IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 AS.No. 250 of 1999(Y) --------------------- OS.561/1994 of PRL.SUB COURT,KOTTAYAM .................... APPELLANTS: DEFENDANT 1 AND 2 -------------------------------------------------- 1.IVY ABRAHAM W/O ABRAHAM KURUVILA RESIDING AT VELANGATTU PARUVAKOTTAYIL, MANGANAM KARA VIJAYAPURAM VILLAGE KOTTAYAM DISTRICT. 2. ABRAHAM KURUVILLA S/O P.K. KURUVILLA RESIDING AT -DO- -DO- BY ADV. SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE SRI.P.G.RAJAGOPALAN SRI.GOPI KRISHNAN NAMBIAR SRI.SHIRAZ ABDULLA RESPONDENTS : PALINTIFFS AND THE 3RD DEFENDANT. ------------------------- 1. ITTY S/O .IYPE RESIDING AT THANNICKAL HOUSE PANAYAKAZHIPPU KARA MUTTAMBALAM VILLAGE KOTTAYAM DISTRICT 2 RASHTRA DEEPIKA LTD. KOTTAYAM , REPRESENTED BY ITS P.K.ABRAHAM MANAGING DIRECTOR DEEPIKA BUILDINGS KOTTAYAM ........ ADV. SRI.R.RAMADAS RASHTRA DEEPIKA LTD,PARTY THE RASHTRA DEEPIKA LTD,PARTY THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 9.10.2009 ALONG WITH AS NO. 251 OF 1999 THE COURT ON 20.11.2009 DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. C.R ---------------------------------------- A.S.Nos. 250& 251 of 1999 ---------------------------------------- Dated this the 20th day of November, 2009 JUDGMENT The plaintiffs in O.S. Nos. 561/1994 and defendants 1 and 2 in O.S. No. 629/1994 on the file of the Principal Sub Judge, Kottayam, are the appellants in A.S. No.s 250 and 251 of 1999 respectively. These appeals arise out of a common judgment in the said suits. O.S No. 629/1994 was filed for a declaration that the sale deed No. 2625/1993 executed by the 1st plaintiff in favour of the 1st defendant is null and void and for a perpetual injunction to restrain the defendants 1 and 2 from trespassing upon the plaint schedule property or effecting any transfer relating to the property based on the above sale deed and for a decree of mandatory injunction directing the 2nd defendant to return the blank cheques and stamped papers delivered to him at the time of execution of the sale deed No. 2625/1993. The connected suit viz. O.S. 561/1994 is a suit filed by defendant 1 and 2 in O.S No.629/1994 for a perpetual injunction restraining the 1st plaintiff in O.S No. 629/1994 from trespassing upon the plaint schedule property or obstructing their possession and peaceful enjoyment of the same and from collecting the future rent of the building and to direct the 1st defendant (plaintiff in O.S. No. 629/1994) to pay Rs. 33,250/- with future interest at 6% per annum which he has already received from the tenant as rent amount. The court below jointly tried A.S. Nos. 250 & 251 of 1999 -2 both suits, evidence was recorded in O.S No. 629/1994 and a common judgment was passed. The court below decreed O.S. No. 629/1994. The sale deed No. 2625/1993 (Ext.B4) executed by the 1st plaintiff in favour of the 1st defendant is declared null and void and granted both prohibitory and mandatory injunction as prayed for; and dismissed O.S No. 561/1994 . The parties hereinafter are referred to as plaintiffs and defendants as arrayed in O.S. No. 629/1994 and the exhibits are stated hereinafter as produced and marked in O.S No. 629/1994. 2. The plaint schedule property in O.S. No. 629/1994 is 10 Cents of land and a building situated thereon . . The 2nd plaintiff is the father of the 1st plaintiff. The 1st plaintiff is the owner of the plaint schedule property and the building by virtue of a settlement deed No. 2588/1979 of S.R.O. , Kottayam executed by the 2nd plaintiff. It is averred in the plaint that the 1st plaintiff became an alcoholic sometime in 1990 and was continued to be so till July 1993. The 1st plaintiff was under treatment for alcoholic dependence and Hypomania at “Total Response to Alcohol and Drug Abuse” (TRADA) from 1991. The 1st plaintiff continued his treatment till July 1993 at “TRADA. It is further pleaded that though his alcoholic dependence was considerably reduced by treatment, his affective disorder persisted and he was continuing treatment with Dr.Radhakrishnan , C.K.N. Psychiatric Neuro Clinic, Changanassery for affective disorder and that though he recovered from affective disorder and unsoundness of mind in July 1994, he is still under treatment of Dr.Radhakrishnan. It is the plaintiffs' case that the 1st plaintiff started attending prayer meetings from June 1992 to escape from alcoholism . Prayers were conducted by A.S. Nos. 250 & 251 of 1999 -3 believers in residential houses. While so the 1st plaintiff got acquainted with the 2nd defendant and developed intimacy with him According to the plaintiffs the 1st