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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 6TH DAY OF JUNE 2022 / 16TH JYAISHTA, 1944 AS NO. 549 OF 2001 AGAINST THE JUDGMENT AND DECREE DATED 29-3-2001 IN OS
838/1995 OF PRINCIPAL SUB COURT, THRISSUR.
APPELLANTS/ADDITIONAL DEFENDANTS 5 AND 6 : 1 CHUMMAR, BUSINESS, S/O. AKKARA CHAKKU, OLLUR VILLAGE, DESOM, THRISSUR TALUK.
2 ANITHA,W/O.AKKARA CHUMMAR, OLLUR VILLAGE, DESOM, THRISSUR TALUK.
BY ADVS.
SRI.H.HAMZA ROWTHER SRI.ADARSH KUMAR SRI.V.K.PEERMOHAMED KHAN SRI.K.M.ANEESH SRI.K.SANTHOSH KUMAR (KALIYANAM)
SRI.BIJU VARGHESE ABRAHAM SRI.DILEEP CHANDRAN SRI.SHASHANK DEVAN RESPONDENTS/(PLAINTIFFS & DEFENDANTS 1 TO 4, 7 TO 14) :
1 FRANKO JOSE, BUSINESS, S/O MUNDAN KURIAN JOSE, ANCHERRY DESOM, OLLUR VILLAGE, THRISSUR TALUK.
2 VISWANATHA IYYER, ( DIED)
BUSINESS, S/O. THRITHALA PUTHEN MADATHIL PARAMESWARAN IYYER, THRISSUR VILLAGE,DESOM, THRISSURE TALUK.
DEATH OF 2ND RESPONDENT IS RECORDED AS PER ORDER DATED 3-2-2012 IN MEMO BEARING CF NO.538/2017 DATED 25-01-2017.
*3 SEETHALAKSHMI, W/O. LATE THRITHALA PUTHEN MADATHIL SIVARAMAKRISHNA IYYER XXIX/220, NEAR VEVEKODAYAM SCHOOL, THRISSUR VILLAGE THRISSUR TALUK.
*4 PARAMESWARAN, BUSINESS, S/O. THRITHALA PUTHEN MADATHIL SIVARAMAKRISHNA IYYER, XXIX/220,NEAR VEVEKODAYAM SCHOOL, THRISSUR VILLAGE THRISSUR TALUK.
5 KRISHNAN, BUSINESS, S/O. LATE THRITHALA PUTHAN MADATHIL SIVARAMAKRISHNA IYYER, XXIX/220,NEAR VEVEKODAYAM SCHOOL, THRISSUR VILLAGE THRISSUR TALUK.
*6 SEETHALAKSHMI AMMAL,@ PAPPA, D/O. LATE THRITHALA PUTHAN MADATHIL SIVARAMAKRISHNA IYER,THRISSUR VILLAGE, DESOM, THRISSUR TALUK.
*7 ALAMELU AMMAL @ VASANTHA, -DO- -DO-
*8 SANKARI AMMAL, -DO -DO-
*9 SEETHA AMMAL, -DO-0 -DO-
*10 RUGHMANI AMMAL, THANKAM, -DO- -DO-
*11 PARVATHY AMMAL @ SWARNAM, -DO- DO-
*12 SUNDARI AMMAL, -DO- -DO-
*13 LATHA @ LALITHAMMAL, * -DO- -DO- THE NAME OF THE RESPONDENTS 3,4, AND
6 TO 13 ARE STRUCK OFF FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONERS VIDE ORDER DATED
14/11/2002 IN CMP 5817/2002.
