IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 1ST APRIL 2008 / 12TH CHAITHRA 1930 AS.No. 808 of 1999(B) --------------------- OS.150/1995 of SUB COURT,NEYYATTINKARA .................... APPELLANTS/PLAINTIFFS: ---------------------------------- 1. AZHIMALA SIVA KSHETRA DEVASWOM TRUST PULINKUDI, REP. BY PRESENT GENERAL SECRETARY P.S.CHANDRA KUMAR, S/O.SADASIVA PANICKER, A.C.VILLA, PULINKUDI, MULLOOR P.O., VIA VIZHINJAM. (SUBSTITUTED) 2. S.RAJENDRAN, S/O.SIVASANKARAN, PRESENT PRESIDENT OF AZHIMALA SIVA KSHETRA DEVASWOM TRUST, RESIDING AT R.B.NIVAS, PULINKUDI, NEYYATTINKARA. (SUBSTITUTED) 1. AZHIMALA SIVA KSHETHRA DEVASWOM TRUST, PULINKUDI KOTTUKAL VILLAGE, REPRESENTED BY ITS GENERAL SECRETARY, N.J.SHAMMI, S/O. NEHRU, RESIDING AT VALIAVILA VEEDU, KOTTUKAL VILLAGE, NEYYATTINKARA TALUK. 2. P. PUSKARA PANICKER, RESIDING AT SURESH BHAVAN, PULUMKUDI, MULLOOR, KOTTUKAL VILLAGE, PRESIDENT OF THE AZHIMALA SIVA KSHETHRA DEVASWOM TRUST, PULINKUDI, KOTTUKAL VILLAGE. (NAMES OF APPELLANTS ARE SUBSTITUTED AS PER ORDER DATED 1.4.2008 IN I.A. NO.463 OF 2004) BY ADV. SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.T.M.CHANDRAN & SRI.P.GOPAL RESPONDENTS/DEFENDANTS: ----------------------------------------- 1. GOMATHY, W/O.LATE ARJUNAN, AGED 62 YEARS, RESIDING AT MAVILA PUTHUVAL THOTTATHU PUTHEN VEEDU, CHOWARA, KUTTUKAL VILLAGE, NEYYATTINKARA TALUK. A.S. NO.808 OF 1999 2. VIJAYALEKSHMI, D/O.GOMATHY, AGED 47 YEARS, RESIDING AT -DO- -DO- -DO- 3. JAYAKUMARI, D/O.GOMATHY, AGED 40 YEARS, RESIDING AT -DO- -DO- -DO- 4. SAKUNTHALA KUMARI, D/O.GOMATHY, AGED 36 YEARS, RESIDING AT -DO- -DO- -DO- 5. A.ASOK KUMAR, S/O.LATE ARJUNAN, AGED 32 YEARS, RESIDING AT -DO- -DO- -DO- 6. SANTHAKUMARI, D/O.GOMATHY, AGED 44 YEARS, RESIDING AT -DO- -DO- -DO- (*)7. NARAYANANANDAN, S/O.LATE VELAYUDHAN, AGED 60 YEARS, RESIDING AT K.P.VI/532, PUTHUVAL THOTTATHU, PULINKUDI, KOTTUKAL VILLAGE, NEYYATTINKARA TALUK. (DIED. LRS IMPLEADED) 8. GOPINATHAN, S/O.BHANU PANICKER, AGED 57 YEARS, RESIDING AT BAKTHIVILASOM, KOTTUKAL VILLAGE, NEYYATTINKARA TALUK. ADDL.RESPONDENTS 9 TO 13 IMPLEADED: 9. VIJAYAMMA, W/O.LATE NARAYANANANDAN, RESIDING AT L.P.VI/532, PUTHUVAL THOTTATHU, PULINKUDI, KOTTUKAL VILLAGE, NEYYATTINKARA TALUK. 10. N.V.SHAJI, S/O.LATE NARAYANANANDAN, -DO- -DO- -DO- 11. N.V.VIJAYAN, -DO- -DO- -DO- 12. N.V.SHANMUGHAN, -DO- -DO- -DO- 13. N.V.JAYACHANDRAN, -DO- -DO- -DO- ADDL.RESPONDENTS 9 TO 13 ARE IMPLEADED AS THE LRS OF DECEASED 7TH RESPONDENT AS PER ORDER DATED 16.7.2002 ON CMP NO.4336/2001. R6 BY ADV. SRI.R.S.KALKURA R2 BY ADV. SRI.G.S.REGHUNATH R1 BY ADV.SRI.K.P.SREEKUMAR THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 01/04/2008 ALONG WITH CROSS-OBJECTION, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = A.S. NO. 808 OF 1999 AND CROSS OBJECTION = = = = = = = = = = = = = = = = = = = Dated this the 1st day of April, 2008 J U D G M E N T -------------------- The appeal is filed by the plaintiffs in O.S.No.150/95, on the file of Subordinate Judge's Court, Neyyattinkara challenging the decree and judgment of the court below dismissing the suit. The memorandum of Cross Objection is filed by the first defendant challenging a finding in the judgment. 2. The first plaintiff, Azhimala Siva Kshetra Devaswom Trust is represented by its General Secretary. The second plaintiff is the President of the first plaintiff. The plaintiffs filed the suit for specific performance of an agreement for sale on the following averments. The first plaintiff Devaswom Trust owns a temple. The main deity is Lord Shiva. There are other subsidiary deities also. The Devaswom Trust being an unregistered organisation, the suit was filed by the plaintiffs in a representative capacity. An extent of 64.750 cents of property comprised in various survey numbers of Kottukal village was purchased by the 1st defendant and her husband A.S. NO.808 OF 1999 -: 2 :- late Arjunan under sale deed No. 6063/60 of the Venganoor Sub Registry Office. After the death of Arjunan, his one half right in the above said property devolved upon defendants 1 to 6 who are his widow and children. So in addition to the one half right, the 1st defendant was having 1/6 share over the remaining one half of the property. First defendant gifted 2 cents of property from her one half share for the benefit of the above said Azhimala Temple in the year 1965 and surrendered possession. That 2 cents of property was enjoyed by the said temple as its own property. On 30.11.93, 1st defendant along with defendants 2 to 5 executed an agreement for sale in favour of 7th defendant, agreeing to sell their respective shares in the above said property for an agreed