ABDUL KHADER ROWTHER Vs. P K SARA BAI

JUDGEMENT

(1.) This appeal by certificate granted by the High Court of Kerala arises from the judgment and decree dated 26-7-1972 in A. S. No. 65 of 1967 whereby the High Court reversed the judgment and decree of the trial Court in O.S. No. 65 of 1965 which was a suit filed by the present appellant. Decreeing the suit the learned trial Judge held that the appellant/ plaintiff was entitled to recover possession of the plaint scheduled properties on payment by him of a sum of Rs. 35,000/- and the value of improvements due to defendants 3 to 14. That decree was challenged in appeal by defendants 3 to 14, being the legal representatives of the deceased first defendant. The High Court, reversing the decree, held that in view of the pleadings of the parties and particularly the specific allegations contained in the plaint, the plaintiff was not entitled to succeed in the suit. The High Court found that the plaintiffs suit did not conform to the requirements of Forms 47 and 48 of the First Schedule to the Civil Procedure Code and he was, therefore, not entitled to a decree for specific performance of the covenant contained in Ex. A-1 for reconveyance of the suit properties.

(2.) The case of the plaintiff, as disclosed by his pleadings, has been that the suit properties had been mortgaged by the plaintiff in favour of the first defendant as per Ex. B-1 dated 15-6-1953, but at no time was possession of these properties handed over to the mortgagee. Although it is stated in Ex. B-1 that the properties had been mortgaged for a sum of Rs.22,000/-, no such amount was in fact received by the plaintiff. Subsequently, these properties were assigned by the plaintiff in favour of the first defendant under Ex. A-1 dated 29-6-1953. The sale consideration stated in Ex. A- 1 is Rs. 35,000/ -. However, no such consideration was received by the plaintiff. Both these transactions, as evidenced by Exs. B-1 and A-1, were sham and intended to protect the suit properties from creditors who were pressing the plaintiff for various amounts due from him. The plaintiff, who was conducting a chitty business, was heavily in debts and it was, therefore, necessary for him to create documents with a view to showing that the properties were no longer in his possession or ownership. However, despite the clear understanding between the plaintiff and the first defendant that no right or interest passed under the documents, the first defendant fraudulently dispossessed the plaintiff of the suit properties. It was in such circumstances that the plaintiff brought the suit for reassignment of the properties in terms of Ex. A-1.

(3.) It was the definite case of the defendants Exs. B-1 and A-1 were not sham transactions, but were intended to come into effect, and did come into effect, in terms thereof. All the liabilities shown in the Mortgage Deed were correct and true. Since the plaintiff required more monies for payment of his debts other than those which the mortgagee had undertaken to pay, the first defendant accepted assignment of the property in his favour on payment of adequate consideration in the sum of Rs. 35,000/-. It was, however, stipulated that the plaintiff was entitled to repurchase the property within the stipulated period on payment of the aforesaid sale consideration of Rs. 35,000/- together with the value of improvements. The allegation that no monies had been paid by the first defendant to the plaintiff was totally untrue.