IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 AS.No. 610 of 1999(B) ------------------------------- [OS.NO.930/1992 OF II ADDL.SUB COURT,THRISSUR] .................... APPELLANT/DEFENDANT: -------------------------------------- KANAKAVALLY, JOURNALIST, D/O. KACHABRAN KARAYI RAMUNNI VAIDYAR, POOTHOLE DESOM, KODIYERI AMSOM, THALASSERY, KANNUR DISTRICT. BY ADV. SRI.KALEESWARAM RAJ. RESPONDENTS/PLAINTIFFS: ------------------------------------------ 1. MADHAVAN, ELECTRICIAN, S/O. KARAPARAMBIL KITTY, VADUKARA DESOM, KOORKANCHERY VILLAGE, TRICHUR TALUK. 2. KALADEVI, D/O. MADHAVAN, KARAPARAMBIL HOUSE, VADUKARA DESOM, KOORKANCHERY VILLAGE, TRICHUR TALUK. R1 & R2 BY ADV. SRI.VARGHESE C.KURIAKOSE. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S. NO.610/1999-F: ORDER ON I.A. NO. 3780/2006, C.M.P. NOS 1074/2003 & 4926/1999 IN A.S.NO.610/99 DISMISSED 01/11/2010. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 610 OF 1999 = = = = = = = = = = = = = = = Dated this the 1st day of November, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Thrissur in O.S.930/92. The suit is one for a permanent injunction as well as one for a specific performance of the contract. The brief facts necessary for the disposal of the appeal are stated as follows. 2. The plaintiffs are father and daughter. The defendant is a friend of the 2nd plaintiff. The plaint schedule property belonged to the first plaintiff by virtue of a document of the year 1968. The 2nd plaintiff was working along with the defendant in a women's journal from 1988. She was the Editor and the defendant was the Assistant Editor. It is the case of the A.S. 610 OF 1999 -2- plaintiffs that due to the financial difficulties the first plaintiff was suffering, the 2nd plaintiff took initiative and thereby the defendant had advanced a sum of Rs.13,000/- to the first plaintiff on 19.9.88. Towards the security for the loan transaction, it is alleged that the first plaintiff had executed a document in favour of the 2nd plaintiff and the defendant. According to the plaintiffs it is only a paper transaction not acted upon and it is at the most one created as a security for the advancement of the amount. Without the knowledge of the first plaintiff, 2nd plaintiff had executed a document relinquishing her right in favour of the defendant in 1989. It is also not a valid document but that had come into effect at the instance and pressure exerted by the defendant. Thereafter the 2nd plaintiff and A.S. 610 OF 1999 -3- the defendant had entered into an agreement whereby it was decided to assign the property in favour of the 2nd plaintiff or her nominee. As per the stipulations in the agreement any amount that is received more than Rs.29,400/- has to be paid to the plaintiffs. According to the plaintiffs the performance of the contract is to take place on or before 19.6.90. But to the utter dismay of the plaintiffs the defendant is attempting to trespass into the property and attempting to sell the property and thereby they have moved a suit for injunction and by way of amendment as well one for specific performance of the contract. 3. On the other hand the defendant would contend that it is a fact that the 2nd plaintiff and the defendant were working together in a women's journal. But according to the defendant A.S. 610 OF 1999 -4- the property was assigned in favour of her and the 2nd plaintiff for valid consideration and thereafter the 2nd plaintiff had released her right in favour of the defendant and that the document had been accepted and acted upon and thereby the defendant has become the absolute owner in possession of the property. There was an agreement dated 19.3.89 and the stipulations in the agreement was for resale of the property to the plaintiffs in case they do it on or before 19.6.89. It is found that the plaintiffs had made material alterations in the agreement. It is also contended that the time is the essence of contract and therefore as the suit is filed after 19.6.89 it has become incapable of being performed and so the plaintiffs are not entitled to any relief. A.S. 610 OF 1999 -5- 4. In the trial court PWs.1 to 4 and DW1 and DW2 were examined. Exts.A1 to A4, B1 to B6 and C1 were marked. On an analysis of the materials the trial court has granted a decree for specific performance as well as a decree for injunction. It is against that decision the defendant has come up in appeal. 