Karnataka High Court
Yogambika vs Narsingh on 18 December, 1991
Equivalent citations: ILR1992KAR717
JUDGMENT K.A. Swami, J.
1. This Appeal by plaintiffs is preferred against the judgment and decree dated 10,7.1991 passed by the learned [II Addl. City Civil Judge, Bangalore City in O.S.No. 2205/82. The respondent is the defendant. The appellants filed the aforesaid suit for specific performance of an Agreement of Sale dated 29.4.1980 and also for possession of the suit schedule property.
2. The trial Court though has held issue Nos. 1 to 3 and 5 in favour of the plaintiffs but has refused to pass a decree for specific performance on the ground that it is not a case for granting such a decree. Accordingly, it has passed a decree for refund of a sum of Rs. 37,000/- with interest at the rate of 18% per annum on Rs. 5,000/- from 29.3.1980; on Rs. 20,000/- from 28/29 April, 1980 and on Rs. 12,000/- from 16.9.1981. The current interest on Rs. 37,000/- is also awarded at the same rate. The future or further interest from the date of decree till realisation has been awarded at the rate of 6% per annum on Rs. 37,000/-.
3. It is the case of the appellants-plaintiffs that the respondent-defendant agreed to sell the suit schedule property for a sum of Rs. 1,65,000/-; that on 29.3.1960 a sum of Rs. 5,000/- was given as advance through a cheque and the respondent executed the receipt for having received the said sum that a further sum of Rs. 20,000/- was paid on 29.4.1980 and a formal Deed of Agreement to sell was executed; that according to the terms of the agreement the attendant was under an obligation to have the mortgage created in favour of the Bangalore Central Co-operative Bank Ltd., Chamarajapet discharged and also to obtain a sale deed from the Bangalore Development Authority on the expiry of ten years and execute the sale deed in favour of the first plaintiff; that in the meanwhile the suit schedule property was put up for auction by the Bangalore Central Co-operative Bank that plaintiff-1 paid the instalment of Rs. 12,000/- which was due to the Bank and got the auction sale postponed; that the 1st plaintiff has been demanding the defendant to perform his part of the agreement; but the defendant has all along been postponing on the pretext of ill health of the members of his family; that the first plaintiff called upon the defendant to perform his part by a registered letter dated 7.2.1981 and also gave a legal notice dated 21.12.1961; that the first plaintiff has been and is always ready and willing to perform her part that even then the defendant did not execute the sale deed though called upon by notice. Hence the case of the plaintiffs is that they had no other option but to approach the Court for the reliefs as stated above.
4. Along with the plaint, the plaintiffs produced a receipt dated 29.3.1980 which is marked as Ex.P 1 executed by the defendant for having received a sum of Rs. 5,000/- from the 1st plaintiff; agreement of sale dated 28/29.4.1980 which is marked as Ex.P 2; a copy of a letter dated 7.2.1981 which is marked as Ex.P 3 sent to the defendant by registered post and the acknowledgment Ex.P4 for having received the aforesaid letter by the defendant; a copy of the application given by the 1st plaintiff to the Central Co-operative Bank Limited, Bangalore marked as Ex.D 15; whereas the original of it has been marked as Ex.D 22; the receipt issued by the Bangalore Central Co-operative Bank Limited, Bangalore for having received a sum of Rs. 12,000/- towards loan account of the defendant which is marked as Ex.P 7; a copy of the legal notice dated 21.12.1981 which is marked as Ext.P 5 issued to the defendant; postal receipt for having sent the legal notice under registered post with acknowledgment and a certificate of posting for having sent a copy of the very same legal notice under certificate of posting.
5. The defendant filed his written statement, inter alia, contended that there was no agreement of sale entered into between the first plaintiff and the defendant; that the sum of Rs. 5,000/- was received through cheque on 29.3.1980 not in pursuance of the agreement to sell but by way of loan; that Ext.P 1 was written by the defendant according to the dictation of the second plaintiff as the defendant had full confidence in him; that it was not intended to be the agreement of sale; that he did receive the aforesaid amount because his daughter was suffering from blood cancer and was admitted to the hospital and the amount was required for her medical treatment; that his mind was under that pressure and in that circumstances he executed Ex.P.1 and received a sum of Rs. 5,000/-; that no doubt he received a sum of Rs. 20,000/- through cheque on 29.4.1980 but did not execute the Agreement (Ex.P.2); that he only signed on the blank papers as otherwise the plaintiffs were not prepared to advance money and he was in need of money; that he came to know that the first plaintiff got the auction sale postponed only when he was served with the suit summons; that the letter dated 7.2.1981, was received by him, but subsequently the second plaintiff met him and took away the original letter giving an understanding to the defendant that it was only intended as a collateral security for repayment of the amount; that there was no obligation on the part of the plaintiffs to pay Rs. 12,000/-to the Central Co-operative Bank on behalf of the defendant; that the site belonged to the Bangalore Development Authority and it had not executed any sale deed in favour of the defendant; therefore there was no need to enter into an agreement of sale; that the agreement ot sale dated 29.4.1980 was a got up document; that plaintiff-2 taking advantage of the blank sheets signed by the defendant has converted the same into an agreement of sale; that the site belongs to him but the superstructure is constructed by his wife. Thus, he contended that there was no agreement of sale whatsoever entered into by him with the first plaintiff and as such the first plaintiff was not entitled to any decree as prayed for. As far as payment of Rs. 12,000/- was concerned, it was contended that as the first plaintiff had paid the said amount without any authority it should be treated as gratis payment.
