Bangalore District Court
Sri Julappa (Dead By His Lrs) vs ) Smt.T.S. Prema on 8 January, 2020
IN THE COURT OF THE X ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-26).
Dated this the 8th day of January, 2020.
Present
Sri MARUTHI S. BAGADE, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bangalore.
O.S.No.1166/1999
Plaintiff: Sri Julappa (Dead by his LRs)
1(a). Smt.Mallamma
w/o Late Julappa
aged about 62 years
1(b). Sri Vijaya Krishna, H.J.
s/o Late Julappa
aged about 36 years
1(c). Sri Mohan Krishna, H.J.
s/o Late Julappa
aged about 34 years
1(d). Smt.Padmavathi, H.J.
w/o Jagadish, B.
aged about 32 years
All are r/at No.8/1
6th 'A' Main Road
Prakash Nagar
Bengaluru-560 021.
(By Sri P. Usman, Adv.)
Vs.
Defendants: 1) Smt.T.S. Prema
w/o Late K.C. Ramu @
K.C. Ramashetty, major
r/at No.14, Anjaneyaswamy
Private Layout, Byatarayanapura
Yelahanka Hobli, Bengaluru-92.
2 O.S.No.1166/1999
2) Smt.Vinutha Krishnappa
D/o Sri G.V. Krishnappa
major, r/at No.1185
9th Block East, 26th Main Road
Jayanagar, Bengaluru-11.
3) Sri R. Amarnath
s/o Sri Rajashekar, J.
major, r/at No.289
Byatarayanapura
Bengaluru-560 092.
(By Sri H.S. Chandraiah, Adv. for
D.1; D.2- Placed exparte and D.3
by Sri P.M. Narayana Swamy, Adv.)
Date of institution of the suit 11.02.1999
Nature of the suit For specific
performance,
declaration and
permanent injunction
Date of the commencement 18.09.2002
of recording of evidence
Date on which the judgment 08.01.2020
Pronounced
Total duration Years Months Days
20 10 27
JUDGMENT
This is the suit filed by the plaintiff against the defendants for specific performance of contract, directing the defendant No.1 to perform her part of the contract in terms of the contract of sale dated 02.01.1989; for declaration that the sale deed dated 16.06.1996 executed by the defendant No.2 in favour of defendant 3 O.S.No.1166/1999 No.3 is null and void and not binding on the plaintiff and for permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property.
2. The brief facts of the case of the plaintiff's case are as under:-
One Sri K.C. Ramu @ K.C. Rama Shetty was absolute owner in possession of the suit schedule property. The said Ramu agreed to sell the suit schedule property to the plaintiff- deceased Julappa for a sale consideration of Rs.29,000/- and in this regard there was an oral agreement between them on 02.01.1989. On that day, the deceased plaintiff paid a sum of Rs.29,000/- through cheque bearing No.38885 dated 02.01.1989, which was encashed by said Ramu. After receipt of sale consideration, an affidavit was sworn to by said K.C. Ramu @ K.C. Rama Shetty as sale deed in respect of revenue site could not be taken for registration at that time. The said Ramu has also executed a general power of attorney in favour of the plaintiff enabling the plaintiff to exercise all rights of ownership in respect of suit schedule property and put the deceased plaintiff in 4 O.S.No.1166/1999 possession of it. The defendant No.1, being wife of said Ramu, was a consenting witness to the said GPA.
Further case of the plaintiff is that said K.C. Ramu died intestate on 01.06.1991, leaving behind the defendant No.1 as his sole heir. After his death, the plaintiff approached the defendant No.1 to execute the registered sale deed, but, on 12.08.1996, the defendant No.1 has executed a sale agreement stating that she is ready to execute the registered sale deed whenever the registration is accepted by the concerned authorities.
Further case of the plaintiff is that he had applied for change of khatha on 23.02.1998. Thereafter he came to know that registration of sale deeds are accepted in respect of revenue lands. Immediately he requested the defendant No.1 in the month of June 1998 to execute the registered sale deed. However, the defendant No.1 dodging the matter one or other reasons. In the meanwhile, the plaintiff came to know through defendant No.3 that the defendant No.2 executed registered sale deed on 16.06.1998 in his favour. The defendant No.2 has no right, title or interest to execute the registered sale deed in respect of the suit schedule property. The defendant No.1, who is not ready to execute the 5 O.S.No.1166/1999 registered sale deed in favour of the plaintiff, has made foul play in collusion with the defendant No.2. Therefore, the deceased plaintiff had been constrained to file this suit for specific performance of contract.
3. After receipt of suit summons, the defendant No.1 & 3 appeared through their respective counsels and filed their separate written statements, denying the entire allegations made in the plaint except admitting the death of husband of defendant No.1 on 01.06.1991. The defendant No.2 remained absent, hence placed exparte.
Specific case of the defendant No.1 & 3 is that the husband of defendant No.1 was called by only one name i.e., K.C. Ramu, but not K.C. Ramashetty also; the husband of defendant No.1 had sold the suit schedule property in favour of defendant No.2 through irrevocable GPA dated 25.09.1989 and affidavit for valuable consideration of Rs.29,000/- and put her in possession of it. Since the date of purchase, defendant No.2 had been in possession and enjoyment of the suit schedule property. The mutation entries are standing in her name. As such, the defendant No.2 is a bonafide purchaser of the suit schedule property. The defendant No.2 on 16.06.1998 has sold the suit schedule property in favour 6 O.S.No.1166/1999 of the defendant No.3 by executing a registered sale deed. Since the date of purchase, the defendant No.3 is in possession and enjoyment of the suit schedule property. He is a bonafide purchaser. In order to knock of the property, the plaintiff has created and fabricated the documents and filed this false suit, hence liable to be dismissed with cost.
