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Judgment
S. Sankarasubban, J.—This appeal is filed by the defendants in O.S. No. 1417 of 1994 on the file of the Sub-Court, Thiruvananthapuram. The suit was filed for recovery of Rs. 1,50,000/- from the defendants. There are two plaintiffs. The second plaintiff is the brother of the first plaintiff as well as the Power of Attorney Holder.
The case of the plaintiffs is as follows: The first plaintiff is the absolute owner of the property comprising 18 cents situated in Survey Nos. 2518 and 2579 of Thycaud Village, which she obtained as per partition deed of 1964. The first plaintiff along with her mother Sarada Pitlai Thankachy, who was having 14 cents of properties comprised in the above mentioned Survey Numbers, entered into a common agreement for sale of the above said properties with the defendants, on 9.3.1993. It appears that the said properties were acquired by the Kerala State Road Transport Corporation (hereinafter referred to as ''the Corporation''). But the acquisition proceedings lapsed and the land ordered to be handed over to the first plaintiff and her mother by order dated 21.1.1988 of this Court.
According to the first plaintiff, after the first agreement, another agreement dated 1.5.1994 was executed between the first plaintiff and the first defendant by which the first plaintiff agreed to sell 18 cents of property belonging to her alone in favour of the first defendant. There is a stipulation in that agreement that out of the sale consideration, Rs. 1,50,000/- should be retained by the first defendant for payment to the Corporation, who had laid a claim on the ground that they had made improvements in the property. The agreement further stated that if any amount less than Rs. 1,50,000/- is paid to the Corporation, the balance amount should be given to the first plaintiff.
Thereafter, on 2.5.1994, a sale deed was executed conveying the 18 cents of property belonging to the first plaintiff to the first defendant. The grievance of the plaintiff is that in spite of the fact that the agreement dated 1.5.1994 was executed between the first plaintiff and the first defendant, the first defendant has not paid any amount to the Corporation nor to the first plaintiff. According to the first plaintiff, an amount of Rs. 77,000/- is due to the Corporation. Even though notice was sent to the first defendant did not agree. Hence, the suit was filed for realisation of Rs. 1,50,000/- with interest at 12% and also to allow the first plaintiff to realise the costs.
A written statement was filed by the defendants. In the written statement, the agreement dated 9.3.1993 is admitted. The execution of the sale deed dated 2.5.1994 is also admitted. But the defendants denied the execution of the agreement dated 1.5.1994. According to the defendants, the Corporation is not entitled to get any money from the first plaintiff or her mother. The contention raised is that as per the order of this Court, possession was handed over to the plaintiff and that order does not stipulate that any amount is due. If the plaintiff is liable to pay any amount to the Corporation, the defendants are not bound to pay the same. It was further stated that the sale deed was executed and the sale deed shows that the entire amount has been paid.
On the basis of the above pleading, the Court below raised four issues. Issue Nos. 1 to 3 were only considered by the Court below. On behalf of the plaintiffs, PW1 -first plaintiff was examined and PW2, the Power of Attorney Holder was also examined. On the side of the defendants, the second defendant was examined. Exts. A1 to A8 were marked on the side of the plaintiff, while Exts. B1 to B5 were marked on the side of the defendants.
The Court below took the view that Ext. Al has been proved and as per Ext. Al, an amount of Rs. 1.50,000/- has to be paid to the plaintiff. Hence, the Court passed a decree for Rs. 1,50,000/- with interest at 12%. It is against the above judgment and decree that the present appeal is filed.