6. After the written statement was filed, plaintiff-2 came to be impleaded. Of course, after the second plaintiff was impleaded, there was no amendment sought for by the plaintiff to amend the averments contained in the plaint as referrable to two plaintiffs instead of one.
7. The trial Court framed the following issues for determination:
1) Whether the plaintiff proves that the defendant agreed to sell the suit house for a consideration of Rs. 1,65,000/- and obtained an advance of Rs. 25,000/- and executed an agreement to sell dated 28/29-4-1980?
2) Whether the plaintiff further proves that the defendant failed to perform his part of the contract by executing registered sale deed after receiving balance of sale consideration?
3) Whether she further proves that she was willing to perform her part of the contract by paying the balance consideration to the defendant?
4) Whether she further proves that she is entitled to specific performance of the contract for the sale of the suit house?
5) Whether the defendant proves that he has not executed the suit agreement and that the suit agreement has been obtained fraudulently under the circumstances as narrated in para 2 of the written statement?
6) To what relief the parties are entitled?
8. The second plaintiff gave evidence as P.W.1 and one Krishnamurthy was examined as P.W.2. This Krishnamurthy, according to the case of the plaintiffs, had attested Ex.P.2 and also accompanied the first plaintiff to the Bangalore Central Co-operative Bank Limited for payment of the instalment amount. Plaintiffs also produced seven documents which were marked as Exs. P.1 to P.7. In the earlier portion of this Judgment, we have already pointed out the nature of these documents.
8.1. The defendant gave evidence as D.W.1 and examined an official of the Bangalore Central Co-operative Bank as D.W.2 produced 24 documents which were marked as Exs.D.1 to D.24.
9. At the out set, we may mention that most of the documents produced by the defendant starting from Exs.D.6 to D.14 and D.16 to D.20 relate to the medical treatment of the daughter of the defendant and Ex.D.21 is the death certificate of the very daughter who was suffering from cancer. We may point out, at the outset that it is not necessary to refer to these documents since it is not disputed before us that Pramila alias Padmini alias Mallika Singh - the daughter of the defendant was suffering from blood cancer and ultimately succumbed to it. The other documents, namely, Ex.D.1 to D.5 and Ex.D.22 to D.24 are as follows:
Ex.D.1 is the letter dated 5.9.1980 written by the father-in-law of the defendant to the defendant. This also relates to the disease with which the daughter of the defendant was suffering. Therefore, it is not necessary to refer to this document. Similarly, Ex.D.2 is a telegram sent by the son-in-law of the defendant on hearing the death of Mallika. Ex.D.3 is the memo filed by the Senior Assistant, Bangalore Central Co-operative Bank for producing the documents mentioned therein pursuant to the summons issued to the Bank. Ex.D.4 is the typed copy of the Agreement dated 28.4.1980 produced along with Ex.D.3. Ex.D.5 is a credit slip produced by the defendant to show that he had paid a sum of Rs. 5,000/- to the Bangalore Central Co-operative Bank during the pendency of the suit. Ex.D.15 is a xerox copy of Ex.D.22. It is an application filed by the first plaintiff before the Bangalore Central Co-operative Bank informing the Bank that defendant had entered into agreement of sale with the first plaintiff agreeing to sell the suit schedule property and had received a sum of Rs. 25,000/-, therefore she had an interest in the suit schedule property. Hence the auction sale be postponed by receiving a sum of Rs. 12,100/- Ex.D.22 is the original Ex.D.15. Ex.D.23 is a photostat copy of Ex.P.2 produced by the Bangalore Central Co-operative Bank through D.W.2 pursuant to the summons issued to it Ex.P.2 is the original agreement dt.28/29.4.1980. Ex.D.24 is a copy of the letter dated 11/13.5.1983 written by the defendant to the Secretary, Bangalore Central Co-operative Bank requesting the Bank to supply a certified copy of the application dated 16.9.1981 together with a true copy of the agreement produced by the first plaintiff.
10. The trial Court on appreciation of the oral and documentary evidence, as already pointed out, has answered issue Nos. 1 to 3 in the affirmative and issues 4 and 5 in the negative. Thus, it has refused a decree for specific performance in the light of its finding on issue No. 4 and has only passed a decree for refund of the amount.
11. In the light of contentions urged on both sides, the following points arise for consideration;
1) Whether the plaintiffs have proved that the defendant executed Exs.P.1 and P.2 and agreed to sell the suit schedule property for a sum of Rs. 1,65,000/- and obtained an advance of Rs. 25,000/-?