4. On the basis of the above pleadings of parties, my predecessor in the office has framed following issues and addl. issue:-
ISSUES
1) Whether the plaintiff proves that husband of the 1st defendant agreed to sell the suit schedule property for a consideration of Rs.29,000/-?
2) Whether the plaintiff proves that husband of the 1st defendant received entire sale consideration amount on 02.01.1989?
3) Whether the plaintiff proves that he has been ever ready and willing to perform his part of contract?
4) Whether the plaintiff proves that he is entitled for specific performance of the agreement of sale?7 O.S.No.1166/1999
5) Whether the plaintiff proves that the sale deed in favour of the 3 rd defendant executed by the 2nd defendant is null and void and not binding on him?
6) Whether the plaintiff proves that he is entitled for the declaration sought?
7) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit property?
8) Whether the plaintiff proves that he is entitled for the permanent injunction sought?
9) Whether the defendants prove that the 3 rd defendant is bonafide purchaser of the suit property for valuable consideration?
10) What decree or order?
ADDL. ISSUE Whether the suit is properly valued and the Court fee paid is just and proper?
6. In order to establish the case, plaintiff- Julappa was examined as P.W.1 and got the documents marked as per Ex.P.1 to Ex.P.9. During pendency of the suit, plaintiff- Julappa died and his LRs are brought on record. LR No.1(c)- Mohan Krishna has been examined as P.W.2 and got the documents marked as per Ex.P.10 to Ex.P.13 in his 8 O.S.No.1166/1999 evidence. Thereafter defendant No.3 examined himself as D.W.1 and got the documents marked as per Ex.D.1 to Ex.D.15 and defendant No.1 examined herself as D.W.2.
7. Heard both the side. Read the written argument submitted by the plaintiff's counsel and judgments reported in AIR 1993 SC 1742, AIR 1996 SC 2095, AIR 1980 DELHI 188, ILR 2010 KARNATAKA 765, AIR 2000 SC 2921, AIR 2002 SC 1811 and AIR 1989 ALLAHABAD 130 relied upon by the defendant No.3's counsel. Perused the oral and documentary evidence on record.
8. My findings on the above issues and addl. Issue are as follows:-
Issue No.1:- In the affirmative;
Issue No.2:- In the affirmative;
Issue No.3:- In the negative;
Issue No.4:- In the negative;
Issue No.5:- In the negative;
Issue No.6:- In the negative;
Issue No.7:- In the negative;
Issue No.8:- In the negative;
Issue No.9:- Does not survive for consideration; Addl. Issue :- In the affirmative; Issue No.10:- As per final order, for the following:- 9 O.S.No.1166/1999
REASONS
9. ISSUE No.1 & 2:- These issues are taken up together for discussion as they are interlinked to each other to avoid repetition.
10. During the course of argument, learned plaintiff's counsel has contended that husband of the defendant No.1 namely K.C. Ramu @ K.C. Ramashetty being owner in possession of the suit schedule property had agreed to sell it to the deceased plaintiff for full and final valuable consideration of Rs.29,000/- through oral agreement. Learned counsel further contended that as there was prohibition on registration of sale of fragmented (revenue) lands, sale deed was not registered, it was therefore vendor K.C. Ramu @ K.C. Ramashetty had executed affidavit in this regard after receipt of Rs.29,000/- on 02.01.1989 as well as GPA as per Ex.P.2 & Ex.P.4. Learned counsel further contended that due to legal problems, sale deed could not be registered. Unfortunately K.C. Ramu @ K.C. Ramashetty died on 01.06.1991, hence deceased plaintiff approached the defendant No.1, who is none other than the wife of deceased vendor- K.C. Ramu @ K.C. Ramashetty as defendant No.1 was knowing everything about the suit 10 O.S.No.1166/1999 transaction, she executed fresh sale agreement on 12.08.1996 admitting the receipt of Rs.29,000/- by her deceased husband and agreed to execute the sale deed subsequently as and when called upon by the plaintiff.
11. Learned counsel for plaintiff further contended that defendant No.1's admission about the receipt of Rs.29,000/- by her husband and the bank endorsement that the amount of Rs.29,000/- was paid to K.C. Ramu @ K.C. Ramashetty on 02.01.1989 through cheque bearing No.38885, all these things establish that deceased K.C. Ramu @ K.C. Ramashetty agreed to sell the suit schedule property to the plaintiff.
12. On the other hand, contention of the learned counsel for defendant No.3 is that on careful appreciation of the oral evidence of P.W.1 & 2, it is obvious that they were not knowing the K.C. Ramu @ K.C. Ramashetty, though plaintiff contends that the deceased K.C. Ramu @ K.C. Ramashetty agreed to sell the suit schedule property to the deceased plaintiff, deceased plaintiff not produced any sale agreement in this regard; affidavits and GPA alleged to have been executed by deceased K.C. Ramu @ K.C. Ramashetty in fact not executed by him; these 11 O.S.No.1166/1999 documents are forged and fabricated documents by the plaintiff.
