IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND FEBRUARY 2010 / 13TH MAGHA 1931 SA.No. 663 of 1996(D) ----------------------------------- AS.100/1994 of ADDL.SUB COURT, ATTINGAL OS.103/1990 of MUNSIFF COURT, ATTINGAL .................... APPELLANT/APPELLANT/PLAINTIFF: MEENAKSHY, D/O VASUDEVAN, SEENA SADANAM, 'ERATHY', NAGAROOR DESOM, NAGAROOR VILLAGE. BY ADV. SRI.SEBASTIAN DAVIS RESPONDENTS/RESPONDENTS/DEFENDANTS: 1. RAMAN BHANU, PATTHATHIL VEEDU, THANNIKONAM, DARSANAVATTOM DESOM, NAGAROOR VILLAGE. 2. KRISHNAN DEVADASAN, VARUVILAKATHU VEEDU, ERATHY, NAGAROOR DESOM, NAGAROOR VILLAGE NOW RESIDING AT PARAKAL VILAKATHU, NAGAROOR DESOM, NAGAROOR VILLAGE. 3. BHARATHI VILASINI, KALLUVILAKATHU VEEDU, PANGODE DESOM & VILLAGE. 4. BHARATHI SULOCHANA, PULLAYIL VEEDU, PULLAYIL DESOM, KODUVAZHANOOR VILLAGE. R4 deleted as per order dt. 16.7.08 on IA 1509/08 ADV. SRI.P.PARAMESWARAN NAIR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- S.A.No.663 of 1996 -------------------------- JUDGMENT Plaintiff in O.S.No.103/1990 on the file of Munsiff's Court, Attingal is the appellant. Respondents are defendants 2 to 4. The suit was originally instituted against deceased Bharathi as first defendant, the assignee of the first defendant as second defendant and son of the first defendant as third defendant. On the death of the first defendant, third respondent was recorded as her legal heir and respondents 3 and 4 were impleaded as defendants 4 and 5. Though fifth defendant was impleaded as the fourth respondent originally in the second appeal, appellant got her removed from the party array as per order dated 16.7.2008. 2. The suit was instituted claiming a decree for specific performance of the agreement for sale of the plaint schedule property, having an extent SA 663/96 2 of nine cents in Sy.No.2997/1 of Nagaroor Village of Chirayinkeezhu Taluk. Plaint schedule property originally belonged to the first defendant as per Exhibit A1 partition deed dated 22.5.1962. It is the case of the appellant in the plaint that while so, first defendant created a mortgage in favour of her son, the third defendant for an amount of Rs.350/- and later, she created a superior mortgage in favour of the appellant. Appellant would contend that first defendant, along with third defendant, entered into an oral agreement for sale on 31.1.1990 to transfer the plaint schedule property in her favour, for a consideration of Rs.800/- per cent and Rs.500/- was paid as advance and also handed over Exhibit A1 partition deed, by which first defendant obtained her right in the property and Exhibit A2 tax receipt to the appellant and as there was a subsisting mortgage in favour of the third defendant, he also joined in the agreement for sale. On 2.2.1990, first defendant was admitted SA 663/96 3 in Government Hospital, Kesavapuram and for that purpose, Rs.1,500/- was paid by the appellant to the third defendant and for the maintenance expenses of the first defendant and also to discharge her debt, Rs.2,000/- was earlier paid and defendants 1 and 3 agreed to execute a sale deed on 6.2.1990. It is the case that as agreed, Exhibit A3 sale deed was prepared, but, first defendant did not appear for execution and registration of the sale deed. On that day, third defendant released his mortgage right in favour of the appellant by executing Exhibit A4 release deed. Though first defendant executed a sale deed in favour of the second defendant, it is a fraudulent document, which did not come into effect and therefore, appellant is entitled to a decree for specific performance of the agreement for sale, directing first defendant to execute the sale deed after receiving the balance consideration of Rs.3,200/-. SA 663/96 4 3. First defendant filed a written statement denying the agreement for sale and receipt of money and contending that first defendant had agreed to sell the property to the second defendant and because of her illness, the sale deed could not be executed and later, a sale deed was executed and therefore, appellant is not entitled to the decree sought for. 4. Third defendant filed a written statement admitting the plaint allegations. It is contended that on 2.2.1990, first defendant was admitted in Government Hospital, Kesavapuram by third defendant and on 6.2.1990, third defendant had gone to the office of the scribe Sasidharan Nair to prepare the sale deed in accordance with the agreement for sale entered into with the appellant earlier and at that time, Vilasini, the daughter and her husband took away the first defendant from the hospital without the knowledge or permission of the third defendant and thereafter, exercising undue influence and by SA 663/96 5 coercion, got executed a sale deed in favour of the second defendant and the said sale deed was executed with the knowledge that there was an agreement for sale with the appellant and third defendant was always prepared to perform his part of the agreement. 