IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 AS.No. 372 of 2000(E) ------------------------------ OS.NO.203/1995 OF I ADDL.SUB COURT, THRISSUR. .................... APPELLANTS/L.R'S OF PLAINTIFF – PLAINTIFF DIED ON 07/04/2000: ------------------------------------------------------------------------------------------------- 1. K.R. AMARAVATHY, W/O. LATE KANAKKOT DASAN, MANATHALA VILLAGE & DESOM, CHAVAKKAD TALUK. 2. K.D. JEEJA, D/O. LATE KANAKKOT DASAN, -DO-. 3. K.D. JIKKY, D/O. LATE KANAKKOT DASAN, -DO-. 4. JEEBU, S/O. LATE KANAKKOT DASAN, -DO- -DO-. 5. K.D. JIMMY, S/O. LATE KANAKKOT DASAN, -DO- -DO-. BY ADVS. MR.P.VIJAYA BHANU, MR.T.A.UNNIKRISHNAN. RESPONDENTS/ DEFENDANTS: ---------------------------------------------- 1. BHARATHAN, S/O. KANAKKOT THAMI, MANATHALA VILLAGE & DESOM. 2. SURENDRAN, S/O.KANAKKOT THAMI, -DO- -DO-. R1 & R2 BY ADV. MR.T.A.RAJAGOPALAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. ........................................... A.S.NO.372 OF 2000 ............................................. Dated this the 24th day of June, 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, Trichur in O.S.No.203/1995. The suit is one for a direction to transfer the title and ownership of the plaint schedule property and the school situated therein in favour of the plaintiff. It is the case of the plaintiff that he was employed in Dubai from 1967 onwards. He was employed in Dubai till 1993. While so, he came to know that the plaint schedule property was proposed to be sold. So, he directed the first defendant, his brother, to make purchase of the plaint schedule property along with the school therein in the plaintiff's name. He had sent Rs.50,000/= to the first defendant to effect the transaction. It was informed by the first defendant that the school has been purchased and it was renamed as Kanakottu Aided L.P. School and further that the second defendant had been named as the Manager. The plaintiff was under the impression that the purchase has been made in his name : 2 : A.S.NO.372 OF 2000 as he had directed his brother to do so. But on his return from Gulf, he found that the defendants had colluded together and had purchased the property in the name of the second defendant and he represented as the educational agency. When the plaintiff came to know about the fraud, he had initiated action for the transfer of the school in his name. 2. The defendants on the other hand would contend that the plaintiff is not entitled to any relief. They would contend that the plaintiff is the elder brother of the defendants and all except D1 were employed in Gulf country. They decided to purchase the school and to be named as the family property of the plaintiff and the defendants. One Ramu instituted a suit against the second defendant for specific performance of the contract with respect to the sale of the school which ultimately had been compromised and the second defendant had paid Rs.One lakh for the compromise. The lower court on an analysis of the materials had dismissed the suit. It is against that decision, the plaintiff has come up in appeal. 3. Heard the learned counsel for the plaintiff as well as the defendants. Admittedly the plaintiff and defendants : 3 : A.S.NO.372 OF 2000 are brothers. The plaintiff and the second defendant were working abroad and the first defendant was in the native place. According to the plaintiff, when he came to know that the school was being sold, he had entrusted Rs.50,000/= with the first defendant to purchase the school in the name of the plaintiff and he was under the impression that the first defendant had done so. It has to be remembered that the purchase was in the year 1977. The action for getting re- transfer of the same is initiated in the year 1995. The first defendant was residing next to the residence of the plaintiff . There is no case for the plaintiff that any direction has been given by him to purchase the property in the name of the second defendant. The plaintiff has no a case that the property is purchased in the name of one of the brothers as a benami to the plaintiff. The case of the plaintiff is that he had advanced the amount and the first defendant has played a fraud on him by purchasing the property in the name of the second defendant. Fraud is a matter which cannot be arrived at on the basis of conjectures and surmises. It is also an equally settled principle that there will not be any direct evidence to prove the fraud. Fraud has to be inferred : 4 : A.S.NO.372 OF 2000 from the facts and circumstances. 4. The learned counsel for the appellants had relied upon Ext.A4 which is a certified copy of the written statement filed by the second defendant in O.S.607/1983 which was a suit filed by one Ramu on the basis of an agreement to sell. It was the case of Ramu that the second defendant had entered into an agreement for the sale of the school and since he had committed the breach of contract, he wanted to enforce the contract by a decree for specific performance. The matter reached up to the High Court and ultimately it has come out in evidence that Ramu has been paid Rs. One lakh by the second defendant and the matter has been compromised. In the written statement filed by the second defendant in the said suit, there is a mention that the document is registered in his name but majority of the consideration for the same had come from the hands of the plaintiff. It is true that admission is a matter that has to be looked into, but law equally has settled down that when an admission is made in a previous proceedings, the party who had made such an admission has to be given an opportunity to explain the circumstances under which the admission was : 5 : A.S.NO.372 OF 2000 made. When the second defendant was confronted with such an admission, he had admitted before the court that the said admission was made in order to escape from the contract in relation to Ramu. The court below found that it was a statement made in an attempt to escape from the clutches of Ramu. It was considered by the court below as a genuine explanation and held that the said admission cannot considered as conclusive. 5. I also find that the same approach is correct. Even if one has paid any consideration or one has advanced some amount, that by itself will not automatically confer title on that person. Here there is no case for the plaintiff even that he had advanced any amount to the second defendant for the purchase of the school. The documents stand registered in the name of the second defendant and documents are produced in large number to establish that he was considered as the educational agency and was acting as the manager of the school and in the capacity of the manager, has done various things for a considerable length of time. Suppose really plaintiff is the owner and being only a brother, the plaintiff would have come to the native place and : 6 : A.S.NO.372 OF 2000 should not have kept quite for a long number of almost two decades without initiating any action. That is why it is always said that men may lie but circumstances will never lie. Further I find from the plaint that the prayer couched is quite strange and when a document is there, without any prayer to declare that document as invalid the plaintiff wants intervention of the court for the transfer of the property without shaking that document. It is totally impossible. If entire case of the plaintiff is analysed, at the most it may appear that he had sent some money to the first defendant. The school stands in the name of the second defendant. The fraud alleged is pleaded but not proved. So, I find that the court below was perfectly right in holding that the plaintiff is not entitled to any relief. I confirm the said judgment and decree and the appeal is dismissed but directing the parties to bear their respective costs. M.N. KRISHNAN, JUDGE. cl : 7 : A.S.NO.372 OF 2000 M.N. KRISHNAN, J. ........................................... A.S.NO.372 OF 2000 ............................................. 24th day of June, 2010. J U D G M E N T