Saraswathy Assari, Simi, Smitha and Sathichandran Assari vs Danapalan

Thomas P. Joseph, J.—These appeals arise from the common judgment and decree of the Munsiff''s Court, Varkala in O.S. Nos. 369 of

2001 and 258 of 2002, confirmed by the Sub Court, Attingal in A.S. Nos. 118 of 2004 and 117 of 2004, respectively. The 4th appellant in

R.S.A. No. 788 of 2012 (who is the 2nd appellant in R.S.A. No. 789 of 2012) is the original owner of the suit property. He is the husband of the

1st appellant in both the appeals. He had executed a power of attorney (Ext. B11) in favour of the 1st appellant to negotiate and sell the suit

property. Later, the 1st appellant and her husband are said to have executed Ext. B1, sale deed in favour of the respondent transferring the right,

title, interest and possession of the husband of the 1st appellant in the suit property in favour of the respondent. It is also the contention of the

respondent that the 1st appellant and her husband were permitted to reside in the building in the suit property on the strength of a rent deed

executed in favour of the respondent and which was renewed after the period of the first rental arrangement (those rent deeds are Exts. B9 and

B10). While so, the 1st appellant filed O.S. No. 369 of 2001 for a decree for prohibitory injunction claiming that she is in possession and

enjoyment of the property, her husband having purchased the same about seven years back. She claimed that her husband had availed a loan from

the respondent and executed a document as security for its due repayment. The husband could not repay the interest. Thereon the respondent, it

was alleged, attempted to trespass.

The respondent, sole defendant in O.S. No. 369 of 2001 while resisting the suit made a counter claim. He claimed that he purchased the suit

property for valid consideration as per Ext. B1 and permitted the appellant and her husband to reside in the house in the suit property on the

strength of Exts. B9 and B10. In the counter claim, he prayed for a declaration of his right, title, interest and possession of the suit property and for

recovery of the said property from the 1st appellant and others. The 1st appellant and others filed a replication contending that the respondent is

not the owner of the suit property though a document happened to be executed in the circumstances stated in the plaint.

The 1st appellant, along with her husband (2nd appellant in R.S.A. No. 789 of 2012) filed O.S. No. 258 of 2002 for a declaration that the title

and possession of the suit property is with the 2nd appellant (in R.S.A. No. 789 of 2012). They sought a finding that Ext. B1, sale deed No. 4295

of 1999 in favour of the respondent is null and void and prayed for a decree for prohibitory injunction. That suit was resisted by the respondent on

the same grounds he stated in the written statement and counter claim in O.S. No. 369 of 2001.

The trial court found against the plea raised by the appellants and non-suited them. The counter claim in O.S. No. 369 of 2001 was allowed.

The dismissal of the suits and decree on the counter claim were challenged in A.S. Nos. 116 and 117 of 2004, respectively. The appeals were

dismissed in confirmation of the judgment and decree of the trial court. Hence these Second Appeals.

The learned counsel for the appellants contends that the respondent got Ext. B1, sale deed executed as if it is a deed of mortgage as security for

the due repayment of a loan availed by the 4th appellant in R.S.A. No. 788 of 2012 (2nd appellant in R.S.A. No. 789 of 2012) and that Ext. B1,

sale deed is vitiated by fraud and misrepresentation. It is also contended by the learned counsel that the real nature of the transaction between the

parties is revealed by Ext. A4, letter sent by the respondent to the appellant. The learned counsel has invited my attention to other documentary

evidence let in by the appellants.

The learned counsel for the respondent would contend that Ext. B11, power of attorney was executed by the 4th appellant in R.S.A. No. 788

of 2012 (2nd appellant in R.S.A. No. 789 of 2012) solely for negotiation and sale of the suit property and hence the contention that Ext. B1, sale

deed was executed merely as a security cannot be accepted. It is argued that apart from being power holder of the husband, the 1st appellant had

no right or interest in the suit property. She also has joined in the execution of Ext. B1. The learned counsel has invited my attention to the various

documents the respondent has produced to show that pursuant to the assignment in his favour as per Ext. B1 he has taken possession of the

property and is in enjoyment of the same.