5. Heard the learned counsel for the appellant as well as the respondent. Before adverting into the facts of the case it is desirable to state the law to be followed in these types of cases. Now there is a prayer demanding specific performance of the contract. There is no dispute between the parties with respect to the execution of the agreement. When there is a specific agreement entered into between the parties whereby the title of the defendant is admitted it has to be stated that A.S. 610 OF 1999 -6- it becomes the main relief so far as the performance of the contract is concerned and the other contentions like injunction etc. really falls to insignificance. If really the plaintiffs had struck to their case stating that documents executed in favour of the defendant is sham, nominal and not acted upon, then necessarily the agreement also has to perish on that ground but unfortunately basing upon the very same agreement the suit for specific performance is filed. Therefore when the specific performance issue is considered the whole matter can be settled on that score itself. 6. It has to be stated that the 2nd plaintiff and the defendant were good friends. They were working together and it was during the said period there arose difficulty for the A.S. 610 OF 1999 -7- father of the 2nd plaintiff and it was at that time the document of the year 1988 was executed transferring the property in favour of the defendant and 2nd plaintiff. Thereafter due to the reasons beyond the control of the parties the women's journal did not function and so they had to part company and it is the case of the defendant that the 2nd plaintiff had approached her as she was getting married and she was in need of some more amount and as per the persuasion given by DW2 the defendant has parted with Rs.10,000/- and it was on account of the same that the 2nd plaintiff had released her right in favour of the defendant in the suit. So by virtue of these two documents the defendant becomes the absolute owner of the property. It is true that there are contentions to the effect that the document is not acted A.S. 610 OF 1999 -8- upon etc. but it is to be remembered that the plaint schedule property is adjacent to the residential compound of the plaintiffs and till 1989 whereby the defendant got the release from the 2nd plaintiff, they were owners of the property together and therefore the lye of that property as one along with the house and compound does not ipso facto indicate that there had been no transfer in favour of the defendant. Subsequent to that we find from the case records that the defendant had paid basic tax also to the property. 7. Now the question is what will be the impact of the agreement. Ext.A2 is an agreement. As per Ext.A2, the stipulation is that after deducting Rs.29,400/-, if any excess amount is received it shall be paid to the plaintiffs and the agreement will terminate by A.S. 610 OF 1999 -9- itself. But it is made very clear that the date is fixed for all these performances. I say so because there is a dispute between the parties with respect to the same. According to the plaintiff the date of performance is fixed as 19.6.90 whereas according to the defendant it is 19.6.89. A perusal of the original of the agreement would make it emphatically clear that in the first page of the agreement there is a correction by eraser and something is substituted with 1990........ Similarly it has also to be stated in the last sentence of the document it is stated, “...................... ..................................” It is also written only after the completion of the writing in the document. It is a new writing also. The contention of the plaintiff is as per the discussion between the parties the time A.S. 610 OF 1999 -10- stipulated has been corrected as June 1990 and before signing the document this correction has been carried out. 8. On the other hand the defendant would strongly contend that the word in the first page was “..........” which means 1989 and similarly the last sentence was 19.6.89 and not 1990. In order to strengthen the argument the defendant had produced a draft of the karar which is marked as Ext.B5 in this case. The signature of the 2nd plaintiff in Ext.B5 is admitted. But the contention is that she had given large number of signed papers and that had been utilized for the purpose of creating Ext.B5. In Ext.B5 we find the word “...................................... ....................... and the last sentence “............................................. ......................” It has to be remembered A.S. 610 OF 1999 -11- that a non significant minute correction namely scratching of the word “............”a note is made in page 3 of Ext.A2 agreement. So when confronted with these, the plaintiffs witness, the scribe would state that when scratches are made or something is scored of it is mentioned in the document and not when something is erased or something is added later on. It is very difficult to believe such types of contentions for the reason if the intention was to make it a perfect complete agreement even now one can see that the particulars and date etc. relating to the surrender deed executed by the 2nd plaintiff in favour of the defendant remains unfilled in this document. So the adding and erasure on the face of it is very suspicious. 