Mr. S. Radhakrishnan, appearing for the appellants submitted that the Court below was not correct in relying on Ext. Al. The first defendant has relied on the execution of Ext. Al and there is no positive evidence to show that it was executed by the first respondent. Even though an application was made for sending the signature of the first defendant for expert evidence and that application was allowed, no steps were taken by the plaintiff to send the signature of the first defendant for expert evidence. The further contention of the learned Counsel was that the order of this Court will show that the land acquisition proceedings have been initiated on the ground that they have lapsed and there was no order directing the owner of the property to pay any amount to the Corporation. If there is any agreement for payment of money to the Corporation in private negotiation be the plaintiff, it is not binding on the defendants. Further submission made is that Ext. A1, copy of which is produced as Ext. A2 shows that the property was sold and the entire consideration of the property has been received. Hence, even if Ext. Al was executed with the execution of Ext. A2, Ext. Al agreement loses its significance. Insofar as Ext. A2 shows that the entire amount has been paid, the amount is only Rs. 1,50,000/- and that cannot be altered by a previous agreement. There is no subsequent oral agreement. In any event, the price of the property and the terms of the agreement cannot be altered on a subsequent oral document. It can only be altered by a registered document. On the other hand, learned Counsel for the respondents supported the judgment of the Court below.
Ext. B1 is the agreement dated 9.3.1993 executed by the first plaintiff and her mother in favour of the first defendant and her husband. That shows that the first plaintiff and mother had agreed to sell a total extent of 32 cents of property of which 18 cents belong to the first plaintiff. It is stated that the agreement that 32 cents of property in the possession of the Corporation for using their Central Bus Garage at Thampanoor, following the acquisition proceedings in L. A. A. No. 83 of 1977. The acquisition proceedings had lapsed and the same was declared in the judgment dated 21.1.1988 in O.P. No. 9456 of 1984 of this Court. The Government directed the District Collector, Thiruvananthapuram to take steps for handing over possession as per order dated 15.4.1988 and as such the plaintiffs were in correspondence with the Corporation for getting back possession. Under the agreement, the property was to be sold at the rate of Rs. 25,000/- per cent. An amount of Rs. 5,000/- was received as advance. The saledeed was to be executed on or before, 30.10.1993, within three months from the date of getting possession from the Corporation, on receiving the balance sale consideration. The property will be measured and after the measurement, the amount will be paid depending upon the extent. It is pertinent to note that in Ext. B1, nothing is stated regarding any payment to the Corporation.
Ext. A1 is the agreement purported to be executed between the first plaintiff and the first defendant. Of course, the first plaintiff has denied the execution of the agreement. It can be seen that the agreement is executed in a stamp paper having the value of Rs. 15/- and it is seen that the stamp paper was purchased on 2.5.1994. But the agreement is dated 1.5.1994. This gives some suspicion regarding the genuineness of the agreement. In Ext. Al, Ext. Bl is referred. It is stated that the Corporation had unnecessarily claimed a sum of Rs. 2.68 lakhs with interest by way of development charges and to the share of the first party, it would come to Rs. 1.50 lakhs. The first party was negotiating with the Corporation to surrender the properties unconditionally and in that event, finally, the first party was to pay any amount to the Corporation and for that purpose, Rs. 1.50 lakhs was retained with the second party as part of the sale consideration of her property and as such the sale deed for 18 cents was agreed to be executed in favour of the second party by the first party. If any amount was to be paid to the Corporation from the property of the first party, the second party agreed to pay the same to the Corporation out of the retention amount with the second party and the balance amount should be returned to the first party by the second party with any interest within three months from the date of final intimation of the settlement from the Corporation for payment. The amount paid to the Corporation by the second party should be in the name of the first party and cash receipt should be obtained from the Corporation in the name of the first party. It is now seen that the sale deed was executed on 2.5.1994. Copy of the sale deed is produced as Ext. A2. it is with regard to 18 cents of property belonging to the first plaintiff. The consideration is stated to be Rs. 1,50,000/-. It is stated that the consideration was received by the plaintiff at different times. Further, possession was handed over to the first defendant. Thus, nothing is stated about Ext. AI agreement or about the amount due to the Corporation.