2) Whether in the facts and circumstances of the case, the plaintiffs are entitled to a decree for specific performance?
12. Before we take up point No. 1 for consideration, we may point out here that we have not raised the point for determination as to readiness and willingness of plaintiff-1 to perform her part of the contract because the trial Court has answered issue No. 3 in favour of the plaintiffs and no arguments are advanced before us challenging the correctness of that finding.
13. POINT NO. 1:- There is no difficulty whatsoever and it does not require much reasoning to hold that Ex.P.1 is executed by the defendant because the defendant himself has not disputed this document. His contention in this regard is that the document was written by him as per the dictation of the second plaintiff and it was not attested by any of the persons. He has also admitted that a sum of Rs. 5,000/- was received by him by way of cheque. P.Ws 1 and 2 have spoken about this document. Though styled as receipt for having received a sum of Rs. 5,000/- through a cheque bearing No. 104191 drawn on the Corporation Bank Ltd., Sakelespur, it further states that the said amount is received towards the sale of the premises bearing No. 870/B, 5th Block, 18th Main Road, Rajajinagar, Bangalore-10, which is the suit schedule property. In addition to this, the receipt further states that the price agreed for sale of the suit house is Rs. 1,65,000/- and the incidental expenses such as stamp duty, registration etc; are to borne by the plaintiff. It is executed in the name of the first plaintiff. The receipt Ex.P.1 further states that the final agreement will be executed on a stamp paper within a fortnight. In addition to this, it is further stated therein that the amount referred to in the receipt is a token advance confirming the proposed sale. In the end the document further gives the details of the schedule property. It is not possible to accept the contention of the defendant that this document was not attested by any person and it was not intended to be an agreement of sale, and it was only a receipt. P.W.1 has stated that this document was attested by P.W.2 and B.C. Appaswamy. He has identified the signatures of B.C. Appaswamy and B.S. Krishnamurthy. The evidence of P.W.1 is corroborated by the evidence of P.W.2 who has also deposed that Ex.P.1 was attested by himself and Sri. B.C. Appaswamy. In addition to this, the defendant himself has admitted that he has written the document and signed it. The case of the defendant that it was written to the dictation of the second plaintiff with an understanding that it was not to be treated as an agreement of sale and it was executed only as a security or receipt for having received the sum of Rs. 5,000/-. It is contended that the defendant had full confidence in the second plaintiff who was a sympathizer of the defendant and came to his rescue at the time when he was in need of money for the treatment of his daughter, therefore, believing him that he would not take undue advantage of the situation he wrote the document Ex.P.1 according to the dictation of P.W.1. Therefore, it is contended that it is not intended to be an agreement of sale.
14. The defendant is not a relative of the second plaintiff nor their friendship, as revealed from the evidence on record, was of any long standing. It was not of such a nature that the defendant could execute such a document in his favour blindly believing him unless it be of a transaction of agreement of sale. The defendant is an educated person. The defendant by then had retired as a Government servant after holding good position in the State Government. In fact, he has claimed that he had served several Chief Ministers and Ministers and they had full confidence in him. If that be so, it is not possible to accept that he could execute a document like Ex.P.1 without there being an agreement for sale of the property in question. Therefore, the case of the defendant that it was not intended to be an evidence of agreement of sale is far from truth. No doubt, the plaintiffs themselves have not based the suit on Ex.P.1, They have sought for the relief of specific performance on the basis of Ex.P.2. But Ex.P.1 goes to prove that there was an agreement of sale between the first plaintiff and the defendant, it was pursuant to this agreement only a formal deed of agreement as per Ex.P.1 came to be executed by the defendant in favour of the first plaintiff on receiving a further sum of Rs. 20,000/-.
15. The defendant has not denied his signatures found at the bottom of each page of Ex.P.2. However, his defence is that when he signed at the bottom of each page of Ex.P.2 which consists of five pages, as per Ex.P(a) to P(e), the document was not typed. He signed only on the blank stamp paper and also blank papers annexed to the stamp paper. Therefore, we have now to see whether this defence of the defendant is acceptable. By admitting the signatures found at the bottom of each page of Ex.P.2, the defendant has further pleaded that he had signed only on the blank papers. He has taken a special defence that though the document contains his signatures it was not executed by him. Therefore, in the light of this special plea, the burden will be upon him to prove that when he signed the three papers - one stamp paper and two other papers which constitute Ex.P.2, the same were blank. Of course, at this stage, the burden of proof does not assume importance because both sides have adduced evidence. We shall therefore consider whether it is proved that Ex.P.2 is executed by the defendant without giving any undue importance as to whether the defendant has proved that he signed the blank papers or the plaintiffs have proved that the defendant has executed Ex.P.2.
