IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930 RFA.No. 355 of 2006() --------------------- OS.458/1994 of SUB COURT, MAVELIKKARA .................... APPELLANTS/DEFENDANTS 1 TO 3 IN OS.458/94: -------------------- 1. KALYANI AMMA DEVAKI AMMA, PLAVILAVADAKKETHIL, VETTIYAR MURI VETTIYAR VILLAGE, MAVELIKARA TALUK FROM MALAMEL VEEDU, MAZHUKEERMEL MURI, VADAKKEKARA VILLAGE, CHENGANNUR TALUK. 2. DEVAKI AMMA GEETHA (DIED) 3. KARUNAKARAN PILLAI SREEKUMAR, PLAVILAVADAKKETHIL, VETTIYAR MURI, VETTIYAR VILLAGE, MAVELIKARA TALUK FROM MALAMEL VEEDU, MAZHUKEERMEL MURI, VADAKEKKARA VILLAGE, CHENGANNUR TALUK. BY ADV. SRI.S.SHANAVAS KHAN S. INDU RESPONDENT(S)/ PLAINTIFF IN O.S.458/94: --------------- SOMAN.T.GEORGE, SONIA COTTAGE, THEKETHALACKAL, VETTIYAR MURI, VETTIYAR VILLAGE, MAVELIKARA TALUK REPRESENTED BY HIS POWEROF ATTORNEY HOLDER SAJI.T.GEORGE. ADV. SRI.A.K.HARIDAS THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 3-10-2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ----------------------------------------------- RFA. No. 355 OF 2006 ----------------------------------------------- Dated this the 3rd day of October, 2008 J U D G M E N T The defendants in a suit for specific performance which was decreed by the trial court to a considerable extent are the appellants. The plaintiff is the respondent. The pleadings have been correctly summarised by the learned Subordinate Judge in his judgment and I therefore do not propose to narrate them over again. On the basis of the pleadings, the learned Judge formulated the following issues for trial. 1. Have the defendants executed agreement for sale of plaint A- schedule properties to the plaintiff as alleged? 2. Is the alleged agreement only a security for the loan transaction as contended? 3. Have the defendants committed breach of the agreement for sale? 4. Is the plaintiff entitled to get specific performance of the agreement? 5. Reliefs and costs. The evidence in the case on the side of the plaintiff consisted of the oral testimony of PW-1, the younger brother and power of attorney holder for the plaintiff and also that of PW-2 attester to Ext.A1 RFA. N0. 355/06 -2- agreement for sale. Documentary evidence on the side of the plaintiff consisted of A1 agreement for sale, A2 title document handed over at the time of execution of Ext.A1, A3 copy of lawyer notice, A4 postal receipt, A5 returned post cover and acknowledgment card addressed to the 3rd defendant, A6 and A7 acknowledgment in respect of defendants 1 and 2 and Ext. A8 power of attorney executed by the plaintiff in favour of PW-1. On the side of the defendants the third defendant was examined as DW-1 and documentary evidence consisted of B1 copy of reply notice sent to the plaintiff, B2 medical certificate of disability of 2nd defendant and B3 notice of enquiry regarding Ext.B2 regarding the 2nd defendant. The learned Subordinate Judge considered issue Nos. 1 and 2 together. It was found on the evidence that the second defendant is an inform person physically and mentally and that she is incapable of exercising her free Will and and is completely incapacitated for making contracts. It was accordingly found that the plaintiff's version of defendants 1 to 3 having jointly executed A1 cannot be accepted. At the same time, the learned Subordinate Judge repelled the contention that Ext.A1 was executed not as an agreement for sale but only as a security for loan transaction. Thus the issues were answered in the above manner by RFA. N0. 355/06 -3- the learned Subordinate Judge. Coming to issue No.3 as to whether the defendants have committed breach of contract, the learned Subordinate Judge found that though in Ext.B1 the defendants have taken a stand that at 10.00 a.m. on 10-11-1994 the defendants were ready to execute the sale deed, there is no evidence to find that the defendants had in fact gone over to the Sub Registry Office on any date being ready to execute sale deeds. Thus it was found that the breach of contract was committed by defendants 1 to 3. Coming to issue No.4 whether the plaintiff is entitled for specific performance, the learned Judge concluded that A1 agreement is liable to be specifically enforced against defendants 1 and 3 though not against defendant No.2. In view of his finding that the second defendant is incapable of contracting it was found that the defendants 1 and 3 are not competent to agree to sale the second defendant's interest over the property to the plaintiff. Accordingly it was held that the plaintiff is entitled to a decree of specific performance in respect of item No.1 which belonged absolutely to defendants 1 and 3 and also of two-third right of plaint item No.2 (which belonged common to all the defendants) on payment of agreed balance sale consideration of plaint item No.1 and the proportionate balance sale consideration for plaint RFA. N0. 