9. Ext.A3 is a letter written by the defendant to the same plaintiff. It is dated A.S. 610 OF 1999 -12- 31.7.89. It is a pathetic letter explaining the agony undergone by her. She has stated that this letter was being written from the bed and the request in that letter is to send all the documents by registered post. It is also stated in that letter ................................ ................................................ ................................................ ...............................................” This June 10 in Ext.A3 relates to 1989 for the reason that this letter is written on 31.7.89. 10. Now I may refer to the other letters also written in this case which are Exts.B2 and B3. B2 is a letter written by the 2nd plaintiff to DW2. There she addresses it as “..................................” There she has explained about her family difficulties and other things and the permanent difficulties A.S. 610 OF 1999 -13- undergone by the defendant. Ext.B3 is another letter therein the difficulties are again explained stating that one after the other all the family members are always in the hospital and there is considerable difficulty for her. She also refers to “.......................... ...............................................” In this letter this 'Vally' is none other than Kanakavally who is the defendant in the case. So this letter dated 18.8.89 also reflects the feelings of the parties and if really there was time till 19.6.90 as contended by the plaintiffs certainly one shall not be so apologetic or one shall not be afraid of a curse from the defendant for the reason that the terms of the agreement was to expire only somewhere next year. So it is at this junction the correction in Ext.A2 has to be noted. To my mind I have no A.S. 610 OF 1999 -14- hesitation to hold that it is a correction made and the cumulative effect of that, with reference to the letters perused would reveal it has been done only with the intention to bring the suit in time. So I find there are material corrections which will go to the root of the matter. Now one has to analyze about the other materials as well in this case. 11. PW1 is the first plaintiff. He had spoken in line with the plaintiff and he would still harpen on the non passing of title to the defendant. According to him that in spite of repeated demands the defendant did not execute the document. When questions are put in the cross examination he does not remember whether his property had been mortgaged with the co- operative Bank and he even pleads ignorance about the daughter's surrender in favour of the A.S. 610 OF 1999 -15- defendant. He would contend that Rs.30,000/- is the market rate of the property at present. 12. PW2 is the 2nd plaintiff. She also turns a topsy turvy against her documents and would contend that the defendant does not have any right over the property. She does not have any right to assign the property. According to her she would admit that there was a prior date in the agreement but by virtue of mutual discussion and agreement they had changed the date. She would also depose she had visited the house of the defendant prior to the deed of release. According to her she did not demand for any amount. She would also admit about the execution of Ext.A2 document. 13. Now the main trump card is that of the evidence of PW3. He is the document writer. He would submit that he has written Ext.A2 and the A.S. 610 OF 1999 -16- correction has been made before the party signed. But when questions are put to him with respect to other documents he is pleading ignorance and he also would submit that he had not seen the defendant before Ext.A2. But it is interesting to note that admittedly he had sent Ext.B6 letter requesting Kanakavally, the defendant, to come down and try for a settlement of the matter. This would indicate that how much interest he has in this matter. When questions are put to him regarding the erasers etc. he pleads either ignorance or that had not been done. Regarding Ext.B4 he would say that Ext.A2 was not written on 14.3.89 but on 19.3.89. His evidence to my mind does not inspire confidence regarding the correction. DW4 is the Commissioner whose evidence also does not help us to take a decision in this case. A.S. 610 OF 1999 -17- 14. DW2 admittedly is a close friend of the plaintiff and defendant. She would submit that there were financial transactions between the 2nd plaintiff and the defendant and that the 2nd plaintiff had come to the defendant with a further request of payment of Rs.5,000/- for her marriage and that amount has been paid. She had supported the case of the defendant in the matter. So on an analysis of the entire materials on records referring to the documentary as well as oral evidence would convince that the date of performance of the agreement in Ext.A2 had been tampered with and that