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Attestation Is a Process Which Lends Credence To the Execution: Kerala High Court

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On 6th March 2021, a Division Bench consisting of Hon’ble Mr Justice A. Hariprasad and Hon’ble Mr Justice T.V. Anilkumar heard Jayakumari v. Sujatha Surendran.

In this case, the aggrieved Respondent/Plaintiff filed a Rent Control Revision against the eviction petition passed by the Rent Control Appellate Authority, Kottayam.

Facts of the case

A residential building and its appurtenant land admittedly belonging to the Appellants, who were the defendants in the original petition before the Court of Additional Sub Judge, Kottayam. The Appellant was concededly the owner of the building. She filed a Rent Control Original Petition at the Rent Control Court, Ettumanoor, seeking eviction of the Respondent, who was the Plaintiff in the Original Petition, raising a claim of bonafide need referable to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. 

The Eviction petition was allowed by the Rent Control Court in favour of the Appellant. That was taken up in appeal before the Rent Control Appellate Authority, Kottayam.

Contentions of the appellants

Learned Counsel for the Appellants contended that the respondent earlier resided in a small house constructed in PWD Puramboke. She was evicted therefrom by the authorities. When the Respondent was searching for a residence, the Appellants inducted her into the building belonging to the Appellant as a tenant, fixing a monthly rent for 11 months. During her stay in the building, she expressed a desire to purchase that property. But she had no money at that time. She intended to avail a loan from a local co-operative bank and, for that purpose, obtained photocopies of the documents and basic tax receipts of the property from the Appellants. The Respondent secured specific certificates from the local village office, and she paid the building tax thereafter. The Appellants contended that an agreement was later cooked up by the Respondent, which was sought to be enforced.

Contentions of the respondent

Learned Counsel for the Respondent contended that after the lease’s commencement, agreement for sale was executed between the parties fixing a total consideration of `5,50,000/- for the plaint schedule land and building. According to the Respondent, a sum of `1,50,000/- was paid to the 1st Appellant as value for 2.5 cents of land and a building thereon on the date of the agreement. A further sum of `50,000/- was paid to the 2nd Appellant for his eight cents of property adjacent to the 1st Appellant’s property. In the plaint, it was further averred that balance sale consideration payable to the 1st Appellant was `2,50,000/- and to the 2nd Appellant, it was `1,00,000/-. Since the Appellants failed to execute a sale deed as agreed, the Respondent approached the trial court with the suit for specific performance.

Court’s analysis

The Court observed that the Trial Court had not framed proper issues arising out of the pleadings. Although there was a specific denial of the agreement’s execution, it was not reflected in the issues framed by the Trial Court. 

The Court observed that the sale agreement was not completed at the time of its attestation, even though an agreement to assign land is not a compulsorily attestable document. The Court further accepted the Plaintiff’s witnesses’ version that they signed the document on the belief that the Defendant would sign the document at some later point in time. It was highly improbable to think in that way as the document writers must be aware of the procedure for attestation. Therefore, undue reliance on the testimony of the document writers was not proper by the Trial Court.

The Court further observed that not a single document having signatures prior to the suit were produced and sent to the expert. It is effortless to change the signature and send those signatures to the expert. It was unusual that the Defendants themselves initiated steps to send the document to the experts before the evidence stage when the burden of proof was on the plaintiff. It presupposes that the Defendants had purposely changed their signatures either in the documents sent to the expert.

The Court observed that the Trial Court relied on the contention of the Defendants/Appellants that the Plaintiff obtained the Defendant’s documents in order to ascertain from a bank whether the loan can be availed for the purchase of the property. Believing the words of Plaintiff, those documents were handed over was the Defendants’ version. The Trial court’s reasoning for Plaintiff’s possession of the Defendants’ documents did not go well with the case’s probability.

Court’s decision

The Court allowed the Appeal and observed that the learned Additional Sub Judge passed the decree, Kottayam was factually and legally unsustainable. Further, the cross objection filed by the Respondent was not sustainable.

The Court observed that the Respondent could not claim immunity from eviction, especially when the BRC Act’s authorities have decided the factual questions correctly. 

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