Bangalore District Court
Sri. L.Muniraju vs Sri. R. Shivaprakash on 12 January, 2022
IN THE COURT OF THE LXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU
(CCH-75)
Dated this 12th Day of January 2022
PRESENT:
Sri. MOHAMMED MUJEER ULLA C.G.B.A. LL.B.,
LXXIV Addl. City Civil and Sessions Judge, Bengaluru.
ORIGINAL SUIT NO.26659/2014
PLAINTIFF: SRI. L.Muniraju
S/o. Sri. M. Lakshmana
Aged about 40 years
R/at: No.94,
Sri. Sharada Vidya Mandira,
Varthur,
Bengaluru - 560 087.
(REP BY : Mr. Reuben Jacob, Advocate)
V/s
DEFENDANTS: 1 SRI. R. Shivaprakash
S/o Late Sri. D. Rajabather,
Aged about 60 years
R/at: No.324, III Main Road,
Domlur Layout,
Bengaluru-560 071.
2 SMT. Premavathi,
W/o Late Sri. Vinayaka Murthy,
Aged about 46 years,
3 Smt. Vidya,
D/o late Sri. Vinayaka Murthy,
W/o Sri. Purandara Das,
Aged about 28 years,
2
OS.26659/2014
4 Sri. Vijay,
S/o Late Sri. Vinayaka Murthy,
Aged about 26 years,
D2 to 4 are R/at No.177/1, I Floor,
Kalappa Lane, BDA Layout,
Murugeshpalya, Bangalore-560 017.
5 Sri. R. Naraina,
S/o Late Sri. D. Rajabather,
Aged about 56 years,
R/at No.202-A, West Colony,
Wheel & Axle Quarters,
Yelahanka,
Bangalore - 560 064.
6 Smt. Pramila,
D/o Late Sri. D. Rajabather,
Aged about 65 years,
R/at No.42, Milkman Street,
halasuru, Bangalore-560 008.
7 Smt. Bhuvaneshwari,
D/o Late Sri. D. Rajabather,
Aged about 62 years,
R/at No.6, Palani Mudaliar Street,
Halasuru, Bangalore-560 008.
8 Smt. R. Sundary,
D/o Late Sri. D.Rajabather,
Aged about 50 years,
R/at No.25, Cooks Road,
Seppings Road Cross,
Bangalore-560 051.
(D1 to 5, 7 & 8: By C. Pattabhi Raman, Advocate.
(D6: By Sri. R.S., Advocate.)
3
OS.26659/2014
Date of Institution of the suit 04.12.2014
Nature of the Suit (Suit on pro-note, suit for
SPECIFIC
declaration and possession, suit for injunction,
PERFORMANCE
etc.)
Date of the commencement of recording of the
16.04.2019
Evidence.
Date of pronouncement of Judgment 12.01.2022
Year/s Month/ Day/s
Total duration
s
07 01 08
JUDGMENT
Plaintiff has filed the instant suit for the relief of specific performance of agreement of sale dated: 16.3.2009 alternatively for the refund of advance amount of Rs. 18,65,055/- and cost. FACTS OF THE CASE:
2. The suit property belongs to late Rajabather, father of defendant No.1, 5 to 8, father-in-law of defendant No.2 and Grand-father of defendant No.3 and 4. He acquired the said property along with a site situate adjacent to it under the registered sale deed dated: 2.11.1983. After his death, his widow and children effected partition of his estate by making registered 4 OS.26659/2014 partition deed dated: 13.04.2005. In the said partition, the suit property was fallen to the share of defendants 1,5, their brother late Vinayaka Murthy and mother late R. Lakshmikantha. The site situate adjacent to the suit property was given to the share of defendants 6 to 8, the daughters of Rajabather. Some mistakes were crept in the deed of partition dated: 13.4.2005. Therefore, rectification deed dated: 30.10.2006 was made. Plaintiff contends that defendants 1 ,2, 5 and Smt. Lakshmikantha to meet their family and legal necessities, agreed to sell the suit property to him for a sum of Rs. 30,00,000/-. Accordingly, on 13.03.2009, they executed agreement of sale in his favour by receiving advance amount of Rs. 2,00,000/-. At the time of making agreement of sale, defendant No.2 was in possession of the house existing in the suit property. As per the terms of agreement of sale , the sale deed is to be made within 6 months after receipt of intimation in writing, regarding vacation of house existing in the suit property by defendant No. 2. Plaintiff contends that on 1.4.2009 Smt. R. Lakshmikantha received additional advance of Rs. 5,00,000/-, on 9.4.2009 defendants 1 and 5 received additional advance amount 5 OS.26659/2014 of Rs.50,000/- each, on 4.5.2009 and 5.7.2009 defendant No.2 received additional advance of Rs.3,00,00/- each, on 30.06.2009 5th defendant received additional advance of Rs.1,50,000/- and on 25.10.2009 1st defendant received additional advance of Rs.2,50,000/- from him by executing receipts. Plaintiff contends that to meet the medical expenses of R. Lakshmikantha with the consent of defendants, he paid a sum of Rs. 46,000/- to Manipal Hospital. Plaintiff contends that in total he paid Rs.18,46,000/-
to defendants as part of sale consideration. He contends that some days after execution of agreement of sale dated: 16.03.2009 8th defendant filed O.S.No. 816/2010 against her mother Smt. Lakshmikantha and defendants 1 to 7 claiming partition in the estate of her father Rajabather and obtained injunction order restraining the defendants and Smt. Lakshmikantha from alienating the suit property. In view of pendency of the suit, sale deed could not have been made. Plaintiff contends that after waiting for considerable time, he issued legal notice dated:
