IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 RSA.No. 90 of 2009() AS.232/2007 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.518/2005 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT K.M. CLEETUS, S/O. MATHAI, AGED 50 YEARS, KATTITHARA HOUSE, NETHAJI ROAD, NERUVA, HOUSE NO. 175, EDAPPALLY.P.O, KOCHI -24. BY ADV. SRI.V.EAPEN MATHAI SMT.A.R.USHA SRI.MATHAI EAPPEN VETTATH SMT.HELAN EARNEST RESPONDENT(S): RESPONDENTS -------------------------- 1. SMT. ALPHONSA, W/O. LATE SRI.SEBASTIAN, AGED 51 YEARS, KODARAPPILLIL HOUSE, VYTTILA DESOM, POONITHURA VILLAGE, KANAYANNUR TALUK. 2. MARY LINSA, D/O. SEBASTIAN, AGED 28 YEARS, KODARAPPILLIL HOUSE, VYTTILA DESOM, POONITHURA VILLAGE, KANAYANNUR TALUK. 3. GINO GEORGE, S/O. SEBASTIAN, AGED 26 YEARS, KODARAPPILLIL HOUSE, VYTTILA DESOM, POONITHURA VILLAGE, KANAYANNUR TALUK. 4. GEENA REETHA, D/O. SEBASTIAN, AGED 25 YEARS, KODARAPPILLIL HOUSE, VYTTILA DESOM, POONITHURA VILLAGE, KANAYANNUR TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. Ramkumar, J. ............................................ R.S.A. No. 90 of 2009 ............................................ Dated: 30 th January, 2009. JUDGMENT The plaintiff in O.S. 518 of 2005 on the file of the Subordinate Judge's Court , Ernakulam, is the appellant in this Second Appeal. The said suit was one for specific performance of Exts.A1 to A3 agreements as per which the four defendants allegedly agreed to sell 1.180 cents of land with a building thereon to the plaintiff for a total consideration of Rs. 1.77,000/-. The plaintiff alleged that Rs. 88,500/- was paid as advance. 2. The suit was resisted by the defendants contending inter alia that a larger property including the plaint schedule property belonged to the deceased husband of the first defendant and father of defendants 2 to 4, that after the R.S.A. No. 90 of 2009 -:2:- death of the first defendant's husband when she was in need of money she had approached the plaintiff for financial assistance and the plaintiff was getting Exts. A1 to A3 agreements executed exploiting her precarious condition and that since defendants 2 to 4 were minors on the date of Exts. A1 to A3 which contained an undertaking by the first defendant to execute the sale deed on behalf of the minor children after their attainment of majority, the said undertaking was unenforcible in law. 3. On the side of the plaintiff he examined himself as P.W.1 and got marked Exts. A1 to A3 which are notary attested copies of the alleged originals which were stated to have been destroyed by fire. On the side of the defendants, defendants 1 and 3 were examined as Dws 1 and 2 respectively and Exts. B1 to B5 were got marked. 4. The learned Sub Judge, after trial, as per judgment dated 28-11-2006 dismissed the suit with cost. On appeal preferred by the plaintiff as A.S. 232 of 2007 before the R.S.A. No. 90 of 2009 -:3:- District Court, Ernakulam as per judgment and decree dated 14-102-2008, the learned Addl. District Judge dismissed the appeal. Hence, this Second Appeal. 5. The following are the questions of law formulated in the memorandum of Second Appeal:- i) Is the trial court justified in completely brushing aside the oral evidence of the plaintiff ii) Whether the trial court is justified in dismissing the suit on strength of Exts. A1 and A2 iii) Did not the trial court committed a serious error in dismissing the suit without examining the preponderance of probabilities, in the evidence on record and the pleadings of parties . iv) Whether the trial court is justified in holding that even if the plaintiff in a suit for specific performance has proved all the necessary ingredients of getting a decree for specific performance of the contract, the decree of specific performance is the discretion of the court ? v) Whether the trial court has justified in holding that it is came out in evidence that P.W.1, appellant himself had took all initiatives to get sale agreement executed by Ist respondent/Defendant. Therefore, the evidence would show that Ist respondent was happened to execute the sale agreement signed by respondent and on behalf of the Respondents 2 to 4. Since she was in acute need of money subsequent to the death of her husband. 