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[Cites 5, Cited by 6]

Kerala High Court

K.O. Mathew And Ors. vs Thomas And Ors. on 27 October, 2004

Equivalent citations: AIR2005KER59

Author: K. Thankappan

Bench: K. Thankappan

JUDGMENT
 

R. Bhaskaran, J.

1. A.S. No. 225 of 1991 is filed by the plaintiff In O.S. No. 101 of 1985 on the file of the Subordinate Judge's Court, Thiruvanan thapurarn. He is also the, appellant in A.S. No, 6 of 1999 filed against the judgment and decree in O.S. No. 326 of 1986 on the file of the Subordinate Judge's Court Thiruvanan thapurm. Both the suits were tried jointly and a common judgment was passed by the trial Court. O.S. No. 101 of 1985 was treated as the leading case. O.S. No. 101 of 1.985 was filed by the appellant herein for specific performance and O.S. No. 326 of 1986 was filed in' respect of the same property by the 1st respondent in the appeal against the appellant and his wife for declaration of title and. for a mandatory injunction to vacate the premises and also directing the defendants to remove.the structures. That suit was in fact filed originally as O.S. No. 301 of 1984 before the Munsiffs, Court, Thiruvanan thapuram. and was transferred to be tried along with O.S. No. 101 of 1985 pending before the principal Subordinate Judge's Court, Thiruvanan thapuram. The plaintiff in O.S, No. 326 of 1986 is the 1st defendant in O.S. No'. 101 of 1985.

2. The original appellant in these two appeals died pending the appeals and his legal representatives have been impleaded as additional appellants. The case of the appellant as stated in O.S. No. 101 of 1985 is as follows. The plaint schedule property is having an extent of 8 cents and it contains a building. According to the plaintiff, one Idicheria was having the business of money lending. He died on 16-3-1983. Defendants 2 to 6 are his legal heirs, As part of his business, he used to purchase immovable properties for his customers in his name or in the name of his close relatives. Sale consideration was provided by him on the understanding that the same should be repaid by the customer in instalments with high rate of interest and on completion of the entire instalments a conveyance deed will be executed in the name of such customer or his nominee. The plaintiff had purchased 10.96 through this method with Idicheria in 1974 and the document was executed in the name of the plaintiffs wife. Similarly, for the plaint schedule property also, the plaintiff approached Idicheria and on negotiations the price was fixed as Rs. 51,000/-. The document showed only Rs. 35,000/- as directed by Idichaeria for minimising the registration expenses. The property was purchased in the name of the 1st defendant who was the brother-in-law of Idicheria and the entire amount was to be paid in 27 instalments at the rate of .Rs. 4,000/- per mensem and the balance Rs. 2,750/- as the 28th and final instalment. Possession of the property was given to the plaintiff on the date of purchase itself. Since the plaintiff was in short of funds, he agreed for all the terms set out by Idicheria and the property was purchased in the name of the 1st defendant. The plaintiff paid an amount of Rs. 65,900/- in instalments up to 4-61980 and a further amount of Rs. 6,000/- in 6 instalments of Rs. 1,000/- from 2-101982 to 4-8-1983. Printed receipts had been issued to the plaintiff by Idicheria. In 1980, when the plaintiff tried to make some repairs to the building, the adjacent owner filed a suit as O.S. No. 1221 of 1980 before the Munsiff Court for perpetual injunction . The plaintiff alone contested that suit. The plaintiff further contended that he was ready and willing to pay the balance amount due under the agreement. But it was postponed by Idicheria on account of pendency of O.S. No. 1221 of 1980. Immediately after the disposal of that suit, Idicheria died. However, the 1st defendant filed O.S. No. 301 of 1984 through his power-of-attorney holder, the 4th defendant against the plaintiff and his wife for declaration of his title and mandatory injunction. The 1st defendant is fully aware of the transaction between the plaintiff and Idicheria and defendants 2 to 6 being the legal heirs of Idicheria are also bound by the transaction between the plaintiff and Idicheria. Since O.S. No. 3Q1 of 1984 was filed the plaintiff realised that the defendants did not want to honour the agreement. Hence the suit was filed for directing the 1 st defendant to execute the, sale deed in respect of the plaint schedule property and the building therein in favour of the plaintiff on payment of the balance purchase price of Rs. 38,850/- and also directing defendants 2 to 6 to cause the execution of the sale deed by the 1st defendant and if for any reason it is found that the said reliefs cannot be granted, the plaintiff may be allowed to realise Rs. 72,900/- being the amount paid by the plaintiff to Idicheria and the 1st defendant with 12% interest. Defendants 2 to 6 remained ex parte.