13. Learned defence counsel further contended that deceased K.C. Ramu @ K.C. Ramashetty had executed a GPA in favour of the defendant No.2 as per Ex.D.2 dated 25.09.1989 as well as affidavit as per Ex.D.3 endorsing the sale of the suit schedule property in favour of defendant No.2 for valuable consideration of Rs.29,000/-, the signatures appearing on Ex.P.2 & Ex.P.4 as well as Ex.D.2 & Ex.D.3 are totally different, hence it is not possible to hold that the deceased K.C. Ramu @ K.C. Ramashetty has executed Ex.P.2 & Ex.P.4 and thereby agreed to sell the suit schedule property to the deceased plaintiff.
14. I have carefully examined the oral and documentary evidence on record. It is not in dispute that the suit schedule property was owned and possessed by deceased K.C. Ramu. The strong defence raised by defendant No.1 & 3 is that the husband of defendant No.1 was called by only one name K.C. Ramu but not K.C. Ramu @ K.C. Ramashetty. Having after examination of entire materials on record, I am of the opinion that, the contention of defendant No.1 is without any merits and 12 O.S.No.1166/1999 Ex.P.10 & Ex.P.11 are two sale deeds executed by the defendant No.1 in respect of site No.8 and site No.22. In these sale deeds, defendant No.1 has shown her husband's name as K.C. Ramu @ K.C. Ramashetty. Under the circumstances, there is no any meaning in going further discussion to know whether husband of defendant No.1 was called by only one name as K.C. Ramu or not? It is suffice for me to state that husband of the defendant No.1 was called by both name as K.C. Ramu @ K.C. Ramashetty.
15. Now this takes me to consider whether deceased K.C. Ramu @ K.C. Ramashetty had agreed to sell the suit schedule property to the deceased plaintiff and in support of his oral transaction with him whether he had executed affidavit and GPA in favour of the deceased plaintiff or not? It is true that there is no any specific format of agreement between the deceased plaintiff and deceased K.C. Ramu @ K.C. Ramashetty which constitutes a valid sale of agreement between them as contemplated under the Indian Contract Act. It is significant to mention that, no any specific format has been prescribed under law, regarding the sale agreement. Any kind of promise by the property owner in 13 O.S.No.1166/1999 favour of the intending purchaser to sell the property can be considered as sale agreement. Here in this case conduct of the deceased deceased K.C. Ramu @ K.C. Ramashetty is most important to see whether there was any kind of oral agreement between the plaintiff and deceased K.C. Ramu @ K.C. Ramashetty to sell the property in favour of the deceased plaintiff.
16. It is pertinent to note that deceased K.C. Ramu @ K.C. Ramashetty had executed affidavit and GPA in respect of suit schedule property not only in favour of the plaintiff also in favour of the defendant No.2 for the same amount of Rs.29,000/-. Under the circumstances, it can be presumed that deceased K.C. Ramu @ K.C. Ramashetty used to sell the sites through affidavit and GPA. Of course, there is some variation in the signature style of deceased K.C. Ramu @ K.C. Ramashetty, which can be noticed by open eyes comparison of Ex.P.2 & Ex.P.4 as well as Ex.D.2 & Ex.D.3. But in my opinion there are much similarities in both and therefore in the absence of hand writing expert's opinion from defendant No.1's side, it is hardly possible to hold that the signatures appearing upon Ex.P.2 & 4 not the signatures of deceased K.C. Ramu @ K.C. Ramashetty. It is further significant to 14 O.S.No.1166/1999 mention that the defendant No.1 had signed Ex.P.4 as consenting witness and put thumb impressions upon Ex.P.5 as executant. Hence, defendant No.1 was specifically directed to furnish her specimen hand writings and thumb impressions. Inspite of specific directions by the Court, defendant No.1 failed to give her specific thumb impression and hand writings for the hand writing expert's opinion. Hence, an adverse presumption can be drawn that, the defendant No.1 did not furnish her specimen hand writings and thumb impressions, as because she signed Ex.P.4 and the thumb impressions appearing upon Ex.P.5 are her thumb impressions only. Therefore, I have no other go except to hold that the plaintiff has successfully proved the execution of the affidavit and GPA by the deceased K.C. Ramu @ K.C. Ramashetty in favour of the deceased plaintiff.
17. Now this takes me further to consider whether recitals in these documents gives an indication that the deceased K.C. Ramu @ K.C. Ramashetty agreed to sell the suit schedule property in favour of the deceased plaintiff or not? Ex.P.2 is the affidavit. In this document, deceased K.C. Ramu @ K.C. Ramashetty has clearly sworn to before the Notary stating that he sold the suit 15 O.S.No.1166/1999 schedule property to the plaintiff for consideration of Rs.29,000/- and also delivered the possession of the property and in order to look after any kind of acts and developments in respect of suit schedule property he has executed GPA as per Ex.P.4. Ex.P.3 clearly shows the encashment of cheque of Rs.29,000/- by the deceased K.C. Ramu @ K.C. Ramashetty on 02.01.1989 itself. Of course neither in the affidavit nor in the GPA, there is mention of payment of Rs.29,000/- through cheque. The defendant No.3's counsel has contended that the cheque might have been encashed by some other person, therefore mere endorsement given by the bank cannot be considered as passing of consideration in favour of the husband of the defendant No.1.
