IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N. KRISHNAN MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 AS.No. 744 of 1996() ---------------- OS.342/1993 of SUB COURT, MUVATTUPUZHA ................. PLAINTIFF / APPELLANT : ----------------------------------------- MATHAI, S/O. THOMMY, PUNNASSERIL HOUSE, KUNINJI KARA, PURAPPUZHA VILLAGE, P.O. KUNINJI, (VIA VAZHITHALA), THODUPUZHA TALUK, IDUKKI DISTRICT. DIED (LRS IMPLEADED) * ADDITIONAL LR'S IMPLEADED 2. ANNAMMA, W/O. LATE MATHAI, PUNNASSERIL HOUSE, KUNINJI P.O. , (VIA) VAZHITHALA, THODUPUZHA, ERNAKULAM DISTRICT. ( DIED) LRS RECORDED 3. P.M. THOMAS, S/O. LATE MATHAI, -DO- -DO- 4. P.M. LUKA, -DO- -DO- 5. CYRIAC MATHEW, -DO- -DO- 6. MARY JOSE, D/O. LATE MATHAI, -DO- -DO- 7. XAVIOUR MATHEW, S/O. ,, ,, ,, *THE LEGAL HEIRS OF THE DECEASED APPELLANT ARE IMPLEASED AS ADDL. APPELLANT 2 TO 7 VIDE ORDER DATED 20/12/04 ON I.A. NO. 3648/04. ** THE DEATH OF THE 2ND APPELLANT IS RECORDED AS APPELLANTS 3 TO 6 AND THE RESPONDENT NO.2 ARE RECORDED AS LEGAL REPRESENTATIVES OF DECEASED 2ND APPELLANT VIDE ORDER DATED 14-12-09 ON MEMO DATED 7-12-09, CF 5961/09 BY ADVS. SRI.N. SUBRAMANIAM SRI. M.S.NARAYANAN ...2/- AS.No. 744 of 1996() -2- DEFENDANT / RESPONDENT : --------------------------------------- ---- ANNIE, D/O. JOSEPH, KURUPPAM PARAMBIL HOUSE, KALLARA KARA, KALLARA VILLAGE, VAIKKOM TALUK, P.O. KALLARA, KOTTAYAM DISTRICT. REPRESENTED BY POWER OF ATTORNEY- CHACKO, S/O. JOSEPH, B -DO- -DO- *ADDL. R2 IMPLEADED 2. JOSE MATHEW, S/O. LATE MATHAI, PUNNASSERRIL HOUSE, KUNINJI P.O., (VIA) VAZHITHALA – 685 583, THODUPUZHA, IDUKKI DISTRICT. *ADDL. R2 IMPLEADED IS IMPLEADED AS ONE OF THE LRS OF THE DECEASED SOLE APPELLANT - VIDE ORDER DATED 20/12/04 ON I.A. NO. 3649/04 R1 BY ADV. SRI.JOSE JOSEPH ARAYAKUNNEL THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/12/2010, ALONG WITH AS NO. 745 OF 1996, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...3/- AS.No. 744 of 1996() -3- ORDER ON C.M.P. NO. 4535/1996 IN AS. NO. 744/1996 DISMISSED 20/12/2010 SD/- M.N. KRISHNAN, JUDGE //TRUE COPY// P.S. TO JUDGE Mn M.N. KRISHNAN, J. ........................................... A.S.Nos.744 & 745 OF 1996 ............................................. Dated this the 20th day of December, 2010. J U D G M E N T These appeals are preferred against the judgment and decree passed in O.S.No.342/1993 and O.S.No.50/1994 of the Subordinate Judge's Court, Muvattupuzha. O.S.No.342/1993 is for a declaration filed by the plaintiff to set aside a document on the ground of coercion, fraud etc and the other suit is one for specific performance of the agreement. 2. The trial court dismissed the prayer for setting aside the document and granted a decree for specific performance. It is against that decision, these appeals are preferred. The brief facts of the case are as follows: The plaintiff in O.S.NO.342/1993 is the father-in-law of the defendant therein. The defendant was married by the plaintiff's son Jose Mathew as per the customary law on 5.11.1989 and at the time of the marriage, she was employed in Saudi Arabia as a nurse. It is contended that the son of the plaintiff has some connection with one Smitha : 2 : A.S.Nos.744 & 745 OF 1996 and it is alleged that the plaintiff's son had converted himself into a Hindu and married Smitha and thereby created total rupture of the matrimonial relationship between him and the defendant in the suit. 3. According to the plaintiff, his sons were taken forcibly to the police station on 27.9.1993 and on 28.9.1993, he had also gone there and the police party by force, coercion and undue influence had directed the plaintiff to execute a document and therefore in pursuance of the same on 29.9.1993 two police constables dressed in white came to the house of the plaintiff, took him to the registrar's office and made him execute a document which was done under duress. The registration did not take place on that day and the plaintiff thereafter had not registered the document and therefore he had prayed for cancellation of the document which is marked as Ext.B2. 4. On the other hand, the defendant would contend that the plaintiff's son had married her and at the time of the marriage i.e., during betrothal rupees One lakh has been paid and subsequently after her return to Saudi Arabia, on : 3 : A.S.Nos.744 & 745 OF 1996 her other visits she had given considerable amount and gold to the husband worth about ` 8 lakhs and when she came to know about the illicit intimacy of the husband, she had resigned her job and had come to India and in spite of best efforts, the rupture cannot be cured. Thereafter at the instance of the mediators and on satisfaction to the amount that has been received from her, there was an agreement to sell the plaintiff's property and subsequently that document was written but it could not be registered on account of the strike of non gazetted officers. But subsequently the plaintiff retracted and it could not materialise. Thereafter the defendant had instituted a suit for specific performance of the agreement as well. 5. The trial court on an appreciation of the materials, granted a decree in favour of the wife with respect to specific performance and negatived the relief in favour of the father-in-law for setting aside Ext.B2 document. 