Subsequently, we find that the plaintiffs have produced intimation from the Corporation dated 13.7.1994 to deposit Rs. 77,000/-. Ext. A4 is the notice issued to the first plaintiff. Ext. A5 is the reply notice sent by the Advocate. Ext. A6 is another intimation from the Corporation and Ext. A7 is the letter sent by Ramadas to the first defendant. It appears, that after the parties were examined, the plaintiffs filed a petition to examine the first defendant as well as the advocate appearing for the defendants. That application was dismissed by the Trial Court. Against that dismissal, the plaintiffs approached this Court by filing C.R.P. No. 1349 of 1999, which was disposed of on 29th July, 1999. Thedispute in the revision was with regard to the proving of Ext. Al. The Court held that the first defendant cannot be summoned by the plaintiffs. Finally, the Court set aside the orders passed by the Trial Court. But a direction was given to the first defendant to produce Ext. A2, in case an application is filed to that effect. Accordingly, it is seen that the original of the sale deed is produced, but it is not seen marked. As already stated, the application was filed to produce she document as well as to send for expert evidence. But that has not been done.
The Court below held that Ext. Al has been proved and on that basis, directed the first defendant to deposit Rs. 1,50,000/- with interest. According to us, the judgment and decree of the Court below cannot stand. Ext. A2 will show that the entire consideration has been paid and that speaks of no other thing.
Learned Counsel for the respondents submitted that Ext. A1 is a contract in writing to the contrary. We cannot accept it. First of all, Ext. A1 has not been proved properly. First plaintiff has denied the signature. Further the terms in Ext. Al are not seen in Ext. A2. Whereas Ext. A2 mentions a total consideration of Rs. 1,50,000/-, Ext. Al mentions a retention amount of Rs. 1,50,000/- with the first defendant. At the time of entering into the agreement, Ext. B1, only an amount of Rs. 5,000/- was paid towards advance. It is true that the parties can prove that the facts stated in the document are not correct. But no evidence can be given to see that the written contract has been varied except by the subsequent written agreement.
A question arose before this Court in Ambikakumari v. Ramakrishnan, 1991(2) KLT 728. In the above decision, this Court held as follows: "the plaintiff is not entitled to set up a separate agreement varying the quantum of consideration. It may be that a party may be entitled to show that the consideration is different in kind from the consideration shown in a document or that the full consideration shown in a document is not paid or that there is failure of consideration. But a party to adocument or a conveyance or disposition of property will not be entitled to say that the real consideration is more or less than the consideration shown in the contract or in the grant". In Raveendranatha Menon and Another Vs. Leelamma, it was held as follows : "To vary from the contents of a registered document only another registered instrument is required. The contents of the said registered document cannot be dispelled or eschewed by oral testimony of witnesses. An oral evidence will not prevail over the contents of a registered document". Learned Counsel for the respondents brought to our notice the decision in Lal Chand v. Indarjit, 27 IA 93. In that decision it was held that the vendor might prove a collateral agreement that the purchase money should remain the purchaser for a specified purpose.
According to us, so far as this case is concerned, since the plaintiffs have not proved Ext. Al, they cannot raise the contention that the first defendant has agreed to pay Rs. 1,50,000/-. Further, Ext. A2 mentions a total consideration of Rs. 1,50,000/-. Another hurdle for the respondents is that the order of this Court shows that Ext. B2 gives a declaration that the entire acquisition proceedings are illegal. Nothing is stated about the amount due to the Corporation. Further, even if there is mention about the amount, it is not clear as to what is the amount due from the owners of the property. The plaintiffs have not proved to show how this amount of Rs. 1,50,000/- was arrived at. Learned Counsel for the respondents then submitted that his clients may be allowed to send the signature of the first defendant for examination by an expert. We don''t think, it is possible for us in this case, especially because Ext. A2 is silent with respect to Ext. Al and that Ext. B2 does not mention that any amount has been paid to the Corporation.
In the above view of the matter, we set aside the judgment and decree of the Couri below and allow this appeal. No order as to costs.