Bangalore District Court
Sri.R.Srinivas vs Smt. C.S.Hemavathi on 11 October, 2022
KABC010130082004
IN THE COURT OF THE XI ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY (CCH-8)
PRESENT
SRI SANTHOSHKUMAR SHETTY N., B.Com., LL.M.
XI Addl. City Civil & Sessions Judge,
Bengaluru City.
DATED THIS THE 11 th DAY OF OCTOBER, 2022
O.S.No.3246/2004
Plaintiffs: Sri.R.Srinivas,
S/o.late Ramaswamy,
Aged about 50 years,
Residing at No.12,
Chowdappa Road,
Akkithimmanahalli,
Shanthinagar,
Bengaluru - 27.
Since dead by his LRs:
1(a). Komala Srinivasan,
W/o.late R.Srinivas,
Aged about 57 years.
1(b). Smt.Meenakshi Kumar,
D/o.late R.Srinivas,
Aged about 35 years.
2 O.S.No.3246/2004
1(c). Bhagya Srinivas,
D/o.late R.Srinivas,
Aged about 35 years.
1(d). Sri.Rajesh Srinivasan,
S/o. late R.Srinivas,
Aged about 32 years,
All are residing at No.12,
Chowdappa Road,
Shanthinagar,
Bengaluru - 560 027.
(P1 - Dead
P1(a) to 1(d) by Adv. Sri.M.Nagesh)
Vs.
Defendants: 1. Smt. C.S.Hemavathi,
Since dead by her LR
i.e., defendant No.2.
2. Smt.Vishali Kannan,
Aged about 31 years,
D/o.late Kannan.
3. Sri.S.Natarajan,
Aged about 40 years,
S/o. late Subbarayan.
Defendants No.2 and 3 are
Residing at No.18,
Chowdappa Road, Shanthingar,
Bengaluru - 560 030.
( D1 - Dead
D2 & D3 by Adv. Sri.G.L.Vishwanath)
3 O.S.No.3246/2004
Date of institution of the suit : 05.05.2004
Nature of the suit : Specific Performance of
Contract
Date of commencement of : 30.09.2013
Recording of the evidence
Date on which the Judgment : 11.10.2022
was pronounced
Total Duration : Years Months Days
18 05 06
XI ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
JUDGMENT
This is a suit filed by the plaintiff for the relief of specific performance of contract to direct the defendants to execute the Regular Sale Deed in his favour and in default, to get the Sale Deed through the process of the court and for permanent injunction to restrain the defendants or anybody claiming through them from interfering with his possession and enjoyment over the suit schedule properties and for such other and favourable reliefs.
2. The brief facts of the case of the plaintiff is that, the deceased defendant No.1 was the owner of the suit schedule properties bearing sites No.30 and 33, both situated at Chowdappa Road, Akkithmmanahalli, Shanthinagar, Bengaluru, 4 O.S.No.3246/2004 morefully referred in the plaint schedule. Those properties were originally purchased by her husband-late Kannan. After the death of Kannan, the defendant No.1 and her children were under care and mercy of plaintiff. The defendant No.2, the daughter of defendant No.1 was studying M.B.B.S. For her education and other family commitments, the defendant No.1 took loan of Rs.10,00,000/- (Rupees Ten Lakhs only) from the plaintiff. In the mean time, defendant No.1 got the schedule properties in her name. As the defendant No.1 was not having any source to repay the loan, the defendant No.1 entered into an Agreement with the plaintiff, agreeing to sell the suit schedule properties for total consideration of Rs.18,00,000/- (Rupees Eighteen Lakhs only) and delivered the possession in his favour. After taking possession of the suit schedule properties, the plaintiff is paying tax to the concerned Authorities and erected the compound wall around the suit schedule properties and put up shed in the suit schedule properties. Though the plaintiff was ever ready and willing to perform his part of the contract and to get the Sale Deed in his name, the defendant No.1 being influenced by the third parties tried to sell the suit schedule properties in favour of some third parties. Hence, he was constrained to issue the legal notice dated 16.03.2004 to defendant No.1, calling upon her to execute the Sale Deed in his favour. The said notice was served on her on 22.03.2004. But she neither replied the notice nor complied the demand made therein. After institution of this suit, the defendant No.1 had transferred the Item No.1 of the suit schedule properties 5 O.S.No.3246/2004 by way of Gift Deed dated 28.06.2004 in favour of defendant No.2 and on the basis of said Gift Deed, she executed the Registered Sale Deed on 24.11.2004 in favour of defendant No.3. As the alleged Gift Deed and Sale Deed were executed during the subsistence of Agreement of Sale and pendency of this suit, same are not binding on the plaintiff. Hence, the plaintiff is entitled for the reliefs as prayed for.
