CHERIYATHU MATHAI Vs. THOMAS THOMAS

JUDGEMENT

(1.) This is a plaintiffs appeal. His suit to recover possession of the plaint schedule property with profits thereof has been dismissed in limine by the learned District Judge of Kottayam on the ground that the agreement sought to be proved in support of the claim was inadmissible in evidence as it sought to contradict the terms of a written instrument, to wit, a sale deed.

(2.) On 7.10.1107 the plaintiff executed a sale deed in respect of the said property in favour of one Thomas Thomas, the father of defendants 1 to 4 and the husband of defendant 5, reserving the consideration therefor; namely, Rs. 1,900 to be paid to him, when he got the property released from the charges due to Kizhakae Madom, Mankombu and the Commercial Bank Ltd., Changanacherry, under mortgages executed by him to those creditors. According to the plaintiff, though ex facie, the said deed evidenced an out right and unconditional sale, it was really not intended to be a sale, but was brought into existence as the result of an arrangement he has come to with the ostensible vendee for the purpose of liquidating a debt he owed to St. Marys Model Co. Ltd., (hereinafter referred to as the Company) under a promissory note executed by him to the Company. The said Thomas Thomas was the chief promoter and the Managing Director of the Company. The plaint went on to state that pursuant to the sale deed Thomas Thomas was put in possession of the property on the understanding that with the profits thereof he will discharge the debt due to the Company and that after the debt was discharged the property will be returned to the plaintiff. The debt due to the Company was originally incurred in 1104, it was renewed first in 1106, then in 1112 and lastly in 1118. Thomas Thomas died in Vrischigom 1124 without making any payment to the Company, towards the liquidation of the plaintiffs debt. Not only that, before his death he had instituted a suit against the plaintiff in O.S. 144 of 1124 for recovery of the amounts due to the Company as per the plaintiffs last promissory note of 1118. According to the plaintiff this conduct was in violation of the agreement between the parties and he therefore brought the present suit to recover the property with the profits thereof for the eighteen years that had elapsed since the execution of the sale deed. The plaint stated that the plaintiff was willing to have the Companys debt paid off out of the profits and that in case the defendants would discharge that debt a decree need be given in his favour only for the balance profits. The suit was instituted in Makaram 1125, some two months after Thomas Thomas passed away. The plaint claim in O.S. 144 of 1124 amounted very nearly to Rs. 11,000 and in the present plaint Rs. 17,000 odd were claimed towards past profits.

(3.) The suit was contested by defendants 1 to 4. Defendant 1, the eldest son of Thomas Thomas, filing one written statement and defendants 2 to 4 - all minors - another through their guardian. According to the contesting defendants, the sale deed was intended to operate as such and the agreement set up in the plaint was not only not true but was also inadmissible in evidence as it sought to contradict or vary the terms of the written grant. The plaintiff filed a replication reiterating the terms of the agreement set up in the plaint and also suggesting that the document was executed benami and that the ostensible vendee was only a trustee for him. However, these latter pleas would seem to have been left unnoticed at the time of raising the issues for trial. After the settlement of the issues defendant 1 moved the Court to have issues 1 and 2 tried as preliminary issues. Those issues were as follows:-