Karnataka High Court
V Kamala W/O C Valliyappa vs T Hanumantha Bovi S/O Thimma Bovi on 28 March, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 28™ DAY OF MARCH 2012. BEFORE REGULAR FIRST APPEAL No:1943'OF. 2002. *~ BETWEEN: i Smt.V.Kamala, W/o.C.Valliyappa, Major, T.J.colony, Adivala, Kasaba Hobli, . wo Hiriyur Taluk. . ..APPELLANT (By Shri.6.G.Sridharan, Advocate. for Shri. A.C. Baiaraj. Advocate) : AND: 1. T. HanumanthaBevi>. S/o. Thimma Bovi. -- Aged about 61 years, a 'Sines deceased by his legal representatives, Smt. Durgamma, .. 'W/o.tate' Hanumantha Bovi, "Aged adout 60 years, Resident of Gambalaghatta alias Gandhinagar Village, _ -Gangalagunte, _ Javanagondanahally Hobii, Hiriyur Taluk, Chitradurga District. wt 1(b) Thippamma, W/o. Rudramani, Aged about 40 years, Resident of Balaghatta Grama, Balarghatta Post, Chitradurga Taluk, Chitradurga District. 1(c) Sharadamma, W/o.thippeswamy, Aged about 38 years, Resident of Mekalurahalli, Kasaba Hobli, . Hiriyur Taluk, _ Chitradurga District. i(d) Vinodharama, W/o. Durganna,. OY Aged: about SS years, 0 Resident.of Belaghatts Vi la age, Cnitradt ga Taluk, ~ Chi tradui rga. Distr ct: i(e) Th imrnanna, -- S/o.Late T 'Hanumantha Bovi, - Aged about 30 years, - "Resident of Gambal laghatta alias "Gandhinagar Vi illage, _ Sanjalagunte, avenagon Wdanahally Hobii, riyur Taluk, os Chitradurga District. [ci ause title amended vide court order dated 11.02.2011] 2. Hanumakka, D/o.Late Sanjeeva Bhovi, oa SROAUNSEN OD AENENRREEEYamNOHERsmRMNHINene 4 : : Hi Since deceased in the Court below (no legal representatives) oe . .RESPONBENTS (By Shri. Ajay Govindaraj, Advocate for Respondents No. 1 (a) to (e) Respondent No.2 - dead) 4K KE mo 8 This Regular First Appeal is-filed under Section 96 of Code of Civil Procedure, 1908, against thé judgment and decree dated 12.8.2002 passed-in 0.S-N0.232/1997 on the file of the I Additional Civil Judge (Sr.Dn.) Chitradurga, decreeing the suit filed by the respondent No-1 for specific performance. oo eo This Appeal coming on for.heaiing this day, the court delivered the following: oe os : Heard the learned:-counsei for the appellant and the learned counsel forthe respondents. 2. The parties are referred to by their rank before oe the. Trial Court for the sake of convenience. 32°. Fhe appellant was the defendant before the Tria! Court: It was the case of the plaintiff that the mother - : cf..the first defendant Eramma, had entered into an "agreement to sell the suit property for a sum. of °%1,25,000/- to the plaintiff and she had executed the WN | : ] L j Q i agreement dated 4" January 1995 in respect of the same and had received an advance amount of 21,20,000/- towards the sale consideration and the remaining ameunt of ¥5,000/- was to be paid withi ina Period™ of five months. . from the date of agreement to sell and. was to' execute ine sale deed. It was cla imed by the pia ntiff that the possession of the suit 'property was delivered on the date of agreement to sell a nd th at: ihe't ime was the essence of contract. Eramma, .- however, fa ited to complete the transaction "and in ; the pes with a malafide intention of dece 'virg the pla intiff, had entered into a sale transacti ion "with | | eh sent defendant for a sum of 248 000/- by. ex ect ting. a 'regi istered sale deed dated 15" May 1995. Therefore, it was alleged by the plaintiff that - the deceased | Eramma, along with the first defendant, had "co tm tte ed fraud in selling the suit property to the second defendant for a paltry sum of %48,000/- only in order to "defeat the claim of the plaintiff under the agreement to "sell; and therefore, the sale deed was a sham document "--and that the same is not binding on the plaintiff. It was i .