3. In response to the suit summons, the defendant No.1 appeared through her counsel and filed the written statement and denied the averments made in para No.3 of the plaint that, she is the absolute owner of the suit schedule properties. Further contended that, originally the suit schedule properties were allotted by the BDA in favour of her husband and he paid the entire site value to the BDA during his life time. The BDA had also executed the Lease-cum-Sale Agreement in his favour and he died, leaving behind defendant No.1 and two children by name Ms.Vaishali Kannan (defendant No.2) and Mr.Vivekananda K. Since the Absolute Sale Deed came to be executed in her favour, khatha came to be changed in her name. Though the Sale Deed in her name, she is not the exclusive and independent owner of the suit schedule properties. She was a Municipal Councilor of Bangalore City Corporation for a period of about 10 years. After the demise of her husband, she is not mentally stable and physically not well. The plaintiff being the son of her husband's father's younger brother, projected himself that he would render all the assistance to defendant No.1 and her children to secure the execution and 6 O.S.No.3246/2004 registration of required documents of title from the BDA, induced and coerced her and her children. Taking undue advantage of mental imbalance and illness of defendant No.1 and tender age of her children, the plaintiff had obtained many signatures of them on several papers purporting to be the document to be submitted to the BDA. Further, he collected substantial amount from defendant No.1, but he did not help them in execution and registration of absolute Sale Deed. The defendant No.1 suspecting his honesty and bonafides got such documents executed and registered through her well wishers. The plaintiff who was propagating and projecting himself as well-wisher of defendant No.1 and her children, virtually stealthily took away the Registered Original Agreement dated 08.12.2003 executed by the BDA in favour of defendant No.1, without the knowledge and consent of the BDA. The BDA has executed the said Agreement only to confirm that the allotment of site would be transferred in favour of defendant No.1. But the said Agreement was to be followed up by execution and registration of Absolute Sale Deed. The said fact clearly made out that, the intention of the plaintiff was to defraud defendant No.1 and her children. She has denied the execution of alleged Agreement in favour of plaintiff and receipt of Rs.10,00,000/- (Rupees Ten Lakhs only). The plaintiff who has filed the above suit seeking the relief of specific performance of contract does not even mention the date of alleged Agreement. The defendant No.1 has neither executed the alleged Agreement of Sale nor received the sum of Rs.10,00,000/- (Rupees Ten Lakhs only) from the 7 O.S.No.3246/2004 plaintiff and the plaintiff has forged the signatures of defendant No.1 and her children. There was no financial commitment/ necessity for defendant No.1 to sell the suit schedule properties. At no point of time, there was any negotiation to sell the suit schedule properties in favour of the plaintiff and the defendant No.1 never agreed to sell the suit schedule properties in favour of plaintiff. The defendant No.1 had received the legal notice dated 16.03.2004 and the plaintiff himself who got issued the legal notice induced and coerced and misrepresented that, the notice was caused by mistake and there is no need for defendant No.1 to take note of the said legal notice seriously and accordingly, the defendant No.1 was prevented from contacting any Advocate.
4. In her additional written statement, the defendant No.1 has denied the delivery of possession in favour of the plaintiff. Further contended that, Site No.30 was the self acquired property of her husband and Site No.33 belongs to the grandfather of defendant No.2. Further contended that, out of love and affection, she gifted the suit schedule properties in favour of defendant No.2 and the defendant No.2 in turn sold the suit schedule properties in favour of defendant No.3.
5. During the pendency of suit, the defendants No.2 and 3 have been arrayed as additional defendants and they have filed the written statement by reiterating the defence set up by the defendant No.1. The defendant No.3 in his additional written 8 O.S.No.3246/2004 statement taken contention that, suit is barred by limitation and thereby prayed for dismissal of the suit with exemplary cost.
6. On the basis of the pleadings of the parties, the following issues and additional issues have been framed for determination:-
ISSUES
1. Whether the plaintiff proves that the first defendant had taken a loan of Rs.10-00 lakhs from him and later she entered into an Agreement to sell the suit schedule property for consideration of Rs.18-00 lakhs and acknowledged the receipt of Rs.10-00 lakhs earlier as advance and executed an Agreement of Sale dated 17.12.2003?
2. Whether the plaintiff proves that he was put in possession of the suit schedule property in part performance of the Agreement of Sale?
3. Whether the plaintiff proves that he has always been ready and willing to perform his part of contract?
4. Whether the defendants No.2 and 3 prove that the first defendant has gifted the suit schedule property in favour of the 2nd defendant and he in turn sold the same to the 3rd defendant?
5. Whether the 3rd defendant proves that he is a bonafide purchaser of the suit schedule property for valuable consideration?
6. Whether the plaintiff is entitled for the relief of specific performance of contract?
7. What decree or order?9 O.S.No.3246/2004
ADDTIONAL ISSUES
1. Whether the plaintiff prove that the Gift Deed dated 28.06.2004 executed by the 1st defendant in favour of the 2nd defendant and the Sale Deed dated 24.11.2004 executed by the 2nd defendant in favour of 3rd defendant is not binding on him?
2. Whether the suit barred by limitation?
7. To substantiate his case, original plaintiff had entered into the witness box as PW-1 and he died before conclusion of his examination-in-chief. Thereafter, his legal heir i.e., plaintiff No.1(d) has entered into the witness box as PW-2 and Ex.P.1 to Ex.P.17 were marked on behalf of plaintiff and witness by name D.R.Chandra Shekar has been examined as PW-3 and closed their side. During the pendency of suit, defendant No.1 died and her sole surviving daughter has entered into the witness box as DW-1 and defendant No.3 i.e., subsequent purchaser has been examined as DW-2 and Ex.D.1 to Ex.D.117 were marked through them and closed their side.
8. Heard the arguments of the learned counsel for plaintiff and defendants. Both of them submitted their written synopsis.
9. My findings on the above issues are as under:-
Issue No.1: In the affirmative.
Issue No.2: As per findings.