5. Learned Munsiff, on the evidence of PWs 1 to 3 and Exhibits A1 to A7 on the side of the appellant and DWs 1 to 3 on the side of the defendant, dismissed the suit holding that appellant did not establish the oral agreement for sale and therefore, he is not entitled to the decree sought for. Appellant challenged the judgment and decree before Sub Court, Attingal in A.S.No.100/1994. Learned Additional Sub Judge, on re-appreciation of evidence, confirmed the judgment and decree of the trial court and dismissed the appeal. This second appeal is filed challenging the concurrent judgments and decrees. SA 663/96 6 6. Though second appeal was admitted and notice was ordered on 1.10.1996, no substantial question of law was formulated. In such circumstances, whether any substantial question of law arises for consideration is to be considered. 7. Learned counsel appearing for the appellant and contesting first respondent were heard. 8. Learned counsel appearing for the appellant vehemently argued that though first defendant denied existence of the oral agreement for sale, third defendant, her son, admitted it in the written statement and after the death of the first defendant, there is no dispute with regard to the oral agreement for sale by the legal heirs of the first defendant and though first respondent, the second defendant, denied the oral agreement for sale, as he is not a party to the agreement for sale, she cannot deny it and in such circumstances, courts below should have granted a decree for specific performance of the agreement for sale, SA 663/96 7 especially when the legal heirs are admitting the agreement and also expressed their willingness to perform their part of the agreement. 9. On the face of the facts, I do not find any substantial question of law is involved in the appeal. Plaint itself discloses that before the institution of the suit, first defendant, who was admittedly the owner of the plaint schedule property under Exhibit A1 partition deed, transferred the property for valid consideration in favour of the first respondent. When first defendant had no subsisting right over the property on the date of institution of the suit and when, admittedly, first defendant had transferred her rights in the property to the second defendant, unless the said sale deed is set aside or a decree for declaration is sought to the effect either that the sale deed is vitiated by fraud or is a sham and nominal document, not acted upon, appellant is entitled to get the decree sought for. The very SA 663/96 8 suit is instituted based on an oral agreement for sale. Though it was argued that after the death of first defendant there was no dispute on the existence of an oral agreement for sale, as only the second defendant, a third party, denied it, first defendant filed a written statement denying the agreement for sale. Even on the date of institution of the suit, first defendant had no subsisting right in the property as her right was transferred to the second defendant. Hence, when first defendant died, she had no subsisting right over the plaint schedule property. Therefore, no right devolved on the legal heirs. Instead, second defendant is competent to deny the agreement for sale. Exhibit A3 is projected by the appellant to prove that on 2.2.1990, when first defendant was admitted in the hospital, she had agreed to execute a sale deed on 6.2.1990 along with the third defendant and therefore, Exhibit A3 sale deed was prepared, but first defendant did not appear before SA 663/96 9 Sub Registrar's Office and Exhibit A3 could not be executed or registered and on that day, third defendant, in performance of his part of the agreement, executed Exhibit A4 release deed releasing his mortgage right in favour of the appellant. But, in Exhibit A3, there is no statement about an oral agreement for sale. If, in fact, there was an oral agreement for sale as asserted by the appellant, at least in the sale deed, which was allegedly prepared pursuant to the agreement for sale, it would have been mentioned. In such circumstances, courts below rightly dismissed the suit. As there is no substantial question of law, the second appeal is dismissed with costs. 2nd February, 2010 (M.Sasidharan Nambiar, Judge) tkv SA 663/96 10 M.Sasidharan Nambiar, J. -------------------------- S.A.No.663 of 1996 -------------------------- JUDGMENT 2nd February, 2010