MAHADEVAN Vs. CHACKO

JUDGEMENT

(1.) S. A. 923 of 1989 is filed by the defendant in O. S. 431 of 1983. That suit was filed by one Chacko and his wife Annakutty. The defendant in that suit Mahadevan in his turn filed the suit O. S. 437 of 1983 against Chacko and Annakutty. Both the suits were tried together. The Trial Court dismissed the suit filed by Chacko and Annakutty and decreed the suit filed by Mahadevan. On appeals being filed, the appellate court reversed the decrees of the Trial Court and granted Chacko and Annakutty a decree in O. S. 431 of 1983 and dismissed the suit filed by Mahadevan. Feeling aggrieved Mahadevan has filed these Second Appeals. For convenience and for avoiding confusion, I propose to refer to the parties by their names rather than by their ranks in the respective suits. Chacko had an extent of 20 cents. Chacko by a sale deed, dated 4th September, 1982 marked Ext. A2 sold one cent out of it for a price of Rs. 18,000. Thereafter Chacko sold another extent of three cents to Mahadevan by a sale deed, dated 11th July 1983 marked Ext. A3 for a price of Rs. 1000. The suit O. S. 431 of 1983 was filed by Chacko and his wife Annakutty seeking to set aside that sale deed Ext. A3 dated 11th July 1983 on the ground that it was vitiated by fraud and was hence null and void and for a prohibitory injunction restraining Mahadevan from entering that property. The averment in the plaint was that Chacko was plied with liquor by Mahadevan and others and the document was got executed. The document was hence void. Mahadevan defended the suit by contending that he was a teetotaler and the averment that Chacko was plied with liquor before he executed the document was untrue. Chacko had borrowed amounts from Mahadevan on a number of occasions and towards the amounts thus due to Mahadevan, Chacko had executed the sale deed Ext. A3 by way of discharging his obligations. Mahadevan thus contended that the suit was liable to be dismissed. Claiming title and possession on the basis of the sale deed Ext. A3 Mahadevan filed O. S. 437 of 1983 seeking to restrain Chacko and Annakutty from interfering with his possession of the three cents covered by Ext. A3. That suit was defended by Chacko and Annakutty on the ground that the sale was void and did not confer any title or possession on Mahadevan.

(2.) Before the Trial Court on behalf of Chacko and Annakutty Exts. A1 to A3 were marked. In addition to getting themselves examined, Chacko and Annakutty examined three other witnesses as PWs. 3 to 5. Mahadevan marked Exts. B1 and B2 on his side and in addition to getting himself examined another witness as DW 2. Commission report and sketch were marked as Exts. C1 and C1(a). The Trial Court which jointly tried the suits came to the conclusion that Chacko and Annakutty have not proved any vitiating circumstances to enable the Court to invalidate Ext. A3 sale deed executed by Chacko in favour of Mahadevan and consequently title and possession had passed to Mahadevan under Ext. A3. In that view the Trial Court dismissed the suit filed by Chacko and Annakutty and decreed the suit filed by Mahadevan. It is necessary to notice that the Trial Court found that the pleas of Chacko that he was made to sign a document which was really intended to be a hypothecation deed, that Chacko was not aware of what he was doing at the time he executed the deed, and that before executing he was plied with liquor were not proved and thus no vitiating circumstance which would enable the court to set aside the document had been established.

(3.) Chacko and Annakutty filed appeals before the Appellate Court. The lower appellate court clearly agreed with the Trial Court that Chacko and Annakutty have not established the case of fraud averred in the plaint. Thus, the Appellate Court in agreement with the Trial Court held that the transaction was not vitiated by fraud or undue influence. It also rejected the apparent plea of non est factum raised by Chacko and Annakutty. Thus the foundation laid in the plaint for getting the transaction declared invalid was found to be non existent by the lower Appellate Court. The lower Appellate Court thereafter dealt with an argument raised on behalf of Chacko and Annakutty that in the light of Ext. A2 which showed the sale of one cent for a sum of Rs. 18,000, the sale of three cents under the impugned transaction Ext. A3 for a sum of Rs. 1,000 was unconscionable and hence was liable to be set aside solely on the ground that it was unconscionable even though no vitiating circumstance has been established. The lower Appellate Court proceeded to accept this contention and on its finding that going by a comparison of the prices referred to in Ext. A2 and in Ext. A3, the transaction must be held to be unconscionable set aside the same even in the absence of any vitiating circumstance being established on the ground that the court had the right to set aside the transaction solely on the ground of unconscionableness. The Appellate Court brushed aside the fact that the assignee under Ext. A2 was not examined and no evidence was adduced by Chacko and Annakutty regarding the circumstances under which the price stated therein was paid or received and that there was no independent evidence of the market value of the property. The Appellate Court also ignored the fact that the Trial Court had refused to rely on Ext. A2 sale deed in the absence of supporting evidence other than that of Chacko as PW 1, to come to the conclusion that the price fetched thereunder could form the foundation for setting aside the impugned transaction on the ground of unconscionableness alone. The lower Appellate Court thus set aside the transaction Ext. A3 and on that basis decreed the suit of Chacko and Annakutty and dismissed the suit of Mahadevan. Mahadevan's suit was dismissed on the ground that he has acquired no title or possession under that transaction. Mahadevan has filed these Second Appeals.