IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 RSA.No. 124 of 2008() --------------------- AS.353/2006 of DISTRICT COURT,KOLLAM OS.95/1988 of MUNSIFF COURT, PUNALUR .................... : APPELLANTS/APPELLANTS/PLAINTIFFS ------------------------------------------------- 1. ABDULGHANI SHAMSUDIN, PALLIYAKONATHU CHARUVILA PUTHEN VEEDU, THAZHAMEL MURI, ANCHAL VILLAGE, PATHANAPURAM TALUK (DIED). 2. SHAMSUDIN SUBAHANA BEEVI, PALLIYAKONATHU CHARUVILA PUTHEN VEEDU, THAZHAMEL MURI, ANCHAL VILLAGE, PATHANAPURAM TALUK. 3. SHAMSUDIN JAMEELA BEEVI, SAJI MANZIL, THAZHAMEL MURI, ANCHAL VILLAGE, PATHANAPURAM TALUK. 4. SHAMSUDIN SHANAVAZ, PALLIYAKONATHU CHARUVILA PUTHEN VEEDU, THAZHAMEL MURI, ANCHAL VILLAGE, PATHANAPURAM TALUK. 5. SHAMSUDIN JOSEPH, PALLIYAKONATHU CHARUVILA PUTHEN VEEDU, THAZHAMEL MURI, ANCHAL VILLAGE, PATHANAPURAM TALUK. 6. SHAMSUDEEN HUMAYOON, PALLIYAKONATHU CHARUVILA PUTHEN VEEDU, THAZHAMEL MURI, ANCHAL VILLAGE, PATHANAPURAM TALUK. 7. SHAMSUDEEN SUNITHA BEEVI, ETTIVILAVEEDU, PATHIRICKAL MURI. PATHANAPURAM VILLAGE, PATHANAPURAM TALUK. 8. SHAMSUDIN SHARION, PALLIYAKONATHU CHARUVILA PUTHEN VEEDU, THAZHAMEL MURI, ANCHAL VILLAGE, PATHANAPURAM TALUK. 9. SHAMSUDIN SADATH, PALLIYAKONATHU CHARUVILA PUTHEN VEEDU, THAZHAMEL MURI, ANCHAL VILLAGE, PATHANAPURAM TALUK. BY ADV. SRI.ESM.KABEER RESPONDENTS: RESPONDENTS/DEFENDANTS ---------------------------------------------------- 1. ABDULKHADER SAHIB SALIMKHAN, AGED 53, SAFIRE, NAVARANG LANE, MEDICAL COLLEGE WARD, THIRUVANANTHAPURAM. 2. IBRAHIM PILLAI KHADEEJA BEEVI, SAFIRE, NAVARANG LANE, MEDICAL COLLEGE WARD. 3. ISMAIL KUNJU MUHAMMED KUNJU, SHAJI MANZIL, THAZHAMEL MURI, ANCHAL VILLAGE, PATHANAPURAM TALUK. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.343/2008 IN R.S.A.NO.124/2008 25.2.2008 DISMISSED SD/- M.Sasidharan Nambiar Judge P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 124 OF 2008 =========================== Dated this the 25th day of February, 2008 JUDGMENT The legal heirs of the plaintiff in O.S.95/1988 on the file of Munsiff Court, Punalur are the appellants. Respondents are the defendants. Deceased plaintiff instituted the suit for specific performance of an oral agreement for sale and for declaration of title and possession. First respondent is the son of the elder brother of deceased plaintiff. Second respondent is his wife. The father of the first respondent died earlier. According to appellants, first respondent was brought up by him and he is now employed at Lybia. According to plaintiff, first respondent's brother Abdulkalam after completing his education got employed and settled at Delhi and under sale deed No.434/1964 of Punalur Sub Registry plaint schedule property was purchased in the name of his prospective bride by appellant with the dowry given R.S.A. No.124/08 2 by her parents and as Abdulkalam and his wife settled at Delhi, appellant has become in possession of the property and while so Abdulkalam requested appellant to dispose the property as he was in need of money and at the instance of appellant first respondent agreed to buy the property and accordingly the wife of Abdulkalam executed a power of attorney in favour of her brother, who in turn executed the sale deed in respect of the property in favour of respondents and third respondent's name was mentioned in the document only for the reason that he was authorised to effect registration. It was contended that while so first respondent required money for his higher studies and he requested appellant to advance the required amount and promised to sell the property in consideration thereof and an oral agreement for sale was entered into whereunder first respondent agreed to sell the property for a consideration of Rs.7000/- and appellant paid Rs.4,750/- out of the sale consideration and the R.S.A. No.124/08 3 balance sale consideration was agreed to be paid by March 1977 and later respondents 1 and 2 retracted from the agreement and demanded Rs.9000/- as sale consideration and undertook to execute the sale deed as and when they received the balance consideration and letters were exchanged and through by letters first respondent demanded balance consideration of and also agreed to pay the