ADDITIONAL RESPONDENTS 14 TO 20 IMPLEADED :
14 V. SEETHA,AGED 75 YEARS, W/O. VISWANATHA IYYER, PARASAKTHI, THIRUVAMBADY, THRISSUR-680022.
15 SEETHALAKSHMY T.V, AGED 52 YEARS, D/O. VISWANATHA IYYER, PARASAKTHI, THIRUVAMBADY, THRISSUR-680022.
16 PARAMESWARAN T.V.(EXPIRED), AGED 49 YEARS, S/O. VISWANATHA IYYER, PARASAKTHI, THIRUVAMBADY, TRISSUR-680022.
17 VISWANATHAN T.V, AGED 47 YEARS S/O. VISWANATHA IYYER, PARASAKTHI, THIRUVAMBADY, THRISSUR-680022.
18 RAJESWARY T.V, AGED 45 YEARS, D/O. VISWANATHA IYYER, VIJAYA NIVAS, S R M ROAD, ERNAKULAM NORTH.
19 HARIHARAN T. V, AGED 42 YEARS, VIJAYANIVAS,S R M ROAD, ERNAKULAM NORTH.
20 LALITHAMBAL T.V, AGED 40 YEARS, D/O. VISWANATHA IYYER, VIJAYA NIVAS, S R M ROAD, ERNAKULAM NORTH.
( LEGAL HEIRS OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 14 TO 20 VIDE ORDER DATED 4/4/2019 IN IA 596/2018.)
R1 BY ADV SRI.K.G.BALASUBRAMANIAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON
06.06.2022, ALONG WITH AS.474/2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 6TH DAY OF JUNE 2022 / 16TH JYAISHTA, 1944 AS NO. 474 OF 2001 AGAINST THE DECREE DATED 29-3-2001 IN OS 838/1995 OF PRINCIPAL SUB COURT, THRISSUR.
PLAINTIFF/APPELLANT :
FRANKO JOSE, S/O. MUNDAN KURIAN JOSE, 27-577/4, KURIAN VAKIL ROAD, CHEMBUKKAVU, THRISSUR - 20, REPRESENTED BY POWER OF ATTORNEY, M.A. JOSE, RESIDING -DO- -DO-.
BY ADVS.
SRI.K.G.BALASUBRAMANIAN SRI.V.BIJU JOSEPH RESPONDENTS/DEFENDANTS:
*1 VISWANATHA IYER, S/O. THRITHALA PUTHEN MADATHIL PARAMESWARA IYER, THRISSUR VILLAGE AND DESOM, THRISSUR TALUK.
(DIED- LRS RECORDED) 2 SEETHALAKSHMI, W/O. LATE THRITHALA PUTHEN MADATHIL SIVARAMAKRISHNA IYER, XXIX/220, NEAR VIVEKODAYAM SCHOOL, THRISSUR VILLAGE, THRISSUR TALUK.
3 PARAMESWARAN S/O. -DO- -DO-, -DO-.
4 KRISHNAN S/O. -DO-, -DO-, -DO-
5 CHUMMAR, S/O. AKKARA CHACKU, OLLUR VILLAGE & DESOM, THRISSUR TALUK.
6 ANITHA, W/O. AKKARA CHUMMAR, OLLUR VILLAGE &
DESOM, THRISSUR TALUK.
7 SEETHALAKSHMI AMMAL @ PAPPA, D/O THRITHALA LATE PUTHEN MADATHIL SIVARAMAKRISHNA IYER, XXIX/220, NEAR VIVEKODAYAM SCHOOL, THRISSUR VILLAGE, THRISSUR TALUK.
8 ALAMELU AMMAL @ VASANTHAI, D/O. -DO-, -DO-, -DO-.
9 SANKARI AMMAL, D/O. -DO-, -DO-, -DO-.
10 SEETHA AMMAL, D/O. -DO-, -DO-, -DO-.
11 RUGHMANI AMMAL @ THANKAM, D/O. -DO-, -DO-, -DO-.
12 PARVATHY AMMAL @ SWARNAM, D/O. -DO-, -DO-, -DO-.
13 SUNDARI AMMAL, D/O. -DO-, -DO-, -DO-.
14 LELITHAMMAL @ LATHA, D/O. -DO-, -DO-, -DO-.
* IT IS RECORDED THAT THE FIRST RESPONDENT DIED AND HIS LEGAL HEIRS ARE ALREADY IN THE PARTY ARRAY AS R5 AND R6, VIDE ORDER DATED 12-11-2020 IN MEMO DATED 27-6-2019.