Issue No.3: In the affirmative.
Issue No.4: In the affirmative.
10 O.S.No.3246/2004
Issue No.5: In the negative.
Issue No.6: In the affirmative.
Addl. Issue No.1: In the affirmative.
Addl. Issue No.2: In the negative.
Issue No.7: As per final order
for the following:
REASONS
10. Issues No.1 to 5 & Additional Issue No.1 :- Since all these issues are interconnected, taken up together for discussion to avoid repetition. Herein, the burden lies upon the plaintiff to prove that, deceased defendant No.1 took loan of Rs.10,00,000/- (Rupees Ten Lakhs only) from the original plaintiff for the reasons assigned in the plaint and thereafter to repay the said loan, she executed a Sale Agreement in favour of plaintiff for total consideration of Rs.18,00,000/- (Rupees Eighteen Lakhs only) and possession was delivered in favour of original plaintiff on the date of Agreement. Even though, the plaintiff was every ready and willing to pay the balance sale consideration of Rs.8,00,000/- (Rupees Eight Lakhs only) and to get the Sale Deed in his favour, the defendant No.1 refused to execute the Sale Deed in favour of plaintiff with an intention to sell the suit schedule properties for more amount of sale consideration. Incidentally, the plaintiffs are required to prove that, the Gift Deeds executed by defendant No.1 in favour of defendant No.2 and the Sale Deeds executed by defendant No.2 in favour of defendant No.3 are not binding on them. On the other hand, the onus casted upon the defendants 11 O.S.No.3246/2004 No.2 and 3 that, the original plaintiff on the pretext of helping the defendant No.1, took the signatures of defendants No.1 and 2 and son of defendant No.1 and got created the suit document as contended in their written statement.
11. Placing reliance on the pleadings and evidence, the learned counsel for plaintiff has canvassed before the court that, the defendant No.1 after the death of her husband, took the sum of Rs.10,00,000/- (Rupees Ten Lakhs only) from the plaintiff as loan for her family legal necessity and for education of her children. Thereafter, on the strength of Registered Deed executed by the BDA in her favour, she executed the Sale Agreement in his favour by agreeing to sell the suit schedule properties for total consideration of Rs.18,00,000/- (Rupees Eighteen Lakh only) and in the Agreement itself she acknowledged the earlier payment of Rs.10,00,000/- (Rupees Ten Lakhs only). Further, the possession was delivered to the plaintiff on the date of Agreement. The plaintiff on the strength of Sale Agreement and delivery of possession in his favour, erected the compound wall around the suit schedule properties and also put up shed therein and also paid the tax to the concerned Authority. Later, the defendant No.1 changed her mind and alienated the suit schedule properties with an intention to defraud the plaintiff. Since the plaintiff was every ready to get the Sale Deed in his favour is entitled for the relief of specific performance of contract.
12 O.S.No.3246/200412. One of the defence set up by the defendants is that, the plaintiff on the pretext of helping defendant No.1 in getting Sale Deed in her name, took the signatures of the defendants No.1 and 2 and the son of defendant No.1 and got created the Sale Agreement. To counter the said point, the learned counsel for plaintiff has argued that, since the defendants No.1 and 2 have admitted their signatures, the burden lies upon them to prove that, taking their signatures on blank papers, the plaintiff got created the suit document. In support of said contention, the learned counsel for plaintiff has relied on the following decisions:
1. ILR 1998 KAR 1825; J.Rajanna Shetty Vs. Sri Patel Thimmegowda.
2. AIR 1993 Bombay 434; Rewachand Ladharam Ramchandani Vs. Naraindas B.Karnuga and another.
The sum and substance of those decisions is that:
"Execution of document - Voucher mentioning that amount was advanced by way of loan - Defendant admitting his signature on voucher - Burden of proving that voucher was signed in blank and/or that amount was towards profits is on defendant."
13. Though the defendant No.1 along with her children executed the Sale Agreement in favour of plaintiff, now the defendants have taken strange defence that, misusing their signatures, the plaintiff got created the suit document. Further argued that, the written statement filed by the defendants is vague 13 O.S.No.3246/2004 and there is no specific denial with regard to the averments made in the plaint. That itself shows that, the stand taken by the defendants is contrary to ground reality. In support of said contention, he relied on the following decisions:
1. AIR 2013 Delhi 199; Dr.Pankaj Kumar Vs. K.L.Katya.
2. 2007 AIR SCW 2863; M.Venkataramana Hebbar (D) by LRs. Vs. M.Rajagopal Hebbar and others.
3. AIR 2009 SC 2463; Seth Ramdayal Jat Vs. Laxmi Prasad.
4. AIR 1964 SC 538; Badat and Co. Bombay Vs. East India Trading Co.
14. The sum and substance of those decisions is as under:
"The written-statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary. But under the proviso to R.5 the Court, may, in its discretion, require any fact to admitted to be proved otherwise than by such admission."