3. The 1st defendant contended that the property was purchased by him with his own funds and the plaintiff was- allowed to occupy the premises only for enabling him to shift his hotel business, temporarily till the reconstruction of the building where the hotal was situated in the nearby place and when he refused to shift back the suit for mandatory injunction was filed and it was only after one year of such filing of the suit that the present suit is filed, The entire case of the plaintiff that the 1st defendant was only a benamidar for Idicheria was denied. The title deed was handed over, to the plaintiff to enable him to get the extension of the building and plan approved by the local authority. At that time, the neighbouring owner filed O.S. No. 1221 of 1980 and the 1st defendant had left for Nigeria: and the plaintiff promised to contest that suit. in that suit, plaintiff herein admitted the title of the 1st defendant, The suit is barred by limitation as well as under Section 53(a) of the 'transfer of Property Act. The 1st defedndant has. sold the property on 26-3-1985 to Abrahim and his wife Annamma though through his power of attorney and they are necessary parties to the suit. They were subsequently impleaded as additional defendants 7 and 8 in the suit.

4. In O.S.; No. 326 of 1986, the parties repeated their contentions in the connected suit.

5. The trial Court dismissed the plaintiffs suit and decreed the suit filed by the 1st defendant. The points for consideration in these appeals are :

1. Whether the plaintiff has succeeded in establishing that the plaint schedule property was purchased by Idicheria benami in the name of the 1st defendant for the benefit of the plaintiff.
2. Whether the suit for specific performance filed by the plaintiff/appellant can be decreed.
3. Whether the plaintiff is entitled to at least a money decree against defendants 2 to 6 who were ex parte in the suit, and
4. Whether the 1st defendant 1st respondent or his assisgnees are entitled to get a decree as prayed for in O.S. No. 326 of 1986.

Point No: 1

6. The Supreme Court in Jaydayal Poddar v. Bibi Hazra, AIR 1974 SC 171 has held with regard to the burden of proof and the ingredients to be established in the case of a benami transaction as follows :

"6, It is Well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned, and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute, for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person Expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uni . formly applicable in all situations, can be laid down, yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usally guided by these circumstances : (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale."

7. In this case, it is not a usual case of plea of benami as the plaintiff has no case that he purchased the property in the name of the 1st defendant on account of any circumstance. On the other hand, his case is that it was Idicheria who supplies the fund and purchased it in the name of the 1st defendant who was none other than his brother-in-law to enable the plaintiff of get it conveyed in his name as and when the plaintiff completes the payments of all the instalments agreed to be paid by the plaintiff to Idicheria. His case is that he agreed to pay on 1st of every month Rs. 4,000/- in 27 instalments and the balance in 28th instalment. Rs. 1,000/- was said to have been paid on the date of agreement, i.e. 18-7-1977 and that the plaintiff was put in possession of the property on that date itself. The further case of the plaintiff is that he paid Rs, 65,905/- up to 4-6-1980 and further Rs. 6,000/- was paid in six instalments. Admittedly, no agreement was executed between the parties to evidence this arrangement. The earliest receipt produced and marked as Ext. Al(a) is in the name of K.O. Joy and it is dated 3-7-1978 after one year of the alleged agreement and giving possession of the property. According to the plaintiff, he is also known as Joy. But as P.W. 1, he admitted that he has no such name in the records kept that he is classed as Joy has come out during the course of cross-examination of D.W. 1 itself. P.W. 1 said in chief examination that the document was written on 18-71978. But Ext. B1 was written and registered on 18-7-1977. It may be a mistake in giving the year. But the earliest receipt, that too in the name of Joy is dated 3-7.-1978. The person who signed these receipts is not called to prove the circumstances in which these receipts were Issued. The total amount paid by Joy is Rs. 41,840/- and by Mathew is Rs. 6,000/-. The address of Joy in most of the receipts is only showed as "Trivandrum." in one receipt, it is shown as Shaji Hotel. In the plaint, he noted that: he understook to pay Rs. 1,11,750/-. and that he has paid Rs. 71.900/-. There is no receipt for the balance amount. He also admitted that the six receipts in his name of Rs. 1,000/- each, are produced in a suit In Pathanamthitta Munsiffi's Court. where the The nguvilayil Financiers have filed a suit for realisation of Rs. 35,000/ - on the basis of a promissory note executed by him. Therefore, it is not possible to come to the conclusion that the majority of the receipts in which reliance is placed by the learned counsel for the appellant related to the purchase of the property by the appellant. Even according to him, he has defaulted the instalments as he had no money and the payment of consideration was by idicheria. Though there is no burden on the 1st defendant to show that it was he who paid the consideration, he has produced the copy of the demand draft taken which was for the amount shown in the sale deed. Exts. B15, B16 and XI are the relevant documents. Therefore, the source of consideration is not proved to be from the plaintiff which is one of the important tests to decide whether the transaction is one of benami or not. On the other hand, . the evidence showed that the 1st defendant paid the consideration.