revised sale consideration in addition to the consideration of Rs.4250/- paid on 10.9.1977, respondents agreed to execute the sale deed on receipt of balance sale consideration. It was contended that subsequently respondents evaded execution of sale deed and on return of the first respondent from Libiya, first respondent sent a letter to the appellant declaring his intention not to execute the sale deed and stating that he is prepared to pay the appellant Rs.10,000/- and appellant continued to insist on getting a sale deed through mediators but respondents evaded execution of sale deed. Finally on 2.2.1988 R.S.A. No.124/08 4 mediators on behalf of the appellant approached respondents and respondents refused to sell the property and a lawyer notice was sent on 1.1.1988 by appellant demanding execution of sale deed and calling upon them to execute the sale deed and respondents did not execute the sale deed. Appellant sought a decree for specific performance of the agreement and also declaration of his title. Third respondent remained ex parte and respondents 1 and 2 filed written statement denying the agreement for sale and contending that the suit is barred by limitation. 2. Learned Munsiff on the evidence of Pws.1 to 3, Dws.1 and 2 and Exts.A1 to A13, Exts.B1 to B3 dismissed the suit. Respondents challenged the judgment before District Court, Kollam in A.S.353/2006. On the death of the original plaintiff appellants herein were impleaded as additional appellants. Learned District Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is R.S.A. No.124/08 5 challenged in the appeal. 3. Learned counsel appearing for appellants was heard. 4. The argument of the learned counsel is that the courts below did not properly appreciate the evidence and should have found that suit is not barred by limitation. It was argued that only when reply to lawyer notice was received, deceased plaintiff finally came to know that respondents are not prepared to execute the sale deed and till then there was mediation and therefore courts below should have found that the suit for specific performance of agreement is not barred by limitation. Counsel also argued that in any case as it is proved that pursuant to the agreement for sale plaintiff has been put in possession of the property, he is entitled to the benefit under section 53A of Transfer of Property Act and courts below should have granted a decree. 5. On hearing the counsel, I do not find that any substantial question of law is involved in the R.S.A. No.124/08 6 appeal. 6. The agreement for sale sale set up is an oral agreement. The courts below on the evidence found that evidence of PW1 the deceased appellant establish that when PW1 met first respondent after his return from Lybia in 1981, he unambiguously refused to execute the sale deed and the period of limitation is to be computed atleast from 1981. Courts below also found that in Ext.A7 reply notice dated 22.9.1981, first respondent refused to execute the sale deed. As provided under section 54 of Limitation Act the period of limitation would start to run from that date and as the suit was instituted before 1988 it is barred by limitation. On the evidence even if there was oral agreement for sale as claimed by appellants it is proved that under Ext.A7 first respondent refused to execute the sale deed and the evidence of PW1 establish that in 1981 deceased plaintiff met first respondent and first respondent unambiguously declared that he is not prepared to execute the R.S.A. No.124/08 7 sale deed, and as the suit was not instituted within three years from 1981, the findings of the courts below that suit is barred by time is perfectly correct. 7. Though appellant claimed the benefit under section 53A of Transfer of Property Act, as rightly found by courts below, to claim protection provided under section 53A, all the ingredients provided thereunder is to be established. It is mandatory that the agreement for sale must be in writing. When the agreement for sale even according to appellants is oral. They are not entitled to the benefit under section 53A of the Transfer of Property Act. Hence appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006