RAVEENDRANATHA MENON Vs. LEELAMMA

JUDGEMENT

(1.) This appeal is directed by the appellants-defendants questioning the judgment delivered by the Ist Addl. Sub Judge, Ernakulam in O. S. No. 763 of 1989.

(2.) Respondent, as plaintiff, filed the suit for specific performance on the following grounds: The appellants (husband and wife) agreed to sell the suit property to the respondent for a total consideration of Rs. 30,000/-, for which Ext. A1 agreement (Ext. B1 original) was executed by them on 13-5-1987. That document was registered and on the date of registration, a sum of Rs. 25,000/- was advanced as part payment towards the sale consideration by the respondent. As per one of the clauses of the agreement, the sale deed had to be executed within a period of two years. As per the above condition in the agreement, no such sale deed was executed by the appellants. Therefore, the respondent issued a notice, a copy of which is marked as Ext. A2. Notice was received admittedly by the appellants and, however, no reply was sent by them. Therefore the respondent was constrained to file the suit before the court below. The above suit was resisted by the appellants on the ground that they never agreed to sell the suit property to the respondent, that already they had borrowed money on several occasions from the respondent which came to a sum of Rs. 25,0000- for which alone Ext. A1 was executed, that in fact Ext. A1 is not an agreement for selling the suit property, that however, after sometime the respondent did not want to purchase the property as per the terms of the agreement (alternatively submitted) that there was a mediation between the appellants and respondent for two or three days, that subsequently, as per the mediation Ext. B1 original agreement was returned to the appellants, that on returning Ext. B1 by the respondent to the appellants, for the above sum of Rs. 25,000/- as security, a document in a stamped paper written by D.W. 2 on behalf of the appellants was handed over to the respondent, that even in addition to that a draft as an additional security over the properties of D.W. 3 was prepared, that in the above circumstances on the basis of Ext. B1 a decree for specific performance cannot be granted, etc. The Trial Court on examining the evidence on both sides, decreed the suit.

(3.) Mr. N. Nilakandan Namboodiri, learned counsel appearing for the appellants would submit that there is no averment in the lawyer's notice marked as Ext. A2 that the original agreement, Ext. B2, was found missing from the custody of the respondent or that it was stolen by the appellants, that there is also no averment to that effect in the plaint, and when that be the position now the respondent is estopped to ask for a decree on the basis of Ext. B1 which has been in the custody of the appellants. It was also his contention that as per the statutory law laid down in S.114(i) of the Indian Evidence Act when the appellants are in possession of Ext. B1 it has to be presumed that the obligation under it has been discharged. The above two grounds alone have been taken by the learned counsel for the appellants to uproot the judgment of the court below.