6. I heard the learned counsel appearing for the appellant/plaintiff. He reiterated before me the contentions of the plaintiff. R.S.A. No. 90 of 2009 -:4:- 7. I am not inclined to agree with the submissions on behalf of the appellant/plaintiff. The plaint schedule property having an extent of 1.180 cents with a building thereon was in the possession of the plaintiff as a tenant. This property which is a portion of a larger property, belonged to one Sebastian husband of the first defendant Alphonsa and father of defendants 2 to 4 . On the death of the said Sebastian, the property devolved on defendants 1 to 4 . The case of the defendants was that after the death of Sebastian when the first defendant, his widow approached the plaintiff to have some financial assistance, the plaintiff taking advantage of her precarious condition was getting Exts. A1 to A3 executed, that she did not then realise that it was an agreement for sale of immovable property and that so far as the share of the minor defendants 2 to 4 are concerned the undertaking in Exts. A1 to A3 that the first defendant shall executed sale deeds on their behalf after their attaining majority was unenforceable. R.S.A. No. 90 of 2009 -:5:- 8. Both the courts below have accepted the said defence. As a matter of fact, the plaintiff did not produce the original agreements allegedly executed by the Ist defendant. What was produced as Exts. A1 to A3 are notary attested copies. The reason put forward for non-production of the originals was that the plaintiff's house was gutted by fire on 23-5-2000 as evidenced by Ext.A10 certificate issued by the Fire Officer and the originals of Exts. A1 to A3 were destroyed by fire and Exts. A1 to A3 are notary attested copies of the originals. Both the courts have considered the fact that the statement in Exts. A1 to A3 by the notary that he compared the originals before attesting the copies on 27-5- 2005 cannot be true since as on 27-5-2005 even according to the plaintiff the originals were not in existence as the same were destroyed by fire which allegedly took place on 23-7- 2000. Both the courts did not accept Exts. A1 to A3 as true copies of the originals and insisted that those documents could be received in evidence only after examining the notary R.S.A. No. 90 of 2009 -:6:- who had allegedly attested the copies. That apart, the undertaking allegedly made by the first defendant in the agreement for sale that she will execute the sale deed on behalf of her minor children after they attained majority could not be enforced against defendants 2 to 4 who had the option of attaining majority, on attaining majority not to honour the undertaking given by their mother. This is not a case where the mother acting on behalf of the minors had agreed to sell the property after obtaining the requisite permission from the Court. Hence, the minors on attaining majority had the option to ignore the undertaking made on their behalf. 9. What now survives for consideration is the question as to whether the share of the mother , could be directed to be specifically performed. In the face of the findings by the courts below that A1 to A3 are not proved to be true copies their originals, the same could not be acted upon. That apart, both the courts below have accepted defence contention that R.S.A. No. 90 of 2009 -:7:- the agreements came to be executed with the first defendant widow after the death of her husband consequent on her approaching the plaintiff for r financial assistance and the plaintiff was exploiting her precarious condition. Under these circumstances, both the courts below were not inclined to exercise their discretion in favour of the plaintiff by virtue of Sec. 20 of the Specific Relief Act. The findings recorded by the courts below are pure findings of fact. No question of law, much less any substantial question of law arises for consideration in this Appeal. The questions of law formulated in the memorandum of Second appeal also do not arise for consideration in this Second Appeal, which is accordingly dismissed in limine. Dated, this the 30th day of January, 2009. Sd/-V. RAMKUMAR, JUDGE. /true copy/ R.S.A. No. 90 of 2009 -:8:-