Going by the plea raised by the appellants in both the suits it would appear that the plea is one of non est factum since according to them, the 1st

appellant and her husband happened to sign Ext. B1, sale deed under the impression that it is a deed of mortgage executed as security for the due

repayment of the loan amount. There is no case for the appellants that the 1st appellant or her husband are illiterate or blind. There is also no case

that on account of any permanent or temporary reasons (not relating to blindness or illiteracy) they were unable to read and understand the

contents of Ext. B1. Referring to the relevant decisions on the point, this Court held in Biji Pothen Vs. Mrs. Thankamma John, Mr. Philip Senty

Issac @ Santy Philip and Mrs. Biji, that the plea of non est factum is not available to a person who could have ascertained the true nature of the

document (he has signed) by reading and understanding it but, has taken on himself the risk of not reading and understanding it. It is also held that

the said plea is available only to blind or illiterate person or who for any permanent or temporary reasons not relating to blindness or illiteracy was

not capable of both reading and sufficiently understanding the deed or other document he has signed. There is no case or evidence that the

appellants are blind or illiterate or for any other reason were not able to read and understand the contents of Ext. B1.

I must also notice that as pointed out by the learned counsel for the respondent, Ext. B11, power of attorney was executed by the husband in

favour of the 1st appellant solely for negotiating and selling the suit property and as power of attorney holder, the 1st appellant also joined in the

execution of Ext. B1 along with her husband. It is therefore clear that intention of the 1st appellant and her husband was not to create a security for

the loan transaction but, to transfer right of the husband in the suit property to the respondent. Exts. B9 and B10 are the rent deeds admittedly

executed by the 1st appellant and her husband in favour of the respondent subsequent to Ext. B1. According to the respondent, it is by virtue of

Exts. B9 and B10 that the 1st appellant and her husband continued their residence in the building in the suit property. Exts. B2 to B4, receipts

produced by the respondent prove payment of revenue for the suit property. Exts. B6 and B8, receipts prove payment of building tax. Ext. B5 is

certificate of ownership in favour of the respondent issued by the local authority concerning the building in the suit property.

Ext. A4 is a letter which according to the appellants was sent by the respondent. Ext. A5 series and Ext. A6 are the identity cards and the

electricity bills. Exts. A5 series and Ext. A6 do not in any way advance the case of 1st appellant and her husband since it is not disputed by the

respondent also that the 1st appellant and her husband are residing in the building in the suit property though according to him by virtue of Exts. B9

and B10.

Ext. A4 is denied by the respondent. The courts below observed that in spite of denial made by the respondent as to the authenticity of Ext.

A4, no attempt was made by the appellant to get Ext. A4 examined by an expert. The courts below also observed that about Ext. A4, there is no

mention in the plaint in O.S. No. 369 of 2001. It is only after evidence in the trial court was concluded that appellants filed application to take

specimen signature of the 4th appellant in R.S.A. No. 788 of 2012 (2nd appellant in R.S.A. No. 789 of 2012). Even the said attempt was not to

get the disputed signature in Ext. A4 examined by an expert with reference to the specimen signature of the respondent. Instead, the request was to

the court to compare the disputed signature in Ext. A4 with the specimen signature of the respondent. The trial court dismissed that application

observing that comparison by the court (though permitted by Sec. 73 of the Evidence Act) is not a safe course. A further fact to be noted is that

Ext. A4 is addressed to one ''Kanthi''. The courts below observed that there is no plea in any of the suits that the 1st appellant is called by the

name ''Kanthi''. True that PWs 1 and 2 stated so, but, there was no such plea in that regard. In the above circumstances, the courts below rightly

did not place reliance on Ext. A4.

It is based on the evidence that the trial court entered a finding that by Ext. B1, right, title, interest and possession of the 4th appellant in R.S.A.

No. 788 of 2012 (2nd appellant in R.S.A. No. 789 of 2012) were conveyed to the respondent and that the 1st appellant and her husband are

occupying the building in the suit property by virtue of Exts. B9 and B10, rent deeds. Accordingly, the counter claim in O.S. No. 369 of 2001 was

allowed and the suits were dismissed. Having heard the learned counsel on both sides and gone through the judgments under challenge, I do not

find any substantial question of law involved in these Second Appeals requiring decision by this Court.

The Second Appeals are dismissed.

All pending interlocutory applications will stand dismissed.