355/06 -4- item No.2. The suit was accordingly decreed directing defendants 1 and 3 to execute sale deed in respect of the entire plaint item No.1 and two-third share of defendants 1 and 3 over plaint item No.2 on accepting balance sale consideration of Rs.55,000/- for plaint item No.1 and Rs.37,000/- for two-third right over plaint item No.2 within one month of the plaintiff depositing that amount in court and also allowing the plaintiff to have the sale deed executed as aforesaid through court and to realise the cost of the suit from defendants and 3 and from the balance sale consideration deposited. 2. Smt.S.Indu representing Advocate S.Shanavas Khan addressed me extensively on the various grounds raised in the appeal memorandum. She submitted that in view of the finding of the court below that Ext.A1 document has not been validly executed by the second defendant it had to be found that A1 is not a legally valid document. The decree which is now given against defendants 2 and 3 is vitiated by that very reason. She further submitted that the probabilities of the case were also in favour of concluding that A1 was executed not as an agreement for sale but as a security document for securing Rs.50,000/- paid, which was advanced as a loan. She pointed out, balance sale consideration in this context, it was very RFA. N0. 355/06 -5- unusual to stipulate the period as two years for performance of mutual obligations under an agreement for sale. She also submitted that the plaintiff did not pay the balance sale consideration to the defendant's on 10-11-1994 despite the willingness expressed by the defendants through reply notice to receive the same. She took me through Ext.A1, the plaint, the testimonies of PW-1, PW-2 and DW-1 and also to the written statement of D1 and D3. Referring to my own judgment in Kunjamma v. Chellappan, 2004(3) KLT Short Note, Page 78 she submitted that decision of a court under section 20 of the Specific Relief Act, whether or not to grant a positive decree of specific performance rests on the discretion of the Court and that while exercising the discretion the court is expected to advance the interests of the substantial justice rather than those of technicalities. For the same proposition she relied on the judgment of the Division Bench in Bhaskaran Nair v. Habeed Mohammed, 2002(1) KLT 864. Smt.Indu also relied on the judgment of another Division Bench of this Court in Adimakutty Hydu Ali v.Ambujam, 2003(2) KLT 328 to argue that it is obligatory for the courts to consider whether a decree of specific performance any unfair advantage would result for the plaintiff over the defendant and also to argue that it is inequitable to grant a decree RFA. N0. 355/06 -6- as against a widow and other defendants who are deaf and dumb. 3. Sri.Renni Stephen, learned counsel for the respondent plaintiff was able to meet the submissions of Smt. Indu very ably. He drew my attention first to the order dated 8-7-08 in I.A.4751/07. He submitted that annexure-4 delivery report submitted before the execution court by the amin was accepted by this court and that this court has passed an order restraining the appellants not to enter into the decree schedule properties or from interfering with the plaintiff's peaceful possession and enjoyment of the properties in the teeth of annexure-4 report and the order of injunction passed by this court it is idle for the appellants to contend that they continued to be in possession of the decree schedule property. The decree has been completely executed. Sale deed was executed and on the strength of the sale deed the property has been handed over vide annexure-4. Thus the appeal has become infructuous. Any interference with the judgment and decree of the court below will result in unsettling annexure-4 report which is the result of an order of delivery passed by the execution court lawfully, so submitted by the learned counsel. Mr.Renni Stephen cited a catena of decisions before me to argue that there is no warrant for interfering with the judgment and decree under appeal. RFA. N0. 