16. The oral evidence in this regard consists of P.Ws.1 and 2 and D.W.1. P.W.1 has specifically stated that "the defendant brought the typed agreement on 29-4-1980 to their house and they met in the house of Rudrappa. The defendant executed the document on receiving a cheque for Rs. 20,000/-." He has also further stated that "at the time of executing the document, himself, his wife, Krishnamurthy, the defendant, the defendant's wife, and Rudrappa were present." It is contended that neither Rudrappa has been examined nor the first plaintiff has entered the witness box and examined Veerappa, father of the first plaintiff and father-in-law of the second plaintiff, who had issued the two cheques, namely, one for Rs. 5,000/- dated 29-3-1980 and another for Rs. 20,000/- dated 29-4-1980. It is also further contended that if the defendant had brought Ex.P.2 typed on 29-4-1980, there was no possibility or probability of mentioning the cheque number and the amount and the date in para 2 (ii) of the Agreement because the cheque itself was handed over to the defendant, as per the evidence of P.W.1 on 29-4-1980 at the time of execution of the document. The second plaintiff, P.W.1, has identified the signatures of the defendant and has stated that the defendant executed the document and received the cheque for Rs. 20,000/-. The contention that it is highly improbable that in the document (Ex.P.2) which was got typed by the defendant according to P.W.1 on 28-4-1980 at a different place, the cheque number, amount and the date could have been typed as the cheque was dated 29-4-1980 and it was handed over to the defendant on 29-4-1980 after the document was executed. Therefore, it is submitted the case of the plaintiffs that the defendant got the document typed and executed it on 29-4-1980 becomes highly improbable and doubtful. But considering the evidence of the defendant himself that the cheque was shown to him by P.W.1 on the previous day, the possibility of the defendant having noticed the number, date and the amount of the cheque cannot be excluded. The defendant has stated in his examination-in-chief itself thus:
"From the Martha's Hospital, I went straight to Ambika Lodge and plaintiff No. 2 was waiting in the ground floor. The plaintiff No. 2 told me that his father-in-law came to Bangalore and showed me a cheque for Rs. 20,000/-".
The contentions of the learned Counsel for the defendant is that this statement of the defendant in examination-in-chief cannot be read as amounting to cheque being shown to the defendant earlier to 29-4-1980. It is not possible to accept this contention because nowhere in his evidence he has stated that the cheque was shown only on the same day on which he signed the blank papers. He has signed on 29-4-1980 and put the date 29-4-1980 is not disputed by him. Therefore, the only inference that can be drawn in the light of the evidence on record and in the context in which the cheque was shown to the defendant by plaintiff-2 and the reference of it is found in Ex.P.2 is that it was shown to him earlier to the typing of Ex.P.2. Ex.P.2 was got prepared by the defendant himself is also proved by the evidence of P.W.2 who has stated thus :
"I went and informed the defendant that the plaintiff was ready to pay Rs. 20,000/- and agreement be prepared. The defendant told me that our Advocate Mr. Singh will prepare the draft. On 28th April, 1980, I went to the defendant and he said that the agreement will be ready by tomorrow. On the next day, I went to the defendant in the evening, at that time agreement was ready".
In the cross-examination of this witness nothing is elicited to disbelieve this statement. This evidence of P.W.2 read with the admission made by the defendant that the cheque was shown by plaintiff-2 would lead to an inference that cheque was shown earlier and it was because of this only the defendant could have it mentioned in Ex.P.2. Therefore, it is not possible to accept the contention that mentioning of the cheque number, amount and date in para 2(ii) of the Agreement improbablises the fact that the Agreement was executed by the defendant after it was typed. On the contrary the evidence, as already pointed out, proves the fact that the cheque was shown earlier, therefore it was mentioned in para 2(ii) of the agreement which was got prepared by the defendant himself.