sale consideration of Rs.12,000/- per cent. During the subsistence of that agreement defendants 1 and 7 together executed another agreement for sale agreeing to sell 8 cents of property comprised in survey Nos.481/AB, 481/2B, 481/1A (481/AB-89 and 481/1B-85 as per tax receipts) in favour of the plaintiffs for a sale consideration of Rs.12,000/- per cent. The agreement was executed on 20.1.1994 and the first defendant received an amount of Rs.20,000/- as part of sale A.S. NO.808 OF 1999 -: 3 :- consideration from Shri Bahuleyan, the then President of the first plaintiff. The period for the execution of sale deed in favour of the 7th defendant was fixed as 4 months with a further assurance that the same will be extended until the 6th defendant also joins to execute the sale deed. The period for execution of the sale deed in favour of the plaintiffs stated in the agreement dated 20.1.1994 was also same as that in the first agreement dated 30.11.1993. First defendant had acknowledged the oral gift of 2 cents to the 1st plaintiff, Trust in the above said agreement. That 8 cents was described as plaint schedule property. The plaintiffs were always ready and willing to purchase the property at any time after the date of agreement after paying the balance of consideration. On several occasions the office bearers of the plaintiff Trust approached defendants 1 and 7 and requested them to receive the balance of consideration and execute the sale deed. But they did not execute the sale deed. Enquiries were made and it was revealed that defendants 1 to 5 have executed 2 sale deeds in favour of the 8th defendant on 1.3.1995 and 29.4.1995, thereby transferred 56.406 cents of A.S. NO.808 OF 1999 -: 4 :- property to him. The 7th defendant has also colluded with defendants 1 to 5 and 8 to the above said transactions. Since the entire property is lying as a compact plot and there was no partition among defendants 1 to 6, defendants 2 to 6 were also made parties in the suit. First defendant has no right to sell the plaint schedule property to any other person other than to the plaintiffs and the plaintiffs were always ready and willing to pay the balance sale consideration and get the sale deed executed in their favour at any date after the execution of the said agreement and there is no laches or negligence on the part of the plaintiffs in fulfilling their part of obligation under the above said contract. The plaintiffs are even now ready and willing to pay the balance sale consideration to the 1st defendant and get the sale deed executed in favour of the Devaswom. It is also averred that the 8th defendant purchased the property fully knowing the existence of the two agreements with the plaintiffs and with the 7th defendant. He purchased the properties with a mala fide intention to harass the office bearers of the Trust. The sale deeds executed in favour of the 8th defendant are sham documents without any consideration and the same are not binding on the plaintiffs. A.S. NO.808 OF 1999 -: 5 :- Hence the suit for specific performance. 3. First defendant filed a separate written statement contending that the suit was not maintainable. The description of the plaint schedule property was false and artificial. It was contended that the plaintiffs in collusion with the 7th defendant and Bahuleyan had filed the present suit. The address of the plaintiffs shown in the plaint were not correct. The existence of the Trust was admitted but the plaintiffs had no legal right to file the suit. The extent of property purchased by the 1st defendant and her husband was 67.750 cents of land and not 64.750 cents of land. The properties were being enjoyed by them in common. The averments regarding the extent of the property and the rights of respective parties stated in the plaint were wrong. The 1st defendant did not give 2 cents of property as gift to the Temple. The averment that the 2 cents of property was in the possession of temple from 1965 was false and the first plaintiff has no possession over the property. Execution of the agreement for sale in favour of the 7th defendant was admitted. The 7th defendant did not pay any amount as advance. He backed out from the promise and he was not A.S. NO.808 OF 1999 -: 6 :- ready and willing to get the sale deed executed in his favour. So, that agreement lapsed. First defendant did not agree to convey 8 cents of property to the plaintiffs or received any amount as advance. The agreement dated 20.1.1994 is a forged one and the same was fabricated by the plaintiffs along with the 7th defendant and Bahuleyan. The 1st defendant did not execute such a