Kerala High Court
Sundarambal vs Krishnan @ Krishnankutty on 30 October, 2014
Author: A.V.Ramakrishna Pillai
Bench: A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.V.RAMAKRISHNA PILLAI
THURSDAY, THE 30TH DAY OF OCTOBER 2014/8TH KARTHIKA, 1936
SA.No.646 of 2001
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AS NO.291/1993 of the II ADDITIONAL DISTRICT COURT,PALAKKAD.
O.S.NO.560/89 OF THE ADDITIONAL MUNSIFF COURT,PALAKKAD.
APPELLANT/RESPONDENT/DEFENDANT:
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SUNDARAMBAL,D/O.KUMMANATH MEENAKSHI AMMA,
NAGARIPURAM AMSOM,PALAKKAD TALUK.
BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY
SRI.PIRAPPANCODE V.S.SUDHIR
SMT.N.SANTHA
RESPONDENT/APPELLANT/PLAINTIFF:
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KRISHNAN @ KRISHNANKUTTY,
S/O.KUMMANATH MEENAKSHI AMMA,
NAGARIPURAM AMSOM, PALAKKAD TALUK.
BY ADV. SRI.P.R.VENKETESH
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21.10.2014
THE COURT ON 30-10-2014,DELIVERED THE FOLLOWING:
pk
A.V.RAMAKRISHNA PILLAI, J.
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S.A No.646 of 2001
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Dated this the 30th day of October, 2014
JUDGMENT
The defendant in the original suit is in appeal.
2. The respondent instituted the suit for specific performance of an agreement for sale of defendant's share over plaint schedule property consisting of two items.
3. The plaintiff alleged that he is the brother of the defendant and by virtue of partition deed, except H schedule therein, all other properties were partitioned between him and his other brothers and sisters. The H schedule in the partition deed is kept common and it is plaint item no.1. Plaint item no.2 is item no.1 in A schedule to the partition deed which was allotted to their mother.
4. The plaintiff further alleged that consequent to the death of their mother, the plaint item no.2 devolved upon her children, including the plaintiff and the defendant. He further alleges that on SA.646/01 -:2:- 23.7.83, all the sharers of plaint item no.1, including the plaintiff and the defendant entered into an agreement and as per that agreement, brothers and children of the deceased sisters of the plaintiff and the defendant agreed to assign their respective shares in the plaint schedule properties to the plaintiff.
5. The plaintiff further alleged that the total value of plaint item no.1 was fixed at 60,000/- and the share value of each share was fixed at 10,000/-. An agreement to that effect was also executed. It was his further case that in 1989, all the members agreed to assign their rights in plaint item no.2 to the plaintiff for a total consideration of 15,000/- and each share was determined as 2,500/-. The plaintiff further alleged that he had paid 10,000/- with respect to plaint item no.1 and the defendant had received the same. He further alleges that all other sharers except the defendant executed the sale deed assigning the respective shares over the plaint schedule properties in his favour on receiving the consideration fixed for that purpose. SA.646/01 -:3:- Since the defendant failed to execute the sale deed transferring her share over the plaint schedule properties in favour of the plaintiff, notice was issued to her to execute the assignment deed pursuant to the terms of the written agreement and oral agreement which he alleged that the defendant had entered into with him. According to the plaintiff, he had performed his part paying total consideration due to the defendant and was also ready and willing to perform his part. Under these circumstances, the plaintiff sought a decree of specific performance of the agreement for sale.
6. The defendant, who resisted the suit, contended that she had never entered into an agreement either oral or written to sell her right over plaint item no.1 or she had not assigned her right over plaint item no.2 for a consideration of 2,500/-. She contended that she never received 10,000/- and had not made any endorsement to that effect in the agreement. Alternatively she contended that even if the agreement is found to be genuine, a suit based on that agreement is SA.646/01 -:4:- barred by limitation. Therefore, she prayed for dismissal of the suit.
7. The plaintiff has filed replication denying the contentions in the written statement of the defendant.
8. The trial court after raising proper issues permitted both sides to adduce evidence. At the trial, PWs.1 to 3 were EXAMINED and Exts.A1 to A10 were marked. The trial court after appreciation of evidence found that the endorsement in Ext.A1 was made by the defendant and that she has received 10,000/-. However, the trial court refused to grant a decree and dismissed the suit for specific performance on the ground that it was barred by limitation. The trial court also found that the oral agreement for sale of the defendant's share over plaint item no.2 cannot be believed.
9. The plaintiff took the matter in appeal. The defendant who was aggrieved by that part of the finding that she was also a party to the execution of Ext.A1 agreement and that she received 10,000/- as consideration filed a cross objection. The lower appellate court on a SA.646/01 -:5:- re-appreciation of evidence allowed the appeal and decreed the suit for specific performance of the agreement for sale of plaint schedule properties, item nos.1 and 2. Six months' time was granted to the defendants to execute conveyance. It is with this background, the appellant has come up before this Court with this second appeal.