355/06 -7- 4. Having considered the rival submissions addressed at the Bar in the light of the various decisions cited before me by the learned counsel on either side I am of the view that there is no justification for interfering with the judgment and decree under appeal, only to a very limited extent. The most serious argument of Smt.Indu was that Ext.A1 agreement having been found to be executed jointly by the second defendant, a physically and mentally incapacitated person incapable of and incompetent to enter into contracts should have been found to be an invalid document and hence no decree is liable to be passed on the strength of Ext.A1. The court has power under section 12 of the Specific Relief Act to grant specific performance of the part of the agreement which is capable of performance even when it is found that the other part of the agreement is void or invalid as against one of the parties (see judgment of Varghese Kalliath, J. in Sasidharan Pillai v. Devaky Amma, 1991 (1) KLT 590). In fact the decision in Sasidharan Pillai's case was taken by Justice Kalliath following the view taken by the Madras High Court in Subramani v. Kannappa Reddiar & others, AIR 1973 Mad. 393 which was a case in which the right of a minor in the property agreed to be sold was involved. A Division Bench of this Court in Krishnan Chellappan v. Kutty Kunjamma, 1988 RFA. N0. 355/06 -8- (2) KLT 512 dealing with an agreement for sale including the right to sell the shares of minor also noticed section 12(3) of the Specific Relief Act and would decree specific performance to the extent it did not affect the minor's share in the property. Justice K.S.Radhakrishnan and me also had occasion in Krishnan v. K.S.Krishnan, ILR 2004(1) Ker. 21 to advert to section 12(3) and we held inter alia that if a part of the contract is enforceable the same comes within one or other of the exceptions provided under subsections (2) to (4) of section 12. Finding of the court below repelling the contentions of the defendant that ExtA1 is not an agreement for sale but is only a security document is supported by evidence on record and also by the judgment of this court in Karthiayani Amma v. Ganapathi Namboodiri, ILR 1996(2) Ker. 849 wherein Justice P.A.Mohammed has considered the entire gamut of case law touching the issue. Ext.A1 reads as an agreement for sale and as noticed by the Division Bench in Saramma Ittoop v. Kunjamma Kuruvilla, 2006(3) KLT Short Note case No.75 while considering a document it is the recitals in the document and the terms of the document which are of primary importance. The arguments of the learned counsel for the appellant that undue hardship will be occasioned to the appellants by sustaining the decree RFA. N0. 355/06 -9- cannot be accepted in view of the judgment of the Supreme Court in Sarita Rani v. Deepak Raj & others, JT 2000 (10) SC 270 since I find that plea of hardship had not been specifically raised by the appellants through their written statement. More over, as laid down by the Supreme Court in Prakash Chandra v. Angadlal and others, (1979) 4 SCC 393 the ordinary rule is that specific performance should be granted and that it ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. On reading through the judgment of the court below I find that the learned Subordinate Judge has kept in mind all relevant aspects and has chosen to decree the suit only to the extent it was legally possible. The findings of the court below are all founded on the evidence available in the case and I do not find any reason to interfere with that. At the same time I feel that the learned Subordinate Jude was not justified in allowing the plaintiff to recover the cost of the suit from the defendants. After all, Ext.A1 agreement to the extent it pertained to the interest of the second defendant, a mentally and physically challenged person was found to be unenforceable. That itself could have been a reason to order that cost shall not follow the event. Under the above circumstance even as RFA. N0. 355/06 -10- I confirm the decree for specific performance granted by the court below noticing also that the above decree has been completely executed, I reverse the decree passed by the trial court regarding cost and direct that in the facts and circumstance of this case both parties shall suffer their respective costs through out. The appeal is allowed only to the above limited extent. (PIUS C.KURIAKOSE, JUDGE) ksv/