IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 RSA.No. 1 of 2004(A) ---------------------------------- AS.225/2000 of II ADDL.DISTRICT COURT,ERNAKULAM OS.29/1997 of I ADDL.M.C.,ERNAKULAM .................... APPELLANTS//APPELLANTS/PLAINTIFFS: 1. KUNJAN BAVA, S/O. LATE POOVAN KANNANJI, NJARAMBATH HOUSE, CHEPPANAM, PANANGAD P.O., COCHIN 682506. 2. SUKUMARAN, S/O. DO. DO. DO. 3. AMBUJAKSHAN S/O. DO. DO. 4. KARTHIKEYAN S/O. DO. DO. DO. 5. INDIRA D/O. DO. DO. DO. 6. RAMANAN S/O. DO. DO. DO. 7. KOUSALYA W/O. DO. DO. DO. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.PRAVEEN K. JOY SMT.THANKOM.G RESPONDENTS/RESPONDENTS/DEFENDANTS: 1. SMT.KAVU, W/O. LATE KANNANJI CHARITHAN, KOCHUKARIATHARA VEEDU CHEPPANAM DESOM, PANANGAD P.O., COCHIN 682 506. 2. THANKAPPAN S/O. LATE KANNANJI CHARITHAN, KOCHUKARIATHARA VEEDU CHEPPANAM DESOM, PANANGAD P.O., COCHIN 682 506. ADV. SRI.S.SREEKUMAR FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- R.S.A.No.1 of 2004 -------------------------- JUDGMENT Plaintiffs in O.S.No.29/1997 on the file of Munsiff's Court, Ernakulam are the appellants. Respondents are the defendants. Appellants instituted the suit for declaration of title to the plaint schedule property and for its recovery of possession from the respondents. Allegations in the plaint are that plaint schedule property originally belonged to late Poovan Kannanji who obtained it on kudikidappu right. Respondents are the wife and son of late Kannanji Charithan. During the life time of late Poovan Kannanji, he had pledged the plaint schedule property with late Kannanji Charithan for a loan and appellants were minors at that time and did not know the terms of the loan and after they become major, they started to enquire the possession of the property and wished to redeem the property after paying the amount, if any, to late RSA 1/04 2 Poovan Kannanji. Appellants have no other property and they were seeking to get possession of the property and respondents were not ready to part with the property and as attempts for an amicable settlement failed, suit was instituted and they are entitled to get decree for declaration of their title and recovery of possession. 2. Respondents filed a joint written statement contending that there was no pledge of the property as alleged and instead Poovan Kannanji, who obtained kudikidappu right as per order in O.A.No. 222/1973, agreed to sell the plaint schedule property to Kannanji Charithan and executed Exhibit B1 agreement, agreeing to sell 10 cents of property for a consideration of Rs.250/- per cent and at the time of executing Exhibit B1, he received Rs.1,900/- from Kannanji Charithan and agreed to execute the sale deed after receiving the balance consideration on or before 16.9.1974. It is contended that, subsequently, on 15.9.1974, RSA 1/04 3 Kannanji Charithan paid the balance sale consideration of Rs.600/- to Poovan Kannanji who accepted the same and the kudikidappu certificate was also handed over to Kannanji Charithan. Subsequently, Kannanji Charithan died and in spite of the request, the legal heirs did not execute the sale deed and respondents are entitled to the protection provided under Section 53A of Transfer of Property Act and plaintiffs are, therefore, not entitled to get decree for declaration of title and recovery of possession. 3. Learned Munsiff, on the evidence of PW1, DWs 1 and 2 and Exhibits A1, B1 to B6 and C1 dismissed the suit finding that under Exhibit B1 agreement for sale executed by Poovan Kannanji, he had agreed to sell the plaint schedule property to the respondents and put them in possession and therefore, respondents are entitled to the protection under Section 53A of Transfer of Property Act. Appellants challenged the judgment RSA 1/04 4 and decree before District Court, Ernakulam in A.S. No.225/2000. Learned Additional District Judge, on re-appreciation of evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the Second Appeal. 4. Second Appeal was admitted formulating the following substantial question of law: “Are the courts below justified in holding that the defendants are entitled to the benefit of Section 53A of the Transfer of Property Act in the facts of the case?” 5. Conditions required to be fulfilled when a transferee sets up a defence of protection of his possession under Section 53A of Transfer of Property Act is now well settled. First of all, there must be a contract to transfer for consideration of any immovable property. The contract must be in writing, signed by the transferor or by some one on his behalf. The writing must be in such words from which the terms necessary to constitute a transfer can be RSA 1/04 5 ascertained. The transferee must, in part performance of the contract, take possession of the property or of any part thereof. Transferee must have done some act in furtherance of the contract. Finally, transferee must have performed or be willing to perform his part of the contract, even if the period of limitation provided for a suit for specific performance of the contract is not lost. Irrespective of the bar of limitation provided, the conditions stipulated are to be satisfied. A person in possession can defend his possession against a suit for recovery of possession based on Section 53A of Transfer of Property Act. The burden to plea and prove the requirements of Section 53A is definitely on the respondents in this case. 6. Argument of the learned counsel appearing for