10. I have heard the learned counsel for the appellant and the learned counsel for the respondent.
11. It was argued by the learned counsel for the appellant that the court below committed serious mistake in coming to the conclusion that the signature in Ext.A1 agreement was put by the appellant and she received 10,000/- as consideration. It was pointed out that the court below ought to have sought the assistance of an expert to assert the genuineness of the signature found in Ext.A1 agreement as it was settled by a catena of decisions of this Court as well as the Apex Court that the court should not on its own without the assistance of an expert venture to make a comparison between the SA.646/01 -:6:- disputed and admitted signature. However, on a perusal of the judgments rendered by the Appellate Court as well as the trial court, it could be seen that the trial court has accepted the testimonies of the witnesses, who witnessed the execution of Ext.A1 agreement, and came to the conclusion and there is no reason to disbelieve the testimonies and it was concluded that the defendant had executed Ext.A1 as she had received the consideration of 10,000/- as per Ext.A1. I am not inclined to disturb the concurrent finding on that disputed question of fact in this second appeal.
12. The evidence in this case was elaborately discussed by the lower Appellate Court to come to the conclusion that the oral evidence regarding the sale of share of the defendant over plaint item no.2 is true and correct. I see no reason to disturb that finding also as the evidence has been correctly re-appreciated by the court below.
13. Now the remaining question of law to be answered is regarding the question of limitation. The trial court though found SA.646/01 -:7:- that Ext.A1 agreement was executed by the defendant and she had received a consideration, it refused to grant a decree on the ground of limitation. This finding was reversed by the lower Appellate Court.
14. The learned counsel for the appellant inviting my attention to Article 54 of the Limitation Act, which is the relevant Article dealing with the period of limitation as far as the suit for specific performance of a contract is concerned, would argue that the period of limitation provided for a suit for specific performance of a contract is three years and the period begins to run from the date fixed for the performance and if no date is fixed, the period runs from the date on which the plaintiff has notice that the performance is refused. There is no doubt regarding the proposition that if time is fixed in the agreement, the suit has to be filed within three years from the expiry of the aforesaid period. If no period is fixed, the suit has to be brought within three years from the date on which the plaintiff has notice of the refusal of performance of the agreement. The learned SA.646/01 -:8:- counsel for the appellant would point out that one year period was fixed as per Ext.A1 for execution of the sale deed in respect of item no.1. Hence, the suit brought long after the expiry of that period is barred by limitation. The recital in Ext.A1 reads as follows:
"f}!\RUaO>]p f}rOv]s W 60,000/&. CT DrOU]W ArOkf]jLp]q>]$ j]0tORa KLzq](O vqOP kf]jLp]qU DrOU]W Wu]\V mL(] 50,000 W CPO oOf$ KqO RWLsf>]jOg]$ Bvw|RUaOP RoR!oL!(O AvqORa v}fU yUX| RWLaO>V CT INY]Ro#]R# kOr>V Av IuOfOvLjOU So$Ur4 yUX| So$ Avi](Og]$ RWLaO>O f}!>O jZORa \]sv]SS$ BiLqU IuOf] q^]Ny>L(]\O vL0OvLjOU j]ip]\]q](OPO. So$ Avi](Og]$ j]0% `0%(O fSq:fLp yUX|W% `0%(O fPO f}qLiLqU q^]Ny>L(]\O vL0LRf `0%(O vsf jl0%(OU CavqOPfLpL$ j]0tOU j]0tORa vW y~>O(tOU D>qvLh]pLRePOU a] WLsLvi](W>V j]0% `0%(O yUX| fPV f}!>SwxU `0% j]0%(O f}qLiLqU q^]Ny>L(]\O fqLRf j]0%(O:LWOP jl0%(V SWLaf] oPsU j]vQ>]W% yRLh]\V f}RruOf]vL0]ULjOU&&&&&&&&&&&&&&"
15. As rightly held by the lower Appellate Court the aforesaid recital makes it clear that the period of one year fixed is not for execution of the sale deed, but for the payment of the consideration of each sharer. Regarding the payment of consideration, option was SA.646/01 -:9:- given to the plaintiff to pay the same on demand after one year. Therefore, as per the recitals, it is only after the payment of consideration and getting an endorsement in that behalf on Ext.A1 that the plaintiff's right to demand execution of assignment deed arises. In other words, Ext.A1 did not prescribe any time limit for performance of the agreement to sell plaint item no.1 It was argued by the learned counsel for the respondent that the respondent came to know that the appellant was not willing to execute the sale deed only when Exts.A2 and A3 document dated 1.6.1989 and 28.06.1989 were executed and, therefore, according to the learned counsel for the respondent, the period of limitation is three years from 1989. As the suit was filed in 1989, the suit is not barred by limitation; so submitted the learned counsel for the respondent.
16. As the time fixed in Ext.A1 was only for the payment of consideration and as the respondent has performed his part within the time limit and waited for the execution, and he realised that the SA.646/01 -:10:- appellant is willing to execute the sale deed only in the year 1989, this Court is of the definite view that the suit is not barred by limitation and the finding to that effect by the lower Appellate Court is correct and does not call for interference of this Court in second appeal.
In the result, the appeal fails and accordingly, it is dismissed. No costs.
Sd/-
A.V.RAMAKRISHNA PILLAI JUDGE krj /True Copy/ P.A to Judge