17. The case of the defendant that he signed the blank Agreement of Sale Ex.P.2 cannot at all be accepted because when the first plaintiff issued notice as per Ex.P.3 which was received by the defendant, as admitted by him in the written statement, he did not move an inch and did not refute the Agreement of Sale and did not take any action in the matter. On the contrary, the case of the defendant that plaintiff-2 informed him that it was only intended to have as a security and therefore he took back Ex.P.3 and also the note given by him into the hands of his daughter, cannot be accepted. No person would have kept quiet on receiving Ex.P.3. The conduct of the defendant in not reacting to Ex.P.3 also goes to show that there was an Agreement of Sale entered into by him with the first plaintiff and pursuant to that he had received in all a sum of Rs. 25,000/-, as otherwise he would not have kept quiet. Not only this, when the property was put up for auction sale by the Bangalore Central Co-operative Bank, the first plaintiff filed an application before the Bank as per Ex.D.15 (the original is marked as Ex.D.22) on 16-9-1981. Along with the application, she produced a photostat copy of the Agreement of Sale and two demand drafts totally for a sum of Rs. 12,000/-, Pursuant to that the auction sale was postponed. In the application Ex.D.22, the Agreement of Sale executed by the defendant and payment of Rs. 25,000/- to the defendant towards the Agreement of Sale were specifically mentioned. In the said application, it was also mentioned that the suit schedule property was agreed to be sold to her by the defendant. It is not possible to accept the case of the defendant that he was unaware of this auction sale and payment of Rs. 12,000/- by the first plaintiff and postponement of the sale. It is an undisputed fact that the defendant had mortgaged the suit schedule property to the Bangalore Central Co-operative Bank and had not discharged that debt. Under the provisions of the Karnataka Co-operative Societies Act, 1959, and the Rules framed thereunder, a society cannot bring a property for sale without complying with Rule 38 of the Rules. In other word? without issuing notice to the mortgagor and without issuing sale proclamation the mortgaged property cannot be brought for sale. Therefore, the defendant must be held to have been fully aware of this auction sale. Naturally as an ordinary prudent man it was expected of him to go to the Bank and enquire as to what happened to the auction sale proposed to be held on 17-9-1981. Therefore, in all probability, we are of the view that the defendant must not have failed to go to the Bank and enquire about it and on enquiry he must have come to know of the fact that the first plaintiff had made an application as per Ex.D.22 and had produced a photostat copy of the Agreement of Sale and paid a sum of Rs. 12,000/-. After having come to know of such a conduct on the part of the first plaintiff, if really there was no Agreement of Sale executed by the defendant in favour of the first plaintiff, the defendant could not have kept quiet and could not have failed to issue a notice in writing to the first plaintiff. This silence on the part of the defendant would also go to indicate that there was such an Agreement of Sale entered into by him with the first plaintiff as per Ex.P.2 under which he had received in all a sum of Rs. 25,000/-. It was not the first attempt made by the first plaintiff but it was the second attempt on her part to putforth the Agreement of Sale. Therefore the contention of the defendant that he signed the blank papers and did not execute Ex.P.2 is far from truth.
18. In addition to this, we may also refer to the other contentions. It is contended on behalf of the defendant that Ex.P.2 was not attested by B. Rudrappa. Reliance is placed on Ex.D.23, a xerox copy produced by the Bank through D.W.2. No doubt, it does not contain the signatures of B. Rudrappa. In this regard, it is also relevant to notice certain facts:
18.1. Ex.P.2 was produced along with the plaint. The defendant had an opportunity to look into it before he filed the written statement. In the plaint itself, it was also stated that the 1st plaintiff had approached the Bank, paid a sum of Rs. 12,000/- and got the sale postponed. Along with the plaint, a copy of the application marked as Ex.D.15 was produced. In that application, the 1st plaintiff has specifically stated about the Agreement of Sale and also production of a photostat copy of Ex.P.2 along with Ex.D.22. All this information the defendant had come to know before filing the written statement. But according to him, before filing the written statement he did not verify from the Bank about the application filed by the 1st plaintiff and the documents produced along with it before the Bank. He rested by contending that the 1st plaintiff had no authority to pay Rs. 12,000/- to the Bank, therefore, such payment was to be treated as gratuitous. The Agreement produced along with the plaint contained the signatures of two attestors. A photostat copy of it was produced before the Bank along with Ex.D.22. We have already pointed out in the preceding paragraph that the defendant as an ordinary man of prudence must have enquired in the Bank when the auction sale was postponed on the application filed by the 1st plaintiff and as such he must have also come to know of the Agreement of Sale executed by him as a xerox copy of it was produced by the 1st plaintiff along with Ex.D.22 and also of the persons who had attested it. If really xerox copy of the Agreement did not contain the signature of another attestor, namely, Rudrappa, the defendant would have come to know of it and he would not have failed to take such a stand in the written statement. He made an application before the trial Court only on 16-9-1987 requesting it to call for the records from the Bangalore Central Co-operative Bank which were produced by the 1st plaintiff. The Court issued the summons. Pursuant to it the Bank official appeared and filed a Memo as per Ex.D.3. It is also relevant to notice that the documents as summoned by the Court were not produced along with the Memo. The official produced a typed copy of the Agreement which is marked as Ex.D.4. As a matter of fact, the Bank official ought to have produced the photostat copy of the Agreement which was produced by the 1st plaintiff along with Ex.D.22. It is also relevant to notice that the plaintiffs had closed their case by the time the defendant requested the Court to summon the document. Therefore, Ex.D.4 was not confronted to P.Ws.1 and 2. Ex.D.23 came to be produced only on 10-1-1991. On that day D.W.2 was also examined. The circumstances established in the case without any doubt, indicate that Ex.D.23 is not the very xerox copy of Ex.P.2 which was produced by the 1st plaintiff along with Ex.D.22. It has also been suggested to D.W.2 that Ex.D.23 has been obtained by placing a piece of paper on the signature found below the signature of B.S. Krishnamurthy. No doubt D.W.2 has denied the suggestion. But the possibility of obtaining another xerox copy by placing the paper on the portion in which the signature of the second witness is found cannot be ruled out in the light of the circumstances under which the document was produced. It was summoned by the defendant after the plaintiffs closed their case. The Bank official did not produce it in the first instance. There is a gap for more than three years from the date the official first produced a typed copy of the document in the Court and the document Ex.D.23 was produced. All this go to show that ail is not well with Ex.D.23. It was also demonstrated before us that if a piece of paper placed on the portion in which the signature of the second attesting witness is found in Ex.P.2 without affecting the rest of the document, it is possible to have a xerox copy. Therefore, in the light of the facts stated above and in view of the fact that Ex.P.2 was produced along with the plaint itself, it is not possible to accept the case of the defendant that the signature of B. Rudrappa the attesting witness was obtained subsequent to 16-9-1981 and the photostat copy of it produced before the Bank did not contain the signature of B. Rudrappa.