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further stated that immediately after he learnt about the Sale transaction, a legal notice was issued calling -upon Eramma to perform her part of the contract. by receiving the balance sale consideration of 25,000/-:- Si lace: Eramma . had refused, the plaintiff had approached the Court. hls further stated that the plei tft had file da petit ion. before" the Sub-Registrar, Hir riyur not. »tG regi ister r the sale deed which was executed-. ir' fay sour. of the second defendant. However, his efforts fail ed and | 1d i is "Yurther alleged that the second defendant ousted te plaint ff from the suit property ¢ on the, basi Ss: of 'his sal e deed and it is thereafter that che : suit t was, file 4 the Suit was contested by the second defandant, for Eramma had died by the time the suit was filed. The suit was filed against Hanumakka, the daughter of "Eramina a "and the present appellant was arrayed as second defendant. in her defence statement, the present i appellant contended that the agreement to sell in favour of the plaintiff was not genuine and that no consideration was Ej Ce SSOuRINAeRALNMAANRERUOHR MLA 4 ;
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paid under the said agreement and that it was forged and claimed that the second defendant was a bona fide purchaser for value having purchased the st tte registered sale deed as aforesai cand shé : | 33 apptiea for. transfer of khata in respect of the suit spy nt also given pahani for the years 1995-96, 1996- 97 'and:
1997-98. The same were produ iced alovig with the written statement. It was dent ied that the plant ff had filed any objections at the time of registrat on. and also that there was a demand | 'y jade on Framma to execute the sale deed in his favour Sand that, 'the second defendant had acted fraudu slently i ir. acaul ring the property under the said sale deed.
on 5. _ On"the basis of those pleadings, the Court ». below. framed the following issues:
"Issue No.i:- Whether plaintiff proves | that the late Eramma agreed to sell the suit schedule property in his favour for a * cons ideration of %1,25,000/- and executed an £6 oO agreement on 4.1.1995 by receiving an advance amount of %1,20,000/-? 7 Issue No.2:- Whether pla intiff.: "pro oves. that the late Eramma agreed to rece! ve. 'the | balance sale consideration of =5 ,000/- wi ith} na | period of 5 months and to execute at caste . sale deed in respect.. of the' suit: schedule property?
Issue No: 3: Whether: the pla intiff proves that he was always: ready cand willing to perform Tis part "Of. the: contraet and on the other hand the iate Eramma as well as the 1% defendant being her daugnter were failed to per form their part of contract?
io Issue. Nova: Whether the 2" defendant proves that the-sale deed executed by late Eramma and 1° defendant dated 15.5.1995 in respect of suit schedule property is a valid agreement?
issue No.5:- Whether the plaintiff is entitled for relief of specific performance as _ prayed for?
Issue No.6:- To what order or decree?"
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6. The Court below has held issues No.1, 2, 3 and 5 in the affirmative and issue No.4 in the negative: | iti is that which is under challenge in the present a néa Shri B.G 7 Sridharan, the learned Senior Advocate is ing: fort! the counsel for the appellant. would contend" that the Very:
maintainability of the suit as against the | present appellant is not tenable. It is pointed out that there i is no privity of contract between the appellant and "the plaintiff. The appellant Cla ins: that, the sui it property as having been purchased. abe bona fide purchaser for value under the regi istered Sale deed, that i is riot sought to be questioned in the suit filed by. the plaintit In the absence of which, the Sale transaction cannot be declared as not binding on the os plaintift: The suit for specific performance had been filed A hot against "Eramma, the vendor of the appellant, but against Henumakka who was the daughter of Eramma
- since Eramma had died by the time the suit was : | presented, The conduct of the plaintiff and the sequence of events would demonstrate that the plaintiff was seeking S i | 9 to establish a claim over the suit property mischi levously and on the basis of the agreement of sale said to 'ave been executed by Eramma, which had been stoutly denied by her during her lifetime. It is Poi inted out that insofar as _ the sequence of events is concerned; it coul id le 8 seen that the plaintiff claiming that Eramma had received almost the entire sale consi ideration i ina sum of <1 20, ,000/- as on the date of the alleged agreement of sale, was in a position to demand the executi ion- of: saie deed itsetr by paying the remain ing amount | of 2 000/-, "which was relatively negligible "compared 'to the 'sale consi ideration that was agreed upon. _ Secon, the inordinate del ay, which is unexpla ined by' the plat ntiff, would also give room for suspicion about the genuineness of the transaction stated
- by the plainttt In that, though the agreement was dated . 4° January ° 1995 a nd the remaining amount of the sale corisi ideratio on to be paid was only 5, 000/-, as 1,20,000/-