15. The burden of proving Issue No.3 is on the plaintiff. The learned counsel for plaintiff argued that, even though the plaintiff was every ready and willing to get the Sale Deed in his favour, in view non-cooperation by defendant No.1, he was forced to issued 14 O.S.No.3246/2004 a legal notice to defendant No.1. But inspite of service of legal notice, the defendant No.1 did not take any trouble to issue reply or to execute the Sale Deed in his favour. In support of the said arguments, he placed reliance on the decision of the Apex Court reported in (2017) 4 SCC 654; A.Kanthamani Vs. Nasreen Ahmed. In the said decision, it was held as under:
"Purchaser need not prove possession of sufficient money or vouch for specific scheme for financing transaction - Payment of more than half of sale consideration made in advance to vendor defendant and loan taken from LIC for payment of balance amount by plaintiff - Held, indicative of plaintiff's readiness and willingness to perform his/her part of Agreement."
16. It is not in dispute that during the pendency of the suit, the defendant No.1 executed the registered Gift Deeds in favour of defendant No.2 and thereafter, the defendant No.2 sold both the items of the suit schedule properties in favour of defendant No.3. The learned counsel for plaintiff argued that, as the defendant No.3 is the husband of defendant No.2, he was very well knew about the suit document and institution of this suit. Inspite of that, he purchased the properties. As such, he is not a bonafide purchaser and alienation made in his favour is subject to decision of this court. In support of the said contention, the learned counsel for plaintiff relied on the decision of the Apex Court in the case of Thomson Press (India) Limited Vs. Nanak 15 O.S.No.3246/2004 Builders and Investors Private Limited and others , reported in (2013) 5 SCC 397. In the said decision, it was held as under:
"Transfer pendente lite is neither illegal nor void ab initio but remains subservient to rights eventually determined by court in pending litigation - Hence, transfer in favour of purchaser pendente lite is effective in transferring title subject to certain obligations as decision of court in a suit is binding not only on litigating parties but also on those who derive title pendente lite."
17. The other defence set up by the defendants is that, as they have denied the signatures on the Sale Agreement, it was incumbent on the part of the plaintiff to take the assistance of the Handwriting Expert. Since the said document was created, the plaintiff did not take any trouble to file an application to refer the admitted and disputed signatures to the Handwriting Expert. Denying all such contentions, the learned counsel for plaintiff argued that, the defendants themselves have admitted that the plaintiff took their signatures on certain papers. Even though, the defendant No.1 along with her children executed the Sale Agreement in favour of the plaintiff, with an ulterior motive it was contended that the plaintiff took their signatures on blank papers in the guise of helping them in getting the Sale Deed. Since the defendants themselves have admitted the signatures, no purpose would have been served in referring the suit document for the opinion of an Expert. That apart, there is sufficient evidence before the court to hold that, the defendants No.1 and 2 themselves have executed the suit document. Under such 16 O.S.No.3246/2004 circumstances, all probable circumstances are in favour of the plaintiff. In support of said contention, the learned counsel for plaintiff has relied on the decision of the Apex Court in the case of Rattan Singh and others Vs. Nirmal Gill and others, reported in 2020 SCC OnLine SC 936. In para 80 of the said decision, it was held as under:-
"It is settled that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt. In the present cases, though the discrepancies in the 1990 GPA are bound to create some doubt, however, in absence of any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. That evidence dispels the doubt if any; and tilt the balance in favour of the defendants."
18. Per contra, refuting each and every contentions taken by the plaintiff, the learned counsel for the defendants has vehemently argued that, in the plaint originally filed, there is no mention of date of alleged Sale Agreement. The averments made in para No.10 of the plaint regarding cause of action is also vague. As per Section 9 of the Specific Relief Act, the defendant is at liberty to take all defence. Since the Sale Agreement itself was denied, there is no substance in the arguments advanced on behalf of plaintiff. Further argued that, the plaintiff has fails to prove that there was consensus-ad-idem between the parties.
17 O.S.No.3246/200419. It was argued that, as the Sale Agreement was not registered as required under Section 17-1A of the Registration Act, the plaintiff cannot set up the plea of part performance of contract. Since the plaintiff was one of the signatories to Ex.P.2 and Ex.P.3, it is clear that, the plaintiff taking undue advantage of the situation got created the Sale Agreement. Further argued that, the signatures of the son of defendant No.1 i.e., Vivekananda on Ex.P.2 and Ex.P.3 are not tallied with his alleged signature on the Sale Agreement.
20. To prove Issue No.1, the plaintiff is required to prove in all five sub-issues regarding alleged loan transaction, execution of Sale Agreement, passing of partial sale consideration etc. But the plaintiff has failed to prove the burden casted upon him as required under Section 101 to 104 of the Evidence Act. As the plaintiff did not seek Expert opinion to prove the execution of the document or to discharge various discrepancies held, the plaintiff is not entitled for the relief of specific performance of contract. In support of the said contention, the learned counsel for defendant placed reliance on the decision of Hon'ble Supreme Court in the case of K.Nanjappa (Dead) by legal representatives Vs. R.A.Hameed @ Ameersab (Dead) legal representatives and another, reported in (2016) 1 SCC 762. In the said decision, it was held as under:
"A decree for specific performance can be granted on the basis of oral contract. However, in a case where the plaintiff comes forward to seek a decree for 18 O.S.No.3246/2004 specific performance of contract of sale of immovable property on the basis of an oral Agreement or a written contract, heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties for the concluded Agreement for sale of immovable property. Whether there was such a concluded contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties."