18. It is needless to state that certificate issued by the bank carries presumptive value in the eye of law until contrary is proved. Ex.P.3, which is certificate issued by the Syndicate Bank shows that cheque bearing No.38885 was encashed by deceased K.C. Ramu @ K.C. Ramashetty on 02.01.1989 and the said amount was debited into S.B. A/c No.67928 of Sri Julappa i.e., deceased plaintiff. If at all the said cheque was really encashed by some other person and not by deceased 16 O.S.No.1166/1999 K.C. Ramu @ K.C. Ramashetty, nothing prevented the defendants to produce any endorsement issued by the bank in this regard. Unfortunately nothing has been produced, therefore the certificate issued by the bank is enough to prove that Rs.29,000/- was paid by the deceased plaintiff.
19. Having regard to the clear cut oral evidence led by deceased plaintiff as well as the contents appearing in Ex.P.2 to Ex.P.4, I am of the confident opinion that the husband of the deceased defendant No.1 i.e., deceased K.C. Ramu @ K.C. Ramashetty had agreed to sell the suit schedule property to the deceased plaintiff for valuable consideration of Rs.29,000/- and after receipt of Rs.29,000/- through cheque on 02.01.1989, he had executed affidavit and GPA as per Ex.P.2 & 4, hence issue No.1 & 2 under discussion are answered in affirmative.
20. ISSUE No.3:- During the course of argument, learned plaintiff's counsel has contended that the husband of defendant No.1- deceased K.C. Ramu @ K.C. Ramashetty had agreed to sell the suit schedule property in favour of the deceased plaintiff for valuable consideration of Rs.29,000/- and after receipt of Rs.29,000/- through cheque on 02.01.1989, he had 17 O.S.No.1166/1999 executed the affidavit and GPA as per Ex.P.2 & 4 and the defendant No.1 being the wife of deceased K.C. Ramu @ K.C. Ramashetty had signed the GPA as consenting party.
21. Learned plaintiff's counsel further contended that during the relevant period, ban was imposed by the Government of Karnataka for registration of N.A. sites, hence deceased plaintiff not in a position to ge the sale deed registered; to over come that ban, deceased plaintiff got executed affidavit and GPA as per prevailing practice. In these documents, deceased K.C. Ramu @ K.C. Ramashetty had agreed to execute the sale deed after lift of ban for registration of N.A. sites but before lifting of ban vendor deceased K.C. Ramu @ K.C. Ramashetty died on 01.06.1991, hence immediately he approached defendant No.1 to execute the sale deed but the defendant No.1 did not execute the sale deed immediately stating that she is under the shock of death of her husband and after some time she will execute the sale deed until then in order to ratify the oral sale agreement of the husband of defendant No.1 and receipt of full consideration amount by him, she agreed to execute sale agreement (ratification deed) and accordingly she executed the sale agreement (ratification 18 O.S.No.1166/1999 deed) as per Ex.P.5 but unfortunately defendant No.1 turned dishonest and failed to execute the sale deed in time; but after some time deceased plaintiff came to know that the defendant No.3 is trying to claim his right, title and interest over the suit schedule property; hence plaintiff went on investigation and after investigation came to know that the defendant No.2 claiming to be the GPA holder of the husband of the defendant No.1 had executed a GPA in favour of one Mr.J. Rajashekhar as per Ex.D.4 without any legal right and the said J. Rajashekhar being GPA holder of defendant No.2 had executed sale deed in favour of defendant No.3 as per Ex.D.1; after knowing this fact, deceased plaintiff immediately filed this suit seeking decree for specific performance of contract against the defendant No.1 as per sale agreement executed by her as per Ex.P.5 and also for declaration that the sale deed executed by defendant No.2 through GPA holder in favour of defendant No.3 who is none other than the son of defendant No.2 is null and void. The entire efforts made by the deceased plaintiff to get the affidavit and GPA executed in his favour and payment of entire sale consideration amount to the deceased K.C. Ramu @ K.C. Ramashetty and also his 19 O.S.No.1166/1999 approach to the defendant No.1 requesting her to execute the sale deed and on her request getting the fresh sale agreement executed in his favour as per Ex.P.5 clearly shows that deceased plaintiff was ever ready and willing to perform his part of the contract.
22. Learned plaintiff's counsel further contended that the defendant No.1 claimed that her husband not executed any affidavit, GPA in favour of the plaintiff nor she was consenting party to any GPA, nor she executed sale agreement in his favour as per Ex.P.5 and the signature appearing upon the Ex.P.4, thumb impressions appearing upon Ex.P.5 are not her signature and thumb impressions. Hence, the application filed by the plaintiff for hand writing expert's opinion was allowed and specific direction was issued by the Court against defendant No.1 to appear before the Court and submit specimen hand writings and thumb impressions. Defendant No.1 challenged the said order in a writ petition before the Hon'ble High Court. However, said writ petition was dismissed. Thereafter also defendant No.1 not appeared in the Court to give specimen hand writings and thumb impressions. This act of the defendant No.1 leads to a conclusive proof that the consenting witness signature 20 O.S.No.1166/1999 appearing on Ex.P.4 and thumb impressions appearing upon Ex.P.5 are signed by her only. It is sufficient to prove that deceased plaintiff was ever ready and willing to perform his part of the contract, but it is the defendant No.1 who turned dishonest to her own promise.
23. On the other hand, contention of the learned defence counsel is that first of all plaintiff failed to prove the execution of sale agreement by the defendant No.1; mere statement of the deceased plaintiff that the defendant No.1 ratified the earlier sale agreement executed by her deceased husband is not enough; when the sale agreement alleged to have been executed by the defendant No.1 as per Ex.P.5 contains the signatures of the attesting witnesses and when plaintiff says that defendant No.1 executed the sale agreement as per Ex.P.5 in the presence of attesting witnesses plaintiff ought to have examined the attesting witnesses, but not examined; it is therefore there is no any proof that the defendant No.1 had executed sale agreement.