the appellants is that though Exhibit B1 agreement was sought to be proved by examination of DW1, second defendant and DW2, one of the witnesses to Exhibit B1 agreement, subsequent endorsement RSA 1/04 6 dated 15.9.1974 was not proved and as none of the witnesses to that endorsement was examined and no evidence was let in to prove the signatures of the attesting witnesses therein or the executant of the agreement. Therefore, there is no evidence to prove that balance consideration of Rs.600/- payable under Exhibit B1 was paid and even if Exhibit B1 agreement is accepted, as respondents failed to establish that they have done some act in furtherance of Exhibit B1 agreement, courts below should not have granted the benefit of Section 53A to them. It was argued that Exhibit B1 agreement is dated 21.7.1974 and the alleged payment of Rs.600/- was on 15.9.1974. In spite of the allegation that entire consideration was paid, till now, respondents have not taken any steps to get the registered sale deed executed and in such circumstances, when there is no evidence to prove that respondents have done some act in furtherance of Exhibit B1 agreement, they are not entitled to RSA 1/04 7 get protection under Section 53A of Transfer of Property Act. Reliance was placed on the decisions of the Apex Court in FGP Limited v. Saleh Hooseini Doctor ((2009) 10 SCC 223), Sardar Govindrao Mahadik v. Devi Sahai ((1982) 1 SCC 237) and Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra (Dead) Through LRs. ((2004) 8 SCC 614) and decision of this Court in N.G.Vigneshwara Bhat v. P.Srikrishna Bhat (2006 (1) KLJ 7), in support of the argument. 7. Learned counsel appearing for the respondents pointed out that facts of the case are to be appreciated based on the conduct of the parties. It was pointed out that Exhibit B5 notice was sent by the second appellant on 5.8.1985, after the death of the executant of Exhibit B1 agreement. Allegation in Exhibit B5 lawyer notice was that trees were entrusted to the predecessor in interest of the respondents after obtaining money. In Exhibit B6 reply notice sent by the predecessor in RSA 1/04 8 interest of the respondents on 14.8.1985, it was specifically alleged that there is an agreement for sale and part of the sale consideration was paid on the date of execution of the agreement and subsequently, the balance consideration was also paid and nothing is to be performed by the respondents and it is only for the legal heirs of the executant of Exhibit B1 agreement to execute the sale deed. It is pointed out that existence of Exhibit B1 agreement was known even prior to the appellants, as Exhibit B5 notice specifically discloses that agreement for sale was shown to the second appellant from the police station when a complaint was raised. It was pointed out that in spite of Exhibit B6 reply notice, no action was taken and Exhibit A1 notice was issued after a decade, on 12.11.1996 and the contention raised in Exhibit A1 notice was different from the case set up in Exhibit B5. It was pointed out that in Exhibit A1 notice, it was alleged that father of RSA 1/04 9 the appellants borrowed some money from Charithan, father of the second respondent, during 1976-78 and allowed him to take the usufructs from the property and appellants are prepared to pay the amount, if any, due and demanded possession of the property. It is pointed out that in Exhibit B3 reply notice, respondents disclosed the case once again and when the suit was instituted thereafter, nothing is stated about Exhibit B1 agreement for sale. It was argued that in spite of the knowledge about the agreement for sale and the case of the respondents, they are claiming protection under Section 53A of Transfer of Property Act. It is not pleaded in the plaint that Poovan Kannanji did not execute an agreement for sale or did not receive part of the sale consideration on the date of execution of Exhibit B1 agreement or the balance consideration of Rs.600/- on 15.9.1974 as claimed and in such circumstances, when it is admitted in the plaint itself that appellants are unaware of the RSA 1/04 10 transaction, evidence of DWs 1 and 2, with Exhibit B1 agreement, establish that pursuant to the agreement for sale, father of the second respondent was put in possession of the property and subsequently, Rs.600/-, being the balance consideration, was paid and it is an act in furtherance of the contract. In Exhibits B3 and B6 reply notices, they have expressed their willingness to perform their part of the contract disclosing that they have performed their part and it is for the appellants to execute the sale deed and therefore, there is no reason to interfere with the decree passed by the courts below. 