21. Regarding Issue No.2 and Additional Issue No.1 it was argued that, the burden is always upon the plaintiff to prove the due execution of Sale Agreement and passing of consideration. In support of the said contention, the learned counsel for defendants placed reliance on the decision of Hon'ble Supreme Court in the case of Ramnivas Vyas and others Vs. H.Srinivasa Bhati and others, reported in (2013) 15 SCC 198. In the said decision, it was held as under:
"Party who asserts a fact must prove that fact - Hence, plaintiff in a suit for specific performance who asserts that Agreement of Sale was executed in his favour by defendant has to prove this fact to substantiate his claim - Similarly, if plaintiff asserts that Agreement of Sale in favour of third party is ante- dated and fabricated to defeat his rights, plaintiff has to prove this fact - Plaintiff is also required to prove that above fact existed on the date of assertion made by him."19 O.S.No.3246/2004
22. It was argued that, as the consensus-ad-idem was not proved and the conduct of the plaintiff is unfair and inequitable, he is not entitled for the relief of specific performance of contract. In support of the said contention, the learned counsel for defendants relied on the decision of Hon'ble Supreme Court reported in (2008) 12 SCC 145; Bal Krishna and another Vs. Bhagwan Das (Dead) by LRs and others. In Para No.14 of the said decision, it was held as under:
"The court's discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void. No specific performance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. While exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties, and their respective interests under the contract. The court must satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract."
23. In this suit, at the first instance, the plaintiff himself has entered into the witness box as PW-1. Since the Sale Agreement relied by him was insufficiently stamped, objection was raised and the plaintiff was directed to pay duty and penalty. But before conclusion of his evidence, the plaintiff reported to be dead. Hence, the evidence of plaintiff was not concluded. As such, virtually no 20 O.S.No.3246/2004 evidence by the original plaintiff. Taking note of the same, the learned counsel for defendants has argued that, failure to examine the plaintiff may amount to non-compliance of Section 16(c) of the Specific Relief Act. In support of the said contention, he has relied on the decision of Madras High Court reported in AIR 1999 Madras 213; Rajiah Nadar Vs. Manonmani Ammal. In the said decision, it was held as under:
"The failure to examine the plaintiff may amount to non-compliance of the requirements under S.16(c) of the Act. However, it is open to the parties to adduce proper reasons for the non-examination of the plaintiff. In our Society husband and wife share a fiduciary relationship and even now all transactions on behalf of womenfolk in a family are carried on only by the menfolk."
24. It was argued that, except the self serving statement, nothing is placed before the court to show that the plaintiff proved his readiness and willingness to perform his part of obligation. Since there is lack of readiness and willingness on his part, the plaintiff is not entitled for any relief. In support of the said argument, the learned counsel for defendants placed reliance on the decision of Hon'ble Supreme Court reported in AIR 2000 SC 860; Ram Awadh (Dead) by LRs and others Vs. Achhaibar Dubey and another. In the said decision, it was held as under:
"Specific performance - May not be granted to plaintiff who fails to aver and to prove readiness and 21 O.S.No.3246/2004 willingness to perform his part of Agreement - Plea that plaintiff is not ready and willing to perform his part of contract - Is available both to vendor/defendant and subsequent purchasers and even to legal representatives of subsequent purchasers."
25. It was strenuously argued that, the subsequent Sale Deeds in favour of defendant No.3 is not ipso facto void and said transfer remains valid subject to the result of the suit. To substantiate his arguments, the learned counsel for defendants relied on the decision of Apex Court reported in AIR 2019 SC 4252; Madhukar Nivrutti Jagtap and others Vs. Smt.Pramilabail Chandulal Parandekar (Dead) through LRs and others. In Para No.14.4 of the said decision, it was held as under:
"Transfer of Property Act (4 of 1882), S.52 - Doctrine of lis pendens - Sale transaction in favour of subsequent purchaser - Sale Deed executed nearly 10 years after filing of suit - Hit by doctrine lis pendens - Transaction in favour of subsequent purchaser would have no adverse effect on the rights of plaintiffs."
26. The first and foremost defence set up by the defendants is that, the plaintiff by taking undue advantage of the weakness of defendant No.1, took the signatures of defendant No.1 and her children on the pretext that those signatures are required to get the Sale Deed in her favour. Mis-utilising those signatures, the plaintiff got created the suit document. Since the plaintiff approached this 22 O.S.No.3246/2004 court with unclean hands, equitable relief of specific performance of contract could not be granted in his favour. To substantiate his arguments, the learned counsel for defendants placed reliance on the decision of Hon'ble Supreme Court reported in AIR 1996 SC 2814; Lourdu Mari David and others Vs. Louis Chinnaya Arogiaswamy and others. In the said decision, it was held as under:
"Under Section 20(i) of the Specific Relief Act, the decree for specific performance is in the discretion of the Court but the discretion should not be refused arbitrarily. The discretion should be exercised on sound principles of law capable of correction by an appellate Court.
It is settled law that the party who seeks to avail of the equitable jurisdiction of a Court and specific performance being equitable relief, must come to the Court with clean hands; In other words the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief."
27. It was argued that, as there was no concluded contract regarding all terms, there can be no order of specific performance. In support of the said arguments, the learned counsel for defendants placed reliance on the decision reported in AIR 1993 Andhra Pradesh 95; M/s.Trimurthy Constructions Vs. Smt.Vijaya Lakshmi Gadgil. In the said decision, it was held as under:
"Agreement to Sell immovable property, subject to fulfilment of certain condition - No concluded contract between parties - Neither any 23 O.S.No.3246/2004 sale consideration was settled nor any payment was made to defendant - Failure on part of plaintiff to prove readiness and willingness to perform part of contract - Suit Agreement invalid and not binding - Plaintiff not entitled to decree fo specific performance."