19. We now take up the contention of the defendant that the plaintiffs have not examined Veerappagowda, Appaswamy and plaintiff-1, therefore they have withheld the relevant evidence and this has caused damage to the defendant, in as much as, they have made it impossible for him to prove his defence that the amount paid to him through two cheques was not towards the alleged Agreement of Sale but it was only by way of loan and the documents Exs.P1 and P2 are only intended to be security. As far as Appaswamy is concerned, his non-examination is of no consequence because defendant himself has admitted the execution of Ex.P.1. It is also his case that when he executed Ex.P.1 there was none except himself and P.W.1. Therefore, Appaswamy cannot be considered to be material witness and non-examination of him cannot affect the case of the defendant. As far as non-examination of Veerappagowda is concerned, no doubt, we felt initially that the plaintiffs ought to have examined him as he had issued two cheques, but on going through the evidence of defendant himself we are satisfied that non-examination of Veerappagowda cannot be held to have affected the defence of the defendant. Veerappagowda is none other than the father of plaintiff-1 and the father-in-law of plaintiff-2. There is nothing unnatural in Veerappagowda issuing the cheques for purchasing the name of his daughter. Of course, if it were to be the case of the defendant that Veerappagowda gave two cheques by way of loan through the mediation of plaintiff-2 and he received the cheques directly from Veerappagowda, probably the non-examination of Veerappagowda would have mattered much. But the evidence of the defendant is that he had not seen Veerappagowda at any time. He has stated in the examination-in-chief itself thus;
"The plaintiff-2 promised to pay the amount from his father-in-law, who is money lender. The father-in-law of 2nd pltf. is one Veerappa Gowda. I was told by the 2nd pltf. that his father-in-law is the coffee-planter. 1 did not meet the father-in-law of 2nd plaintiff."
Therefore when the defendant himself did not have any direct transaction with the father-in-law of the second plaintiff and he executed the receipt Ex.P.1, which in substance is nothing but an Agreement to Sell in the name of the first plaintiff, non- examination of Veerappa Gowda cannot be held to be fatal to the case of the plaintiffs. Therefore, we are of the view that the contention in this regard cannot be accepted.
20. Similarly, it is the contention of the defendant that the first plaintiff in whose favour Ex.P.1 and P.2 were executed ought to have been examined; that neither P.W.1 nor P.W.2 has identified the signature of plaintiff-1 found on Ex.P.2. Therefore, it is contended that non-examination of plaintiff-1 and non-identification of her signature on Ex.P.2. must lead to an inference that there was no consensus ad idem between the first plaintiff and the defendant and as such there was no agreement regarding the sale and purchase of the suit schedule property as such Ex.P.1 and Ex.P.2 cannot be held to be valid. Plaintiff-1 is no other than the wife of plaintiff-2 and the daughter of Veerappagowda. In Ex.P.1 itself which has been executed by the defendant, as admitted by him, the Agreement is stated to have been entered into between the first plaintiff and the defendant as otherwise the defendant could not have executed Ex.P.1 in favour of the first plaintiff. It is not the case of the defendant that Ex'.P.2 is not signed by the first plaintiff. He has not disputed that Ex.P.2 was signed by her. Therefore, the execution of the document - Ex.P.2 by the first plaintiff has not been challenged.
20.1. As far as the plaintiffs are concerned, they have filed the suit on the basis of that document, therefore absence of consensus ad idem does not arise at all. If there was no consensus ad idem, an educated person like the defendant who had served the Karnataka Government till the age of superannuation, however his mental condition would have been, could not have executed the document like Ex.P.1. P.W.1 has spoken to all the necessary aspects of the case. The documents Exs.P.1 and P.2 are not at all vague in any aspect of the matter. They contain all necessary terms of agreement of sale. They contain the description of the property agreed to be sold, the consideration amount agreed to be sold, the consideration amount agreed, expenses to be incurred for getting the sale deed executed and the advance paid towards the agreement. Therefore there is no scope to hold that the parties had not agreed regarding the essential terms of the agreement and there was no consensus ad idem. Further it is not uncommon to purchase a property by a father in the name of his son or daughter. Therefore, it is not possible to hold that it is not proved that the first plaintiff has executed Ex.P.2 and that her non-examination has in any way affected the case of the defendant. Therefore, it cannot be considered to be fatal to the case of the plaintiffs to prove Ex.P.1 and P.2. Therefore, we are of the view that the contention is without substance. When there are more than one plaintiff it is not necessary to examine all the plaintiffs. Further in the instant case plaintiff No. 2 was even according to the case of the defendant, associated with alt the stages of the transaction. In fact the defendant knew plaintiff No. 2 only and it was plaintiff No. 2 who was instrumental for the transaction to take place, In addition to this B.S. Krishna Murthy who has attested Ex.P.1 and Ex.P.2 has been examined as P.W.2.