plaintiff developed absolute confidence in 2nd defendant and the 2nd defendant was his “Guru” in all matters . Some time in July 1993 there was a proposal to purchase a Coffee estate having an extent of 181 acres in Coorg for Rs.67 ½ lakhs. A group was formed for purchase of the estate including the 1st plaintiff and 2nd defendant and the estate was proposed to be purchased in October 1993. The 1st plaintiff had no money to invest in estate deal and the 2nd defendant promised that he will provide the necessary finance of Rs. 10 lakhs which was the contribution of the 1st plaintiff, provided the 1st plaintiff executed a sale deed in respect of plaint schedule property in favour of the 1st defendant who is the wife of the 2nd defendant. It is further averred in the plaint that the 2nd defendant also undertake to cancel the said sale deed if he is not able to raise the finance as agreed by him. The 2nd defendant also procured three blank signed stamped papers and three signed cheque leaves from the 1st plaintiff as a security for raising the loan. Believing the words of the 2nd defendant, the 1st plaintiff executed the sale deed No. 2625/1993 dated 17.9.1993 in favour of the 1st defendant who is the wife of the 2nd defendant. No amount was paid to the 1st plaintiff on execution of the sale deed by the 1st defendant, though there is a recital of payment of 1,80,000/- nor was there any intention to pay the amount . According to the plaintiffs the plaint schedule property and the building thereon is worth Rs. 10 lakhs and further averred that the 1st plaintiff could not have executed a sale deed for 1,80,000/- relating to the plaint schedule A.S. Nos. 250 & 251 of 1999 -4 property but for the unsoundness of his mind due to affective disorder at the time of execution of the document. It is further stated in the plaint that the scheme for purchase of the estate did not fructify and therefore, the proposed amount of Rs. 10 lakhs payable by the 2nd defendant to the 1st plaintiff for the contribution to be made by him for the purchase of estate became unnecessary. By July 1994 the 1st plaintiff had practically recovered from his mental disorder and then only he realised the folly of executing the document in favour of the 1st defendant and therefore he approached the 2nd defendant for cancellation of the document. The 2nd defendant refused to cancel the said sale deed. According to the plaintiffs, the possession of the property had not been delivered as mentioned in the sale deed The main building in the property was in the possession of the 3rd defendant as a lessee and the godown is in the possession of Messrs. Thannickal Brothers. The keys of the building were not handed over to the 1st defendant as the possession of the building was with 2nd plaintiff and 3rd defendant. It is further alleged that the sale deed No.2625/1993 is abinitio void and as it was executed by the 1st plaintiff due to the unsoundness of mind and affective disorder, and therefore he was not capable of understanding the consequences of executing such a document and forming a rational judgment as to its effects upon his interest. It is also pleaded that defendants 1 and 2 had no means to pay Rs 1,80,000/- as recited in the said document, that though the sale deed was executed, the 2nd plaintiff continued to receive the rent from the 3rd defendant and from Thannickal Brothers, that there was a negotiation for settlement of the matter, that in the course of negotiation the 2nd defendant demanded a A.S. Nos. 250 & 251 of 1999 -5 sum of Rs. 2,70,000/- for cancelling the sale deed, that the 2nd plaintiff was not aware of the above dealings and the impugned sale deed had been executed without his knowledge or consent and that the 2nd defendant tried to trespass upon the plaint schedule property. on the basis of the above said facts OS No. 629/1994was filed for the reliefs mentioned in the 1st paragraph of this judgment. 