28. Keeping in mind the law laid down in the aforesaid decisions, I have carefully gone through the pleadings of the parties, their evidence, both oral and documentary. In the plaint originally filed, the date of Sale Agreement was not mentioned. However, along with plaint the plaintiff has produced Sale Agreement at Annexure-I. During the pendency of the suit, the plaintiff got amended the plaint and specifically pleaded the date of Agreement. After going through the evidence of the parties it is clear that, the original plaintiff and the husband of defendant No.1 are cousins. The plaintiff was the son of Ramaswamy and the husband of defendant No.1 was the son of Iyan Perumal. Said Iyan Perumal was none other than the elder brother of Ramaswamy. The defendant No.3 is not a stranger to the family of defendant No.1. In her evidence, DW.1 has specifically admitted that defendant No.3 is the son of her father's younger sister. It was the contention of the plaintiff that, both defendants No.2 and 3 are the husband and wife. But the defendants have stoutly denied the alleged relationship. But it is not in dispute that, the defendant No.3 is the First Cousin of defendant No.2. For about 10 years, the defendant No.1 served as a Corporator, BBMP. According to defendant No.1, the husband of defendant No.1 was an Advocate and also served as Principal of a 24 O.S.No.3246/2004 College. As such, at no point of time there was no financial constraint to them. But in view of sudden death of her husband, the defendant No.1 became mentally weak and mis-utilising her condition, the plaintiff on the pretext of helping them, got created the document.
29. It is pertinent to note that, before instituting this suit, the plaintiff caused a legal notice to defendant No.1 calling upon her to execute the Sale Deed in his favour. Though the notice was duly served on her, she did not issue any reply. The explanation offered by her is that, immediately after service of notice on her, the plaintiff approached her and told that notice was wrongly sent to her and she need not bother about the legal notice. Further, he not even allowed her to approach an Advocate. But as stated earlier, the defendant No.1 had served as a Corporator for considerable length of time. That itself shows that, she is well acquainted with worldly affairs. Looking to her social status, it is highly improbable and difficult to believe her version that as per say of the plaintiff she did not take any trouble to issue reply to the legal notice.
30. It was canvassed before the court that, in view of immediate death of her husband, the defendant No.1 suffered mental agony and the said situation was mis-used by the plaintiff. But it is not in dispute that, Ex.D.79 to D.116 are of the year 2005 onwards. After institution of the suit, the defendant No.1 executed the Gift Deeds marked at Ex.D.5 & D.6 in favour of defendant No.2, who is none other than her daughter in respect of Items No.1 and 2 25 O.S.No.3246/2004 of the suit schedule properties. 5 months thereafter the defendant No.3 sold the properties in favour of defendant No.3 through Sale Deeds marked at Ex.D.16 & D.17.
31. It is relevant to mention that, the document marked at Ex.P.17 is the certified copy of the Sale Deed dated 09.09.2004 executed by one Mir Hasan Raza in favour of defendant No.2 in respect of house property bearing No.24, situated at Anepalya, now known as Gajendranagar, Bangalore. While cross-examining PW-1 in the form of suggestion, the defendants have admitted the said Sale Deed. In the said Sale Deed, she was referred as the wife of S.Natrajan. Noticing the same, it was suggested to her that, the defendant No.3 is her husband. But she stoutly denied the said suggestion. In the course of her cross-examination dated 18.09.2018, she went to the extent of denying her marital status and voluntarily deposed that, she is an unmarried woman. During her cross-examination, she has admitted that in all 8-9 sites have been allotted by the BDA in favour of her father. In her cross-examination, it was suggested to her that, she has sold 2 sites allotted in the name of her father in favour of some third party. Even though at the first instance she admitted the alienation of 2 sites by her in favour of some third party, in the same breath, she deposed that, she sold the apartment and not the sites. Then the certified copy of Sale Deed dated 25.01.2016 was tendered to the witness and she has admitted the execution of said Sale Deed and through her it was marked as Ex.P.14. However, one more Sale Deed was also confronted to her, since she denied, same was not marked through 26 O.S.No.3246/2004 her. Now it is clear that, even though the document speaks that she is the wife of S.Natrajan, she went to the extent of denying her marital status and taken contention that, she is still unmarried. That itself show that, she is deposing false before the court to circumvent the situation. Whether the defendant No.2 is the wife of defendant No.3 is not an issue before the court. But the unequivocal admission given by her in Ex.P.17, it is crystal clear that, she is the wife of one Natrajan.
32. One of the contentions urged on behalf of the defendants is that, since there is dispute about the execution of Sale Agreement and no consensus-ad-idem between the parties, it was obligatory on the part of the plaintiff to refer the disputed Sale Agreement for its comparison with the admitted signatures of defendants No.1 and 2 and deceased Vivekananda i.e., son of defendant No.1. However, as rightly contended by the learned counsel for plaintiff, the first and foremost defence set up by the defendants No.1 and 2 is that, when the defendant No.1 was not mentally stable, taking undue advantage of her weakness, the plaintiff clandestinely got the signatures of defendant No.1 and her children, on the pretext of producing them before the BDA to get the registered document in the name of defendant No.1 in respect of the suit schedule properties. But as stated earlier and the unequivocal admission given by DW-1 in the course of cross-examination, it is clear that, the defendant No.1 took medicine for her illness from the year 2005 onwards. It is also relevant to mention that, the defendant No.2 has clearly deposed before the court that, when her mother executed the 27 O.S.No.3246/2004 Registered Gift Deeds in her favour, her mother was mentally stable. This being the state of affair, no reasons to hold that, the defendant No.1 was under depression and mental instability at the time of execution of Sale Agreement.