8. The next important test is with regard to the possession of the. property. There is no dispute with regard to the occupation of the building by the plaintiff. While the case of the plaintiff is that his occupation is referable to his ownership, the case of the 1st defendant is that it is referable to the kindness shown by him to the plaintiff who is his distant relation and at the instance of Idicheria, the brother-in-law of the 1st defendant as the plaintiff wanted to temporarily shift his hotel business to a place for him to reconstruct the building in .the, place Where he was earlier doing the business. That he was doing hotel business In another place and he shifted that business to the present place and he constructed a building in the old place is not in dispute. Me has admitted it in Ext. B3 written statement in O.S. No, 1221 of 1980 wherein he was the 2nd defendant. That suit was filed by the adjacent owner of the plaint schedule property on the ground that the plaintiff herein was making construction in such a way as to prevent his light and air. The 1st defendant was the 1st defendant in that suit also. The plaintiff alone filed written statement and he admitted that he is only in .occupation- under the 1st defendant Who was the owner of the property. He also admitted that he was in temporary occupation of the premises till his building is completed in the old place where he was doing hotel business. It may be noted that there was no necessity to give these details in that suit as the nature of occupation by the plaintiff herein Was not in issue in that suit. Still, the plaintiff explained his possession in unequivocal terms which is an important item of evidence available for the defendant. There is no case that the said admission was made at the compulsion of the 1st defendant. It is true that the admission can always be explained and an admission by plaintiff will not by itself confer title to the defendant with respect to the property. But as held by the Supreme Court in Union of India v. Moksh Builders & Financiers. AIR 1977 SC 409, an admission is substantive evidence of the fact admitted. Ext B3, the copy of written statement filed in O.S. No. .1221 of 1980 was put to the plaintiff and he has stated that what was stated in it was correct. According to the learned counsel for the appellant, what PW 1, admitted was that there was such statement in Ext. B3. Even if it is to be read to that extent only, it is sufficient for the purpose of this case as he admitted his. admissions in the previous case with regard to the nature of his possession. After reading the evidence of P.W. 1 as a whole, we have come to the conclusion that much reliance cannot be placed on it. For the question as to whether his wife's grandfather was the brother of grand father of the 1st defendant, his answer was that he did not know. At any rate, he did not deny that relationship. That can very well explain the reason for the permission for the temporary occupation of the premises by the plaintiff without any payment of rent or licence fee. Therefore, there is nothing to show that the plaintiff was in possession of the property as owner.

9. The learned counsel lor the appellant relied on Exts A3 to A12 which are produced to show that the appellant was permitted to make an additional construction to the existing shed and he paid the property tax to the Corporation of Thiruvananthapuram. The tax receipts relate to the period 1980 to 1983. Ext. 139 is the property tax receipt for the year 1983-84 in the name of the 1st defendant. According to him, it was paid by the plaintiff and receipt handed over to the 1st defendant. Ext. B 1O is for payment of property tax by the 1st defendant after the period 1984-85. Ext. Bll is receipt for payment of revenue by the 1st defendant. D.W. 1 has given evidence stating that he had asked the plaintiff to get the plan and licence in his name and for that the original document was given to him. He had gone to Nigeria and when he came back and demanded surrender of the building and the plaintiff refused, he executed a power of attorney to the 4th defendant to file a suit for injunction which is tried along with the suit for specific performance. The prior title deeds are still with the 1st defendant and he has produced and marked those documents as Exts. B4 and B5. He has however, admitted that those documents were taken from Idicheria after his death. This was attempted to be denied in re-examination. Though it may be a circumstance in favour of the plaintiffs case that Idicheria had a role in the transaction, that by itself is not sufficient to conclude that the case of the plaintiff in its entirety is correct, If the plaintiff came into possession of the original title deed in his own right, there was no reason as to why he did not get. the prior title deeds also. Though the fact that the original title deed was with the plaintiff was admitted by the 1st defendant, the plaintiff has not produced it. in Court. It was in fact presented by the 1st defendant for registration and taken back after registration by the 1st defendant himself. If the case of the plaintiff that it was Idicheria who produced it in the name of the 1st defendant is correct then the possibility of the 1st defendant going to the Sub-Registry Office is remote. In the circumstances of the case, the inference can only be that the plaintiff made use of the absence of the 1st defendant from India during the relevant period and got the plan approved in his name by producing the original title deed. In the light of the above dis- cussion, we are of opinion that the possession of the property by the plaintiff is property explained and that is not a reason to hold that Idicheria was the real owner of the property and it was purchased by him for the benefit of the plaintiff.