BY ADVS.SRI.H.HAMZA ROWTHER SRI.ANEESH.K.M SRI.V.K.PEERMOHAMED KHAN SRI.ADARSH KUMAR SRI.K.SANTHOSH KUMAR (KALIYANAM)
SRI.BIJU VARGHESE ABRAHAM SRI.DILEEP CHANDRAN SRI.SHASHANK DEVAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 06.06.2022, ALONG WITH AS.549/2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.SOMARAJAN, J.
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Dated this the 6th day of June, 2022.
J U D G M E N T
These are the two appeals preferred by the respective parties viz., the plaintiff and the defendant Nos.5 and 6, against the same decree and judgment rendered by the trial court in a suit for specific performance and for partition, based on Ext.A2 agreement dated 12-09-1986, by which the parties have agreed to sell 4 cents of property within a time schedule of six months. An amount of Rs.24,500/- was initially received out of the sale consideration by way of advance. There are four proposed sellers with respect to the 4 cents of property and they are the co-owners of the property holding 1/4th share each. On expiry of six months period as agreed into in Ext.A2 agreement the period was extended 26 times by endorsements on the reverse side of Ext.A2 agreement, spanning over a long period of in and around 9 years. It is thereafter, the plaintiff came up with a suit for specific performance of the contract against the first defendant and the subsequent alienees, the defendant Nos.5 and 6. During the interval of 26 extensions, an additional amount was also paid in piecemeal and thereby a total amount of Rs.49,500/- was paid to the four proposed sellers, including the first defendant. The legal representatives of deceased Narayana Swami Iyyer and Natarajan, who were parties to Ext.A2 agreement holding 1/4th share each were not made as a parties to the suit. The trial court decreed the suit in part granting specific performance of the contract. The relief of partition was not granted by the trial court. Aggrieved by the same, the plaintiff came up in A.S No.474 of 2001. The defeated defendants 5 and 6, who are the subsequent transferees claiming under the first defendant also came up in A.S No.549 of 2001.
2. The decree and judgment of the trial court was mainly assailed by the defendant Nos.5 and 6 on the ground that the plaintiff was not mounted on the box to give any direct evidence regarding the intention or mental element possessed by him in order to show and satisfy the ingredient which would constitute Section 16 of the Specific Relief Act, namely readiness and willingness. The legal position is covered by a catena of decisions that readiness and willingness would constitute mental element and intention of the party as well and the burden lies on the person, who seeks specific performance of the contract as mandated under Section 16 of the Specific Relief Act. Instead of the plaintiff, the power holder alone mounted on the box and had given oral evidence as PW1, but that cannot be substituted in the place of the oral evidence to be tendered by the party concerned, especially when it involves the mental element and intention which would constitute readiness and willingness as mandated under Section 16 of the Act.
3. The learned counsel for the appellant/plaintiff in A.S No.474 of 2001 relied on the following decisions in support of his arguments :
Panchanan Dhara and Ors. v. Monmatha Nath Maity ((2006) 5 SCC 340), Balasaheb Dayandeo Naik v. Appasaheb Dattatraya Pawar ((2008) 4 SCC 464), Santoshamma v. Sarala (2020(5) KLT 645(SC), Narinderjith Singh v. North Star Estate Promoters Limited ((2012) 5 SCC 712, Ram Awadh and Ors. v. Achhaibar Dubey and Ors. ((2000) 2 SCC 428), B.Vijaya Bharathi v. P.Savitri and Ors.((2018) 11 SCC 761), N.P.Thirugnanam v. R.Jagan Mohan Rao and Ors. ((1995) 5 SCC 115), Azhar Sultana v. B.Rajamani and Ors.
((2009) 17 SCC 27).
4. It is submitted that it is not at all necessary invariably in all cases to give direct evidence by the party who is seeking specific performance with respect to the ingredient which would constitute Section 16 of the Specific Relief Act and even it is permissible to gather the same from the attending circumstances. It is further submitted that the oral evidence tendered through the power holder referring the readiness and willingness stands supported by documentary evidence produced by them and as such, it has to be acted upon. Admittedly, the power holder is not a
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