3. The defendants in their joint written statement contended interalia that the sale deed is supported by consideration, that the allegations in the plaint regarding the alcoholism and mental weakness and infirmity are absolutely false, that the 1st defendant is in possession and enjoyment of the plaint schedule property, that the 1st plaintiff had never in alcoholic affection or in mental or physical weakness on account of it and he was not affected by any disorder. It is contended that the 1st plaintiff was capable of doing things properly understanding and evaluating his actions. The defendants also denied the plaint allegation to the effect that the 1st plaintiff fall under the influence of 2nd defendant and the 1st plaintiff treated him as “Guru”. The sale deed executed by the 1st plaintiff in favour of the 1st defendant is perfectly legal and valid and the 1st defendant is the title holder of the plaint schedule property . The plaint allegation that the 2nd defendant influenced the 1st plaintiff and that the 2nd defendant agreed to arrange money for the share of the 1st plaintiff for purchasing the above said coffee estate and the consequent procurement of sale deed are denied. The defendants also refuted the allegation that the 2nd defendant had obtained signed paper and signed blank cheque from the 1st plaintiff. The defendants also pleaded that the sale deed A.S. Nos. 250 & 251 of 1999 -6 No.2625/1993 was duly executed and registered on receiving Rs. 1.80 lakhs by the 1st plaintiff as consideration and the possession of property had been delivered to the 1st defendant. According to them the 1st plaintiff executed the document fully knowing the consequence of such document and its effects on his interest and that there is nothing unconscionable in the transaction and further denied the plaint averment that the property is worth Rs.10 lakhs. The defendants also stated in the written statement that the 1st plaintiff undertook to evict the 3rd defendant from the plaint schedule building and hence the fact that the possession of the building was retained by the lessee was not mentioned in the sale deed and the defendants not attempted to collect rent from the 3rd defendant. In fact the 1st plaintiff agreed to collect the rent and agreed to pay it to the defendants The defendants also alleged that the original title deed was not handed over to the 1st defendant at the time of execution of the sale deed and that the defendants were made to believe by the 1st plaintiff that the original sale deed was irrecoverably lost. 4. The 3rd defendant filed a written statement stating that he is not a necessary party to the suit, that he got the building from the 1st plaintiff for a monthly rent of Rs. 3,500/- from 3.8.1993 onwards, that he is regularly paying rent to the 1st plaintiff and that since the title of the building is in dispute he did not pay the rent from 2.6.1994 It is also averred that he is ready to pay the rent to the original owner of the plaint schedule building. 5. The 1st defendant in O.S No. 629/1994 is the 1st plaintiff in O.S. No. 561/1994. The second defendant in O.S. No. 561/1994 is the A.S. Nos. 250 & 251 of 1999 -7 tenant who is the 3rd defendant in O.S No. 629/1994. O.S. No. 561/1994 was filed by defendants on the allegation that the defendants are trying to interfere with and obstruct the possession of the plaintiffs over the plaint schedule property and the building thereon and that the defendants have no right or possession over the plaint schedule property and the building thereon. They also prayed that the 1st defendant may be restrained by a decree of permanent injunction from trespassing upon the plaint schedule property, or obstructing the defendants' peaceful possession and enjoyment of the same and from collecting the future rent of the building and to direct the tenant to pay Rs. 33,250/- with future interest at 6% per annum. 6. The 1st defendant in O.S. No. 561/1994 filed written statement raising almost the same allegations raised in the plaint in O.S No.629/1994 as plaintiffs. 7. The 2nd defendant in O.S.No. 561/1994 also filed written statement adopting all the same contentions raised in O.S No. 624 of 1994 as 3rd defendant. 8. The evidence in these cases consists of the oral testimony of PWs 1 to 5, DWs 1 to 4, Exts. A1 to A10, B1 to B14(a) and Exts. X1 to X3. 9. The trial court framed necessary issues The main issues which arises for consideration are whether the sale deed No. 2625/1993 is a sham document not supported by consideration, whether the said document was brought into existence by exercise of fraud undue influence and misrepresentation, whether the 1st plaintiff was not in a sound state of mind to execute the said sale deed due to his affective A.S. Nos. 250 & 251 of 1999 -8 disorder and whether the said sale deed is liable to be declared as null and void and whether the plaintiffs are entitled to the decree of prohibitory and mandatory injunction as prayed for. In the connected suit i.e O.S. No. 561/1994 the issues that arises for consideration are whether the 1st defendant has got title over the plaint schedule property, whether the defendants are in possession of the plaint schedule property and whether the defendants are entitled to realise an amount of Rs. 33,250/- with interest. 