Kerala High Court
Usha Mohandas vs A.N.Ramachandran Nair on 29 July, 2025
RFA 449/2012
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 29TH DAY OF JULY 2025 / 7TH SRAVANA, 1947
RFA NO. 449 OF 2012
OS NO.184 OF 2010 OF SUB COURT, THIRUVALLA
APPELLANTS/DEFENDANTS
1 USHA MOHANDAS, AGED 63 YEARS
W/O.LATE MOHANDAS, MANJU NIVAS, NALANCHIRA,
THIRUVANANTHAPURAM.
2 SIMI USHAKUMARI, AGED 24 YEARS
D/O.USHA MOHANDAS, MANJU NIVAS, NALANCHIRA,
THIRUVANANTHAPURAM.
3 RAJI MOHANDAS, AGED 22 YEARS
S/O.USHA MOHANDAS, MANJU NIVAS, NALANCHIRA,
THIRUVANANTHAPURAM.
BY ADVS.
SHRI.P.M.JOSHI
SMT.ELIZABETH KOSHY
SMT.SIJI K.PAUL
RESPONDENT/PLAINTIFF
A.N.RAMACHANDRAN NAIR, AGED 72 YEARS
PARVATHY MANDIRAM, MATHILBHAGOM, P.O.THIRUVALLA,
TRIVANDRUM-695 148.
SRI.M.KRISHNAKUMAR
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 17.7.2025, THE COURT ON 29.07.2025 DELIVERED THE
FOLLOWING:
RFA 449/2012
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JUDGMENT
Dated : 29th July, 2025 The defendants in O.S.184/2010 on the file of the Sub Court, Thiruvalla are the appellants. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court.)
2. The plaintiff filed the suit for specific performance of an agreement for sale. The 1st defendant is the widow of late Mohandas and defendant 2 and 3 are the children of Mohandas and the 1st defendant. According to the plaintiff, late Mohandas entered into an agreement for sale on 24.8.2007 promising to sell the plaint schedule property having an extent of 16 cents to him for a sum of Rs.6,00,000/-. On the same day a sum of Rs.2,00,000/- was paid to Mohandas as advance sale consideration. The period of the agreement was four months. However, due to massive heart attack Mohandas died immediately after the execution of the agreement. Though thereafter he approached the defendants expressing his readiness and willingness to get the sale deed executed after paying the balance sale consideration, the defendants did not heed to his request. It was in the above context that he filed the suit for specific performance.
3. In the written statement filed by the defendants they denied the plaint averment that Mohandas had executed an agreement for sale in favour of the plaintiff. It was also contended that the 1st defendant and Mohandas were not in good terms and accordingly she filed OP 559/2006 before the Family Court, Thiruvalla and the plaint RFA 449/2012 3 2025:KER:56439 schedule property was conditionally attached for an amount of Rs.8,00,000/-. According to her, as per the compromise arrived at before the Famiy Court, 24 cents of property belonging to Mohandas was agreed to be allotted to her and the remaining 8 cents and the building situated therein was kept by Mohandas. According to the defendants, an extent of 16 cents of property as described in the plaint could not be identified. It was also contended that the agreement for sale produced by the plaintiff is a one sided one in favour of the plaintiff. According to the defendants, no prudent person will enter into an agreement for sale when it was under attachment and also that the alleged sale agreement is a fraudulently created one. According to the defendants, the intention of the plaintiff is only to grab their properties and asserts that they are not bound to execute the sale deed in respect of the plaint schedule property in favour of the plaintiff.
4. In the light of the above pleadings the trial court has framed four issues. The evidence in the case consists of the oral testimonies of PWs1 to 3 and Exts.A1 to A8, B1 and B2. After evaluating the evidence on record, the trial court decreed the suit. Being aggrieved by the above judgment and decree of the trial court the defendants preferred this appeal.
5. Now the points that arise for consideration are the following.
1. Whether Ext.A1 sale agreement was executed by late Mohandas as alleged ?
2. Whether the trial court was justified in decreeing specific performance? RFA 449/2012 4
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3. Whether the impugned judgment and decree of the trial court calls for any interference in the light of the grounds raised in the appeal ?
6. Heard Sri.P.M.Joshi, the learned counsel for the appellants/defendants and Sri.M.Krishnakumar, the learned counsel for the respondent/plaintiff.
7. The points :-According to the plaintiff, Ext.A1 agreement for sale dated 24.8.2007 was executed by late Mohandas agreeing to sell the plaint schedule property having an extent of 16 cents for a total sum of Rs.6,00,000/-and on the very same day a sum of Rs.2,00,000/- was paid as advance. As per the terms of the agreement, the agreement is to be performed within a period of four months. After the execution of the sale agreement Mohandas died, the plaintiff demanded the defendants, who are the widow and children of Mohandas, to execute the sale deed in his favour. According to the defendants, the scheduled property is not identifiable and also that the said property was under attachment in a petition filed by the 1 st defendant before the Family Court, Thiruvalla. Further, according to the defendants, Ext.A1 is a document fabricated to snatch away the property belonging to them.
