IMPORTANT POINT
Agreement to Sell – Remand of matter for de-novo trial cannot be ordered without adverting to findings of Trial Court.

JUDGMENT :

DINESH MAHESHWARI, J.

Leave granted.

2. This appeal is directed against the common judgment and order dated 28.06.2019, passed by the High Court of Kerala at Ernakulam insofar as relating to RFA No. 247 of 2014, whereby the appeal filed by the plaintiff (respondent No. 1 herein) against dismissal of her suit for cancellation of a sale deed and for prohibitory injunction was disposed of with directions to the Trial Court to decide the suit afresh after de novo trial, essentially with the observations that the evidence necessary for proper determination of the suit had not been brought on record.

3. In the impugned common judgment and order dated 28.06.2019, the High Court has decided four appeals arising out of four different civil suits but concerning the same contesting parties and involving inter-related issues. Though, the present appeal relates only to one of those appeals in the High Court, being RFA No. 247 of 2014 that arose from OS No. 293 of 2012 in the Court of Subordinate Judge, Karunagapally (originally OS No. 390 of 2006 in the Court of Subordinate Judge, Kollam) but, for a proper comprehension of the facts, a brief reference to the subject-matter of the said four civil suits and findings therein shall be apposite. The relevant factual and background aspects could thus be noticed, in brief, as follows:

3.1. The respondent No. 1 filed the subject civil suit (OS No. 293 of 2012) against the present appellant as defendant No. 1 and other respondents, her sisters, as defendant Nos. 2 to 5, for setting aside a sale deed bearing No. 285 of 2006 dated 15.03.2006, registered in the Office of Sub Registrar, Karunagapally.

3.2. The suit schedule property, consisting of 54 Ares and 90 Sq. meters of land and the cinema theatre building thereupon, comprised in Block No. 5, Resurvey No. 551/3 of Adinadu Village, Kulashekharapuram Panchayat, Karunagapally Taluk, Kollam District, was originally owned by father of the respondents; and after his demise, the respondents and their mother executed a partition deed bearing No. 291 of 2003, whereby the suit schedule property was kept in joint possession and enjoyment of the respondents. A partnership deed was also executed amongst the respondents for running of the said cinema theatre and the husband of respondent No. 1 was managing the cinema theatre named ‘Tharangam theatre’ on behalf of the partners.

3.3. As per the case of plaintiff-respondent No. 1, on 15.03.2006, the respective husbands of respondent Nos. 3 and 5 asked her to reach the Office of the Sub Registrar, Karunagapally for execution of a security bond in favour of a film distributor; and though she made a request for postponing the execution of such document because her husband was out of station, the husbands of respondent Nos. 3 and 5 insisted that the said security was to be executed on that particular day itself or else, functioning of the cinema theatre would be affected. As the respondent No.1 had utmost faith and belief in them, she reached the Sub Registrar’s Office, and put her signatures on the document as required by them. On 15.09.2006, when respondent No.1 enquired about the accounts of cinema theatre from respondent No. 5, it was informed that her share in the said property had already been sold. On hearing the same, the respondent No. 1 rushed to the Office of the Sub Registrar for getting a copy of the document executed on 15.03.2006 and, on going through the same, she realized that she was made to sign on a sale deed and not on a security document as told to her earlier. Further, no consideration was received by her and hence, the said sale deed was void and non est.

3.4. The suit aforesaid was duly contested by the defendants. After framing of issues, the parties adduced documentary and oral evidence where, on behalf of the plaintiff-respondent No. 1, her husband was examined as PW-1 whereas a relative of her husband was examined as PW-2; and on the other hand, in defendants’ evidence, the present app