10. The plaint schedule property in both suits is one and the same. The property is 10 of cents of land and a building with 9 rooms and an outhouse. The plaint schedule property is situated near to Kottayam town,facing a lane that deviates from the main road. The plaint schedule property originally belonged to the 2nd plaintiff and by assignment, his son, the 1st plaintiff became the owner of the property vide settlement deed No. 2588/1979. Ext.A1 is the settlement deed. The building situated in the plaint schedule property is occupied by Reshtra Deepika Limited , Kottayam on a rental arrangement from the 1st plaintiff The rent is Rs. 3,500./- per month There is a garage in the building below the ground level and it is being used as a godown by the Thannickal brothers for a monthly rent of Rs. 500/- The aforesaid facts are not in dispute. According to the plaintiffs the sale deed No. 2625/1993 produced, and marked as Ext.B4 ( the certified copy of the same was marked as Ext.A4) has not been acted upon and never intended to be acted upon and it is vitiated by fraud , undue influence and misrepresentation. The main averment in the plaint is that Ext.B4 sale deed was executed by the 1st plaintiff in favour of A.S. Nos. 250 & 251 of 1999 -9 the 1st defendant is null and void on the ground that the 1st plaintiff was mentally infirm and was not capable of protecting his interest and it is a sham document not supported by consideration. The defendants 1 and 2 resisted the suit and interalia contended that the 1st plaintiff was not mentally infirm and was in sound state of mind and understanding the things at the time of of execution of the Ext.B4 sale deed and that it was executed by receiving valid consideration of Rs. 1.80 lakhs. 11. The case of the plaintiffs is that the 1st plaintiff was suffering from affective disorder and unsoundness of mind due to alcoholism from 1990 onwards, that he was treated at TRADA an institution where alcoholic addicts are treated and he was suffering from affective disorder even after discharge from TRADA. After discharge the 1st plaintiff was under the treatment of Dr.Radhakrishanan a Psychiatrist (PW4). As PW1 the plaintiff testified before the court that he was mentally infirm and was incapable of protecting his rights due to his affective disorder at the time of executing the sale deed in question and that the document has not been acted upon or intended to be acted upon. The 1st plaintiff tendered evidence in terms of the plaint. 12. The 2nd defendant was examined as DW1. He testified before the court that PW1 was in a sound state of mind and he was capable of understanding the consequences of the execution of Ext.A4 sale deed in favour of the 1st defendant and its effects on his rights and it is a valid document supported by consideration mentioned in it. 13. PW2 is the father of PW1. PW5 is the brother of PW2 and paternal uncle of PW1. PW4 is Dr. Radhakrishnan, a Psychiatrist. PW3 is A.S. Nos. 250 & 251 of 1999 -10 a relative of PWs 1 ,2 and 5. Exts .A2 and A3 are the medical certificates issued from TRADA in the name of PW1 and Ext.A5 series are the prescriptions issued by PW4 and Exts.A6 to A8 and Exts.X1 to X3 are the medical reports produced by PW4. The trial court relied on the evidence of PW1 and the oral testimony of PW4 who is the Psychiatrist. PW4 has categorically deposed that on 31.8.1993 he had advised PW1, his father and the wife of PW1 that PW1 should be kept away from all business. The trial court found that the said version of PW4 is corroborated by the evidence of PWs 2 and 5 . Relying on the testimony of PW4, the trial court held that PW1 was not capable of judging the consequences of the transactions entered by him during the said period. The trial court also held that no concrete evidence has been let in by defendants to show that PW1 was not mentally infirm and unsoundness of mind as a result of alcoholism at the time when he executed Ext.B4 sale deed in favour of the 1st defendant. In paragraph 14 of the judgment, the trial court concluded that from the evidence on record it is satisfactorily established that PW1 was a person suffering from mental disease during the period from 31.8.1993 to June 1994, that the evidence of PWs 1, 2, 4 and 5 and Exts.A2, A3, A5 to A8 and Exts.X1 to X3 conclusively proved that PW1 was an alcoholic and he was undergoing treatment for alcoholism and subsequently he was under the care of PW4 during 1992 -93. 