IVY ABRAHAM Vs. ITTY

JUDGEMENT

(1.) THE plaintiffs in OS Nos. 561/1994 and defendants 1 and 2 in OS No. 629/1994 on the file of the Principal Sub Judge, Kottayam, are the appellants in AS Nos. 250 and 251 of 1999 respectively. These appeals arise out of a common judgment in the said suits. OS No. 629/1994 was filed for a declaration that the sale deed No. 2625/1993 executed by the 1st plaintiff in favour of the 1st defendant is null and void and for a perpetual injunction to restrain the defendants 1 and 2 from trespassing upon the plaint schedule property or effecting any transfer relating to the property based on the above sale deed and for a decree of mandatory injunction directing the 2nd defendant to return the blank cheques and stamped papers delivered to him at the time of execution of the sale deed No. 2625/1993. The connected suit viz. OS 561/1994 is a suit filed by defendant 1 and 2 in OS No. 629/1994 for a perpetual injunction restraining the 1st plaintiff in OS No. 629/1994 from trespassing upon the plaint schedule property or obstructing their possession and peaceful enjoyment of the same and from collecting the future rent of the building and to direct the 1st defendant (plaintiff in OS No. 629/1994) to pay Rs.33,250/- with future interest at 6% per annum which he has already received from the tenant as rent amount. The Court below jointly tried both suits, evidence was recorded in OS No. 629/1994 and a common judgment was passed. The Court below decreed OS No. 629/1994. The sale deed No. 2625/1993 (Ext. B4) executed by the 1st plaintiff in favour of the 1st defendant is declared null and void and granted both prohibitory and mandatory injunction as prayed for; and dismissed OS No. 561/1994 . The parties hereinafter are referred to as plaintiffs and defendants as arrayed in OS No. 629/1994 and the exhibits are stated hereinafter as produced and marked in OS No. 629/1994.

(2.) THE plaint schedule property in OS No. 629/1994 is 10 Cents of land and a building situated thereon. The 2nd plaintiff is the father of the 1st plaintiff. The 1st plaintiff is the owner of the plaint schedule property and the building by virtue of a settlement deed No. 2588/1979 of S.R.O. , Kottayam executed by the 2nd plaintiff. It is averred in the plaint that the 1st plaintiff became an alcoholic sometime in 1990 and was continued to be so till July 1993. The 1st plaintiff was under treatment for alcoholic dependence and Hypomania at "Total Response to Alcohol and Drug Abuse" (TRADA) from 1991. The 1st plaintiff continued his treatment till July 1993 at "TRADA. It is further pleaded that though his alcoholic dependence was considerably reduced by treatment, his affective disorder persisted and he was continuing treatment with Dr. Radhakrishnan , C. K. N. Psychiatric Neuro Clinic, Changanassery for affective disorder and that though he recovered from affective disorder and unsoundness of mind in July 1994, he is still under treatment of Dr. Radhakrishnan. It is the plaintiffs' case that the 1st plaintiff started attending prayer meetings from June 1992 to escape from alcoholism . Prayers were conducted by believers in residential houses. While so the 1st plaintiff got acquainted with the 2nd defendant and developed intimacy with him According to the plaintiffs the 1st plaintiff developed absolute confidence in 2nd defendant and the 2nd defendant was his "Guru" in all matters . Some time in July 1993 there was a proposal to purchase a Coffee estate having an extent of 181 acres in Coorg for Rs.67 1/2 lakhs. A group was formed for purchase of the estate including the 1st plaintiff and 2nd defendant and the estate was proposed to be purchased in October 1993. The 1st plaintiff had no money to invest in estate deal and the 2nd defendant promised that he will provide the necessary finance of Rs. 10 lakhs which was the contribution of the 1st plaintiff, provided the 1st plaintiff executed a sale deed in respect of plaint schedule property in favour of the 1st defendant who is the wife of the 2nd defendant. It is further averred in the plaint that the 2nd defendant also undertake to cancel the said sale deed if he is not able to raise the finance as agreed by him. The 2nd defendant also procured three blank signed stamped papers and three signed cheque leaves from the 1st plaintiff as a security for raising the loan. Believing the words of the 2nd defendant, the 1st plaintiff executed the sale deed No. 2625/1993 dated 17/09/1993 in favour of the 1st defendant who is the wife of the 2nd defendant. No amount was paid to the 1st plaintiff on execution of the sale deed by the 1st defendant, though there is a recital of payment of 1,80,000/- nor was there any intention to pay the amount . According to the plaintiffs the plaint schedule property and the building thereon is worth Rs.10 lakhs and further averred that the 1st plaintiff could not have executed a sale deed for 1,80,000/- relating to the plaint schedule property but for the unsoundness of his mind due to affective disorder at the time of execution of the document. It is further stated in the plaint that the scheme for purchase of the estate did not fructify and therefore, the proposed amount of Rs.10 lakhs payable by the 2nd defendant to the 1st plaintiff for the contribution to be made by him for the purchase of estate became unnecessary. By July 1994 the 1st plaintiff had practically recovered from his mental disorder and then only he realised the folly of executing the document in favour of the 1st defendant and therefore he approached the 2nd defendant for cancellation of the document. The 2nd defendant refused to cancel the said sale deed. According to the plaintiffs, the possession of the property had not been delivered as mentioned in the sale deed The main building in the property was in the possession of the 3rd defendant as a lessee and the godown is in the possession of Messrs. Thannickal Brothers. The keys of the building were not handed over to the 1st defendant as the possession of the building was with 2nd plaintiff and 3rd defendant. It is further alleged that the sale deed No. 2625/1993 is ab initio void and as it was executed by the 1st plaintiff due to the unsoundness of mind and affective disorder, and therefore he was not capable of understanding the consequences of executing such a document and forming a rational judgment as to its effects upon his interest. It is also pleaded that defendants 1 and 2 had no means to pay Rs 1,80,000/- as recited in the said document, that though the sale deed was executed, the 2nd plaintiff continued to receive the rent from the 3rd defendant and from Thannickal Brothers, that there was a negotiation for settlement of the matter, that in the course of negotiation the 2nd defendant demanded a sum of Rs. 2,70,000/- for cancelling the sale deed, that the 2nd plaintiff was not aware of the above dealings and the impugned sale deed had been executed without his knowledge or consent and that the 2nd defendant tried to trespass upon the plaint schedule property on the basis of the above said facts OS No. 629/1994 was filed for the reliefs mentioned in the 1st paragraph of this judgment.

(3.) THE 3rd defendant filed a written statement stating that he is not a necessary party to the suit, that he got the building from the 1st plaintiff for a monthly rent of Rs. 3,500/- from 03/08/1993 onwards, that he is regularly paying rent to the 1st plaintiff and that since the title of the building is in dispute he did not pay the rent from 02/06/1994 It is also averred that he is ready to pay the rent to the original owner of the plaint schedule building.