= : was already paid according to the plaintiff on the date of "agreement itself, and the time for completion of sale transaction being five months from the date of agreement, it is inexplicable that the plaintiff had remained dormant in spite of the plaintiff claiming that the plaintiff. sought to prevent the registration of the sale deed that. ose thereafter kept quiet without taking ary ie action for a further period of two and a halt. years and filed - suit. seeking specific performance Of contract. "just before the expiry of the period~ of | imitate iOrr. to" file the suit. This conduct on the. Part of the. 'pla inti ff 'cannot be permitted ji law since the le ai incift fa ed to take any action during the lifetime of Eras mma and | has decided to present the appeal agai irist Hanu: rakka and. the present second defendant, Hanumakka in tun 'having died during the pendency of uit and since she was a widow without any issues and no
- 1 representati ves having been brought on record, S thou gh it. we ag the duty of the plaintiff to have brought the reversi lone rs of late Hanumakka on record as legal _ - representatives. Therefore, the suit would have abated on "the "death of Hanumakka as there was no privity of ~-contract between the plaintiff and the second defendant, Saat 4 :
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the present appellant. The learned Senior Advocate would point out that the court below has proceeded to. hold. that in terms of Section 19 of the Specific Relief act, 1963, the. uit was maintainable as agai inst the gtesen a appella ant: The learned Senior Advocate would © ake thi is 5 Cou it throu gh the language of Section 19/ b). of the. Speci fic 'Relief Act and would point out that the Court below 'has held that the present appellant was "the. transferee for "value who had aid the money with. the know! ledge of the agreement i favour of the piaint tiff or the « reason 'that the appellant had in the wri ten statement pleaded specifically that she had paid the money, in goo faitn without knowledge of the agreement of sale ., anid "therefore, that was to be held agai inst the appellant and the Trial Court has held that the
- sale deed | was not bindi ing on the plaintiff and that the . agreemént ob Sale in favour of the plaintiff being prior in point of tinie executed by the vendor of the appellant, the a : appellant would stand in the shoes of the legal "répresentative of the vendor and therefore was obliged to "execute the sale deed in favour of the plaintiff. This W ARRERRANITROARREAHNENEEHNHMFORHEN i ' reasoning, according to the learned Senior Advocate, is erroneous for the simple reason that there was ng need for this appellant to have stated in the written statement that, she had no knowledge of the transactio n. The sequence of. - events would indicate that even a there was any. such agreement of sale, the absence « of. acti ion: on the part of plaintiff, would demonstrate that there e was st suspic ion about his very bona fides. The sale transaction havi ing been duly registered and. the attempt on, the' part of the 'plaintiff to prevent regi istration and thereatter havi ing challenged the transfer of khata in "favour of the appellant and also having Carri ied the O1 'der asso against him by way of an appeal before the "competent author ity unsuccessfully, thereafter not tai cen any further action till the suit was filed, would
- not be: in con sonance with an agreement holder acting with . exbedit ion when ne has already parted with a substantial surn of 21;20,000/- and only a nominal amount of %5,000/- _ - remained to be paid under the agreement of sale. This aspect of the matter has been completely overlooked, = whi ile the court has found that the appellant has obliged to 's sale deed, is yet another circumstance, which would establish that the appellant was made aware ofthe 'prior transaction. Notwithstanding the same = eee plaintiff of the benefit of the agreement, of, 'sale the further circumstance that the. valuable tand_w | was. sold for 3 paltry sum of %48 000/- in favour ir of the appellant whereas the plaintiff had paid a 'Substa: jtial sum of €1,20,000/- and the fact that. Eramina had, "dodged the plaintiff in completing. the 'sale transaction, cannot be held against him for ne reas son that hak has not proceeded with any undue haste n-compe ail ing Eramma to execute the sale deed wiien the jaw provides that the plaintiff could prefer a suit to seek ithe property within the prescribed time and
- the plaintiff having exercised the same, cannot be trashed
- a8 being the conduct of a suspicious litigant. The plaintiff has, at ali points of time, sought to protect his interest by
- seeking to prevent registration of the sale deed in the first "instance and thereafter the transfer of khata in favour of the present appellant and the suit having followed those oo Srevsntneoretraemmnctitaneneesenne x 2 :