6. Heard the learned counsel appearing for both sides. It is quite unfortunate that a lady who had been toiling in foreign soil is running from pillar to post to : 4 : A.S.Nos.744 & 745 OF 1996 get some remedy as her husband had not cared to look after her but is alleged to have some connection with another lady. 7. The first question to be considered is regarding the case of the father-in-law whether there are any vitiating circumstances surrounding the execution of Ext.B2 document. It is the settled principle of law that when a party alleges fraud, undue influence or coercion unless it is disabled, illiterate lady or a paradanashin woman, the burden is squarely upon the plaintiff to establish the same. Before adverting to the nature of transaction also has to be understood for the purpose of proper appreciation of the matter. It is the case of the daughter-in-law that at the time of betrothal, an amount of rupees One lakh has been paid and subsequently ornaments and money were also paid and the father-in-law had at last agreed to transfer 1 acre and 50 cents of property for the same as the son had failed to fulfill matrimonial obligation to her. The father-in-law would contend that he had not received any amount or any pocket money as contended by the defendant. It is the case : 5 : A.S.Nos.744 & 745 OF 1996 of the daughter-in-law that on the date of betrothal, amount has been handed over. The plaintiff in the suit would contend that ` 10,001/= was paid and that was paid to the brother of the plaintiff. He claims that he does not know about the whereabouts of that money. 8. On the contra, the daughter-in-law would contend that the father-in-law knows how he had received it and therefore he cannot retract from that responsibility. As PW1, the plaintiff had gone to the extent of saying that he even did not attend the betrothal of his son but he had gone for inviting people for the marriage. It is quite strange. He has also admitted that brother of the plaintiff had received some amount, but he was not examined for the reason that he is unwell. It has been brought out in cross examination that the brother is still alive and is capable of talking and therefore non examination of this person goes a long way to support the case of the daughter-in- law. PW2, who is the brother-in-law of the plaintiff in the suit, would depose that it is the practice among Christian community to handover the amount at the time of betrothal : 6 : A.S.Nos.744 & 745 OF 1996 or the marriage but in this particular instance he would state that it has not been done. The husband was also practicing as a consultant and the wife was employed in Saudi Arabia. Taking into consideration the attending circumstances and the family background, I have no hesitation to hold that the case spoken to by the daughter- in-law regarding parting of money at the time of betrothal appears to be correct and acceptable. 9. The next question is regarding the vitiating circumstances. According to the plaintiff, his two sons were taken to police custody and they were in detention from 27.9.1993 till 8.30 p.m on 28.9.1993. He would further contend that with the brother-in-law's (PW2) assurance, the police had released all of them with a direction to execute the document on 29.9.1993. It has to be stated that the wife had given a complaint as early as on 24.1.1993 and the report of the Inspector General of Police coupled with the report submitted by the Sub Inspector had been exhibited and marked as Ext.X1 in this case. The report would reveal that the police on enquiry had understood about the factual : 7 : A.S.Nos.744 & 745 OF 1996 matrix that the husband of the defendant had some connection with one Smitha and that has lead to the unfortunate situation and the Circle Inspector of Police was told by PW2 that PW1 will execute a document in favour of the defendant for a consideration of ` 30,000/= already received with respect to 1 acre and 50 cents of land. So police complaint had been closed in the manner as per the assurance given by PW2 and others before the police and that is how the report has been filed and the matter has been closed. 10. One has to see about the conduct of the plaintiff. That is why it is always stated that men may lie but the circumstances will never lie. Here during cross examination, PW1 had admitted that he had gone alone to the registrar's office with the document and had entrusted the document to the document writer for the purpose of writing and after writing, he had signed it and when it was presented before the Sub Registrar's Office, it was informed that as the staff members are under strike, it could be registered only tomorrow and that is why it was not registered. In the chief : 8 : A.S.Nos.744 & 745 OF 1996 examination it was submitted that two police constables had come there in white dress and had taken him to the Registrar's office. If there was compelling circumstance like that and as there was a time gap of 12 hours, at lest 28th night and 29 afternoon, no prudent man would have kept quite or two major sons available in the house would have kept quite so as to allow the police people or somebody to coerce to execute a document of this nature. PW2's evidence also is not trustworthy and he appears to be more loyal than the king and his evidence also consists a lot of contradictions. Therefore the cumulative evidence of PWs 1 and 2 would show that all is not well with their version and therefore I hold that the plaintiff in the suit had miserably failed to prove the vitiating circumstances. 