8. Exhibit B5 was the notice issued by the second appellant in 1985. It discloses that a complaint was filed before the police when second appellant tried to pluck coconuts from the plaint schedule property and from the police station, respondents had shown a document, purporting to be an agreement for sale. Exhibit B6 reply sent by the RSA 1/04 11 respondents on 14.8.1985 discloses existence of an agreement for sale dated 21.7.1974. Their case is that father of the second respondent was put in possession of the property pursuant to the agreement for sale, that on 15.9.1974 the balance consideration of Rs.600/- was paid and received by Poovan Kannanji and Kudikidappu Certificate in respect of the property was also handed over by Poovan Kannanji to Charithan. Appellants, thereafter, sent Exhibit A1 notice after eleven years. In Exhibit A1 notice also, nothing was stated about the agreement for sale. That notice was sent as if they were unaware of Exhibit B1 agreement for sale or the case of the respondents that they are claiming right under an agreement for sale. It is the case in Exhibit A1 notice that their father borrowed some amount from Kannanji Charithan between 1976 and 1978 and allowed him to take the usufructs from the property. It is thereafter the suit was instituted, after receipt RSA 1/04 12 of Exhibit B3 notice, wherein, respondents have reiterated the case which was taken up in 1985 in Exhibit B6 reply notice. As rightly pointed out by the learned counsel appearing for the respondents, in spite of the awareness of the claim based on an agreement for sale, appellants have no case in the plaint that Poovan Kannanji did not execute an agreement for sale or did not receive part of the sale consideration as advanced or did not put Kannanji Charithan in possession of the property in part performance of the agreement for sale or did not receive Rs.600/- later, on 15.9.1974, as consistently pleaded in Exhibits B3 and B6 reply notices. Entire case is to be appreciated in this background. 9. Second respondent was examined as DW1. Evidence of DW1, though, does not specifically disclose that he had seen Poovan Kannanji executing the endorsement seen in Exhibit B1 on 15.9.1974 or the attesting witnesses affixing their signatures RSA 1/04 13 therein, in cross-examination, it was brought out that second respondent was present when Rs.600/- was paid on 15.9.1974. In cross-examination, DW1 deposed that said payment was made from his house and it was written by the person shown in the document and witnesses had signed in the document. Though there is no specific averment in the deposition that he had seen them executing the endorsement dated 15.9.1974, on a proper appreciation of evidence, it can only be found that DW1 was present at that time and he had seen payment of Rs.600/- by his father which was accepted by Poovan Kannanji and that fact was endorsed in Exhibit B1 in the presence of the witnesses. Evidence of DW1 establishes that both the witnesses, who attested the said endorsement, are now no more and therefore, they were not available for examination. True, their signatures as such were not proved by examining any person who is competent to prove the same. But, on the facts RSA 1/04 14 of the case, I do not find that it is fatal. Evidence of DW1 establishes that Rs.600/- as shown in Exhibit B1 was paid and received and that fact was recorded in Exhibit B1 agreement. At this juncture, contentions raised in Exhibit B5 are to be borne in mind. Though Exhibit B5 notice does not disclose execution of an agreement for sale, it shows that second appellant admitted that his father had received Rs.600/- in respect of the transaction entered into with Charithan. There is no case that except Rs.600/-, which is shown in Exhibit B1, namely, payment made on 15.9.1974, no other Rs.600/- was paid. Therefore, that allegation in Exhibit B5 notice strengthens the endorsement in Exhibit B1 agreement that Rs.600/- was paid on 15.9.1974. Contention of the appellants is to be appreciated based on the specific contention raised in the plaint. It reads: “At the relevant time, plaintiffs 3 to 6 were minors and they did not know the terms of the loan amount and on they become majors, they started to enquire RSA 1/04 15 the possession of the property and wish to redeem their property after paying the amount, if any, to late Kannanji Charithan.” It is thus clear that appellants are not aware of the details of the transaction or even the nature of the transaction. If they were aware of the nature of the transaction, they would not have sent Exhibit B5 notice stating that Rs.600/- was obtained and Charithan was permitted to take usufructs from the property or later, would not have alleged in Exhibit A1 notice that Poovan Kannanji had borrowed some amount from their father between 1976 and 1978 and given the property as security or would have pleaded in the plaint that plaint schedule property was “pledged for the amount borrowed”. When the entire evidence is appreciated in the proper perspective, it can only be found that in furtherance of Exhibit B1 agreement, Charithan had paid Rs.600/-, being the balance consideration. By the said payment, entire sale consideration was paid. What remains is only RSA 1/04 16 execution of the sale deed. True, neither Charithan nor respondents have instituted a suit for getting the sale deed executed. But, in Exhibits B6 and B3 reply notices, they have disclosed existence of an agreement, their willingness to perform their part of the contract and also stated that what remains is only execution of the sale deed and also allege that they had demanded the appellants to execute the sale deed. The fact that they did not institute a suit for specific performance of the agreement will not disentitle them to get protection of Section 53A of Transfer of Property Act, on the facts of this case. In such circumstances, I find no reason to interfere with the concurrent decree and judgment passed by the courts below. Appeal is dismissed. But, in the circumstances of the case, without prejudice to the rights of the appellants. 11th February, 2011 (M.Sasidharan Nambiar, Judge) tkv