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2009 Supreme(Ker) 951

High Court of Kerala
THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID
IVY ABRAHAM & ANOTHER
VERSUS
ITTY & OTHERS
AS.Nos. 250 of 1999 (Y) & 251 of 1999
Decided on : 20-11-2009

Advocates appeared:
For the Appellants:T.P. Kelu Nambiar, Senior, Advocate, P.G. Rajagopalan, Gopi Krishnan Nambiar, Shiraz Abdulla, Advocates. For the Respondents:
R. Ramadas, Rashtra Deepika Ltd. Party, Rashtra Deepika Ltd. Party, Advocates.

Headnote:

Contract Act, 1872 - Section 12 - Appeals arise out of a common judgment in the said suits. O.S was filed for a declaration that the sale deed executed by the 1st plaintiff in favour of the 1st defendant is null and void and for a perpetual injunction to restrain the defendants 1 and 2 from trespassing upon the plaint schedule property or effecting any transfer relating to the property based on the above sale deed and for a decree of mandatory injunction directing the 2nd defendant to return the blank cheques and stamped papers delivered to him at the time of execution of the sale deed - Held, Court find that the decrees and judgments passed by the trial court are liable to be set aside - It has also come out in evidence that the defendants have no house of their own - It is natural that the defendants have decided to purchase the plaint schedule property - Judgments and decrees passed by the trial court are set aside - Decree for perpetual injunction is passed restraining the 1st defendant in O.S. from trespassing into the plaint schedule property and from interfering with the possession and enjoyment of the plaintiffs therein - Order Accordingly

Judgment :

The plaintiffs in O.S. Nos. 561/1994 and defendants 1 and 2 in O.S. No. 629/1994 on the file of the Principal Sub Judge, Kottayam, are the appellants in A.S. No.s 250 and 251 of 1999 respectively. These appeals arise out of a common judgment in the said suits. O.S No. 629/1994 was filed for a declaration that the sale deed No. 2625/1993 executed by the 1st plaintiff in favour of the 1st defendant is null and void and for a perpetual injunction to restrain the defendants 1 and 2 from trespassing upon the plaint schedule property or effecting any transfer relating to the property based on the above sale deed and for a decree of mandatory injunction directing the 2nd defendant to return the blank cheques and stamped papers delivered to him at the time of execution of the sale deed No. 2625/1993. The connected suit viz. O.S. 561/1994 is a suit filed by defendant 1 and 2 in O.S No.629/1994 for a perpetual injunction restraining the 1st plaintiff in O.S No. 629/1994 from trespassing upon the plaint schedule property or obstructing their possession and peaceful enjoyment of the same and from collecting the future rent of the building and to direct the 1st defendant (plaintiff in O.S. No. 629/1994) to pay Rs. 33,250/- with future interest at 6% per annum which he has already received from the tenant as rent amount. The court below jointly tried both suits, evidence was recorded in O.S No. 629/1994 and a common judgment was passed. The court below decreed O.S. No. 629/1994. The sale deed No. 2625/1993 (Ext.B4) executed by the 1st plaintiff in favour of the 1st defendant is declared null and void and granted both prohibitory and mandatory injunction as prayed for; and dismissed O.S No. 561/1994 . The parties hereinafter are referred to as plaintiffs and defendants as arrayed in O.S. No. 629/1994 and the exhibits are stated hereinafter as produced and marked in O.S No. 629/1994.

2. The plaint schedule property in O.S. No. 629/1994 is 10 Cents of land and a building situated thereon . . The 2nd plaintiff is the father of the 1st plaintiff. The 1st plaintiff is the owner of the plaint schedule property and the building by virtue of a settlement deed No. 2588/1979 of S.R.O., Kottayam executed by the 2nd plaintiff. It is averred in the plaint that the 1st plaintiff became an alcoholic sometime in 1990 and was continued to be so till July 1993. The 1st plaintiff was under treatment for alcoholic dependence and Hypomania at "Total Response to Alcohol and Drug Abuse" (TRADA) from 1991. The 1st plaintiff continued his treatment till July 1993 at "TRADA. It is further pleaded that though his alcoholic dependence was considerably reduced by treatment, his affective disorder persisted and he was continuing treatment with Dr.Radhakrishnan , C.K.N. Psychiatric Neuro Clinic, Changanassery for affective disorder and that though he recovered from affective disorder and unsoundness of mind in July 1994, he is still under treatment of Dr.Radhakrishnan. It is the plaintiffs' case that the 1st plaintiff started attending prayer meetings from June 1992 to escape from alcoholism . Prayers were conducted by believers in residential houses. While so the 1st plaintiff got acquainted with the 2nd defendant and developed intimacy with him According to the plaintiffs the 1st plaintiff developed absolute confidence in 2nd defendant and the 2nd defendant was his "Guru" in all matters . Some time in July 1993 there was a proposal to purchase a Coffee estate having an extent of 181 acres in Coorg for Rs.67 = lakhs. A group was formed for purchase of the estate including the 1st plaintiff and 2nd defendant and the estate was proposed to be purchased in October 1993. The 1st plaintiff had no money to invest in estate deal and the 2nd defendant promised that he will provide the necessary finance of Rs. 10 lakhs which was the contribution of the 1st plaintiff, provided the 1st plaintiff executed a sale deed in respect of plaint schedule property in favour of the




















































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