8. One of the contentions raised by the learned counsel for the defendants is that a property as mentioned in Ext.A1 sale agreement and as scheduled in the plaint is not available at the site. In Ext.A1 the property involved is 16 cents of property comprised in Sy.No.435/4 of Thiruvalla village. Along with I.A.2/2025, the plaintiff has produced partition deed No.2127/1984, the title deed of Mohandas as Annexure-R2. As per the above partition deed, Mohandas obtained only 32 cents of RFA 449/2012 5 2025:KER:56439 property comprised in Sy.No.435/4. From the above 32 cents comprised in Sy.No.435/4, Mohandas agreed to give 24 cents of property to the 1 st defendant, as per Ext.A8 compromise decree in OP 559/2006 of Family Court, Thiruvalla. Thereafter, only 8 cents of property and a residential building was remaining in Sy.No.435/4, with Mohandas in his possession. Therefore, as argued by the learned counsel for the appellant, after the compromise decree (Ext.A8), an extent of 16 cents of property was not available in Sy.No.435/4 of Thiruvalla village. Moreover, in the description of property involved in Ext.A1, no residential building was included. However, in the plaint schedule description along with 16 cents of property, the residential building of the defendants was also included.
9. With regard to the inclusion of the residential building in the plaint schedule property, which was absent in Ext.A1, no satisfactory explanation is forthcoming. The learned counsel for the plaintiff would argue that in the description of property, it is stated that 16 cents of property and the belongings therein. However, if there was a residential building in the property agreed to be sold, the same would have been specifically mentioned along with description of the property. Absence of any residential building in Ext.A1 sale agreement and presence of such a residential building in the plaint schedule description as well as absence of availability of 16 cents of property in Sy.No.435/4 after Ext.A8 compromise decree etc., were seriously raised by the learned counsel for the appellants to refute the decree of specific performance in favour of the plaintiff.
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10. In the decision in Sreekumar M.K. v. Ramadasan & Anr., 2017 (3) KLJ 798, relied upon by the learned counsel for the defendants, from the evidence on record, there was no certainty as to the extent of land sought to be purchased. In the above context, the Apex Court held in paragraph 18 that:
"It is now settled law by various judgments of the Hon'ble Supreme Court that in the case of specific performance of contract, a great degree of certainty is required and it demands and requires a clear, definite and precise understanding of all the terms and that they must be clearly ascertained before their performance can be enforced. In the case at hand, unfortunately, the most vital of these factors, namely, the extent involved, has not been determined properly. In such view of the matter, we are certain that the decree for specific performance cannot be granted in a case of this nature."
11. In the decision in B.Vijaya Bharathi v. P.Savitri and Ors., AIR 2017 SC 3934 relied upon by the learned counsel for the defendants, the date of agreement was on 21.2.1992. Only through notice dated 18.2.1994 the plaintiff expressed her readiness and willingness to pay the balance sale consideration. In the above circumstances, the High Court found that the plaintiff was not ready and willing throughout as required by Section 16(c) of the Specific Relief Act and set aside the decree for specific performance granted by the trial court. The above decision of the High Court was upheld by the Apex Court.
12. The learned counsel for the plaintiff relying upon the decision in Susheela (Died) & Ors. v. T.M.Muhammedkunhi, 2012 (1) KHC 508 would argue that time is not the essence of the contract of sale of immovable property. In the above RFA 449/2012 7 2025:KER:56439 decision the Apex court has relied upon an earlier Constitutional Bench decision in Chand Rani vs Kamal Rani (1993) 1 SCC 519, and reiterated that in the case of sale of immovable property, there is no presumption as to time being the essence of the contract. The Court further held that even if time is not the essence of the contract, the agreement is to be performed in a reasonable time.
13. In the decision in Ramesh Chand (Dead) Through Leval Representatives v. Asruddin (Dead) Through Legal Representatives and Ors, (2016) 1 SCC 653, relied upon by the learned counsel for the defendants, the Apex Court held that merely because it is lawful to grant specific relief, courts are not bound to grant the same. The court further held that where conditions or circumstances of contract give unfair advantage to the plaintiff, decree for specific performance cannot be granted. In paragraph 8 the court held that :
"....Sub-section (2) of Section 20 of the Act provides the three situations in which the court may exercise discretion not to decree specific performance. One of such situation is contained in clause (a) of sub-section (2) of the Section which provides that where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into or such that the contract though not voidable, gives the plaintiff an unfair advantage over the defendant, the decree of specific performance need not be passed."
