Registered sale deeds presume valid transfer; plaintiff failed to prove oral re-conveyance agreements by cogent evidence.

JUDGMENT :

MURALI PURUSHOTHAMAN, J.

This appeal arises from the judgment and decree dated 30.11.2011 passed by the Court of the Principal Sub Judge, Kollam in O.S. No.334 of 2009. The appellant is the plaintiff.

2. According to the plaintiff, she borrowed Rs. 75,000/- from the 1^st defendant for her daughter’s marriage and, at his demand, executed Ext. A1 sale deed dated 28.04.1997 transferring the plaint schedule property, having an extent of 25 cents, in favour of the 1^st defendant on an oral agreement that the property would be re- conveyed on repayment of the loan. During 2006, the 1^st defendant demanded payment of Rs. 1,75,000/-. As the plaintiff was unable to pay the amount, she approached the 2^nd defendant, a money lender, who introduced her to the 3^rd defendant. The 3^rd defendant agreed to lend Rs. 1,75,000/- and, accordingly, paid the said amount to the 1^st defendant, whereupon the 1^st defendant executed Ext. A2 sale deed dated 29.12.2006 in respect of the plaint schedule property in favour of the 3^rd defendant. There was an oral agreement that on repayment of the loan amount, the property would be re-conveyed to the plaintiff. When the plaintiff sought re-conveyance of the property, the 3^rd defendant refused and demanded Rs. 15,00,000/- for the same. The plaintiff is entitled to re-conveyance of the plaint schedule property and is ready and willing to perform her part of the agreement by paying the borrowed amount along with interest and costs of the execution of the sale deed. Accordingly, the suit is filed for specific performance of the oral agreement for re-conveyance of the plaint schedule property.

3. The defendants filed separate written statements resisting the suit. The defendants contended that there is no cause of action and the suit is to be dismissed. The 1^st defendant stated that the suit is not maintainable as it relates to a property sold 12 years back. It was further stated that there was no loan transaction as alleged and no agreement for re-conveyance of the property.

4. The 2^nd defendant stated that he acted merely as a broker at the time of execution of the two sale deeds, that there was no agreement for re-conveyance, and that the transaction was a sale and not a document created as security.

5. The 3^rd defendant stated that he had purchased the property from the 1^st defendant as per Ext. A2 sale deed, that he is in possession of the same, that mutation has been effected in his name, and that he has been paying tax thereon. It was further stated that there was no loan transaction between the plaintiff and defendants 1 and 3 and no oral agreement for re-conveyance of the property upon repayment of any loan.

6. The plaintiff filed a replication denying the contentions raised by the defendants.

7. The plaintiff was examined as PW1 and Exts. A1 to A16 were marked. Advocate Commissioner was examined as PW2 and Exts. C1 to C4 were marked. The Document writer of Ext. A2 deed was examined as PW3. Defendants 1 to 3 were examined as DWs 1 to 3 respectively and Exts. B1 to B13 were marked.

8. The learned Sub Judge found that the plaintiff failed to establish the existence of an oral agreement with the 1^st defendant in 1997 and with the 3^rd defendant in 2006 regarding re-conveyance of the plaint schedule property, and accordingly dismissed the suit. Aggrieved thereby, the plaintiff has preferred this first appeal.

9. The points that arise for determination are:

i. Whether Exts. A1 and A2 documents were executed as security for the loan availed by the plaintiff?

ii. Was there an oral agreement between the plaintiff and the 1^st defendant f