24. Learned defence counsel further contended that plaintiff not taken any steps to prove that the thumb impressions appearing upon the sale agreement is of the defendant No.1; defendant No.1 did not appear before 21 O.S.No.1166/1999 the Court to subscribe her specimen thumb impressions because of ill-health at particular point of time and thereafter she did not turn as plaintiff did not take up further steps to secure her presence before the Court for obtaining the specimen hand writings and thumb impressions. On this count also, it can be stated that the plaintiff failed to prove the thumb impressions appearing upon Ex.P.5 i.e., sale agreement is of defendant No.1 and therefore at no stretch of imagination, it can be stated that plaintiff has proved the execution of sale agreement by the defendant No.1.
25. I have carefully examined the entire materials on record. While dealing with issue No.1 & 2, this Court had reached to a specific conclusion that the husband of defendant No.1 had agreed to sell the suit schedule property for Rs.29,000/- and after receipt of Rs.29,000/- through cheque he had executed affidavit and GPA in favour of the deceased plaintiff on 02.01.1989. Unfortunately the husband of the defendant No.1 died on 01.06.1991, therefore it is obvious that during this period i.e., to say from 02.01.1989 till the death of husband of defendant No.1 on 01.06.1991, deceased plaintiff did not take any steps to get the sale deed executed in his 22 O.S.No.1166/1999 favour. The one and only explanation offered by the deceased plaintiff is that since there was ban for registration of NA sites, sale deed was not registered. Assuming for the sake of arguments, there was such a ban, is it not the duty of the plaintiff to prove that there exist such ban? Unfortunate thing is that nothing has been produced by the plaintiff to show that there was such ban. It is needless to state that the plaintiff is also a duty bound to show that when the ban was removed, unfortunately that has also not been done by the deceased plaintiff. The proof of duration in which ban was there is utmost necessary to prove the inability of plaintiff to get the sale deed registered during that particular period. If at all plaintiff would have produced any piece of paper to show about the time when the ban was removed, it would have assisted the Court to judge the readiness and willingness of the plaintiff to perform his part of the contract. The failure of the plaintiff to show the period during which the ban was in existence and when it was removed, it is hardily possible to hold that there was any such ban. Therefore it can be easily stated that deceased plaintiff kept silent without doing any acts to get the sale deed registered in his favour during the 23 O.S.No.1166/1999 life time of deceased husband of the defendant No.1 i.e., K.C. Ramu @ K.C. Ramashetty.
26. It is admitted by both parties that the husband of defendant No.1 died on 01.06.1991. It is the specific case of the plaintiff that the defendant No.1 was consenting party to the sale transaction between deceased plaintiff and her husband and therefore he approached the defendant No.1 to execute the sale deed but the defendant No.1 executed only the sale agreement ratifying the earlier sale agreement executed by her husband. In fact no any kind of sale agreement was executed by the deceased husband of the defendant No.1 in a particular format. Only on the basis of the affidavit and GPA given by him, court presumed that through these documents the husband of the defendant No.1 agreed to sell the suit schedule property in favour of the deceased plaintiff. Under the circumstances, heavy burden cast upon the plaintiff to prove that the defendant No.1 voluntarily executed the sale agreement/ratification deed as per Ex.P.5 knowing its contents and consequences.
27. On perusal of Ex.P.5, it is obvious that the defendant No.1 not only admitted the sale transaction 24 O.S.No.1166/1999 between the plaintiff and her deceased husband, she also undertook to execute the sale deed. Here the crucial point that is to be considered is why plaintiff was constrained to execute the sale agreement/ratification deed from the defendant No.1 without getting the sale deed registered. Looking into the sale deed registered in the name of defendant No.3 dated 16.06.1998, it can easily be stated that, the registration of sale deed in respect of suit schedule property was permissible between 1996 to 1998 and if at all he really interested in purchasing the property, plaintiff would have got executed the registered sale deed, but failed to get it. Therefore it can be said that the plaintiff was intended to hold over his rights over the suit schedule property under a formal sale agreement so as to avoid the registration of sale deed.
28. It is further material to note that though the plaintiff claims that defendant No.1 executed sale agreement as per Ex.P.5 on 12.08.1996, he never called upon the defendant No.1 in writing to execute the registered sale deed. The firm contention of the plaintiff is that when he already paid the entire sale consideration amount, nothing was left with him to do any further acts 25 O.S.No.1166/1999 to show his readiness and willingness, but in my considered opinion mere payment of entire sale consideration amount does not dispense with the plaintiff to perform his part of the contract to get the sale deed registered. Readiness and willingness means and includes all the acts to complete the sale transaction in a legal way. The sale transaction wil come to an end only after registration of the sale deed in a time. Here in this case the deceased plaintiff even after execution of payment of entire sale consideration amount, he did not show any inclination to get the sale deed registered from the defendant No.1 though she had readily executed the sale agreement. Nothing prevented the plaintiff to get the sale deed registered in place of the sale agreement. The one and only explanation offered by the plaintiff for denial of the defendant No.1 to execute the sale deed on 12.08.1996 is that the defendant No.1 was under the shock of death of the husband. Assuming for the sake of argument that the defendant No.1 was under the shock of the death of husband in between June to August 1996, the said shock automatically would have erased out by the lapse of time. The plaintiff would have insisted the defendant No.1 to execute the sale deed at least in the 26 O.S.No.1166/1999 next year i.e., 1997. But, not a single offer has been made by the deceased plaintiff to get the sale deed registered in his name, he never called upon the defendant No.1 to come and execute the sale deed. This itself shows that the deceased plaintiff was never ready and willing to perform his part of contract to get the sale deed registered.