11. The learned counsel for the appellant strongly contends on the question of consideration. It goes without saying that a sale without consideration is void. At the same time, consideration can be consideration in cash, consideration in kind and also past consideration. If any of these ingredients are available, then one cannot hold that : 9 : A.S.Nos.744 & 745 OF 1996 the document is vitiated by lack of consideration. In support of the said proposition, the learned counsel for the appellant had cited before me the decision of the Privy Council reported in Dawson's Bank Ltd. v. Maung Mya Thwin (AIR 1939 Privy Council, 219). It has been clearly laid down therein that “if there is no consideration, the deed is not binding on the person who had executed it. Another decision relied on by the learned counsel is the decision in Kavukutty Amma v. Kaliabni Amma (AIR 1952 Travancore- Cochin 255). It was a case where the husband wrote a letter to the creditor that he would see that the debt is paid. In such circumstances, the court held that such an undertaking by the husband will not amount to any liability with the husband and therefore he cannot be made liable. One another decision relied on by the learned counsel for the appellant is the decision reported in Prahlad v. Laddevi (AIR 2007 Rajasthan 166). There also the court made it clear that a contract without consideration is void and cancellation of such sale deed is proper. As stated by me earlier, there cannot be any doubt about the : 10 : A.S.Nos.744 & 745 OF 1996 proposition unless the document is supported by consideration. But consideration can be present consideration, past consideration or any kind of consideration. 12. The case of the wife in the suit is that at the time of marriage, an amount of rupees One lakh has been parted with as pocket money and it has been paid to the plaintiff and subsequent to the marriage also, the ornaments and money had been paid to the son of the plaintiff. When matrimonial relationship got strained and ruptured, there was a talk of settlement between the parties and in that settlement towards the amount due to the wife, the father- in-law had promised to transfer 1.5 acres of land and the consideration therein was fixed as ` 30,000/=. In the document executed also, it is seen that the said amount had been received previously i.e., why the word is used as ........ . So it cannot be held that the transaction is without any consideration. 13. From the materials available, I find that the plaintiff in O.S.No.342/1993 of his own accord and Will has : 11 : A.S.Nos.744 & 745 OF 1996 gone to the office of the scribe, has got the document written, presented before the Sub Registrar's Office and thereafter retracted from the contract and that has necessitated the suit filed by the daughter-in-law. I concur with the learned Subordinate Judge on the findings in O.S.No.342/1993 and it does not deserve any consideration and it is liable to be dismissed. 14. Next question is regarding the relief that has to be granted to the daughter-in-law who has instituted the suit OS.No.50/94. The learned trial court found that in view of the provisions of Section 77 of the Indian Registration Act it is not possible to grant a decree for the purpose of registering a document alone. It was under such circumstance it is stated that an agreement was entered on 20.9.1993 and the court was not very much in favour of that agreement. But whatever it may be, it can be seen from the entire evidence available in the matter that the wife had come back to India in March, 1993 and there had been an active talk of conciliation and mediation going on which had reached maximum in September, 1993 and it : 12 : A.S.Nos.744 & 745 OF 1996 was in pursuance of that agreement in September,1993, Ext.B2 was executed by the father-in-law. So it was as per the terms and conditions of settlement between the parties, it was decided that the father-in-law shall execute a document in favour of the daughter-in-law. That agreement remained unfulfilled because of the result of retraction caused by the father-in-law in the case. So the inevitable conclusion is that the wife should be given a remedy and that shall be granted by a decree for specific performance which has been rightly granted by the trial court. In the result, the judgment and decree passed by the trial court do not call for interference and therefore both the appeals are dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. cl : 13 : A.S.Nos.744 & 745 OF 1996 M.N. KRISHNAN, J. ........................................... A.S.Nos.744 & 745 OF 1996 ............................................. 20th day of December, 2010. J U D G M E N T