IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 AS.No. 954 of 1996() -------------------- OS.100/1983 of ADDL.SUB COURT,PARAVUR .................... APPELLANTS/DEFENDATNS 3 TO 6: ------------------------------------------------- 1. OMANA, WIFE OF CHANDRAN, MANIYASSERIL, MANAKKODAM MURI, CHENNAMANGALAM VILLAGE, PARUR TALUK. 2. HARI, SON OF CHANDRAN, DO. 3. ANNA, DAUGHTER OF CHANDRAN, DO. 4. AJITH ALIAS ANIL, SON OF CHANDRAN, DO. BY ADV. SRI.DINESH.R.SHENOY RESPONDENTS/PLAINTIFF & 2ND DEFT.: ---------------------------------------------------------- 1. PAUL, SON OF KUNJU VAREED, MANGALAM NANDIKARA DESOM, PARAPPUKARA VILLAGE MUKUNDAPURAM TALUK. 2. JOHN, SON OF MANEEK, THEKKINEDATH, PARAVOO THARA, MURI, PARUR TALUK. ADV. SRI.BIJOY C.ANTONY,C.V.JOSEPH SRI.BOSE K.THACHIL SMT.ANN EMIL JOSEPH THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON 15/07/2009 DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO. 5881/96 IN A.S.NO. 954 OF 1996 DISMISSED 15.7.2009 SD/- M.L. JOSEPH FRANCIS, JUDGE /TRUE COPY/ M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - A.S.No. 954 of 1996 - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of July, 2009 JUDGMENT This appeal is filed by defendants 3 to 6 in O.S.No. 100 of 1983 on the file of the Sub Court, N.Parur. Respondents 1 and 2 are the plaintiff and second defendant in that suit. 2. The first respondent filed the suit seeking specific performance of an agreement for sale dated 30.8.1982 executed by the second respondent/second defendant, purporting to exercise power under a Power of attorney dt.13.11.1981 executed by the first defendant in his favour, empowering him to sell the property of the first defendant. In the agreement it was stated that the plaint schedule property measuring 27 cents would be sold to the plaintiff for an amount of Rs.37,000/- Out of the said A.S.No. 954 of 1996 2 amount an amount of Rs.30,000/- was shown as advance already received by the second defendant. 3. The first defendant contended that no agreement intending to sell the property was entered into and that the agreement referred to in the plaint was got executed by the second defendant for the purpose of creating a security for some money received by Sadasivan, brother-in-law of the first defendant, from the plaintiff. He further contended that the terms of the agreement were not intended to be acted upon and that the plaintiff was entitled only to get the balance amount from Sadasivan. Hence it is contended that the plaintiff was not entitled to specific performance of the alleged agreement. 4. The second defendant filed written statement and admitted the existence of the Power of Attorney executed by the first defendant for the purpose of sale of the plaint schedule property. He states that the suit agreement was entered into with the plaintiff on the strength of the Power of Attorney and A.S.No. 954 of 1996 3 with the knowledge and consent to the first defendant. As per the said agreement, Rs.30,000/- was received as advance from out of the agreed sale consideration of Rs.37,000/- He was always ready and willing to have the agreement performed but the sale could not be effected as the first defendant caused delay in executing the document on some pretext or the other and that he is, therefore, not liable for the costs of the plaintiff. 5. The first defendant died during the pendency of the suit. The appellants, who are the legal representatives of the first defendant, were impleaded as additional defendants 3 to 6. After taking evidence, the suit was decreed on 3.12.1985. 6. In appeal, A.S.219 of 1989, this Court set aside the judgment and decree and remanded the case for fresh disposal in accordance with law. After remand, the appellants filed joint written statement contending that the second defendant has no manner of right to execute any agreement for sale of the plaint schedule property and receive consideration on behalf of the A.S.No. 954 of 1996 4 first defendant. They further contended that the plaintiff and the second defendant collusively misrepresented to the first defendant, who is an illiterate person and caused him to execute document without disclosing the contents of it. There is no privity of contract in the agreement between the plaintiff and the first defendant. The agreement executed by the second defendant in favour of the plaintiff is not enforceable for want of consideration. 7. In the Sub Court, PW1 and Dws. 1 to 3 were examined and Exts.A1 to A4 and B1 were marked. The learned Sub Judge, on considering the evidence, decreed the suit without cost on 19.10.1995 and defendants 2 to 6 are directed to execute the Sale Deed in favour of the plaintiff within two months from the date of the decree, failing which the plaintiff is allowed to deposit the balance sale consideration before the Court and get execution of the Sale Deed through court. Against that judgment and decree defendants 3 to 6 filed this appeal. A.S.No. 954 of 1996 5 8. Heard the learned counsel for the appellants and the learned counsel for the respondents. 