14. It is the case of the 1st plaintiff that he had attended prayer meetings during 1992-93 at the residences of Leelamma and Mathew Varghese and that DW1 also used to attend prayer meetings. PW1 also A.S. Nos. 250 & 251 of 1999 -11 testified that Dw1 developed intimacy with him and that he was under DW1's influence. DW1 also admitted that PW1 also attended the said prayer meetings but denied the case of the 1st plaintiff that he developed an intimacy with PW1 and PW1 was under his influence. The evidence of PW1 shows that some time in July 1993, there was a proposal to purchase an estate at Coorg worth Rs. 67.5 lakhs by a group of persons including PW1 and DW1 and his contribution for the proposed purchase was Rs. 10 lakhs. According to 1st plaintiff DW1 promised to raise money for him provided he executed a sale deed relating to the plaint schedule property in favour of his wife for the purpose of raising the amount from some financiers by creating an equitable mortgage of the property . The said allegation was denied by DW1. PW1 testified before the court that he believed the representation of DW1 and executed the sale deed in favour of his wife for the above said purpose without receiving any consideration. The 1st plaintiff had also deposed that he entrusted three blank signed cheques and three blank signed stamped papers with DW1 for the purpose of raising the loan. According to PW1, Ext.B4 sale deed was executed without any intention of transferring the property and the possession of the property continued with PW2 who was receiving the rent even after the execution of Ext.B4 sale deed. Relying on the oral evidence of PW1 and PW2 the trial court concluded that the possession of property has not been handed over, no consideration has been paid and there was no intention to transfer the property to the defendants and further held that the plaintiffs continued to receive the rent of the building even after the execution of Ext.B4 sale deed from the 3rd defendant/ tenant A.S. Nos. 250 & 251 of 1999 -12 and that the plaintiffs have also created a liability charged upon the plaint schedule property with the Syndicate Bank, Kottayam. The court below held that the conduct of the defendants in not applying for mutation or change of name of the plaintiff in the Municipal records in the name of the defendants immediately after the execution of the sale deed in favour of the 1st defendant shows that aforesaid facts and evidence supports the case of the plaintiffs 15. In paragraph 17, the trial court discussed the further allegation of the plaintiffs that the defendants had no means to pay Rs. 1.80 lakhs as recited in Ext.B4 sale deed. The plaintiffs argued before the trial court the the defendants have not explained and proved the source for raising Rs.1,80,000/- and therefore it cannot be held that Ext.B4 sale deed was supported by consideration. Besides the above versions, the court below relied on the version of DW2, the scribe, to the effect that he does not know the denomination of the notes given at the time of execution of the sale deed. Disbelieving the versions of the defendants the trial court concluded that there is absolutely no reliable evidence on record to show that the defendants had the capacity to pay Rs.1.80 lakhs on the date of execution of Ext.B4 sale deed and that they have not paid the sale consideration mentioned in the sale deed to PW1. In the above said circumstances the trial court held that Ext.B4 sale deed was not supported by consideration. 16. The trial court in paragraph 18 of the judgment, considered the point as to who is in possession of the property The trial court had taken note of the fact that admittedly the rent was being paid by the 3rd A.S. Nos. 250 & 251 of 1999 -13 defendant/tenant to the plaintiffs after the execution of the sale deed till Ext.B12 notice dated 8.7.1994 issued by the 1st defendant to the 3rd defendant/ tenant. The trial court observed that the failure of the defendant to demand the rent from 3rd defendant after the execution of Ext.B4 sale deed clearly shows that there was no intention to transfer the property. The trial court also held that the possession of building all alone continued with the plaintiffs and observed that it is difficult to believe that the property fetching a rent of Rs.4,000/- per month is alleged to have been offered to sell for Rs.1.80 lakhs situated in the heart of Kottayam town. Hence the court below arrived at a conclusion that a reasonable man cannot believed for a moment that 10 cents of land with a substantial residential building having 9 rooms situated in the heart of Kottayam town was sold for a consideration of 1.80 lakhs in the year 1993 and therefore the transaction is obviously unconscionable . The