21. In the view we take it is not necessary to consider in detail a Decision in UTTAM CHAND v. SMT. RADHA BAI, . This is not a case wherein it can be held that the plaintiff has not entered the witness box to prove his or her case. There are two plaintiffs. Out of them, one has entered the witness box and has imposed to the case pleaded. It is contended that when the suit was filed the first plaintiff was the only person who was styled as plaintiff and second plaintiff came to be added subsequent to filing of the written statement. Therefore, for all purposes, it is contended, the first plaintiff must alone be considered as the real plaintiff in the case. Of course, as far as the Agreement of Sale is concerned, it is the first plaintiff who is concerned with it. But the second plaintiff being the husband came to be impleaded on the plea raised by the defendant himself. Even according to the case of the defendant, it was the second plaintiff who dealt with him in the matter of payment of money. Therefore it is not possible to hold that the second plaintiff is a stranger to the transaction in question and as such he is not competent to speak about the case pleaded in the plaint. Therefore, we are of the view that examination of the second plaintiff, in the facts and circumstances of the case, is sufficient and non-examination of the first plaintiff cannot be held to be fatal to the case. The Decision of the Supreme Court in MAYAWANTI v. KAUSHALYA DEVI, relied upon by the learned Counsel for the defendant on the question of consensus ad idem in the light of the findings recorded by us above is not of any assistance to the defendant. Accordingly, we answer Point No. 1 in the affirmative and confirm the finding of the trial Court on issue No. 1.
POINT NO.2:
22. As already pointed out, the trial Court has refused to grant a decree for specific performance on the ground that when the Agreement was entered into, the period of ten years had not elapsed, that the defendant is a retired Government servant as such, if a decree for specific performance is granted he would be put to great hardship Normally, when a discretion is exercised by a trial Court judicially on applying relevant considerations, the appellate Court will be slow to interfere unless it finds that the exercise of discretion is arbitrary or is based upon the considerations not relevant to the issue. As far as the conclusion of the trial Court that the Agreement was entered into even prior to the expiry of the period of ten years from the date of allotment of the site, therefore it is not proper to grant a decree for specific performance is concerned, we are of the view that the trial Court is not correct in law. The contention is no more res integra. In NATHULAL v. PHOOLCHAND, , it has been held that it is well settled that where by statute property is not transferable without the permission of the authority, agreement to transfer the property must be deemed subject to the implied condition that the transferor will obtain a sanction of the authority concerned. The Judgments in MOTILAL v. NANHELAL, AIR 1930 PC 287 and Mrs. CHANDNEE WIDYAVATHl MADDEN v. Dr. C.L. KATIAL, are also referred to. Recently, a Division Bench of this Court to which one of us (KASJ) was a party in T. DASE GOWDA v. D. SRINIVASAIAH AND 2 ORS., RFA No. 575 of 1987 DD. 10th to 14th December 1990 Affirmed in SLAP No. 10654 of 1991 DD 17.7.1991, has considered Rule 18 of the City of Bangalore Improvement (Allotment of Sites) Rules, 1972 which among other things provided that the purchaser shall not alienate the site within a period of 10 years from the date of allotment except mortgage in favour of the Government of India, Government of Mysore etc., that such a Rule did not come in the way of granting a decree for specific performance (See Point No. 6, paras 80 to 85). The Decision in the aforesaid Case Gowda's case6 has also been affirmed by the Supreme Court in SLAP No. 10654/91 dated 17,7.1991. The Order passed by the Supreme Court while rejecting the Special Leave Petition reads thus:
"Special leave petition is dismissed on merits".
Therefore, it is clear that one of the grounds made out by the trial Court for refusing to grant a decree for specific performance is untenable in law. We may also point out that the period of 10 years though had not expired on the date of agreement, but it expired long back during the pendency of the suit.
23. Now we shall see whether the second ground stated by the trial Court that the defendant is a retired Government servant, as such if a decree for specific performance is granted, he would be put to great hardship, can be accepted as a valid ground. The mere fact that a person is a retired Government servant cannot at all be considered to be a valid ground for refusing to enforce the contract he has voluntarily agreed to. The object of the law is not to enable the parties to avoid the contract voluntarily entered into but is to see that the contract is enforced. Of course, in certain circumstances, as laid down in Section 20 of the Specific Relief Act, it is open to the Court to refuse to grant a decree for specific performance even though the agreement is lawful. Therefore, we are of the view that the two grounds stated by the trial Court for refusing to grant a decree for specific performance cannot be held to be relevant and valid grounds.
