IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 AS.No. 35 of 1998(C) ------------------------------ OS.1332/1994 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT(S): PLAINTIFF ----------------------- PONNUMANI @ KARTHIYANI (DIED) D/O. CHEMMANDA KUNJU EZHUTHASSAN, VELLANIKKARA VILLLAGE, DESOM, THRISSUR TALUK. ADDL. APPELLANTS 2 AND 3 IMPLEADED 2. C.G.NARAYANAN, S/O. KUNHIKRISHNAN, CHITTADICHAL HOUSE, WEST VELLANIKKARA MADAKKALTHARA P.O., THRISSUR DISTRICT. 3. C.N.GOPAKUMAR(MINOR), S/O. C.G.NARAYANAN CHITTADICHAL HOUSE, WEST VELLANIKKARA, MADAKKALTHARA P.O. THRISSUR DISTRICT, REP.BY GUARDIAN/FATHER 2ND APPELLANT. THE LEGAL HEIRS OF THE DECEASED APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 2 & 3 AS PER ORDER DT. 20.2.08 IN IA. 1756/04. BY ADV. SRI.P.VIJAYA BHANU SRI.T.A.UNNIKRISHNAN SRI.TONY MATHEW RESPONDENT(S): DEFENDANTS ------------------------- 1. PADMAVATHY, D/O. CHEMMANDA KUNJU, EZHUTHASSAN, VELLANIKKARA VILLAGE, DESOM, THRISSUR TALUK. 2. LAKSHMIKUTTY, D/O. CHEMMANDA KUNJU EZHUTHASSAN, VELLANIKKARA VILLAGE DESOM, THRISSUR TALUK. R1 BY SRI.C.C.THOMAS, SENIOR ADVOCATE R1 BY ADVS. SRI.M.G.KARTHIKEYAN, SRI.P.V.SANTHOSH, SRI.NIREESH MATHEW, SRI.STEFHY JOHN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/06/2010, ALONG WITH AS NO. 421 OF 1998 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO. 1761/2004 IN AS. NO. 35/1998 DISMISSED 01/06/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S.Nos. 35 & 421 OF 1998 = = = = = = = = = = = = = = = Dated this the 1st day of June, 2010. J U D G M E N T A.S. 35/98 is an appeal preferred against the judgment and decree passed by the Subordinate Judge, Thrissur in O.S.1332/94 and the other appeal is preferred against the judgment and decree in O.S.210/95 of the same Court. The learned Subordinate Judge on an analysis of the materials had dismissed both the suits. It is against that decision the appeals are preferred by the plaintiff. O.S.210/95 is a suit for permanent prohibitory injunction. The plaintiff and defendants therein are sisters and daughters of one Kunju Ezhuthassan. The prayer in the said suit is to restrain the defendants from alienating the property and not to disturb the possession of the plaintiff over the property. 2. The other suit is filed for specific performance of the contract and for a declaration that the document A.S.Nos.35 & 421 OF 1998 -2- executed by the first defendant as 5392/88 of Ollukkara Sub Registry as null and void. The plaintiff wants to enforce a term in Ext.A1 whereby the first defendant had agreed to transfer her right in favour of the plaintiff at a consideration of Rs.10,000/- and it is for that purpose the suit is instituted. Since the first defendant has transferred the property in favour of the 2nd defendant the plaintiff has sought for canceling or setting aside that document. Three unfortunate sisters are fighting for almost two decades with respect to 10 cents of land which is shown in the plaint schedule property. 3. A perusal of the records would reveal that it is the case of the plaintiff that the father had given properties to them and on account of the fact that it was more convenient to construct a building in the property given to the first defendant, the plaintiff had constructed a house by spending large amount of money and while they were residing together a Will was executed by the A.S.Nos.35 & 421 OF 1998 -3- first defendant in favour of the sisters. It was later cancelled. It was also agreed between the parties that the first defendant will transfer her right in favour of the plaintiff on a consideration of Rs.10,000/- and as per that agreement the defendants in the suit would have the right of residence and when the 2nd defendant gets married she has to go away from the house. So everything depends upon the factum of this agreement and the enforceability of the agreement. The defendants had raised a specific contention denying the execution of any such agreement. So the result of the case will depend upon the validity or genuineness of Ext.A1 karar. 