IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR WEDNESDAY, THE 27TH FEBRUARY 2008 / 8TH PHALGUNA 1929 AS.No. 774 of 1997(C) --------------------- OS.39/1994 of SUB COURT, VADAKARA .................... APPELLANT: PLAINTIFF ----------- 1.* KUNNOTH ABOOBACKER, S/O.ABDULLA, AGED 54 YEARS, RESIDING AT KUZHICHALIL, PANIKKOTTY, (P.O.) PUDUPPANAM, VADAKARA TALUK. (DIED) ADDL.2. MR.MUSTHAPHA.K., AGED 41 YEAS, S/O.KUNNOTH ABOOBACKER, KUZHICHALIL HOUSE, (P.O.) PUDUPPANAM. ADDL.3. MRS.BAZEEMA, AGED 37 YEARS, D/O.KUNNOTH ABOOBACKER, -DO- -DO- ADDL.4. MRS.RASIA, AGED 33 YEARS, -DO- -DO- ADDL.5. SHOUKATH, AGED 29 YEARS, S/O.KUNNOTH ABOOBACKER -DO- -DO- ADDL.6. RAMLA, AGED 25 YEARS, D/O.KUNNOTH ABOOBACKER, -DO- -DO- ADDL.7. MRS.KUNHAMI, AGED 55 YEARS, W/O.KUNNOTH ABOOBACKER, -DO- -DO-. (SUPPLEMENTAL APPELLANTS 2 TO 7 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED APPELLANT NO.1, VIDE ORDER DATED 2.8.2005 IN I.A.NO.2090/2005) BY ADV. SRI.C.VATHSALAN SRI.K.RAKESH ROSHAN A.S.No.774/1997 : 2 : RESPONDENTS: ------------- 1. EASWARANKANDIYIL YOUSUF, S/O.ABDURAHIMAN, AGED 55 YEARS, MERCHANT, NADAKKUTHAZHA AMSOM, MEPPAYIL DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 2. KUNDAPPURATH ABOOBACKER, W/O.MOIDEEN, AGED 50 YEARS, MERCHANT, PUDUPPANAM AMSOM DESOM (P.O.) PUDUPPANAM (VIA) VADAKARA, KOZHIKODE DISTRICT. 3. MANIKOTH NANU, S/O.KANARAN, AGED 48 YEARS, MERCHANT, VILLIPPALLY AMSOM DESOM, (P.O.) VILLIAPPALLY, (VIA) VADAKARA KOZHIKODE DISTRICT. 4. KUZHICHALIL ABDURAHIMAN S/O.MAMMAD, AGED 45 YEARS, MERCHANT, PUDUPPANAM AMSOM DESOM, (P.O) PUDUPPANAM, (VIA) VADAKARA, KOZHIKODE DISTRICT. BY ADV. SRI.V.JAYAKUMAR SRI.R.PARTHASARATHY THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 27/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.PADMANABHAN NAIR, J. ------------------------------- A.S.No.774 of 1997 ------------------------------- Dated this the 27th February, 2008. J U D G M E N T The plaintiff in O.S.No.39/1994, on the file of the Sub Court, Vadakara, is the appellant. The appeal is filed against the decree and judgment passed by the court below, dismissing the suit filed by the appellant, for declaration and consequential injunction. There are three items of property. The appellant filed a suit for declaration alleging that the suit properties belonged to him. It was averred that the appellant was in urgent need of Rs.10,000/= in connection with the marriage of his daughter Nazeema. He approached the second respondent for a loan of Rs.10,000/=. The second respondent took the appellant to the first respondent. First respondent agreed to advance a loan of Rs.10,000/=, on condition that he should execute a sale deed in respect of Item No.1, in favour of the first respondent, as a security for the loan amount and also to pay Rs.5000/= per year, as provided within the repayment of debt amount. Appellant received an amount of Rs.10,000/= and executed a sale deed in respect of Item No.1 in favour of the first respondent on 25.3.1986. The first respondent was put in possession of the property AS.No.774/1997 2 also and the first respondent was taking income from the property. The first respondent told the appellant that the income from the property is not sufficient to cover the interest of Rs.5000/=, and he should execute a possessory mortgage in respect of Item Nos.2 and 3 in favour of the second respondent, who was a mediator to the transaction. On 8.8.1986, the plaintiff executed documents in respect of Item Nos.2 and 3 in favour of second respondent. The appellant was under the impression that the documents executed were possessory mortgages. He in fact did not receive any consideration either from the first respondent or the second respondent. The appellant instructed the second respondent to prepare possessory mortgage deeds. When the documents were written, the appellant affixed his signature, without reading the contents, on the belief that those documents were mortgage deeds. But after signing the document, he read over the content and then understood that those documents are sale deeds. So, he refused to appear before the Sub Registrar and admit execution. The second respondent filed a petition before the Sub Registrar of Vatakara and Payyoli for compulsory registration. Those applications were dismissed by the Sub Registrar. Thereafter, the second respondent filed an appeal before the District Registrar. The District Registrar allowed the appeal and ordered AS.No.774/1997 3 compulsory registration. Those orders were challenged by the appellant before this Court by filing C.R.P.Nos.2228/90 and 2252/90, and those revision petitions were also dismissed. It was contended that the sale deed executed by the appellant in respect of Item No.1 was never intended to be treated as a sale deed. It was executed only as a security for the loan received. It was averred that the first respondent orally agreed that he will re-convey Item No.I, as and when the appellant repays the debt. Item Nos.1 and 2 in the suit property are situated in the Vatakara Municipality and Item No.3 in the Maniyur Panchayat. The market value of the property is much more than what is stated in the documents. Hence, the suit for declaration that the sale deed of 25.3.1986 in respect of Item No.I and sale deed executed on 8.8.1986 in respect of Item Nos.2 and 3 are only possessory mortgages and not sale deeds, and also for a decree directing re-conveyance of the properties, on deposit of the amount in Court. 