Karnataka High Court
J Mohammed Sayeed S/O Late Abdul Raheem vs V Girija Kannan W/O V Kannan on 7 August, 2014
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 7th day of August, 2014
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Regular First Appeal 2065 / 2005
Between
1 J Mohammed Sayeed - since dead by LRs
A Smt Najmunnisa Begaum, 55 yrs
W/o late J Mohammed Sayeed
B J Mohammed Sajid, 48 yrs
S/o J Mohammed Sayeed
C J Mohammed Zaheed, 39 yrs
S/o J Mohammed Sayeed
D J Mohammed Abid, 36 yrs
S/o J Mohammed Sayeed
All are r/ near Radha Theatre
Raghavachari Road, Bellary
E Smt J Arifa Begaum W/o H S Noorulla
D/o J Mohammed Sayeed, 33 yrs
R/a H # 4817/22, I Cross
Subhash Nagar, Belgaum Appellants
(By Sri Chandrashekar P Patil, Adv.)
2
And
1 Girija Khannan W/o V Khannan
R/o AB-82 (Upstairs), Anna Nagar
Chennai 60040
2 B Rajyalakshmi W/o B Seetharaman
3 S Niranjan S/o B Seetharaman
Both 2 & 3 are r/o L B Road
First Street, Indiranagar, Chennai Respondents
(By Sri Srinand A Pachhapure, Adv. for R2)
First Appeal is filed under S.96 of the CPC praying to set
aside the judgment dated 12.9.2005 in OS 537/1988 by the I
Addl. Civil Judge (Sr.Dvn.), Bellary.
First Appeal coming on for hearing this day, the Court
delivered the following:
JUDGMENT
This is a plaintiff's appeal challenging the finding of the Addl. Civil Judge (Sr.Dvn.), Bellary in OS 537/1988.
Plaintiff filed a suit for specific performance against the 1st defendant who claimed to be the owner of the suit schedule property i.e., defendant is said to have agreed to sell the A Schedule property to the plaintiff for a sum of Rs.2,77,500/- 3 which is a building bearing No.46(2) in Ward No.25 in Bellary Cantonment and the open space in front of it which is on the eastern and southern side. The said building consists of A and B plots. The total area consists of 4,275 sq. ft. and 2,475 sq.ft. respectively and plaintiff paid earnest money to the defendant amounting to Rs.7,500/- at Madras on 28.10.1985 and defendant executed a receipt with a condition that she will execute the sale deed within three months from 28.10.1985. Even there was an understanding that Triveni Bai sister of the defendant would also join in execution of the sale deed. However, subsequently the husband of the defendant wrote a letter on 7.11.985 indicating that Triveni Bai is not willing to sell the B block due to sentimental reasons. Even the document relating to Triveni Bai's open space in front of B block was also sent to which plaintiff replied that the said proposal was not acceptable to him. However, there were several letter correspondences by way of reply. According to the plaintiff, Triveni Bai was aware of the agreement dated 28.10.1985 and also willing to join the execution of the sale deed. When the plaintiff tried to persuade 4 Triveni Bai to execute the sale deed, he failed in his attempt and thereafter, issued a legal notice to get the sale deed executed by collecting the balance consideration. Thereafter it appears, matter was contested by the defendants. Defendants 2 and 3 are said to be purchasers of the suit properties. Stating that cause of action arose on 28.10.1985 and also on 13.8.1987, suit is filed to decree the suit for specific performance, directing defendant to receive the balance consideration and get the sale deed executed in respect of B Schedule property.
According to the defendant, a sum of Rs.7,500/- paid was only towards expenses as she had to go from Madurai to Conoor to consult her sisters and stating that the area shown in the vacant space on the suit property behind door No.46/2 was settled in favour of the defendant. There was an agreement between defendant and her two sisters that if any of the sisters want to sell portion of the building or open space they should sell it to one among themselves. In this regard, she wanted to consult the other two sisters and accordingly, it is contended that there was 5 no such agreement to sell the B block. Based on the pleadings and several contentions raised, as many as nine issues were raised along with five additional issues. The main contention of the defendant is that, she had no authority to sell the property in the usual course. Also there was a preemptory right. The trial court, after inquiry, based on the evidence let in by the parties, answered the issues and additional issues holding that plaintiff failed to prove that defendant has agreed to sell the suit schedule B property and also that plaintiff failed to prove that B schedule property is demarcated and identified and also failed to prove that defendant was the only owner and she had competence to enter into the suit agreement. On the issue framed with regard to readiness and willingness, the same was not answered and issue 5 as to whether plaintiff is entitled for specific performance is held in the negative. So far as maintainability of the suit is concerned whether it is barred by time, it is held in the negative. Issue 7 that receipts produced is invalid and unenforceable in law is held in the affirmative. So far as payment of court fee is concerned, the same is held in the negative. Accordingly, the suit was 6 dismissed while ordering for return of Rs.7,500/- with 12% interest. So far as the additional issues are concerned whether defendants 2 and 3 prove that she is having a right of pre- emption against 1st defendant as well against Triveni Bai is held in the affirmative. The issue whether the sale agreement dated 28.10.1985 is invalid has been proved by defendants 2 and 3 has been held in the affirmative. The issue whether defendants 2 and 3 prove that they are bonafide purchasers for value without notice of the agreement of sale in favour of the plaintiff, has been held in the affirmative. The issue whether suit is barred by law of limitation against defendants 2 and 3 is held in the negative and the issue whether defendants 2 and 3 prove that discretion to order for specific performance cannot be ordered in favour of the plaintiff is held in the affirmative. Hence, this first appeal.