4. The learned Subordinate Judge has elaborately considered the materials. The Subordinate Judge pointed out that the father had given the property to the plaintiff and the defendants. The property given to the plaintiff and the first defendant are within the near vicinity. Both the plots did have a road frontage. Then the Subordinate A.S.Nos.35 & 421 OF 1998 -4- Judge felt that really there was no necessity for the plaintiff to utilize her funds and construct the building in the property given to the first defendant. It looks a very sound reasoning. 5. Then it has come out in evidence that the plaintiff was teaching in a parallel college and she had about Rs.300/- as income. She would depose before Court that she had expended very huge amount and had relied upon some passbooks for the purpose. The Court found that passbooks refers to some withdrawals but there are no documents to show that the said fund were utilized for the purpose of constructing the house. The plaintiff wanted to project the defendants as poor people without any resources but she has admitted in evidence that the first defendant has got one acre and 20 cents of land and she is deriving 150 paras of paddy from the said property. It has also come out in evidence that the first defendant as well as the 2nd defendant had also at least A.S.Nos.35 & 421 OF 1998 -5- put some money for the construction of the building. Therefore the Court felt that the case set up by the plaintiff as such is not true. 6. Then in order to prove the case the plaintiff got herself examined as PW1 and also 2 other witnesses as PWs.2 and 3. PWs.2 and 3 were working with her while she was in the parallel college. PW2 was the Manager of that parallel college. The learned trial judge analysed the evidence of PW3 and found out that PW3 has admitted in cross examination that he had not seen the first defendant putting her signature in the document. When it is so the evidence of PW3 will not be of any help to prove the case. 7. So far as PW2 is concerned the Court referred to an affidavit filed as Ext.B1 and also his oral evidence and held that there are lot of inconsistencies between the same. It has also to be stated that mere interestedness is not sufficient to discard the evidence of a party but if that A.S.Nos.35 & 421 OF 1998 -6- evidence is not intrinsically reliable and inherently probable it will not be possible for the Court especially in the back drop of the close connection between the plaintiff and PW2 to accept that evidence. Therefore the Court on a combined evaluation of the oral evidence given by PWs.1 to 3 held that, “It appears that it is forged by the plaintiff as contended by the defendant.” The Court also then narrates the fact that “Truth has come out from the mouth of PW1 during cross examination that she is not having any right in the property.” Her only endeavour was to get the amount which she is alleged to have spent for the purpose of construction of the building. So the court below rightly declined to accept Ext.A1. When Ext.A1 goes the plaintiff has nothing to fall back. When there is no agreement proved and when it is admitted that the first defendant is the owner of the property any transfer effected by D1 in A.S.Nos.35 & 421 OF 1998 -7- favour of any party will be valid in law and there is no necessity for setting aside such a document. Only if there is a valid agreement which could be enforceable in law then only the plaintiff has got a prima facie case to claim the relief in the other suit. As discussed and found by the trial court and accepted by me the prayer for specific performance cannot be granted as the document is not proved. Further a very reading of Ext.A1 itself would reveal that it was not an agreement for sale that was contemplated. It was only with relation to money spent by the persons. Therefore I hold that the learned Subordinate Judge has analysed the matter in the correct perspective and had arrived at a decision by dismissing both the suits. Therefore the appeals fail and the same are dismissed but under the circumstances without any order as to costs. Sd/-M.N. KRISHNAN, JUDGE. Ul/- // true copy // P.A. to Judge. A.S.Nos.35 & 421 OF 1998 -8- M.N. KRISHNAN, J. = = = = = = = = = = A.S.Nos.35 & 421 OF 1998 = = = = = = = = = = = J U D G M E N T 1st June, 2010.