29. So far as genuinity of the thumb impressions appearing upon the Ex.P.5 is concerned, it is matter of record that this Court has specifically ordered the defendant No.1 on 25.06.2010 to come and give the specimen signatures, hand writings and thumb impressions for the scientific examination. It is also admitted fact that this order has been challenged by the defendant No.1 in W.P.No.25459/2010 and it was dismissed at later point of time. Thereafter also this defendant No.1 did not turn up to the Court to give her specimen hand writings and thumb impressions so as to enable the Court to send them to the FSL for comparison with the disputed thumb impressions and hand writings appearing upon Ex.P.4 & 5. Due to failure of the defendant No.1 to subscribe her specimen hand writings and thumb impressions, it was not possible for the 27 O.S.No.1166/1999 plaintiff to get the hand writing expert's opinion. Under the circumstances, defendant No.1 cannot contend that the plaintiff failed to prove the signatures appearing upon Ex.P.4 and thumb impression and signaures appearing upon Ex.P.5 are not her signatures/thumb impressions.
30. Another contention of the defendant No.1 is that the plaintiff's failure to examine the attesting witnesses destroys the case of the plaintiff that the defendant No.1 has executed the sale agreement. It is true that Ex.P.5 has been attested by two witnesses. The plaintiff did not examine any of these witnesses. If at all defendant No.1 would have subscribed her hand writings and thumb impressions, definitely Court would have stated that the failure of the plaintiff to examine the attesting witnesses is fatal blow to the plaintiff. But anyhow this Court come to the conclusion that plaintiff failed to prove that readiness and willingness of the plaintiff to perform his part of the contract, therefore it is not necessary to give any finding whether non-examination of the attesting witnesses is fatal to the case of the plaintiff or not? In the back ground of these reasons, I am of the clear opinion that plaintiff failed to prove that he was ever ready and willing to perform his part of the contract right from the 28 O.S.No.1166/1999 time of agreement with the deceased husband of the defendant No.1 i.e., from 1989 till his death i.e., 1991 and even thereafter also right from 1996 till filing of the suit. It is therefore issue No.3 under discussion is answered in negative.
31. ISSUE No.5 & 6:- These issues are taken up together for discussion as they are interlinked to each other to avoid repetition.
32. During the course of the argument, learned plaintiff's counsel has contended that once deceased K.C. Ramu @ K.C. Ramashetty has executed the GPA and affidavit in favour of the deceased plaintiff on 02.01.1989 in respect of the suit schedule property, there ends the matter; later on he was prevented from executing any such document in respect of any third person much less defendant No.2 in respect of suit schedule property. This being the position of law, the defendant No.2 contends that the deceased K.C. Ramu @ K.C. Ramashetty executed affidavit and GPA in his favour as per Ex.D.2 & 3 on 25.09.1989 and agreed to sell the suit schedule property to him even though same was agreed to be sold to the deceased plaintiff. Therefore the GPA executed by 29 O.S.No.1166/1999 deceased K.C. Ramu @ K.C. Ramashetty as per Ex.D.2 in favour of defendant No.2 prima-facie illegal.
33. Learned counsel for plaintiff further contended that in the said GPA, defendant No.2 was not authorised to nominate another GPA holder; despite of it, defendant No.2 appointed one J. Rajashekar as his attorney under Ex.D.4 and this J. Rajashekar being GPA holder of defendant No.2 sold the property in favour of defendant No.3; defendant No.3 is none other than the son of defendant No.2; defendant No.1,2 & 3 and alleged GPA holder- J. Rajashekar colluding with each other created, forged and fabricated the documents so as to snatch the suit schedule property from the deceased plaintiff.
34. Learned counsel for plaintiff further contended that since the GPA marked at Ex.D.4 not coupled with interest and therefore it ceases to be in force on the date of death of executant Mr.K.C. Ramu @ K.C. Ramashetty i.e., to say on 01.06.1991. The moment after death of K.C. Ramu @ K.C. Ramashetty, Ex.D.2 looses its legal sanctity and therefore the nomination of J. Rajashekar as the GPA holder by defendant No.2 on 15.04.1991 is totally illegal and consequently sale deed executed by 30 O.S.No.1166/1999 GPA holder of defendant No.2 in favour of defendant No.3 as per Ex.D.1 dated 16.06.1998 also illegal.
35. Learned counsel for plaintiff with reference to the provisions contemplated u/s 201 & 210 of Indian Contract Act, 1871 has contended that the alleged GPA executed by defendant No.2 in favour of J. Rajashekar and sale deed executed by J. Rajashekar in favour of defendant No.3 are null and void and therefore liable to be set aside.