10. In a suit for specific performance the readiness and willingness to perform his part of the agreement at all times by the plaintiff is the most important aspect to be pleaded and proved by the plaintiff. In this case, the agreement is said to be oral. No witness to the oral agreement is examined. The terms of the oral agreement can be discerned from what the plaintiff stated in the plaint and in evidence. The payment of instalments as evidenced by Ext. Al series is already discussed while considering point No. 1. The plaintiff has admitted in various places that he had no money to continue to pay the instalment and he failed to pay the instalments. He has also admitted that he was indebted to various persons and his evidence gives no room to doubt that he never had the necessary fund to pay the balance consideration even assuming his case of instalment payment is true. Therefore, we have no hesitation to come to the conclusion that the plaintiff has misrably failed to satisfy the requirements of Section 16(c) of the Specific Relief Act. Even if the agreement set up by him is correct, it is a case where the plaintiff is not entitled to get a decree for specific performance. It is moreso when there is no independent evidence with regard to the agreement between Idicheria and the plaintiff. No witness or document other than the receipts is produced to prove the oral agreement. The circumstances in which the plaintiff was allowed to shift his business and the relationship between the parties make us believe the case of the 1st defendant more probable. The plaintiff has not come to Court with clean hands as he pretended ignorance of the relationship between the parties and he produced receipts which were already subject-matter of another suit.

Point No. 3 .

11. The learned counsel for the appellant contended that since defendants 2 to 6 who are the legal heirs of Idicheria are ex parte, the plaintiff is entitled to get a decree for refund of the money paid by him as evidenced by Ext.A1 series of receipts. The receipts are not signed by Idicheria and it is signed for him. The person who signed for Idicheria is not examined. There is no explanation as to why all the receipts for Rs. 4,120/- and above are in the name of Joy and those of Rs. 1,000/- are in the name of K.O. Mathew the plaintiff. If the receipts in the name of Joy are taken into account the claim for the amounts filed after three years of such payment will be barred by limitation. The last date of such payment is on 4- 6-1980 and the suit is filed in 1985. Moreover, there is no evidence to show the exact amount paid by the plaintiff even if his case of arrangement with Idicheria is to be believed. The receipts for Rs. 1,000/- are already subject-matter of another suit pending against the plaintiff for realisation of money and plaintiff has admitted the same in evidence. Those receipts which are in the years of 1982 and 1983 also will not help the plaintiff. Therefore, we find that the plaintiff is not entitled to get back the money from defendants 2 to 6. This point is answered against the plaintiff.

Point No. 4

12. The 1st defendant who was the original plainiff in O.S. No. 326 of 1986 has assigned his right in favour of plaintiffs 2 and 3 by Ext. B17 dated 26-3-1985. It is contended on behalf of the plaintiff that they are not entitled to get a decree for mandatory injunction as the real relief they should have prayed for was for recovery of possession on the strength of title. A reading of the plaint in O.S. No. 326 of 1986 shows that along with the prayer for mandatory injunction the original plaintiff has also prayed for a relief to evict the defendant through court and to remove the structures. In Sant Lal Jain v. Avtar Singh, AIR 1985 SC 857 the Supreme Court allowed the appeal and granted recovery of possession where the claim was only for mandatory injunction by stating that it was necessary to avoid multiplicity of suit and when the defendant was found to be a licensee only he was liable to surrender possession to the plaintiff. Therefore, there is nothing wrong in the decree granted by the trial Court. The mesne profits granted is only at the rate of Rs. 200/- from the date of suit which is not at all excessive. No other point is urged before us and we confirmed the judgment and decree of the trial Court in both the suits with costs in A.S. No. 225 of 1991 only. In A.S. No. 6 of 1999 the parties shall bear their costs as both suits were jointly tried.