IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 RSA.NO. 80 OF 2010() ------------------------------ AS.250/2006 OF I ADDL. DISTRICT COURT, PALAKKAD OS.105/2001 OF PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- V.R.SUNDARI AMMAL, W/O.V.K.RAMACHANDRAN, AGED 68 YEARS, MANNAMCHIRA ROAD, KOPPAM AMSOM, PALAKKAD TALUK & DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S): RESPONDENTS/PLAINTIFFS ------------------------------------------------------------- 1. K.V.SUBRAMANIAN, S/O.LATE K.S.VENKITESWARA IYER, KODUNTHIRAPULY GRAMAM, KODUNTHIRAPULY AMSOM, PALAKKAD TALUK & DISTRICT. 2. K.K.KUMAR, S/O.LATE KRISHNA IYER, KODUNTHIRAPULY GRAMAM, KODUNTHIRAPULY AMSOM, PALAKKAD TALUK & DISTRICT. 3. K.V.SUBRAMANIAN, S/O.K.N.VENKITESWARA IYER, KODUNTHIRAPULY GRAMAM, KODUNTHIRAPULY AMSOM, PALAKKAD TALUK & DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/02/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.80 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 16th day of February, 2010 J U D G M E N T --------------------- Urging by way of substantial questions of law whether courts below have gone wrong in not holding that Ext.A7 is only a deed of conditional sale and committed an illegality in appreciation of the evidence of contesting parties defendant has come up in Second Appeal challenging concurrent verdict against her. 2. Respondents/plaintiffs claimed recovery of possession of the suit property and damages on the strength of title they claimed as per Ext.A1, assignment deed dated 6.10.1999. They claimed to have purchased that property form one Abdul Farook who got the same as per Ext.A7, assignment deed dated 25.9.1998 executed by the appellant. It is also the case of respondents that after the assignment appellant was permitted to stay in the house in the property for a period of three months but she has not vacated on expiry of the term or as per notice issued on 1.12.2000. Appellant contested the suit and made a counter claim. Her case is that there was no sale of property in favour of Abdul Farook as per Ext.A7 and instead it was only a conditional sale for a sum of Rs.30,000/- R.S.A. No.80 of 2010 -: 2 :- borrowed by her from the said Abdul Farook. According to her Abdul Farook was to re-convey the property on receipt of Rs.30,000/-. While so for the purpose of discharging liability of Abdul Farook appellant took a loan of Rs.30,000/- from respondents. Respondents wanted her to execute an agreement and accordingly she executed Ext.B1, agreement dated 22.5.1998 agreeing to sell 1½ cents (out of the property allegedly sold to Abdul Farook as per Ext.A7) in favour of wife of respondent No.1. Respondents demanded Rs.1,65,000/- from the appellant which she was not able to oblige. Another agreement was got executed by the respondents in favour of wife of respondent No.1 agreeing to sell the entire property for Rs.7,01,000/-. It is contended by the appellant that she is illiterate and was duped by the respondents. She has discharged liability of respondents and hence they are bound to re-convey the property to her. Hence the counter claim. Courter claim was replied by the respondents contending that appellant had executed Ext.A8, agreement for sale dated 10.12.1998 in favour of wife of respondent No.1 for Rs.7,01,000/- and received Rs.2,50,000/-. Later they learnt that appellant had already sold the property to Abdul Farook and hence they purchased the property from the said Abdul R.S.A. No.80 of 2010 -: 3 :- Farook. Trial court found against contention of appellant and granted recovery of possession with damages. That was confirmed by the first appellate court. It is contended by learned counsel for appellant that Ext.A7 was only a conditional sale as is evident from the fact that Abdul Farook or respondents did not get possession of the suit property. Appellant continued to be in possession of the suit property. That according to the learned counsel along with the variation in the sale considerations in Exts.A7 and A1 would show the real nature of transaction as pleaded by the appellant. Learned counsel for respondents contended that Ext.A7 cannot be treated as a conditional sale as contended by the appellant and that on evidence courts below are justified in holding in favour of the respondents. 3. A copy of Ext.A7 admittedly executed by the appellant in favour of Abdul Farook was given to me for perusal. Apparently it is an outright sale in favour of Abdul Farook for consideration of Rs.30,000/-. The document states that possession of the property was given to Abdul Farook. Learned counsel for respondents has invited my attention to the proviso to Section 58 of the Transfer of Property Act which states that in the case of a mortgage by R.S.A. No.80 of 2010 -: 4 :- conditional sale conditions must be embodied in the document which effects or purports to effect the sale. Indisputably and as seen from Ext.A7 that document does not contain any condition to indicate that it is a mortgage by conditional sale and that there was any agreement for re-conveyance. No collateral agreement is produced by the appellant to show that Abdul Farook agreed to re- convey the property to her or to treat Ext.A7 as a security for the loan availed by her. It is on the right, title, interest and possession acquired by Abdul Farook as per Ext.A7 which he assigned in favour of respondents as per Ext.A1 dated 6.10.1999. Mere fact that sale consideration stated in Exts.A7 and A1 varies cannot by itself is a ground to hold that the transactions were not genuine. 4. Respondents do not dispute that appellant had executed an agreement in favour of wife of respondent No.1 on 10.12.1998 (copy of which is marked as Ext.A8) agreeing to transfer the property in favour of wife of respondent No.1 for a total consideration of Rs.7,01,000/-, receiving Rs.2,50,000/- by way of advance. According to the respondents they learnt that suit property was already sold by the appellant to Abdul Farook as per Ext.A7 and hence they were constrained to purchase the property R.S.A. No.80 of 2010 -: 5 :- from Abdul Farook as per Ext.A1. 5. Exhibits B1 and B4 are the agreements dated 22.5.1998 and 6.10.1999 set up by the appellant. Those agreements are not admitted by the respondents and strangely when appellant was examined as D.W.1 she did not uphold those agreements holding that she had not executed any such agreement. It is pertinent to note that execution of Exts.B1 and B4 is also not pleaded in the written statement. 6. Contention of appellant is that she remained in possession of the suit property notwithstanding Exts.A1 and A7. Courts below found that title of appellant passed from her. Even if it is assumed that possession was not given at the time of sale that by itself will not make the sale anything less than a sale (See Naryan v. Trimbakrao - AIR 1988 Bombay 94). In the present case respondents, subsequent to the sale permitted appellant to reside in the building in the suit property. In the nature of the transaction and evidence, oral and documentary courts below accepted that contention of the respondents. Courts below on the evidence accepted case of the respondents. On hearing counsel on both sides and going through the judgments under challenge I do not find any R.S.A. No.80 of 2010 -: 6 :- substantial question of law involved in this Second Appeal for a decision. 7. However considering the fact that appellant has to vacate the building immediately and considering the difficulties to which she will be put to in such an event I am inclined to grant six months' time from this day to vacate the building referred to in the plaint schedule. During the said period of six months or till appellant vacated the building whichever is earlier, she shall pay damages at the rate awarded by the courts below. Appellant shall also file an affidavit in the trial court within one month from this day undertaking to vacate the building within the said period of six months without putting forth any claim on any count. Second Appeal is dismissed in limine with the above direction. Interlocutory Application No.191 of 2010 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv