Kerala High Court
Vimala Satheesh vs Sabu Jose on 14 May, 2024
Author: T.R. Ravi
Bench: T.R.Ravi
R.S.A. No.22 of 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 14TH DAY OF MAY 2024 / 24TH VAISAKHA, 1946
RSA NO. 22 OF 2023
AGAINST THE JUDGMENT & DECREE DATED 21.11.2022 IN AS NO.5 OF
2022 OF SUB COURT, PALA ARISING OUT OF THE JUDGMENT DATED
04.10.2021 IN OS NO.219 OF 2015 OF MUNSIF COURT, KANJIRAPPALLY
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 VIMALA SATHEESH
AGED 41 YEARS
W/O. LATE SATHEESH KUMAR, VELLOOSSERIL HOUSE,
CHIRAKKADAVU EAST P.O., CHIRAKKADAVU VILLAGE,
KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT, PIN - 686520
2 NAKULKUMAR
AGED 23 YEARS
S/O. LATE SATHEESH KUMAR, RESIDING AT VELLOOSSERIL
HOUSE, CHIRAKKADAVU EAST P.O., CHIRAKKADAVU VILLAGE,
KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT, PIN - 686520
3 NAYANA
AGED 21 YEARS
D/O. LATE SATHEESH KUMAR, RESIDING AT VELLOOSSERIL
HOUSE, CHIRAKKADAVU EAST P.O., CHIRAKKADAVU VILLAGE,
KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT., PIN -
686520
BY ADVS.
SRI V.S.BABU GIREESAN
SMT.K.PREETHA JOHN
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 SABU JOSE
AGED 52 YEARS
S/O JOSEPH, ENEKKATTU HOUSE, CHIRAKKADAVU EAST P.O.,
CHIRAKKADAW VILLAGE KANJIRAPPALLY THALUK, KOTTAYAM.,
PIN - 686520
2 CHANDRASEKHARAN NAIR
R.S.A. No.22 of 2023
2
AGED 72 YEARS
S/O. NARAYANAN, VEETTUVELIL HOUSE, CHIRAKKADAVU EAST
P.O., CHIRAKKADAVU VILLAGE, KANJIRAPPALLY THALUK,
KOTTAYAM DIST., PIN - 686520
3 SATHIYAMMA
AGED 64 YEARS
W/O. CHANDRASEKHARAN NAIR, VEETTUVELIL HOUSE,
CHIRAKKADAVU EAST P.O., CHIRAKKADAVU VILLAGE,
KANJIRAPPALLY THALUK, KOTTAYAM DISTRICT., PIN -
686520
BY ADVS.
SRI LIJI J VADAKKEDOM
SRI P.C. HARIDAS PULICKAL CHANDRASEKHARA PILLAI
SRI P.S.GOVIND(K/000824/2022)
SRI TOM E. JACOB(K/1144/2001)
MS.REXY ELIZABETH THOMAS(K/635/1995)
SRI ATHUL V. VADAKKEDOM(K/003544/2022)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 18.12.2023, THE COURT ON 14.5.2024 DELIVERED THE
FOLLOWING:
R.S.A. No.22 of 2023
3
T.R. RAVI, J.
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R.S.A. No.22 of 2023
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Dated this the 14th day of May, 2024
JUDGMENT
The second appeal has been filed by the plaintiffs in a suit praying for setting aside Sale Deed No.431/2010 of SRO, Kanjirappally, having lost their cause before the trial court and the First Appellate Court. The parties are referred to by their status in the suit.
2. The plaint schedule property originally belonged to the husband of the 1st plaintiff, the late Satheesh. According to the plaintiffs, due to financial difficulties, Satheesh had to execute a sale deed as security for amounts borrowed from the 1st defendant. It is stated that even though a document was executed, the possession remained with deceased Satheesh and the plaintiffs, and the 1st defendant did not get possession of the property. It is alleged that Satheesh committed suicide owing to a threat from the 1st defendant on account of not being put in possession, and thereafter the 1st defendant transferred the property to defendants 2 & 3. It is alleged in the plaint that the sale deed was executed by playing fraud upon Satheesh and the sale is liable to be set aside. It would appear from R.S.A. No.22 of 2023 4 the averments in the plaint and the evidence of PW1 that the possession had been taken by the defendants. The plaint was initially filed with a prayer for a declaration that the sale deed was void but was later amended to seek a decree to set aside the sale deed. There is no prayer for recovery of possession of the plaint schedule property.
3. The 1st defendant filed a written statement stating that the sale deed was executed for valuable consideration, that the 1 st defendant was in absolute possession and enjoyment of the property after the sale, that the document was executed without any undue influence or coercion, and that after the purchase of the property from deceased Satheesh, the 1st defendant had sold the property to defendants 2 & 3 and the defendants 2 & 3 are in possession and enjoyment of the property. The 2nd and 3rd defendants also filed written statements stating that they had purchased the property under Sale Deed No.3440/2010 for valuable consideration and the suit is liable to be dismissed.
4. Before the trial court, PW1 to PW5 were examined and Exts.A1 to A9 were marked on the side of the plaintiffs and DW1 was examined and Exts.B1 to B6 were marked on the side of the defendants. Exts.X1 to X6 were marked as third-party Exhibits.
5. The trial court dismissed the suit finding that the R.S.A. No.22 of 2023 5 execution of the document is admitted and there is nothing in the document to show that it was executed as a security. The court took note of the fact that the document was executed after receiving consideration, that the above aspect is admitted by PW1 who stated that she was with her husband at the time of execution of the document and receipt of consideration, that the averments in the plaint do not detail any fraud played while executing Ext.A1, that the plaintiffs' case is that there was an understanding between late Satheesh and the 1st defendant that the property would be reconveyed on the payment of the loan amount with interest, that deceased Satheesh had approached the 1st defendant on 09.08.2010 demanding re-conveyance of the property, that Ext.A1 document would only show that it is an outright sale, that there was a bar under the Evidence Act to give oral evidence against the contents of the registered document, that mutation had been effected in the name of the 1st defendant and thereafter in the names of the 2 nd and 3rd defendants, that the cause of action as per the plaint arose on 21.09.2010 but the suit was filed only on 06.07.2015, and that the amended prayer for setting aside the document executed is also not maintainable in view of Article 59 of the Limitation Act. The court also took note of the fact that the prayer for setting aside Ext.A1 was incorporated by way of amendment only in the year 2017. R.S.A. No.22 of 2023 6
6. The First Appellate Court reconsidered the evidence on record and found that the execution of the sale deed is admitted by the plaintiffs and testimony of PW1 would support the execution of the document in favour of the 1 st defendant. The First Appellate Court found that there is no evidence to show that Ext.A1 was executed as security for a loan transaction. The court found that given the bar contained in Section 91 of the Indian Evidence Act, it is not open to the plaintiffs to claim that the sale deed was executed by way of security and that the recitals in Ext.A1 sale deed are clear regarding the intention of the parties. The court further found that there is a presumption available regarding a registered document in favour of the registered holder and unless the presumption is rebutted, it is not possible to hold that Ext.A1 is not valid.
7. Before this Court, the plaintiffs contended that the trial court as well as the first Appellate Court had gone wrong in their findings. It is contended that the date of knowledge of the fraudulent document is material while considering the question of limitation.
8. The second appeal has not been admitted and notice before admission was ordered. The respondents entered appearance. The following are the substantial questions of law which have been formulated in the memorandum of second appeal.
1) Whether in the facts and circumstance of R.S.A. No.22 of 2023 7 the case is the suit barred by limitation especially the cause of action pleaded is the date of knowledge of the fraudulent document as a sale deed which is not even disputed?
2) Is the mere registration of a document is a quasi-judicial function as noted by the 1 Appellate Court ignoring the suspicious circumstance left unremoved by the defendants in this case?
3) Is the applicability Section 91 of Evidence Act as an embargo to tender evidence ignoring the proviso to Section 92 Evidence Act is correct in the facts and circumstance of the case. ?
4) The possession is the outward symbol of title and the title carries with the possession are the presumptions but no possession could be proved in this case and the vitiating circumstance of the sale deed overlooked is correct or not.
5) Is it not the plaintiff entitled to decree as prayed for with the cost throughout?