2. Defendants 1 and 2 filed a joint written statement. The averment in the sale deed executed in respect of Item No.I was never intended to be a sale deed was denied. It was not executed as a security as contended in the plaint. The sale deed executed on AS.No.774/1997 4 8.8.1986 also were not a mortgaged one, but were also sale deeds. Appellant wanted to sell the properties and first defendant was willing to purchase Item No.I. Appellant sold Item No.I to the first respondent for a consideration of Rs.10,000/=. The first defendant sold the property to one Nanu in the year 1987, and Nanu sold the property to the 4th respondent, who is now in possession of the property. Appellant agreed to sell Item Nos.2 and 3 to the second respondent. Accordingly, sale deeds were executed on 8.8.1986 after giving necessary instructions for preparation of sale deeds, plaintiff went out. After the preparation of the document, scribe read over the same to both the plaintiffs and respondents. The plaintiff affixed his signature in the document. But refused to appear before the Sub Registrar to admit execution. Hence, second respondent filed a petition for compulsory registration. The Sub Registrar dismissed that petition, but in appeal, the same was allowed by the District Registrar, and the sale deeds were registered. Now, the second respondent is in possession of Item Nos.2 and 3. Defendants 3 and 4 were subsequently impleaded. 4th defendant filed a written statement contending that he purchased the property from the 3rd defendant and the appellant had no right. AS.No.774/1997 5 3. On the side of the appellant, Pws. 1 to 3 were examined. Exts.A1 to A13 proved and marked. Exts.B1 to B13 were marked on the side of the respondents. Respondents did not adduce any oral evidence. Ext.A2 is the sale deed executed by the appellant on 25.3.1986 in favour of the second respondent. Appellant as PW.1 had admitted that even at the time of writing the document, he wanted to incorporate a clause for re-conveyance, but the first respondent refused to incorporate such a clause. Even according to the appellant, time fixed for re-conveyance was one year. According to the appellant, he could not make payment even after a lapse of one year, as he was not having any finance. The suit was filed only in the year 1994, that is to say, after a lapse of about 8 years. In the mean while, first defendant had sold the property to 3rd defendant, who in turn sold the same to the 4th defendant. There is absolutely nothing on record to show that 4th respondent was aware of the existence of any agreement between the plaintiff and first respondent. There is no explanation what so ever by the appellant for waiting for eight years to approach the Court. So, on that ground alone, the relief sought for in the Item No.1 is to be rejected. AS.No.774/1997 6 4. Regarding Item Nos.2 and 3, it has come out in evidence that though the appellant signed before the scribe, he did not appear before the Sub Registrar to admit execution. The second respondent filed a petition before the Sub Registrar which was dismissed, and in appeal, the District Registrar ordered Registration of the sale deeds. Challenging those decisions, Exts.B4 and B5 petitions have been filed. This Court found that order of the District Registrar is legal and proper. This Court considered the merits of the case, and found that the consideration shown in the document cannot be treated as highly in adequate. This Court also found that the considerations stated in the document cannot be held to be very low. In order to substantiate this contention that the documents in respect of Item Nos.2 and 3 were loan transactions, appellant examined two witnesses. The Trial Court did not accept their evidence. In the suit also, the contention raised was that consideration shown in the documents is very low compared to the market value of the property at the relevant period. What exactly was the market value of the property at that particular time was not established. Though the appellant has raised a contention that the property is situated in the heart of the Municipality, the exact location of the property and probable value it would have fetched, the same were not examined by AS.No.774/1997 7 taking out a Commission. It had also come out in evidence that he had signed Exts.B2 and B3. The court below, after appreciating the entire evidence found that Exts.B1 and B2 are sale deeds supported by consideration. That finding of fact is based on good evidence. So, I do not find any reason to interfere with that finding of fact. The appeal is only to be dismissed. In the result, the appeal is dismissed. K.PADMANABHAN NAIR, JUDGE nj. K.PADMANABHAN NAIR, J. ------------------------------- A.S.No.774 of 1997 J U D G M E N T Dated: 27th February, 2008. -------------------------------