i actions, it cannot be said that the plaintiff has remained dormant without taking any appropriate action -.at. the relevant point of time. Therefore, the Court. below having, held that the transaction clearly indicated that the. ° agreement of sale having been established since "the contesting witness, who was an indenerident document, writer had also entered the witness | box to _acknowledge that Eramma_ had execuced the. agreement and had received the advance sa € consi iderat 'on of &1 ,20,000/- and in spite of, ane Eramma thereafter having entered | into a sale oft transaction ion, the present appeal was clearly in order to. defeat the right vested in the plaintiff under the | agreement of sale and therefore the Court below proceeding to hold that it was expected of the present ; appellant to-.plead in a written statement that she had no ~ knowle edge of the present transaction and had paid the amount 'in good faith, would certainly have to be held ainst' her and there was no infirmity in that finding. The firiuing of the Court below is clearly a finding of fact, and ~~-even if this Court should form a different opinion on the SR 16 basis of other evidence which is not forthcoming, the circumstances would certainly support the reasoning of the Court below and hence the same does. 'not wartant interference. He would further, submit that the plaintifr. having sought specific performance: of the 'agreement of sale and having sought to° follow: the Property i nto the hands of the appellant, notwi ths standi ing 'the sal e deed, accordance with law.~ Be would f point' out t that Section 19 of the Specific Relie Act "does provi ide for such an exigency. dh that, specii ic performance of contract can be enforced even 3 agali inst the person holding a title, if such a persen has enteréd i nto a subsequent transacti ion, not i good faith but™ with knowledge of the prior transactio This is exactiy the circumstance in the case on hand, and
- therefore, there was no necessity for the plaintiff to have the sale deed was void. The 6 4 of c O. at ~e [e)) or © _ sought for &@ same does not call for interference at the hands of this _ 8 Court. "The learned counsel would also submit that the itiff bei ing left with no alternative efficacious remedy, "fas rightly exercised his right against the appellant, which ene _ the Trial Court has upheld and would submit that there is no warrant for interference with the well. -réasaned judgement of the trial Court.
would arise for consideration is whether 'the suit' ao maintainable against the present ar appella mt after the death of Eramma and Hanumakka, 'her daughter. ° Os rightly pointed out by the learned Senior Advocate, there was no privity of contract between the pla inti and the present appellant... The + reasoning. 'of the Court below to the effect that the -- appellant cant "pe. "treated as the legal representative of he r "vendor since the appellant has acquired 'title under.a transaction which is subject to the agreement of sale and that since the appellant had not | pleaded that : t 'she was unaware of the earlier transaction and had aid money in the sale transaction in good faith, 7 woul uid have to be held against her, cannot be accepted.
- oN The. burden, on the other hand, was on the plaintiff to establish that the person had prior knowledge of the sale "7, S transaction in the face of the circumstance that Eramma was dead as on the date of suit and the suit was 'brought against her daughter as a legal representative, none on the basis of which the appellant was seeki ing to fest his case. Even if Hanumakka~ had executed the: sale - deed"
notwithstanding the executi ion of agreement. of sale in favour of the plaintith the | paint may, at best, have filed a suit for damages since its was. open to the appellant to set up a plea that. She had purc! hased the property in good faith and estab lished the same and that it has not been execiited durin Ad: 'the pendence cy of the suit for the plaintiff to plead the rigour of. "Section 52 of the Transfer of Property Act: Tp that view of 'the matter, to hold that the sale deed
- wos not i nding on the plaintiff and that since the = agreement of sale deed was prior in point of time and the sarne would have to be enforced notwithstanding the sale
-- deed, cannot be readily accepted. The burden was cast on the appellant to establish that appellant had purchased the "property with the knowledge of earlier agreement of sale RAN 19 and that she had paid not money in good faith. It cannot be expected of the appellant to decline this. On. the other hand, it could be mechanically pleaded that the transaction was in good faith and she had | no prior: knowledge of , agreement of sale. Therefore, .j Jt ist Iegical to expect' the plaintiff to prove that circumstance. Therefore, ; lh that' view of the matter, it could be: 'said that the sal le deed was obtained by the appellar it in good fal th without the knowledge of the prior ansactio |
9. ong of win appellant would have to. succeed and the reasoniiig of the Court below that the Sale deed we as inv iia atid for reasons as aforesaid, cannot be sustained. In the result, the appeal is allowed and the ju dgement and: decree of the Trial Court is set aside.
However, costs are made easy.
Sd/-
JUDGE cl J