IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 AS.No. 100 of 2002 (B) -------------------- (OS.197/1995 of I ADDL.SUB COURT, TRIVANDRUM) .................... APPELLANT/PLAINTIFF -------------------------------- C.SWARNAMMAL, D/O.CHELLAMMAL, GOVT. SERVANT, RESIDING AT T.C.36/600(1), SIVA CHELLAM, PALKULANGARA, THIRUVANANTHAPURAM. BY ADVS. SRI.L.MOHANAN SRI.D.SAJEEV RESPONDENT/DEFENDANT ----------------------------------------- AJITHA KUMARI, D/O.KAMALAKSHI AMMA, PILLA VEEDU, NEAR GIRLS HIGH SCHOOL, THEKKUMKARA MURI, NEDUMANGADU VILLAGE, NOW WORKING AS CONFIDENTIAL ASSISTANT, OFFICE OF THE SECRETARY, G.A.D(SERVICES), GOVT. SECRETARIAT, THIRUVANANTHAPURAM. BY ADV. SRI.G.S.REGHUNATH THIS APPEAL SUITS HAVING COME BEEN FINALLY HEARD ON 6.10.2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 100 OF 2002 = = = = = = = = = = = = = = = Dated this the 6th day of October, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Thiruvananthapuram in O.S.197/95. The suit is one for return of the advance amount. It is the case of the plaintiff that she had entered into an agreement for sale with the defendant with respect to 5 cents of property for a consideration of Rs.2,26,000/- and had paid an advance of Rs.25,000/-. The document was to be executed on or before 4.1.95 and on 18.12.94 when the plaintiff went to measure the property along with her husband the neighbours and relatives obstructed the same stating that the property belonged to a temple and defendant had no assignable right. Thereafter the A.S. 100 OF 2002 -2- plaintiff terminated the contract and had filed a suit for return of the amount. 2. On the other hand the defendant would contend the story of going for measurement etc. are false. Every document has been perused by the plaintiff and the execution of the document did not take place for the reason that the plaintiff was unable to raise funds for purchase of the property. On appreciation of the materials the Court below granted a decree for return of half the amount and unfortunately refused to give entire amount stating that the other thing stating that the defendant has sustained damages. It is against that decision the plaintiff has come up in appeal. 3. Heard the counsel for both the sides. In a sale as per the provisions of the Transfer of Property Act the seller is bound to disclose A.S. 100 OF 2002 -3- all materials to the buyer and the buyer is expected to take all reasonable care with respect to the purchase of the property. The plaintiff and the defendant were friends. The property belonged to mother-in-law of the defendant. She had obtained the said property by virtue of a family partition deed. She had transferred that property in favour of her son who in turn had assigned it in favour of the defendant and thereby the defendant has claimed to have obtained title over the property and therefore had agreed to sell the property under the document. Now the crux of the matter is who has committed the breach of contract and if so it is the plaintiff whether the defendant had sustained any damages and whether the plaintiff is entitled to recovery of the entire advance amount. At the out set I may like to state that A.S. 100 OF 2002 -4- admittedly at this point of time there has been a cloud of suspicion regarding the title of the defendant to transfer the property. The mother- in-law obtained the property under a family partition and it is the contention that the plaint schedule property was set apart for the temple. The mother transfers it to the son who in turn transfers it to his wife. The documents executed by the mother and the husband does not reveal anything about the stipulations in the partition deed. Therefore a person who is going to purchase the property automatically on the basis of the title of the defendant and her immediate prior title would be satisfied and they may proceed to purchase the property. It is at this juncture whether the story put forward by the plaintiff that there was obstruction on the date when she went to measure A.S. 100 OF 2002 -5- the property assumes importance. The plaintiff would categorically assert that the relatives and neighbours had obstructed the measurement of property. This appears to be a probable happening for the reason subsequent to the same a suit has been filed with respect to this 13 cents of property covered by the title deed by the defendant and her husband. So there was really a shadow of doubt surrounding the title of the defendant over the property. I think under such situation a prudent buyer will never like to go for litigation but only would like to get back the amount which he had advanced. Therefore I am of the view that the primary responsibility of satisfying the plaintiff regarding the valid title to the property of the defendant is on the defendant and not otherwise. A.S. 100 OF 2002 -6- 4. Now another case advanced is that when the advance amount of Rs.25,000/- was received she had entered an agreement for sale with a third person who had been examined as DW2 for a consideration of Rs.3 lakhs. He comes and says that the said sale also did not materialize and therefore he had sustained Rs.50,000/- loss and therefore had appropriated the advance amount of Rs.30,000/-. It has to be stated not even a lawyer notice is sent, not even a document is produced. Except the mere ipsi dexit of the defendant and his witness there is nothing before Court to believe such a version especially in the back drop of the fact that the defendant did not really divulge the defect in her title over the property. Therefore damages alleged to be sustained by the defendant is also not acceptable. A.S. 100 OF 2002 -7- 5. So, from these discussions, I hold that here is a case where the plaintiff was forced to terminate the agreement and therefore she is entitled to get back the amount which she had paid and there is no positive evidence otherwise to hold that the defendant had sustained any damages. Therefore I hold that the plaintiff is entitled to return of the entire advance amount of Rs.25,000/- as requested in the suit. 6. Therefore the judgment and decree of the trial court are modified and the plaintiff is given a decree for realisation of Rs.25,000/- with 6% interest on the said sum from the date of suit till realisation from the defendant with costs. Parties are directed to bear their respective costs in the appeal. M.N. KRISHNAN, JUDGE. A.S. 100 OF 2002 -8- ul/- A.S. 100 OF 2002 -9- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.100 OF 2002 = = = = = = = = = = = J U D G M E N T 6th October, 2010.