33. It is relevant to mention that, Ex.P.1 and P.2 are the Registered Agreements executed by the BDA in favour of defendant No.1 in respect of the suit schedule properties. As those documents are in the possession of plaintiff, the defendants have taken contention that, virtually the plaintiff stealthily took away those documents from the custody of defendant No.1. But as stated earlier, the defendant No.1 is not a rustic villager and for about 10 years, she was served as Corporator. Such being the case and for the reasons stated above, the version of the defendants cannot be believed. Even if, the plaintiff forcibly taken away those documents, there was no impediment to the defendants to lodge the complaint before the jurisdictional police. That itself shows that, the defence now taken by the defendants is an after thought.
34. As stated earlier, the learned counsel for defendants much canvassed before the court that, in the plaint originally filed before the court, there was no mention of date of Sale Agreement. But the original Sale Agreement itself was produced before the court along with the suit at Annexure-I and subsequently, the plaintiff got amended the plaint and narrated about the date of execution of Sale Agreement. The settled proposition of law is that, any amendment made during the pendency of the suit, it would revert back to the 28 O.S.No.3246/2004 date of institution of the suit. Such being the case, this court did not find any force in the contention taken by the defendants.
35. It is also relevant to mention that, the defendants No.2 and 3 were subsequently arrayed as parties and both of them have filed their common written statement and taken contention that, the Sale Agreement relied by the plaintiff was created for the sake of this suit. But while considering the defence set up by the defendants, the specific defence taken by the defendant No.3 is that, he is a stranger to defendant No.2. Even if, he is a stranger, there was no occasion to him to speak anything about the Sale Agreement, which came to be executed by defendant No.1 along with her children in favour of plaintiff, much prior to the date of execution of Sale Deeds in his favour. As discussed earlier, even though the plaintiff was the distant relative of the husband of defendant No.1, the defendant No.3 is their close relative. Such being the case, there are reasons to believe that, before venturing into get the Sale Deeds in his favour, the pendency of this suit was well within the knowledge of defendant No.3. Inspite of that, knowing the consequences very well he has taken the risk in getting the Sale Deeds in his name. This being the state of affair, no reason to hold that, the Sale Agreement one in the name of plaintiff was created under a suspicious circumstances. Further, the plaintiff has proved all burden casted upon him. As such the law laid down in any of the decisions relied by the learned counsel for defendants would not come to their rescue. Since more than 50% of the sale consideration 29 O.S.No.3246/2004 amount was paid, the law laid down by the Hon'ble Supreme Court in the case of A.Kanthamani Vs. Nasreen Ahmed cited above, is squarely applicable to the case on hand.
36. The defendants have taken one more defence that, since the Sale Agreement relied by the plaintiff was not registered as required under Section 17-1A of the Registration Act, the plaintiff cannot take shelter of part performance. But this is suit filed for main relief of specific performance of contract. As such the plaintiff need not seek the relief of injunction. On the said point, I have gone through the 3 Judges Bench decision of Apex Court in the case of Ameer Minhaj Vs. Dierdre Elizabeth (Wright) Issar and others, reported in (2018) 7 SCC 639. At para No.10 of the said decision, it was held as under:
"On a plain reading of this provision, it is amply clear that the document containing contract to transfer the right, title or interest in an immovable property for consideration is required to be registered, if the party wants to rely on the same for the purposes of Section 53-A of the 1882 Act to protect its possession over the stated property. If it is not a registered document, the only consequence provided in the provision is to declare that such document shall have no effect for the purposes of the said Section 53-A of the 1882 Act."
37. In my considered view, the law laid down in the said decision is aptly applicable to the case in hand. With these 30 O.S.No.3246/2004 observations, Issues No.1, 3 & 5 and Additional Issue No.1 are answered in the affirmative and Issue No.2 as per findings.
38. Additional Issue No.2:- In his additional written statement dated 03.08.2022, the defendant No.3 has taken contention that, the suit of plaintiff is barred by limitation. But it is not in dispute that, the Sale Agreement marked at Ex.P.1 came to be executed on 17.12.2003 and this suit was instituted in the year 2004. Such being the case, looking from any angle, there is no force in the contention taken by defendant No.3 that, the suit of plaintiff is barred by limitation. Accordingly, Additional Issue No.2 is answered in the negative.
39. Issue No.6:- While answering the aforementioned issues, this court has come to the conclusion that, all probable circumstances and the preponderance of evidence are in favour of the plaintiff to hold that, the defendant No.1 along with her children on their own volition executed the Sale Agreement in favour of plaintiff for total consideration of Rs.18,00,000/- (Rupees Eighteen Lakh only). Such being the case and for the reasons stated above, this court did not find any reason to refuse the relief of specific performance of contract in favour of plaintiff. As the defendant No.2 is the sole surviving legal heirs of deceased defendant No.1, she is required to execute the Sale Deed in favour of the plaintiff. The defendant No.3 being the subsequent purchaser is duty bound to join hand with defendant No.2 in executing the Sale Deed in favour 31 O.S.No.3246/2004 of plaintiff Nos.1(a) to 1(d). With these observations, Issue No.6 is answered in the affirmative.
