IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 RFA.No. 354 of 2005() -------------------------------- OS.446/1991 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/DEFENDANT: ---------------------------------------- A. RAJAMMAL, D/O. ANANDAVALLI, T.C.37/1240, KEEZHVAZHAPPALLY COMPOUND, THIRUVANANTHAPURAM. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): PLAINTIFF: ------------------------------------------ P.THYAGARAJAN ACHARI, S/O. PARAMESWARAN ACHARI, ATTINGAL VARUVILAKATHU- VEEDU, KEEZHVALOM VILLAGE, CHIRAYINKIL TALUK, THIRUVANANTHAPURAM. ADV. SRI.R.S.KALKURA THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... R.F.A.NO.354 OF 2005 ............................................. Dated this the 4th day of August, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Thiruvananthapuram in O.S.No.446/1991. The suit was one for specific performance of a contract and in the alternative one for recovery of the amount with interest. 2. The trial court on a consideration of materials held that the agreement executed was not with the intention to part with the property but granted a decree for the amount that has been paid by the plaintiff to the defendant and it is against that decision the defendant has come up in appeal. 3. Heard. The brief facts necessary for the disposal of the appeal are stated as follows: It is the case of the plaintiff that the defendant had entered into an agreement for sale as Ext.A1 and the agreement was to sell the property for a consideration of Rs.50,000/= of which Rs.40,000/= was paid as advance. According to the plaintiff, the defendant has committed breach and hence suit for specific performance with the : 2 : R.F.A.NO.354 OF 2005 alternative prayer. 4. On the other hand the defendant would contend that there was no such agreement and really an amount of Rs.20,000/= had been borrowed from the father-in-law of the plaintiff and towards the same, some documents were made to be executed and therefore Ext.A1 is not a valid document which is enforcible. 5. In the first round of litigation, a decree for specific performance was granted which on appeal as A.S.No.333/1996 was set aside and remanded to the trial court for a fresh disposal. The trial court on an exhaustive consideration of the materials came to the conclusion that the defendant had executed Ext.A1 document and had received the consideration of Rs.40,000/= but held that the intention of the parties at the time of execution of Ext.A1 was not to part with the property and therefore declined the decree for specific performance. So far as decline of specific performance is concerned, it is not challenged and therefore the subject matter to be decided is regarding the execution of Ext.A1 and parting of Rs.40,000/= and the entitlement of : 3 : R.F.A.NO.354 OF 2005 the plaintiff to get back the amount. 6. The defendant in the case had raised a contention that she does not know Malayalam and the document if at all had been signed by her is without understanding the implication of the same and therefore it is unenforceable. 7. The plaintiff himself was examined himself as PW1 and the independent witnesses PWs 3 to 5 besides PW2 - the husband of the defendant. There is nothing to be said much about the evidence of PW2 for the reason that he is the husband of the defendant who had turned hostile to the case of the plaintiff. So if the evidence of PWs 1, and 3 to 5 are acceptable, then the plaintiff will be entitled to relief. 8. PW1 is the plaintiff. He had deposed before the court that defendant had promised to sell the property and in pursuance of the same, a registered document has been executed by parting with a consideration of Rs.40,000/= as advance. Though so many questions are put to him highlighting the importance of the fact that the defendant does not know Malayalam, he had stated before the court that she knows Malayalam and further that the document : 4 : R.F.A.NO.354 OF 2005 has been prepared, executed and proved. The fact that there is transaction between the plaintiff and the defendant is further evidenced by the production of the document of title relating to the property. If there had been no agreement between the plaintiff and the defendant, there was no necessity for the plaintiff to be in possession of the document. Therefore, we cannot simply brush aside the case of the plaintiff. 9. PW3 is the attesting witness to the document. He had stated that he had witnessed the document as it was prepared from his office and that it has been read over and understood and thereafter it has been signed by the defendant. Though he has been cross examined and suggestion has been put why the document was not handed over to the husband of the defendant for reading, he has properly answered to the question and his evidence does not lack any clarity and it can be safely held that it is acceptable. 10. PW4 is the scribe who had given evidence with respect to the writing of the document and he had also stated about the entire transaction. To crown all these things it : 5 : R.F.A.NO.354 OF 2005 can be said that it is not an ordinary sale agreement but the parties have taken the pains to register it before the Sub Registrar and the document has been presented for registration and it is also stated that the husband was also with the defendant. So it is very clear that the document has been properly understood, executed, signed and consideration is received by the defendant from the plaintiff. It is seen from the address itself that the defendant is residing in Trivandrum and she is a Tamil Brahmin. Majority of the Tamil Brahmins in the State are born and brought up in the State and pleading ignorance about Malayalam may not be correct and just because the signature is in Tamil, that does not mean that she does not know Malayalam at all. 11. DW1 had stated that she understands Malayalam. So the attempt to get over a difficult situation on the basis of language cannot be accepted in this case as well. 12. So from these materials, I find that Ext.A1 document had been entered into between the plaintiff and the defendant and the defendant has received the consideration of Rs.40,000/=. Since question of specific performance does : 6 : R.F.A.NO.354 OF 2005 not loom large for consideration as the finding against that is not in appeal and it is certain that plaintiff is entitled to get back the amount which she had paid to the defendant, I do not find any infirmity in the judgment and decree of the trial court and therefore the appeal fails and the same is dismissed and it is made clear that the office is directed to address the District Collector under Order 33 Rules 10 and 11 of the C.P.C for realisation of the court fee from the appellant in accordance with law. Parties in the appeal are directed to bear their respective costs. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 7 : R.F.A.NO.354 OF 2005