36. On the other hand, contention of the learned defence counsel is that the deceased plaintiff has no locus-standi to raise such contentions in respect of GPA executed by husband of defendant No.1 in favour of defendant No.2 as well as GPA executed by defendant No.2 in favour of one Mr.J.Rajashekar and sale deed executed by GPA holder in favour of defendant No.3 because he is not a member of family of defendant No.1. If at all anybody is aggrieved from the act of defendant No.2 it is only the defendant No.1 however defendant No.1 confirmed and consented the sale transaction in favour of the defendant No.2 & 3, therefore plaintiff's contention is totally not sustainable in the eye of law. 31 O.S.No.1166/1999
37. I have carefully examined the rival contentions urged by both sides as well as Section 201 & 210 of Indian Contract Act as well as oral and documentary evidence on record.
38. After careful examination of entire materials on record, I am of the confident opinion that the deceased husband of defendant No.1- Mr.K.C. Ramu @ K.C. Ramashetty, obviously cheated the plaintiff by not executing the sale deed as undertaken. He agreed to sell the suit schedule property not only to the deceased plaintiff but also to the defendant No.2 by executing affidavit and GPA in favour of the deceased plaintiff on 02.01.1989 and in favour of defendant No.2 on 25.09.1989, both plaintiff and defendant No.2 possessed the documents in their possession but did not take any action upon it to finalise the sale transaction, but unfortunately the executant Mr. K.C. Ramu @ K.C. Ramashetty died on 01.06.1991. Therefore it is obvious that the GPA executed by him in favour of the plaintiff as well as defendant No.2 looses the legal recognition because the recitals does not show that the GPAs are coupled with interest. Therefore, on this count only, plaintiff has no locus-standi to challenge the sale 32 O.S.No.1166/1999 transaction entered into between the defendant No.2 & 3 because aggrieved person defendant No.1 has consented the sale transaction.
39. It is further pertinent to note that defendant No.1 also cheated the deceased plaintiff by executing the agreement of sale. But while dealing with issue No.3, this Court has reached to an irresistible conclusion that the plaintiff failed to prove that he was ever ready and willing to perform his part of the contract. When the plaintiff failed to perform his readiness and willingness to perform his part of the contract, in my considered opinion, he does not get any locus-standi to challenge the sanctity of sale transaction entered into between the defendant No.2 & 3 more particularly when it has not been challenged by the defendant No.1. It is pertinent to note that defendant No.1 has accepted the sale of the suit schedule property by the defendant No.2 in favour of defendant No.3. In this way, she accepted the execution of GPA by her deceased husband in favour of defendant No.2.
40. Under the circumstances, the sale transaction between the defendant No.1, 2 & 3 attained the finality, in my consiered opinion if at all plaintiff is able to prove his readiness and willingness to perform his part of 33 O.S.No.1166/1999 contract throughout the agreement period during the life time of deceased husband of defendant No.1 as well as after execution of sale agreement/ratification deed by defendant No.1, definitely it would have been stated that the plaintiff has got locus-standi to challenge the sale transaction between defendant No.2 & 3 as well as act of defendant No.1 consenting sale transaction. In the light of these reasons, I have no other go except to hold that the plaintiff failed to prove that the sale deed executed by defendant No.2 in favour of defendant No.3 is null and void and not binding upon him. Hence, issue No.5 under discussion is answered in negative.
41. ISSUE No.7 & 8:- These issues are interlinked to each other, they are taken up together for discussion to avoid repetition.
42. During the course of argument, learned plaintiff's counsel has contended that the deceased K.C. Ramu @ K.C. Ramashetty after receipt of full sale consideration amount of Rs.29,000/- and execution of affidavit and GPA as per Ex.P.2 & 4 had delivered the possession of the suit schedule property to deceased plaintiff and ever since deceased plaintiff was in possession and enjoyment of the suit schedule property 34 O.S.No.1166/1999 till his death and thereafter his children are in possession and enjoyment of the suit schedule property.
43. On the contrary, contention of the defence counsel is that the defendant No.1 clearly admitted that the possession of the suit schedule property delivered to the defendant No.2 by her deceased husband after execution of the affidavit and GPA as per Ex.D.2 & 4 on 25.09.1989 and ever since defendant No.2 was in possession and enjoyment of the said property and defendant No.2 has delivered the possession of the property on 16.06.1998 by executing the sale deed in favour of defendant No.3 and it is the defendant No.3 who is in possession and enjoyment of the suit schedule property. Learned defence counsel has drawn my attention to the property records which proves that the suit schedule property is in possession of the defendant No.2/defendant No.3.
44. In the light of the submissions made by both counsels, I have carefully examined the materials on record. Except affidavit and GPA, nothing has been produced by the plaintiff to show that the possession of the suit schedule property was transferred to him by the deceased husband of the defendant No.1 on 02.01.1989. 35 O.S.No.1166/1999 Though there is recital in respect of delivery of possession in the affidavit and GPA by that itself we cannot come to conclusion that the possession of the property was actually delivered to the deceased plaintiff. The defendant No.1 being the wife of deceased K.C. Ramu @ K.C. Ramashetty has stated that suit schedule property is in possession of defendant No.2 & 3. In the affidavit as well as GPA executed by deceased K.C. Ramu @ K.C. Ramashetty in favour of the defendant No.2, there is also reference regarding the delivery of possession of the suit schedule property. Hence, both parties are placed on equal footings to prove their possession over the suit schedule property.