9. There is no dispute that the plaint schedule property, having an extent of 27 cents, belongs to the first defendant and the first defendant executed a Power of Attorney in favour of the second defendant. According to the plaintiff, the second defendant executed Ext. A1 agreement for sale dt. 30.8.1982 agreeing to sell the plaint schedule property to the plaintiff for a total sale consideration of Rs.37,000/- and received Rs.30,000/- as advance and agreed to execute the Sale Deed within three months from the date of the agreement. The second defendant or the plaintiff did not produce the registered original Power of Attorney executed by the first defendant in favour of the second defendant. The first defendant, who executed the Power of Attorney in favour of the second defendant, died during the pendency of the suit before examining him as a witness. Ext.B1 is the copy of that Power of Attorney. A.S.No. 954 of 1996 6 10. DW3, Sadasivan, is the brother of the third defendant. DW3 is an attesting witness to the original Power of Attorney. DW3 deposed that the first defendant was illiterate and was an asthma patient. He further deposed that the second defendant has money lending business and for the bus service conducted by him, he borrowed money from the second defendant by executing Power of Attorney by the first defendant and by executing Sale agreement with regard to the property belonging to his mother. DW3 deposed that out of the loan availed by him, he had discharged Rs.15,000/- DW3 further deposed that the mothers of wives of the plaintiff and the second defendant are sisters. DW2 is the 4th defendant, who is the son of the first defendant. 11. DW2 swears that DW3 had bus service and DW3 borrowed amounts from the second defendant and Power of Attorney was executed by the first defendant in favour of the A.S.No. 954 of 1996 7 second defendant for the purpose of borrowing amounts for DW3 from the second defendant. 12. The second defendant was examined as DW1. He admits that he had money lending business. DW1 deposed that he does not know whether the mother of his wife and mother of the plaintiff's wife are sisters. DW1 admits that he had advanced money to the mother of DW3, Sadasivan, on the basis of an agreement for sale. In Ext.B1 there is no specific clause authorising the second defendant to receive advance of sale consideration. DW1 admits that he had no legal impediment in executing sale deed in favour of the plaintiff on the basis of Ext.B1 Power of Attorney and Ext.A1 agreement for sale. DW1 further swears that the plaintiff did not ask him to execute the sale deed. 13. The plaintiff was examined as PW1. He deposed that the plaint schedule property belongs to the first defendant, who is now no more. Defendants 3 to 6 are the legal heirs of A.S.No. 954 of 1996 8 deceased first defendant. PW1 deposed that the first defendant had executed a Power of Attorney in favour of the second defendant for selling the plaint schedule property and on the basis of that Power of Attorney, the second defendant executed Ext.A1 agreement for sale on behalf of the first defendant and received Rs.30,000/- as advance. Ext.A2 is the copy of the lawyer notice issued by the plaintiff to defendants 1 and 2 asking them to execute the sale deed on receiving the balance of sale consideration. 14. PW1 swears that Ext.A3 is the reply notice sent by an advocate on the instruction given by the first defendant asking three months' time to execute the sale deed. Ext.A4 is the copy of the reply notice sent to the advocate, who issued Ext.A3 reply notice. DW2 swears that Ext.A3 reply notice was issued at the instruction given by DW3 to Advocate Sunderesan. 15. The question whether Ext.A3 was sent at the instruction given by the first defendant cannot be ascertained as A.S.No. 954 of 1996 9 the first defendant is no more. No step was taken to examine the advocate, who issued Ext.A3 reply notice. Eventhough the original of Ext.A2 lawyer notice was addressed to defendants 1 and 2, there is no document to show that the second defendant received that lawyer notice. More over, DW1 deposed that he had not received the original of Ext.A2 lawyer notice. 16. As already mentioned, on perusing Ext.B1, copy of the Power of Attorney, it is seen that the Power of Attorney does not specifically authorise the second defendant to receive any amount towards sale consideration on behalf of the first defendant. If the plaintiff had the intention to purchase the plaint schedule property from the first defendant, the plaintiff ought to have entered into an agreement for sale directly with the first defendant. There is no evidence to show that the first defendant received any amount from the second defendant as per Ext.A1 agreement for sale executed by the second defendant. A.S.No. 954 of 1996 10 17. Defendants 3 to 6 have a definite case that the plaintiff filed the suit for and on behalf of the second defendant. That appears to be probable in view of the fact that if Ext.A1 is a genuine agreement for sale, the second defendant could have executed the sale deed in favour of the plaintiff without the junction of the first defendant. On considering the evidence on record, the case of defendants 1 and 3 to 6 that Ext.B1 Power of Attorney was executed by the first defendant in favour of the second defendant for availing loan from the second defendant for DW3 appears to be more probable. Therefore, I am of the view that the learned Sub Judge is not justified in decreeing the suit for specific performance. 18. In the plaint there is no alternative prayer to refund the advance amount. Therefore, no decree could be passed for return of the advance amount. 19. Accordingly this appeal is allowed in part. The judgment and decree in O.S.No. 100 of 1983 on the file of the A.S.No. 954 of 1996 11 Sub Court, N.Parur directing defendants 2 to 6 to execute the Sale Deed in favour of the plaintiff is set aside and that suit is dismissed without cost. The parties are directed to suffer their respective cost in this appeal. (M.L. JOSEPH FRANCIS) Judge tm