CHEKKOORA KELOTH KUNHI PARVATHY AMMA Vs. CHEKKOORA KELOTH GAPALAN NAMBIAR
HIGH COURT OF KERALA
Chekkoora Keloth Kunhi Parvathy Amma
Chekkoora Keloth Gapalan Nambiar
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A. Lekshmikutty, J. -
(1.) THESE three appeals arise from the judgment and decree in A.S. Nos. 6 of 1991, 25 of 1991 and 5 of 1991 on the file of the District Court, Thalasserry which were filed against the judgment and decree in O.S. Nos. 332, 330, and 331 of 1989 on the file of the Munsiff's Court, Kannur.
(2.) S .A. No. 228 of 1992 is preferred against the judgement and decree in A.S. No. 6 of 1991 which was filed against the judgment and decree in O.S. No. 332 of 1989, S.A. No.529 of 1992 is preferred against the judgment in A.S. No. 25 of 1991 which was preferred against the judgment and decree in O.S. No. 330 of 1989 and S.A. No. 635 of 1992 is preferred against the judgment and decree in A.S. No.5 of 1991 which was preferred against the judgment and decree in O.S. No. 331 of 1989 on the file of the Munsiff's Court, Kannur. The plaintiff in all the three suits are one and the same person. The suits were filed for specific performance of an agreement executed by the respective defendant in the suit. It is the common case that the plaint schedule building was sold in a suit for partition in O.S. No. 147 of 1974 and was purchased by 5 persons including the plaintiff, the respective defendant and their sister Narayani Aroma for a consideration of Rs. 99,000/ -. The case of the plaintiff is that other co -owners had agreed to release their respective shares in the plaint, schedule building for a consideration of Rs. 10,000/ - per share. Thus, the total value of the building comes to Rs. 50,000/ -. The plaint schedule property was purchased jointly by the bothers and sisters to accommodate the wish of their father Raman Nambiar to lead the rest of his life in the house situated in the plaint schedule property till his death. After purchase of the property, the properties belonged to Raman Nambiar were partitioned among the sharers and the land around the plaint schedule property was set apart to the share of the plaintiff. Even though the value at which the purchase was effected by them jointly was much higher, on 30.8.1984 all the five sharers have entered into Ext. A5 agreement to release their share to the plaintiff for a lower price. All the respective defendants herein directly and sister Narayani Amma through her power of attorney agreed to sell the property to the plaintiff for a sum of Rs. 50,000/ -. All the four sharers, except Gopalan Nambiar, the defendant in O. S. No. 332 of 1989 agreed to release their right for a consideration of Rs. 10,000/ -per share and Gopalan Nambiar gave up the consideration. The release deed has to be executed within 1 1/2 years after the death of their father Haman Nambiar. Raman Nambiar died on 17.1.1988. Narayani Amma released her l/5th share in favour of the plaintiff on 2.8.1988 through her power of attorney. The plaintiff who was put in possession of the plaint schedule property got the same electrified and had also carried out the repairs. In spite of repeated demands, the respective defendants failed to execute the assignment deed and hence the suit was necessitated. Notice was also issued to the defendants. Even after the acceptance of notice, they did not execute the assignment deed and hence the suit is filed for specific performance of Ext. A5 agreement. The defendants totally deny the execution of Ext. A5. The plaintiff's husband was conducting the partition suit (O.S. No. 147 of 1974) on behalf of the defendants and others. He had obtained signatures in blank papers. Ext. A5 was created making use of such signatures on blank papers. It was further contended that Ext. A5 is for an unfair bargain and could not have been consented to by the parties voluntarily. The discretion vested under Section 20 of the Specific Relief Act cannot be invoked in the case of the plaintiff. They pray to dismiss all the three suits. On the above pleadings, the trial court framed necessary issues. All the three suits were jointly tried and a common judgment was passed. On the side of the plaintiff PWs. 1 to 4 were examined and Exts. A1 to A -46 were marked. On the side of the defendants DWs. 1 to 5 were examined and Exts. B1 to B4 were marked. The trial court decreed the suit against which these appeals are filed.
(3.) THE first appellate court modified the judgment and decree passed by the trial court and found that the agreement against Gopalan Nambiar is not enforceable but granted a decree for specific performance by the other defendants.;
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