40. Issue No.7: In view of the above discussions, I proceed to pass the following:-
ORDER The suit of the plaintiff is decreed with cost as under:
The plaintiffs No.1(a) to 1(d) shall deposit balance sale consideration of Rs.8,00,000/- (Rupees Eight Lakhs only) within 15 days, from the date of this order.
The defendants No.2 and 3 are hereby directed to execute the Regular Sale Deed in favour of plaintiffs No.1(a) to 1(d) within 45 days from the date of deposit of balance sale consideration.
In case the defendant No.2 along with the defendant No.3 fails to execute the Sale Deed in favour of the plaintiffs No.1(a) to 1(d) within the stipulated time, the plaintiffs No.1(a) to 1(d) are at liberty to get the Sale Deed in their favour through the process of the court.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 11th day of October, 2022) (SANTHOSHKUMAR SHETTY N.) XI ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.
32 O.S.No.3246/2004ANNEXURE List of witnesses examined for plaintiffs:
PW.1 - Sri.R.Srinivas
PW.2 - Sri.Rajesh Srinivasan
PW.3 - Sri.D.R.Chandra Shekar
List of documents exhibited for plaintiffs:
Ex.P.1 : Agreement of Sale dated 17.12.2003 Ex.P.1(a) : Signature of Defendant No.1 Ex.P.1(b) : Signature of PW-2's Father Ex.P.1(c) : Signature of PW-3 Ex.P.2 & 3 : Registered Exchange Deeds dated 08.12.2003 Ex.P.4 : Copy of Notice dated 16.03.2004 Ex.P.5 : Certificate of Posting Ex.P.6 : Postal Receipt Ex.P.7 : Postal Acknowledgement Ex.P.8 : Copy of Notice dated 15.12.2009 Ex.P.9 : Reply Notice dated 17.12.2009 Ex.P.10 : Postal Acknowledgement Ex.P.11 : NCR Ex.P.12 : Endorsement issued by Police Ex.P.13 & 14: Certified copy of Sale Deed dated 25.01.2016 Ex.P.15 : Certified copy Release Deed dated 03.11.2004 Ex.P.16 : Certified copy of Sale Deed dated 10.03.2006 Ex.P.17 : Certified copy of Absolute Sale Deed dated 09.09.2004 List of witnesses examined for defendants :
DW.1 - Smt.Vaishali Kannan
DW.2 - Sri.S.Natarajan
33 O.S.No.3246/2004
List of documents exhibited for defendants :
Ex.D.1 & 2 : Certified copies of Sale Deeds
dated 09.02.2004
Ex.D.3 & 4 : Certified copies of Agreements
dated 17.01.1986
Ex.D.5 & 6 : Gift Deeds dated 28.06.2004
Ex.D.7 : Uttara Pathra
Ex.D.8 : Receipt issued by BBMP
Ex.D.9 : Uttara Pathra
Ex.D.10 : Receipt issued by BBMP
Ex.D.11 & 12: Katha Certificates
Ex.D.13 : Assessment Register Extract
Ex.D.14 : Katha Extract
Ex.D.15 : Tax Paid Receipt
Ex.D.16 & 17: Sale Deeds dated 24.11.2004
Ex.D.18 : Uttara Pathra
Ex.D.19 : Receipt issued by BBMP
Ex.D.20 : Uttara Pathra
Ex.D.21 : Receipt issued by BBMP
Ex.D.22 to 26: Katha Certificates
Ex.D.27 to 31: Katha Extracts
Ex.D.32 to 52: Tax Paid Receipts
Ex.D.53 : Approved Plan
Ex.D.54 : License
Ex.D.55 : Receipt issued by BBMP
Ex.D.56 : Approved Plan
Ex.D.57 : Receipt issued by BBMP
Ex.D.58 : FIR with Complaint
Ex.D.59 : Notice issued by Police
dated 17.12.2016
Ex.D.60 to 72: Encumbrance Certificates
Ex.D.73 : Certified copy of Order Sheet
in O.S.No.15017/2005
Ex.D.74 to 76: 3 Photographs
Ex.D.77 : CD
Ex.D.78 : Certified copy of Partition Deed
dated 29.05.1972
34 O.S.No.3246/2004
Ex.D.78(a) : Typed copy of Ex.D.78
Ex.D.79 : Patient ID Card
Ex.D.80 : Case Summary & Discharge Record
Ex.D.81 to 98: Prescriptions
Ex.D.99 to 104: Receipts
Ex.D.105 : Prescription
Ex.D.106 : Receipt
Ex.D.107 : Receipt
Ex.D.108 : Reference Letter dated 15.07.2005
Ex.D.109 to 112: Prescriptions
Ex.D.113 : Lab Report
Ex.D.114 : Investigation Request dated 25.07.2015
Ex.D.115 : Receipt
Ex.D.116 : Death Certificate of Vivekananda K.
Ex.D.117 : Medical Certificate dated 09.10.2021
XI ADDL., CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.
35 O.S.No.3246/2004