14. In the decision in T.Aliyas and Ors. v. Aboobacker, 2006 (4) KLT 282, with regard to the discretion to be exercised by the court under Section 20(1) of the Specific Relief Act a Division Bench of this Court in paragraph 11 held that :
"The mandate in Section 20(1) that the discretion is not arbitrary but sound RFA 449/2012 8 2025:KER:56439 and reasonable, guided by judicial principles, would take in the principles of justice, equity and good conscience as well. It is trite that a person who seeks equity shall do equity. Here again, we are of the view, that the judicial principles are to be invoked to find whether the discretion is to be exercised to decree or not to decree specific performance. Equitable considerations are quite relevant in the realm of exercise of discretion. "
15. In the instant case, though the agreement was on 24.8.2007, the suit for specific performance was filed only on 1.11.2010. For the said delay in approaching the court, no satisfactory explanation is forthcoming. At the time of evidence it is also revealed that on an earlier occasion Mohandas borrowed a sum of Rs.2,25,000/- from the plaintiff after executing a demand promissory note. On yet another occasion, he had borrowed another Rs.1,00,000/- and issued another demand promissory note in favour of the plaintiff. Even according to the plaintiff, when Mohandas failed to repay those amounts as promised, he had filed two suits against Mohandas as O.S.133/2006 and O.S.164/2007, obtained decrees against Mohandas and also realised those amounts from the assets of Mohandas.
16. It is also revealed during the time of evidence that at the time of execution of Ext.A1 sale agreement, the properties of Mohandas was under
attachment in O.P.559/2006 filed by the 1st defendant before the Family Court, Thiruvalla. It is also revealed that at the relevant period, Mohandas and 1 st defendant were not in good terms and were living separately. During the cross-examination of the plaintiff as PW1 he admitted that he was aware of the OP filed by the 1 st defendant against Mohandas pending before the Family Court, Thiruvalla. He also fairly RFA 449/2012 9 2025:KER:56439 conceded that at the time of executing Ext.A1, Mohandas had no title over entire 16 cents of property mentioned in the sale agreement. In this context it is to be noted that in spite of knowledge about assignment of 24 cents of property from Sy.No.435/4 in favour of the 1st defendant, the plaintiff has entered into Ext.A1 sale agreement in respect of 16 cents from the very same survey number.
17. At the time of evidence, the plaintiff claimed that out of Rs.2,00,000/- paid to Mohandas, he had withdrawn Rs.80,000/- from the bank, Rs.1,00,000/- was advanced by his brother and that the remaining Rs.20,000/- was in his possession. At the time of arguments, when questions were raised regarding non-production of documents relating to the amount withdrawn from the bank and received from the brother of the plaintiff, he produced additional documents along with I.A.2/2025 as Annexures R2 to 6. Annexure R6 is the letter issued from the Konni Regional Co- operative Bank Ltd, Konni dated 26.6.2025 stating that on 13.8.2007, a sum of Rs.1,00,850/- was withdrawn by the account holder Smt.Sheela Gopinath. Annexure R5 is the statement issued from Indian Overseas Bank showing that a sum of Rs.80,000/- was withdrawn from the account of the plaintiff on 5.7.2007. According to the learned counsel for the appellant, Smt.Sheela Gopinath mentioned in Annexure- R6 is none other than the sister-in-law of the plaintiff. From Annexure R5 and R6 it can be seen that on 13.8.2007, the plaintiff's sister-in-law had withdrawn a sum of Rs.1,00,850/- from Konni Regional Co-operative Bank Ltd., and on 5.7.2007, the plaintiff had withdrawn a sum of Rs.80,000/- from his account with Indian Overseas RFA 449/2012 10 2025:KER:56439 Bank. The above documents substantiate the claim of the plaintiff that at the time of executing Ext.A1 sale agreement, he had advanced a sum of Rs.2,00,000/- to Mohandas.
18. At the very same time, as I have already noted above, while executing Ext.A1 sale agreement, the plaintiff was aware that the entire 16 cents of property as mentioned therein was not available with Mohandas in Sy.No.435/4 of Thiruvalla village, so as to be sold to him. After Ext.A8 decree there was only 8 cents of property in Sy.No.435/4 and there was a residential building therein. As I have already noted above, in Ext.A1 it is not stated that Mohandas agreed to sell the residential building situated in the remaining property in his possession to the plaintiff. Therefore, from the evidence on record it is revealed that an extent of 16 cents of property as described in the plaint schedule was not identifiable at the site. In the above circumstances, a decree for specific performance of Ext.A1 agreement as prayed for in the plaint could not have been granted in favour of the plaintiff. Therefore, the impugned judgment and decree of the trial court to the extent it decreed specific performance of Ext.A1 sale agreement is liable to be set aside. At the same time, since it is revealed that the plaintiff had advanced a sum of Rs.2,00,000/- to Mohandas at the time of executing Ext.A1 agreement, he is entitled to get a decree for return of the above Rs.2,00,000/- with reasonable rate of interest. Considering the facts, I hold that interest @6% per annum will be reasonable in this case. Points answered accordingly.
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19. In the result, the impugned judgment and decree of the trial court to the extent it decreed specific performance of Ext.A1 sale agreement is set aside. The plaintiff is allowed to recover a sum of Rs.2,00,000/- along with interest at the rate of 6% per annum from the date of the agreement on 24.08.2007 till realisation with proportionate costs, from the assets of the defendants, to the extent they inherited from the deceased Mohandas.
All the pending interlocutory applications will stand dismissed.
Sd/-
C.Pratheep Kumar, Judge Mrcs/21.7.