document. The sale deeds executed in favour of 8th defendant were valid and supported by aconsideration. There was no collusion between defendants 1 to 7 and 8. There was no agreement between plaintiffs and 1st defendant and the plaintiffs have no right to challenge the sale deed executed by the 1st defendant in favour of the 8th defendant. Plaintiffs are not entitled to get the sale deed executed in their favour. The averment that plaintiffs demanded the execution of sale deed was denied. So she pressed for dismissal of the suit. 4. Defendants 2 to 4 filed a joint written statement contending that the suit was not maintainable. The averments in the plaint were false and wrong. It was contended that the agreement for sale produced along with the plaint was a forged and fabricated one brought into existence by the A.S. NO.808 OF 1999 -: 7 :- plaintiffs, 7th defendant and one Bahuleyan and also the witnesses in the document. The description in the property was false and artificial. There was no plot of 8 cents of land lying as a separate plot. The averment that first defendant handed over possession of 2 cents of land to the Temple was denied. There was clear cut boundary between Temple property and suit property. The 1st defendant alone had no right to enter into any agreement for sale or execute any sale deed. It was for the plaintiffs to prove that there is a Trust and they are the President and Secretary of the trust. The existence of a temple of Lord Shiva was admitted. It was admitted that the first defendant and her husband purchased 67.750 cents of land under sale deed No. 6063/1960. Execution of the agreement by defendants 1 to 5 in favour of 7th defendant was also admitted. The 7th defendant was not ready and willing to perform his part of contract. On several occasions defendants 1 to 5 approached the 7th defendant to get the sale deed executed. But he was not having sufficient funds to purchase the property. So he backed out from the agreement. The agreement lapsed on 30.3.1994. Suit A.S. NO.808 OF 1999 -: 8 :- property having an extent of 67.750 cents belongs to defendants 1 to 6 and they are in joint possession of the property. The averment that an agreement was executed by defendants 1 and 7 on 20.1.1994 in favour of the plaintiffs and received an amount of Rs.20,000/- as advance from Bahuleyan was denied. That document was a forged and fabricated one. First defendant had not affixed her signature and the signature purporting to one that of 1st defendant seen in that document was not affixed by her. The 5th defendant did not sign the document as a witness. Defendants 1 to 6 are co- owners in respect of the property. There was no partition by metes and bounds. Sale deeds executed in favour of the 8th defendant were valid documents and plaintiffs are not entitled to attack those sale deeds. 5. The 5th defendant filed a separate written statement. It was contended that there was no such Trust as mentioned in paragraph one of the plaint. Persons who represented the Trust were not competent to represent the same. After the death of Arjunan his rights devolved upon defendants 1 to 6. The averment that 1st defendant gifted 2 cents of property in the year 1965 to the Trust was denied. A.S. NO.808 OF 1999 -: 9 :- She had no right to gift the property to anybody and she did not execute any gift. The averment that defendants 1 and 7 had executed an agreement for sale of 8 cents of property in favour of the plaintiffs was denied. Agreement dated 20.1.1994 is a concocted and fabricated one. The execution of the agreement in favour of the 7th defendant was admitted. The receipt of advance was also admitted. 7th defendant was not ready and willing to perform his part of contract and hence the agreement lapsed. Since there was no agreement between defendants 1 and 7 in favour of the plaintiffs they are not entitled to get any relief. Execution of the sale deeds in favour of the 8th defendant was admitted. The averments in paragraphs 15 and 16 were false. Plaintiffs were not entitled to get any relief. 