has to be viewed with all suspicion in this case. 15. Now comes the crucial question regarding the performance of the contract. Learned counsel for the appellant would submit before me A.S. 610 OF 1999 -18- that in a suit for specific performance of the contract where the nature of transaction is the re-conveyance of the property, time becomes the essence of the contract and after the expiry of the time the party cannot enforce that agreement. On the contra the learned counsel for the respondents would submit before me Ext.A2 agreement should not be taken as an agreement for re-conveyance alone and it is something more for the reason that the original of the document was executed by the first plaintiff in favour of the 2nd plaintiff and the defendant. According to the defendant 2nd plaintiff had transferred her right in favour of the defendant. So in fact the re-conveyance should in the ordinary sense would be to the first plaintiff and therefore it shall not be taken as a re-conveyance and it can be only A.S. 610 OF 1999 -19- treated as an agreement for sale with certain conditions and therefore under the general law, in a suit for specific performance of the contract, time need not be the essence of the contract. In order to arrive at a decision one has to understand the intention of the parties and the conduct of the parties from their own conduct and the other evidence available in the matter. Whatever it may be, the first plaintiff had transferred his property in favour of the 2nd plaintiff and the defendant, stating that consideration is received. Then the 2nd plaintiff transfers her right available to the defendant. The relationship between the plaintiffs are that of a father and daughter. When Ext.A2 agreement is executed the intention of the parties was to see that the property is reconveyed to the original people. It is true A.S. 610 OF 1999 -20- that 2nd plaintiff alone is a party to the document. But manifestly it can be stated that it amounts to reconveyance for the reason the parties have understood in that sense and therefore it is stated that within the stipulated time if the document is not executed or attempted to be executed then the defendant shall not be liable for anything further and she can deal with the property in any manner she likes. So it is a case of re-transfer of the property and when it is a re-transfer of the property as held in so many decisions time becomes essence of the contract and since the time as I have found can be only 19.6.89 and as the suit is filed only in the year 1990 the plaintiffs are not entitled to a decree for specific performance of the contract. A.S. 610 OF 1999 -21- 16. Now various decisions are also cited before me in this regard. I may refer to one or two decisions in that regard. In the decision reported in Alikunju Ibrahimkutty v. Abdul Khathirkunju (ILR 2001 (3) Kerala 364) a learned Judge of this Court held that when a property has been put in possession of another as security of a loan with the understanding that the same will be retransferred to him on the discharge of the loan, on his refusal, the remedy is to file a suit for specific performance of the agreement”. So even if the contention of the plaintiffs are accepted it is certain that a suit for specific performance is maintainable in that regard. Then the learned counsel had produced another decision of the Hon'ble Supreme Court reported in Gauri Shankar Prasad and others v. Brahma Nand Singh (2008 (8) A.S. 610 OF 1999 -22- SCC 287) wherein it was a case where there is a sale of property and agreement to repurchase the same are embodied in separate documents in the agreement relating to reconveyance of the property, time would be always the essence of the contract. In the decision reported in Bismillah Begum v. Rahmatullah Khan (AIR 1998 SC 970) the Hon'ble Supreme Court has held that where so far as reconveyance of immovable property is concerned, time in such cases is the essence of the contract and if option to repurchase is not made within the stipulated time it must be deemed to have lapsed. 17. So from these discussions the question of exercising or non exercising the discretionary jurisdiction u/s 20 of the Specific Relief Act also does not arise for the reason the right of specific performance is not A.S. 610 OF 1999 -23- available. Since the agreement specifically stipulates about the title of the defendant and also refers to the reconveyance it follows that the consequential relief or a separate relief of injunction also cannot be granted in this case. Therefore from these discussions the judgment and decree of the trial court are set a side and the appeal is allowed and the suit is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 610 OF 1999 -24- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.610 OF 1999 = = = = = = = = = = = J U D G M E N T 1st November, 2010.