9. Heard the counsel for the appellants and the respondents.
10. Though the questions of law framed in the memorandum of appeal are not happily worded, the contentions appear to be that the findings of the trial court and the First Appellate Court regarding R.S.A. No.22 of 2023 8 the bar under Section 91 of the Evidence Act are not correct. Another ground canvassed is that the suit will not be barred by limitation if the contention of the plaintiffs that the period of limitation should run from the date of knowledge of the fraudulent document is accepted. There is also a contention that the trial court and the First Appellate Court failed to consider the aspect of possession as a symbol of title and the defendants have failed in proving possession. It is also contended that there are vitiating circumstances in the execution of the sale deed. The counsel for the appellants has also filed a detailed argument note before this Court.
11. I have considered the contentions raised by the counsel for the appellants and the answer to the contentions by the counsel for the respondents.
12. On the question of limitation, according to the plaint, the plaintiffs came to know about fraud in the execution of Ext.A1 sale deed on 7.7.2012 and since the suit was filed on 6.7.2015, it is contended that the suit was filed within three years from the date of knowledge of the fraud. The only averment in the plaint regarding fraud is that the stamp papers that were used for the document include stamp papers purchased in the name of a stranger. Another averment made is that the stamp paper which was initially used had been replaced by another stamp paper. The effect of the above R.S.A. No.22 of 2023 9 allegation is that the fraud happened in the office of the Registrar since the stamp paper which was utilised for the execution of the document and registration could not have been replaced without the knowledge of the Registry. There is, however, no such allegation in the plaint. Nor is any evidence led to prove such a fact. Except for stating that the stamp paper has been purchased in the name of a stranger, there is nothing else to support the case of fraud. The above averment has to be considered in light of the conduct of the parties. Admittedly, late Satheesh had executed Ext.A1 in the stamp paper which is alleged to have been purchased in the name of a stranger. Ext.A1 would show that he had affixed his signature on the said stamp paper also. PW1, who is the 1 st plaintiff, admits such execution. When the above aspect is admitted, there cannot be further contention that the stamp paper has been replaced. The stamp paper on which the executant has signed is still available as can be seen from Ext.A1. The contents of the document are also not alleged to have been changed in any manner. The plaintiffs also admit receipt of consideration. There is no case that later Satheesh did not know that he was executing a sale deed, and he was in any manner misled. The specific case is that there was an agreement to reconvey. The agreement to reconvey in fact would amount to an acceptance of the document as genuine. Significantly, there is no R.S.A. No.22 of 2023 10 prayer for reconveyance in the suit. The significance of the above aspect will be dealt with later. The allegation that the plaintiffs came to know about the fact that the stamp paper was purchased in the name of a stranger only on 7.7.2012 is not sufficient to prove the fact that the plaintiffs became aware of the fraud only on 7.7.2012 or to save the bar of limitation. It is in evidence that the 1st plaintiff became aware of the alleged difference in the stamp paper from the police station, well before 7.7.2012. Admittedly, Ext.P1 was executed in 2010. The plaintiffs admit that late Satheesh had approached the 1st defendant demanding reconveyance on 9.8.2010. A demand for reconveyance would mean that the late Satheesh admits Ext.A1 as a genuine document. If his case was that the document was obtained fraudulently, there was no reason for even a demand for reconveyance and the natural conduct would have been to challenge the document immediately. However, this was not done for 5 long years. Even when the suit was filed, the plaintiffs had only sought a declaration that the document was void and did not seek cancellation of the document. It was only by an amendment in 2017 that the prayer for cancellation of the document was made. Even if the case of fraud is accepted, the suit is filed after the period of limitation. In the above circumstance, I do not find any reason to interfere with the finding of the trial court and the Appellate Court R.S.A. No.22 of 2023 11 that the suit is barred by limitation.
