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2025 Supreme(Ker) 2145
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SATHISH NINAN, P. KRISHNA KUMAR, JJ.
Marykutty Thomas - Appellant
Versus
Josily Elizabeth Thomas, W/o.Late Thomas Mathew - Respondent
RFA No. 88 of 2015
Decided on : 14-08-2025
Advocate Appeared:
For the Appellant : SRI.T.KRISHNANUNNI (SR.), SRI.K.C.KIRAN, SMT.MEENA.A., SRI.VINOD RAVINDRANATH
For the Respondent: SRI.JACOB P.ALEX, SMT.M.R.MINI, SRI.JOSEPH P.ALEX
The court can exercise discretion not to grant specific performance due to familial relationships and financial needs, affirming entitlement to return of advance payment and damages.
Headnote:(A) Specific Relief Act, 1963 - Section 20 - Specific Performance - Alternative relief for return of advance sale consideration sought - Agreement dated 16.08.2008 established, but plaintiff entitled only to return of advance amount plus damages for breach - Court exercised discretion against granting specific performance due to familial relations and need for property - Modifications to interest rate for compensation awarded. (Paras 6, 17, 19, 20)
(B) Discretionary Relief - Courts may deny specific performance when relations are involved, and issues of financial need are present, considering equity. (Paras 18)
Facts of the case:
The original plaintiff sought specific performance of an agreement to purchase property from relatives, advancing Rs. 17 lakhs, which defendants contended was under false pretenses. The trial court decreed an alternate relief only.
Findings of Court:
The trial court's decree for return of advance was upheld, with modifications in interest rates and an award of damages for breach.
Issues: The main issues included the genuineness of the sale agreement and the exercise of discretion under the Specific Relief Act.
Ratio Decidendi: The court affirmed the trial court's decision not to grant specific performance due to familial ties and increased property value, upholding the alternate relief granted.
Result: Appeal allowed in part, modifying the interest and awarding damages.
| Table of Content |
|---|
| 1. suit for specific performance and compensation. (Para 1 , 2 , 3 , 4) |
| 2. court's determination on issues of agreement validity. (Para 5 , 6) |
| 3. evaluation of evidence regarding the agreement. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15) |
| 4. defendants' repudiation and plaintiffs' damages. (Para 16 , 17 , 18) |
| 5. final ruling and the modification of the judgment. (Para 19 , 20) |
JUDGMENT
Sathish Ninan, J.
The suit for specific performance, with an alternative relief for return of advance sale consideration, was decreed for the alternative relief. Seeking a decree for the main relief, the additional second plaintiff is in appeal. Defendants are in cross objection, challenging the adverse findings by the trial court.
2. The original plaintiff died pending the suit. His legal heirs, the wife and children, were originally impleaded as additional second plaintiff and additional defendants 4 to 6. Subsequently as per order dated 07.09.2011 in I.A. No.1338/2012 the additional defendants 4 to 6 were transposed as additional plaintiffs 3 to 5. The first defendant is the mother of defendants 2 and 3.
3. Ext.A1 is the agreement dated 16.08.2008, which is sought to be specifically enforced. The agreement is entered into between the original plaintiff and the defendants. In Ext.A1, defendants 2 and 3 were represented by the first defendant on the strength of Ext.B1 power of attorney dated 11.08.2008. Under Ext.A1, the extent of property agreed to be conveyed is 54 cents. The sale consideration fixed is Rs. 1,50,000/- per cent. The period fixed for performance is up to 31.03.2009. An amount of Rs. 17 lakhs was paid towards advance sale consideration. The plaintiff seeks for specific performance of the agreement.
4. The defendants filed a joint written statement. While the signature of the first defendant on Ext.A1 was admitted, it was contended that blank signed stamped and unstamped papers obtained from the plaintiff while availing a loan for the marriage of the second defendant was fabricated into Ext.A1 agreement. The trial court upheld Ext.A1 agreement. However, the plaintiff was granted a decree only for the alternate relief of return of advance sale consideration.
5. We have heard Sri.T.Krishnanunni, the learned Senior Counsel on behalf of the appellant and Sri.Joseph. P. Alex and Smt.M.R.Mini the learned counsel for the respective respondents.
6. The points that arise for determination are :-
(i) Is Ext.A1 agreement true and genuine or was it signed under the circumstances pleaded by the defendants?
(ii) Is the discretion under Section 20 of the SPECIFIC RELIEF ACT liable to be exercised in favour of the plaintiff, to grant a decree for specific performance?
(iii) Does the decree and judgment of the trial court warrant any interference?
7. The following facts are not in dispute. The plaintiff and the defendants are relatives and belong to the same larger family. The subject matter of the suit is the only property of the defendants. The property contains a residential house wherein the first defendant, a widow, is residing. The defendants were in need of money for the marriage of the second defendant. One Mr.Thomas Varghese, who was an elder member of the family, had intervened to help the defendants to raise the money. Ext.B1 power of attorney dated 11.08.2008 was executed by defendants 2 and 3 in favour of the first defendant to deal with the property. They had received Rs. 17 lakhs from the plaintiff.
8. According to the plaintiff, to raise funds for the marriage of the 2nd defendant, the defendants proposed to sell the property. The maximum offer that they received from third parties was Rs. 1,40,000/- per cent. On the intervention of Sri.Thomas Varghese (the elder member in the family) the plaintiff agreed to purchase the property at Rs. 1,50,000/- per cent. The consideration for the same was to proceed from his son who was employed abroad at Cyprus. It is in furtherance thereof that Ext.B1 power of attorney and Ext.A1 agreeme