45.On perusal of Ex.D.10 & Ex.D.10(a), which are property extracts, it is obvious that the suit schedule property was registered in the name of defendant No.2 for the year 1991-92 and 1992-93. Ex.P.12 is tax paid receipt for the year 1993 in respect of suit schedule property. No such documents are produced by the deceased plaintiff to show that the property was registered in his name. It is pertinent to note that D.W2 i.e., defendant No.1 in her cross-examination has clearly stated that her husband has sold the suit schedule 36 O.S.No.1166/1999 property to defendant No.2 and suit schedule property was in possession of the defendant No.2 on the date of death of her husband and defendant No.3 around 10 years ago came to the spot to erect the fence. In my considered opinion when deceased plaintiff claims that he was in possession of the property and after his death, possession was taken over by his children plaintiff ought to have produced at least photograph to show their possession over the suit schedule property or would have examined the witnesses to prove the possession over the suit schedule property. In the back ground of these reasons, I have no other go except to hold that the plaintiff miserably failed to prove his possession over the suit schedule property as on the date of suit and therefore plaintiff is not entitled for perpetual injunction. Hence issue No.7 & 8 are answered in negative.
46. ISSUE No.9:- In view of negative finding on issue No.5, issue No.9 does not survive for consideration, hence it is answered accordingly.
47. ISSUE No.4:- During the course of the argument, learned plaintiff's counsel has contended that plaintiff is entitled for the relief of specific performance of contract as plaintiff was ever ready and willing to perform 37 O.S.No.1166/1999 his part of the contract. On the other hand, contention of the defence counsel is that when plaintiff failed to prove that he was ever ready and willing to perform his part of the contract, plaintiff is not entitled for the relief of specific performance of contract. Learned defence counsel further contended that even if it is presumed that the plaintiff able to prove his readiness and willingness it is not mandatory on the part of the Court to grant the decree for specific performance of contract, because grant of such decree is exclusive discretion of the Court, the suit schedule property is in possession and enjoyment of the defendant No.3 right from 10 years ago and he is absolute owner of the suit schedule property as on today and therefore plaintiff is not entitled for the relief of specific performance of contract. In support of these contentions, learned defendant No.3's counsel relied upon the judgments reported in AIR 1993 SC 1742, AIR 1996 SC 2095, AIR 1980 DELHI 188, ILR 2010 KAR.765, AIR 2000 SC 2921, AIR 2002 SC 1711 & AIR 1989 ALL.130.
48. I have gone through the contentions urged by both sides as well as principles laid down in the judgments relied upon by the defence counsel. It is 38 O.S.No.1166/1999 needless to state that proof of plaintiff's readiness and willingness to perform his part of the contract is sine-quo- non for grant of decree for specific performance of contract. While dealing with issue No.3, it has been concluded that plaintiff failed to prove his readiness and willingness to perform his part of the contract. It is therefore I am of the opinion that the plaintiff is not entitled for decree of specific performance of contract. Hence, issue No.4 under discussion is answered in negative.
49. ADDL. ISSUE:- Though much was argued by the defence counsel stating that the plaintiff has undervalued the suit and Court fee paid by him is not proper, no any kind of iota of evidence has been produced in support of said contention. However, after careful examination of the plaint averments and sale consideration amount shown in Ex.P.2, I am of the opinion that the plaintiff has valued the suit properly and court fee paid by him is just and proper. Hence, addl. Issue under discussion is answered in affirmative.
50. ISSUE No.10:- For the reasons stated above, now I proceed to pass the following:-
39 O.S.No.1166/1999
ORDER Suit of the plaintiff is dismissed. No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by him on Computer, printout taken, corrected and then pronounced in the Open Court on this the 8th day of January, 2020).
(MARUTHI S. BAGADE) X Addl. City Civil & Sessions Judge, Bangalore.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : Julappa PW.2 : Mohan Krishna, H.J.
List of documents exhibited for the plaintiff:
Ex.P1 : RTC Ex.P2 : Affidavit dated 02.01.1989 Ex.P3 : Certificate dated 25.06.1998 Ex.P4 : G.P.A.dt:2.1.1989 Ex.P5 : Registered sale agreement dt:12.08.1996 Ex.P6 : Acknowledgement Ex.P7 : Notice dt:18.3.1998 Ex.P8 : Certified copy of sale deed dt:16.6.1998 Ex.P9 : Certified copy of petition in Caveat No.8606/1998 Ex.P10: Certified copy of sale deed dt:24.4.2004 Ex.P11: Certified copy of absolute sale deed dt:01.07.2004 Ex.P12: Certified copy of sale deed dt:16.9.1991 Ex.P12(a): Typed copy of Ex.P12 Ex.P13: Certified copy of deed of absolute sale dt:5.4.2004 40 O.S.No.1166/1999 List of witnesses examined for the defendants:
D.W.1: R. Amarnath D.W.2: T.S. Prema
List of documents exhibited for the defendants: Ex.D.1 : Sale deed dt:16.6.1998 Ex.D.2,3 : G.P.A. & affidavit dt:25.9.1989 Ex.D.4,5 : G.P.A. & affidavit dt:15.4.1991 Ex.D.6,7 : Encumbrance certificates Ex.D.8 : Notice Ex.D.9 : Endorsement Ex.D.10: Uttar copy Ex.D.11,12: Tax paid receipts Ex.D.13: Notice issued by District Registrar Ex.D.14,15: Receipts X Addl. City Civil & Sessions Judge, Bangalore.Digitally signed by MARUTHI BAGADE DN: cn=MARUTHI BAGADE,ou=HIGH COURT
MARUTHI OF
KARNATAKA,o=GOVERNME
BAGADE NT OF
KARNATAKA,st=Karnataka,c
=IN
Date: 2020.02.04 16:18:37
IST