6. The 6th defendant filed separate written statement contending that she was an unnecessary party. It was contended that she had not executed any agreement and action of other defendants was not binding on her. It was also contended that there was no partition of the property by metes and bounds. Hence she also prayed for the dismissal of the suit. A.S. NO.808 OF 1999 -: 10 :- 7. The 7th defendant filed a written statement admitting the entire averments in the plaint. It was contended that one Sathyadevan wanted to purchase the entire property for a sale consideration of Rs.12,000/- per cent. But the agreement was executed in favour of the 7th defendant. Since agreement was in favour of the 7th defendant, the plaintiffs as well as the 1st defendant requested him that he shall also join in the execution of the agreement along with 1st defendant. It was contended that he has no knowledge about the gift of 2 cents in favour of the Temple. The earlier agreement in favour of the 7th defendant lapsed. He was an unnecessary party to the suit. 8. The 8th defendant filed a written statement contending that the suit was instituted by the plaintiffs in collusion with defendants 1 and 7 in order to defeat the interest of the 8th defendant. Azhimala Siva Kshethra Devaswom Trust is an unincorporated body and hence the suit was not maintainable. The legal requirements under Order I Rule 8 were not complied with. The extent of properties stated in the plaint was not correct. The rights of Arjunan, husband of first defendant, was inherited by his widow and A.S. NO.808 OF 1999 -: 11 :- children. The allegation that 1st defendant gifted 2 cents of property to the Trust was denied. Neither the Trust nor plaintiffs had possession or right at any point of time. The 1st defendant never made a gift as alleged. The 6th defendant was not a consenting party to the agreement. The 7th defendant did not get any right or possession over the property as per the agreement. So he was not competent to execute a sale deed with respect to suit property. The alleged agreement dated 20.1.1994 was a fabricated one. First defendant never executed such a document. Her signature was forged in that document. The 7th defendant was not competent to execute the agreement for sale. Statements in the agreement were falsely made with an intention to obtain a portion of the suit property. The said agreement did not take effect. It is void ab initio. It was a document created for the purpose of filing a suit. The 1st defendant did not receive any amount from the plaintiffs, there was no consideration for the agreement and it was illegal. The agreement dated 30.3.1994 ceased to exist and the agreement dated 20.1.1994 is void. Since there was no agreement the averment of the plaintiffs that they were ready A.S. NO.808 OF 1999 -: 12 :- and willing to perform their part was of no consequence. The execution of sale deeds in favour of the 8th defendant was known to the plaintiffs from the inception and there was no collusion as alleged. The 1st defendant was fully competent to execute the sale deed in favour of the 8th defendant. There was no agreement or contract as alleged. The 8th defendant is a bona fide purchaser for value from the 1st defendant. The plaintiffs are not entitled to question the validity of those sale deeds. It was also averred that defendants 3 and 6 filed O.S.No. 173/1995 against the 8th defendant for partition and a preliminary decree was passed holding that the 8th defendant is entitled to get 10/12 shares. The 8th defendant has effected valuable improvements in the property. Hence he also prayed for the dismissal of the suit. 9. The trial court found that the suit as framed was maintainable. It was also found that Ext.A1 agreement dated 20.1.1994 executed by defendants 1 and 7 in favour of the plaintiffs was a genuine document and it is binding on the 1st defendant. It was also found that the case of the plaintiffs that there was an oral gift of 2 cents was not proved. The trial court found that the 8th defendant is a bona fide purchaser for A.S. NO.808 OF 1999 -: 13 :- value without notice of the agreement in favour of the plaintiffs and hence the plaintiffs are not entitled to get a sale deed executed. It was also found that the plaintiffs are not entitled to get refund of the amount advanced and dismissed the suit. Challenging that portion of the decree, plaintiffs filed this appeal. 10. The following points arise for consideration: (1) Whether the suit as framed is maintainable? (2) Whether the finding of the court below that Exhibit A1 agreement for sale is executed by defendants 1 and 7 and the same is a genuine document is correct? (3) Whether the finding of the court below that the plaintiffs are not entitled to get the agreement for sale specifically enforced is correct? and (4) Whether the finding of the court below that the plaintiffs are not entitled to get refund of the advance paid is correct? Point No.1 11. Learned counsel appearing for the 8th defendant has argued that the suit as framed is not maintainable. It is A.S. NO.808 OF 1999 -: 14 :- argued that plaintiffs claim that they are the Secretary and President of Azhimala Shiva Kshethra