JOY VARGHESE Vs. ULAHANAN ALIAS JOHN

JUDGEMENT

(1.) Defendants in OS 75 of 1992 on the file of Sub Court, Muvattupuzha are the appellants. Plaintiffs are the respondents. Suit was filed for realisation of Rs.14,787/- with interest charged on the plaint schedule property. The plaint schedule property originally belonged to respondent. Under Ext. A1 sale deed dated 10/08/1989 first respondent transferred the property for a total consideration of Rs.40,000/-, to first appellant for the second appellant who was a minor then. Out of the sale consideration, Rs.14,787/- was retained with appellants to discharge the mortgage debt existing in the property on that date in favour of Mulakulam Service Cooperative Bank. Only the balance consideration of Rs.25,213/- was paid to the respondents. Subsequently, the Agricultural and Rural Relief Scheme, 1990 came into force by which the debt payable by Agriculturists was reduced. Second respondent paid the amount due to bank so that the amount retained with appellants need not be paid. Respondents then instituted the suit for realisation of the amount of Rs.14,787/- retained with appellants under Ext. A1. Appellants resisted the suit contending that Ext. A1 does not provide for return of the amount paid thereunder and as respondents have surrendered all their rights and liabilities in favour of appellants, they are not entitled to claim back any amount from appellants. It was also contended that appellants when approached the Bank to pay the amount as provided in Ext. A1, they were informed that first respondent has paid Rs.3513/- and therefore appellants entrusted a cheque for Rs.3,513/-, the amount paid by respondents to the Bank, to be paid to the respondents and respondents are not entitled to claim any other amount.

(2.) Learned Munsiff, on the evidence of PW 1, DW 1 and Exts. A1 to A4, dismissed the suit following the decision of a learned Single Judge of this Court in Kunjikavu Amma v. Janaki Amma, 1957 KHC 80 : 1957 KLT 392 : 1957 KLJ 271 : 1957 KLJ NOC 18 : 1957 KLT SN 30 : ILR 1957 Ker. 321 : AIR 1957 Ker. 98 , Respondents challenged the judgment before District Court, Ernakulam in AS 198 of 1994. Learned District Judge, on reappreciation of evidence, following the Division Bench decision in Joseph v. Joseph, 1972 KHC 182 : 1972 KLT 829 : 1972 KLR 463 found that the amount retained with appellants was only to discharge the liability in favour of the Bank and appellants are only the agents of respondents to discharge the liability and as that amount was not to be paid to the bank because of the subsequent legislation, respondents are entitled to the decree sought for. Appellants were directed to pay the amount retained with them with interest at 6% from the date of the suit. It is challenged in the second appeal.

(3.) Second appeal was admitted formulating the following substantial questions of law.