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2021 Supreme(Online)(KER) 23808
HIGH COURT OF KERALA
P.SOMARAJAN, J
BABY – Appellant
Versus
SREEDEVI – Respondent
RFA 123 2018
SRI.P.B.KRISHNAN, SRI.MANU VYASAN PETER, SRI.P.M.NEELAKANDAN, SRI.SABU GEORGE, SRI.P.B.SUBRAMANYAN, SUMODH MADHAVAN NAIR
A valid agreement for reconveyance requires clear evidence of execution, intent, and adherence to legal formalities, failing which the agreement cannot be enforced.
Headnote:
Specific Performance - Conveyance Agreement - Sections Referenced - The court analyzed the genuineness of the agreement for conveyance, emphasizing the importance of legal formalities and the intent of the parties, ultimately leading to the dismissal of the suit for specific performance.
Fact of the Case:
A suit for specific performance was initiated based on an agreement for reconveyance of property that the plaintiff argued was agreed upon simultaneously with a sale deed. The defendant challenged the authenticity of the agreement and the circumstances surrounding its execution.
Issues: The key issue was whether the agreement for reconveyance was valid and enforceable, considering the discrepancies in execution and the lack of simultaneous agreement with the sale deed.
Ratio Decidendi: The court ruled that an agreement must be substantiated by clear evidence of mutual intent and simultaneous execution, which was not met in this case due to contradictions in testimonies and the circumstantial evidence presented.
Final Decision: The decree and judgment of the trial court were set aside, dismissing the plaintiff's suit and allowing a permanent injunction in favor of the defendant.
JUDGMENT
The parties are referred to in their status in the leading case in O.S.No.943/2012 and in RFA.No.703/2016. Two suits, one by the plaintiff/respondent herein and other by the defendant/appellant, were disposed of under a common judgment. The suit by the plaintiff/respondent is for specific performance of Ext.A1, agreement for re- conveyance of the property sold to the defendant under Ext.B1 sale deed dated 11.02.2011 regarding 5 cents of property out of 8 cents owned by the plaintiff. On the very same day Ext.A1, agreement was executed agreeing to re-convey the property within two years on payment of the actual sale consideration, which comes to Rs.2,50,000/-. But, in the sale deed the actual sale consideration was not disclosed. Ext.A1, agreement for re-conveyance sought to be enforced in O.S.No.943/2012, which was decreed by the Sub Court, Palakkad, against which RFA.No.703/2016 was preferred by the defendant therein. The suit in O.S.No.402/2013 instituted by the defendant for injunction was dismissed, against which RFA.123/2018 was preferred.
2. Ext.A1 agreement dated 11.02.2011 is under challenge on the reason that the stamp paper used for endorsing the agreement seen purchased by the plaintiff on 09.02.2011, three days ahead. But in the box, the plaintiff denied it. Even the suggestion put up whether it was purchased by the document writer one Santhakumari was also denied by her while in the box, but advanced a case that it was purchased by some other person who came to her shop room, just against the oral evidence tendered by the scribe PW3. If it was purchased by some other person, necessarily their name should have find a place in the endorsement made on the reverse side of the stamp paper. But on the reverse side of the stamp paper, the name of plaintiff is stated. This would cause a reasonable doubt as to the genuineness of the case advanced by the plaintiff regarding execution of Ext.A1 agreement. Further, this would show falsity writ large on the face of oral evidence tendered by PW1 and PW3. If it was purchased by some other person, who came to the shop of PW1 as spoken to by her, it is not clear why they have purchased a stamp paper and for what purpose it was purchased and why it was handed over to the plaintiff and why it was used for executing another agreement with a third person.
3. Further, the sale deed was executed and registered by 10.45 p.m. on 11.02.2011.
It is by 3 p.m. on the same day, the document writer Santhakumari prepared a draft agreement and thereafter the original was prepared and executed by the parties in the presence of two witnesses mentioned in the document. It has got its own improbability, firstly on the reason that even according to the plaintiff even before the execution of the sale deed, there was an understanding to reconvey the property on receiving the actual consideration with interest within two years. But in the sale deed executed, no such condition was incorporated. Indisputably, Ext.A1 agreement was not executed simultaneously with the sale deed and no effort worth the name was taken to that effect. On the other hand, the draft for Ext.A1 agreement was prepared by 3 p.m. on that day after the lapse of more or less 5 ½ hours from the time of execution and registration of the sale deed.
4. Exts.A5 and B2 complaints were also brought to the notice of this Court in support of the case advanced by the defendant that she was summoned to the Nenmara police station based on Ext.A5 complaint and forced to sign on some stamp papers under threat and coercion and the same was used for fabricating Ext.A1 agreement for reconveyance. On the second day, she preferred a complaint Ext.B2 before the Deputy Superintendent of Police. In Ext.A5 complaint, there is no allegation with respect to the alleged violation of Ext.A1 agreement. Even there is no whisper anywhere in the said complaint with respect to execution of Ext.A1 agreement for reconveyance. This would lend considerable support