Devaswom Trust and on the date of filing of the suit, it was an unregistered Trust. It is argued that they claim to be persons representing the Devaswom and Trust, but their attempt is to get the sale deed executed in their names. A reading of plaint shows that the persons who had signed the plaint representing the Temple did not claim any personal relief. They are claiming relief in favour of the Devaswom. It is true that the deity is not impleaded in the suit. It is trite law that it is not necessary to implead the deity in all suits. Plaintiffs filed the suit in a representative capacity and notice under Order I Rule 8 was published. The sale deed is to be executed in favour of the Devaswom represented by the President and Secretary of the Trust. The property will vest with the deity and not any individual. There is no merit in the contention raised by the 8th defendant. 12. It is argued that the suit ought to have been filed under Section 92 of the Code of Civil Procedure Code. In the nature of the pleadings raised in the case and reliefs sought for , this cannot be a suit under Section 92 CPC. This is a suit A.S. NO.808 OF 1999 -: 15 :- for specific performance and that was properly framed. So the finding of the court below that the suit as framed is maintainable is correct. Point No.2 13. It is an admitted case of both sides that the 1st defendant along with her late husband purchased the entire property to which the suit property forms part in the year 1960. The property was having an extent of 67.750 cents of land. First defendant's husband died and his one half right also devolved upon defendants 1 to 6 who are his widow and children. So the first defendant is entitled to get one half of the entire property and and 1/6th share from the remaining one half. It is admitted by both sides that defendants 1 to 5 executed Ext.X1 agreement on 30.11.1993 in favour of the 7th defendant. Though the 1st defendant had raised a contention that she had not received any amount as advance, the 5th defendant who is a party to that agreement, had expressly admitted the receipt of advance in his written statement. Defendants 2 to 4 had also admitted the execution of Ext.X1. They have not raised any contention that the 7th defendant A.S. NO.808 OF 1999 -: 16 :- did not pay any advance. The 8th defendant also admitted the execution of Exhibit A1 agreement, but according to him that agreement had ceased to exist. In fact whether the 7th defendant paid any advance to the 1st defendant is a matter not arising for consideration in this appeal. The fact remains that defendants 1 to 5 who had executed Ext.X1 agreement in favour of the 7th defendant. In Exhibit X1 there is a clause which provides that the first defendant should execute the sale deed either to the 7th defendant or his nominee. The plaintiffs are not claiming any right under Exhibit X1 agreement. Since Ext.A1 was executed during the currency of Ext.X1 document, the 7th defendant also joined as a party to that agreement. 14. Now I shall consider whether Ext.A1 is a genuine document. The contention raised by defendants 1,2,4,5 and 8 was to the effect that Ext.A1 is a forged and fabricated document. The 7th defendant admits the execution of Ext.A1 document. The 6th defendant pleaded ignorance. Learned counsel for the contesting defendants have raised a contention that Ext.A1 document is not supported by any consideration. Hence it s a void document. It is very pertinent A.S. NO.808 OF 1999 -: 17 :- to note that the contesting defendants never raised a contention that though Ext.A1 was executed, it was not supported by consideration and hence it is a void document. On the other hand their specific contention was that it is a forged and fabricated document brought into existence by the plaintiffs along with the 7th defendant and one Bahuleyan, who was the former President of the Temple. The 5th defendant was an attester to that document. Though he had raised a contention that it is a fabricated document, he had not denied his signature in Exhibit A1 as forged. The 5th defendant did not go to box and denied his signature in Exhibit A1 agreement. 15. The plaintiffs examined PWs 1 to 5 to prove the execution of the document. PW1 is the 2nd plaintiff. He proved the signatures of the 1st defendant and 5th defendant in Exhibit A1 agreement. He also deposed that an amount of Rs.20,000/- was paid as advance. He gave evidence to the effect that plaintiffs were ready and willing to pay the balance consideration. He was asked whether the Trust was maintaining any records. He deposed that there may be records to show that an