24. It is also contended before us that when the Agreement was entered into, one of the daughters of the defendant was suffering from cancer and she succumbed to it even before the suit was filed, and the wife of the defendant was also ailing. In addition to it, there are two unmarried daughters and the suit property is the only property of the defendant who is getting a meagre pension of Rs. 731/- per month. Therefore, it is submitted that in the light of these facts which are not noticed by the trial Court, the discretion exercised by the trial Court need not be interfered with. As far as the death of the daughter who was suffering from Cancer is concerned, we do not think, that can be made a ground to refuse a decree for specific performance. Now the question will be as to whether the fact that the wife of the defendant was ailing and there are two unmarried daughters, could be considered as sufficient and relevant ground for refusing to grant a decree for specific performance. Under Section 20 of the Act, the grounds which enable the Court to refuse to grant a decree must be such which were not in the contemplation of the parties when they entered into an agreement of sale and also that the defendant had no control over those grounds and as a result of those grounds, it has become impossible for him to get on without the property agreed to be sold. In the instant case, it is to be seen whether the circumstances now put forth by the learned Counsel for the respondent were not in existence at the time when the agreement was entered into. It is true that the defendant has two unmarried daughters and his wife was also not keeping good health. If we have to lay down the law that a person whose wife is ailing and has two unmarried daughters, therefore a decree for specific performance cannot be granted, it would be a wrong exercise of the discretion because such a circumstance is not something which is unusual. Further these circumstances did exist when the agreement was entered into. The defendant himself has stated in his evidence that his wife was not keeping good health for a very long time and his two daughters are still studying. Therefore, taking into consideration all these aspects of the matter, we do not think that the above circumstances can be considered to be a valid ground for refusing to grant a decree for specific performance.
25. The learned Counsel for the defendant placed reliance on a Decision of the Supreme Court in Mayawanti v. Kaushalya Devi wherein Section 9 of the Specific Relief Act has been dealt with. In that case, the Court came to the conclusion that there was no agreement between the parties regarding essential terms of the agreement. Therefore, there was no consensus ad idem and as "such, there was no valid contract to be enforced. That being so, it is not possible to hold how that said Decision can be of any help to the defendant on this point.
In PRAKASH CHANDRA v. ANGADLAL, regarding exercise of discretion for granting a decree for specific performance, it has been observed thus:
"The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. In the present case, the conduct of the appellant has not been such as to disentitle him to the relief of specific performance. He has acted fairly throughout, and there is nothing to show that by any act of omission or commission he encouraged Mohsinati and Qurban Hussain to enter into the sale with the first and second respondents. There is no evidence that the appellant secured an unfair advantage over Mohsinali and Qurban Hussain when he entered into the agreement. Nor is there anything to prove that the performance of the contract would involve the respondents in some hardship which they did not foresee. In our opinion, there is no reason why the appellant should not be granted the relief of specific performance."
In the instant case, we have already pointed out that the defendant himself has written Exhibit P.1. His case that he wrote Exhibit P.1 on the dictation of F.W.1 believing in the words of P.W.1 that it was intended only as a security and not as an Agreement of Sale, has been disbelieved. As far as Exhibit P.2 is concerned, it is only a formal Agreement drawn up pursuant to Exhibit P.1. The defendant is an educated person. He is a retired Government' servant. Therefore, there was no question of P.W.1 taking undue advantage of him. The acquaintance of P.W.1 with the defendant was not of long standing. They were not related. There was no fiduciary relationship. P.W.1 -plaintiff No. 2 was not engaged at any time to appear on behalf of the the defendant in any case. Having regard to the age and experience of the defendant and that of P.W.1 it is not possible to hold that P.W.1 was in a position to dominate the will of the defendant and take undue advantage of his position. Of course the case of the defendant was that P.W.1 was sympathetic. In the facts and circumstances of the case, it can be inferred that because P.W.1 was sympathetic, he was able to finalise the transaction as the suit schedule property on the date of the agreement had not been conveyed to the defendant as 10 years had not elapsed from the date of allotment and it was also mortgaged to the Bangalore Central Co-operative Bank. Therefore, under such circumstances, no other person except the plaintiffs could have agreed to purchase the property. Therefore, we are of the view that there are no circumstances established in the case which take the present case out of the ambit of the ratio of the Decision of the Supreme Court in Prakash Chandra's case? referred to above. Accordingly, we hold that the trial Court has not exercised the discretion judicially in refusing to grant a decree for specific performance. Hence, Point No. 2 is answered in the affirmative.
26. For the reasons stated above, the Appeal is entitled to succeed. It is accordingly allowed. The judgment and decree of the trial Court are set aside. The suit of the plaintiff is decreed. The plaintiff to deposit the balance of the sale consideration amount in the trial Court on or before 31-1 -1992.
In the facts and circumstances of the case, we direct that the parties shall bear their costs throughout.
Note: Time for depositing balance of the sale consideration amount on or before 31-1-1992 was fixed on 2-1-1992 before signing the Judgment and after hearing both the sides.