daughter of the first defendant. After a few days the first defendant has cancelled the gift deed stating that the gift has not been accepted or acted upon. In order to invalidate that cancellation the second defendant moved a AS 551/1997 -:3:- suit before the court below as O.S.No.312/1986 and that suit was decreed in favour of the second defendant upholding the validity of the gift deed and the title. Or, in other words, a competent court of civil jurisdiction had found that the property exclusively belonged to the second defendant. It was during the pendency of this litigation Ext.A3 document is executed in favour of the plaintiff. This plaintiff pretends ignorance about so many things. But, it has to be remembered that the 3rd defendant, who is the wife of the plaintiff had purchased 24 cents of property which the second defendant obtained as per the gift deed executed by D1 in favour of D2. When confronted with a difficult situation, the plaintiff would contend that his wife did not consult. It is too much to believe the same and therefore things are crystal clear as day light that the plaintiff was totally aware of the gift deed executed by the first defendant in favour of the second defendant. It is in this background one has to analyse regarding the validity of Ext.A3. It has come out in evidence that the plaintiff is not having great resources. Even according to him his income from the property was only Rs.10,000/- per annum. He would depose that he had maintained accounts, but strangely, he did not produce it. Further, the recitals in Ext.A3 is not payment of consideration in lump. The payment of consideration is recorded as the amount borrowed by the first defendant from the plaintiff AS 551/1997 -:4:- by executing promissory notes and it is towards the satisfaction of the same, the document is executed. So, there was no actual passing of consideration on the date of execution of the document. I am conscious of the fact that past consideration is also a valid consideration. It has to be remembered that a person who is alleged to have started borrowing from 1978 did not execute a document in the year 1984 in favour of the plaintiff, but executed a gift deed in favour of the second defendant. Under ordinary circumstances, nobody would have kept quite. There is no evidence forthcoming to show the capacity of the plaintiff to advance the amount. In paragraph 14 the court below has noted the bundle of contradictions made by the plaintiff in the case. In one breath it was deposed that the money was his agricultural income and in another breath it was deposed that the amount was borrowed from the bank. In the same breath he added that the amount was borrowed from his wife. Therefore the passing of consideration is not clearly or even remotely established in this case. When a document is registered and there is a recital there is presumption regarding consideration. When the entire materials are available before court and it is analysed, it can be seen that the plaintiff is the son-in-law who was totally conscious of a decree against the father-in-law and fully knowing that gift deed he had been executed in favour of the second AS 551/1997 -:5:- defendant had obtained a document from the first defendant which is not supported by consideration. From the analysis of the materials, I also agree with the trial court regarding the whole discussion and decision. Therefore the appeal lacks merit and the same is dismissed. But, I direct the parties to bear their respective costs. M.N.KRISHNAN, JUDGE Cdp/-