Heard the counsel representing the parties.
The stand of the appellant/plaintiff is, having fully known that 1st defendant is not the absolute owner, she tried to avoid executing the sale deed and there shall be an order of specific 7 performance by collecting the balance amount and the so called understanding between defendants 2 and 3 is only in connivance with defendant 1 and they had no preemptive right.
Having heard, the points that arise for consideration are::
whether the trial court is justified in dismissing the suit for specific performance;
whether the trial court is justified in holding that defendants 2 and 3 are bonafide purchasers for value without notice of the sale agreement in favour of the plaintiff and whether the trial court erred in only ordering for return of the amount and not ordering for specific performance.
What is being noted so far as portion of the property said to be settled in favour of sister Triveni Bai as per arrangement/settlement dated 10.2.1953 is, there may be some discrepancy as to the extent and other aspects is concerned. On that basis the opinion of the trial court that identity of the property is also involved appears to be acceptable in view of the 8 fact of agreement entered into between the sisters - 1st defendant and other defendants. Even it appears, stand of the 1st defendant is, she has returned the said amount of Rs.7,500/- through a demand draft and the same has not been accepted by the plaintiff. This is very much established by the defendant. Even there appears to be no clear consensus adidem between 1st defendant and plaintiff to sell the property or identity of the property to be sold and purchased. Without proper identification of the property when there is preemptive right available to defendants 2 and 3, property which is said to be agreed to be sold by 1st defendant is with imperfect title and improper identification. This finding of the trial court cannot be faulted. Even the trial court based on the evidence and also the documents produced at Ex.P5 noted that there was a settlement deed executed by Vanjakshamma in favour of 1st defendant Girija Bai, Triveni and Meera Bai. This itself shows that open space is gifted to Vanajakshamma and it is measuring about 31,118 sq. ft. Even the sketch produced at Ex.P24 and 25 shows that the property is divided into three portions. Total measurement of these plots is 9 12,495 sq.ft. It appears there was discrepancy as to measurement as per the original gift deed dated 10.2.1953. In that view of the matter, trial court rightly held that there is confusion as to identity of the property and extent therein so as to part with the property by 1st defendant in favour of the plaintiff. It appears by conduct of the parties i.e., between 1st defendant and the plaintiff, though there was some agreement entered into - oral or otherwise, the fact remains that there is no proper consensus ad idem between them and identity of the property was under
confusion having regard to the extent in the gift deed and the extent of property that was made available. The requirement for an order of specific performance is, there must be an offer, acceptance, promise and consideration. So far as offer and acceptance is concerned, initially without there being proper identity of the property to be sold, there was an imperfect title with the 1st defendant. There was also preemptive right available to defendants 2 and 3. Though such pre-emption cannot be enforced, but identity of the property is also involved. That is not very much clear or specified as per the finding of the trial 10 court. Further more, so far as grant of specific performance, as per S.16 when it becomes incapable of performance and if there is variance in the contract, necessarily that cannot be treated as a complete contract. Of course the issue regarding readiness and willingness is concerned, the trial court held it in the negative. Even the argument is plaintiff was ready but when identity of the property involved itself is not clear, the scope for enforcement as per S.16 of the Act is not available to the plaintiff. Further, the amount of Rs.7,500/- is said to be returned by 1st defendant to the plaintiff but the same was not accepted. Rightly the trial court has ordered the 1st defendant refund Rs.7,500/- together with 12%. As such, there is no scope for interfering with the order passed by the trial court.
Appeal is dismissed.
Sd/-
Judge An