13. The next question is whether the plaintiffs are entitled to adduce oral evidence against the contents of a registered document. The bar under Section 91 of the Evidence Act is very clear and has been correctly understood by the trial court as well as the First Appellate Court. The appellants contend that the court below did not consider the effect of the proviso to Section 92 of the Indian Evidence Act. The said contention is also not sustainable. Proviso (1) says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party want or failure of consideration, or mistake in fact or law. I have already found that there is no sufficient pleading regarding fraud. Since the execution of the document is admitted it cannot be contended that late Satheesh had any incapacity to contract. As regards consideration, it cannot be said that there is want of consideration or failure of consideration and at best it can only be said that the consideration is insufficient or that the entire consideration was not paid. If such were the case, the remedy is not by way of a suit for cancellation of the document but can only be by way of a suit for balance consideration. It is also not a case of mistake in fact or law. The terms of the document squarely R.S.A. No.22 of 2023 12 spell out an outright sale and the transfer of title and possession. Proviso (2) to Section 92 says that oral evidence can be tendered to prove the existence of any separate oral agreement regarding which the document is silent and which is not inconsistent with the terms of the document. The said proviso also will not apply since the plaintiffs are not seeking any reconveyance, which alone appears to be the oral agreement suggested in the plaint. There is no requirement for any oral evidence regarding any agreement to reconvey. None of the other provisos have any relevance to the issue involved. Apart from that, PW1 when cross-examined admits that she is residing at a place that is away from the plaint schedule property and the bus charge between the properties is Rs.16/-. She admits that Satheesh did not have any liabilities at the time of the sale of the property. During cross-examination, PW1 attempted to suggest that the document executed was a mortgage deed and that her husband had told her that it was a mortgage deed. However, there does not appear to be such a case in the plaint and the plaint only says that the sale was intended as security for the loan with an agreement to reconvey. She also says that she came to know about the difference in the stamp paper from the Police Station and that is admittedly before Ext.A2 dated 7.7.2012, given by the Sub Treasury Officer. This would also affect the date of knowledge of the fraud pleaded and confirm R.S.A. No.22 of 2023 13 the conclusion that the suit is barred by limitation. PW1 also says that the agreement was to reconvey on payment of the amount given by the 1st defendant with interest within six months. She further admits that the prior document had been given to the 1 st defendant when the document was executed, which is not the case that was initially put forward. She further says that she has not seen the property after the sale to defendants 2 and 3. A reading of the evidence of PW1 would show that even if the oral evidence were to be accepted overlooking the bar under Section 91 of the Indian Evidence Act, it would not in any manner improve the case of the plaintiffs. The only other aspect is whether the courts below went wrong in not rendering a finding regarding possession. I do not think that such a question arises for consideration at all, since admittedly, the plaintiffs are not in possession. Moreover, the plaintiffs have not even made a prayer for possession of the property. There are no reasons to interfere with the judgments and decree of the trial court and the First Appellate Court. None of the questions of law which have been formulated in the memorandum of second appeal arise for consideration and the second appeal is liable to be dismissed.
14. Before parting with the case, there is yet another matter that would strike at the root of the contentions of the plaintiffs, which is not considered by the trial court or the Appellate Court. In the R.S.A. No.22 of 2023 14 judgment in Moosa v. Moideen [2001 (1) KLT 183], a learned Single Judge of this Court had in an almost similar circumstance, held that when there is a contention that there was an agreement for reconveyance, the suit should necessarily be one for specific performance of that agreement to reconvey and a suit of this nature will not be maintainable. That was also a case where a suit had been filed for a declaration that the sale deed executed by the plaintiff in favour of the defendants was only executed as security. The trial court and the First Appellate Court had decreed the suit. However, in the second appeal, this Court held that the suit, as filed, would not be maintainable, and the prayer should have been for specific performance of the agreement for reconveyance. The facts are similar, and the dictum laid down in the judgment in Moosa (supra) would apply squarely. A Division Bench of this Court in State Bank of Idia, Asset Recovery Management Branch, Ernakulam v. Niyas & Anr. [2021 (2) KLT 172] had occasion to consider a case where there was an execution of a sale deed with a condition for reconveyance. The prayer in that suit was for a declaration that the sale deed was a sham document. This Court held that the appropriate remedy is to sue for the execution of the deed for reconveyance of the property as in the case of a suit for specific performance. The case in this second appeal is not different since R.S.A. No.22 of 2023 15 here also, the plaintiffs have a case that there was an agreement for reconveyance.
In the result, the second appeal fails and is dismissed. There will be no order as to costs.
Sd/-
T.R. RAVI JUDGE Pn/dsn