9.3.2012 to Smt. Lakshmikantha and defendants 1,2 and 5 calling upon them to execute the sale of suit property by receiving 6 OS.26659/2014 balance sale consideration. After receipt of notice, they gave reply dated: 17.03.2012 stating that in view of suit for partition in O.S.No. 816/2010 is pending, they are unable to execute the sale deed of suit property. Plaintiff contends that in view of share was given to defendant No.8 in the property left behind by her father Rajabather in the deed of partition dated: 13.4.2005 absolutely there is no cause of action for her to file the suit for partition in O.S.No. 816/2010. Nevertheless to create hurdle in execution of sale deed of suit property, defendant No.8 has filed the said suit. Plaintiff contends that after he came to know about the said suit, he filed application to implead him as party. The said application was dismissed. He contends that during the pendency of O.S.No. 816/2010 Smt. R. Lakshmikantha died on 16.4.2012. In view of Lakshmikantha and her sons viz., defendants 1 and 5 and daughter-in-law defendant No.2 executed agreement of sale in his favour, after the death of Lakshmikantha, her daughters being her legal heirs are liable to execute the sale deed of the suit property to him by receiving balance sale consideration. Therefore, on 4.8.2014, he issued notice to 7 OS.26659/2014 defendants calling upon to execute sale deed of suit property by receiving balance sale consideration. The said notice was duly served to defendants 1,5,6 and 7. The notice sent to defendants 2 and 8 were returned. After receipt of notice defendants neither gave reply nor come forward to execute the sale deed of suit property. Plaintiff contends that he is ever ready and willing to perform his part of contract. Defendants are not ready and willing to perform their part of the contract. To avoid execution of sale deed, they colluding with each other filed O.S.No. 816/2010.
Therefore, left with no alternative, he filed the instant suit. On these and other grounds stated in the plaint, plaintiff prays to decree the suit and to grant the relief of Specific Performance as prayed for.
3. On 10.06.2015 defendant No.1 has filed written statement and the same was adopted by defendants 2 to 5 and 7. Defendants 1 to 5 and 7 admitted that the suit property belonged to Rajabather, the father of defendant No.1, 5 to 8, father in law of defendant No.2 and grand father of defendants 3 and 4; after his death, his widow and children effected partition of the properties 8 OS.26659/2014 left behind by him under the registered deed of partition dated:
13.4.2005; in the said partition, the suit property fallen to the share of Smt. Lakshmikantha and her sons viz., defendants 1,5 and late Vinayaka Murthy, the husband of 2 nd defendant and father of defendants 3 and 4; vacant site situate adjacent to the suit property was fallen to the share of defendants 6 to 8.
Defendants 1 to 5 and 7 have also admitted that defendant No.8 has filed O.S.No. 816/2010 claiming partition in the suit property and another property left behind by late Rajabather. They denied that they voluntarily executed agreement of sale dated: 16.3.2009 agreeing to sell the suit property to the plaintiff for a sum of Rs.30,000/-. They contend that at the time of death of Rajabather, all his children were married and living separately. Smt. Lakshmikantha, the widow of Rajabather was adamant and she refused to reside with any of her children. She was stating till her death she will reside in the suit property in which house her husband breath last. On 16.3.2009, all the children of Lakshmikantha had a meeting to decide regarding giving responsibility to any of her children to take care of her by residing 9 OS.26659/2014 in the suit property. Defendant No.6 and her son-in-law viz., plaintiff were also participated in the said meeting. They came forward to take care of Smt. Lakshmikantha by residing in the suit property. Plaintiff is working in the Manipal hospital. Therefore, all the family members agreed to give responsibility of taking care of Smt. Lakshmikantha to 6th defendant, the mother- in-law of plaintiff. In the said meeting, the family members discussed regarding contribution to be made by them to bear the medical and other expenses of Smt. Lakshmikantha. At that time, plaintiff with a cunning intention to grab the suit property, made an offer to purchase the suit property for a sum of Rs. 30,00,000/-.In the year 2009, the market value of the suit property was more than Rs.75,00,000/-. In view of plaintiff and his mother-in-law agreed to take care of Smt. Lakshmikantha, they(defendants1 to 5 &7) accepted the said offer. They contend that plaintiff who had pre-planned to take their signatures on stamp paper to create agreement of sale took the signatures of defendants 1,2& 5 on blank stamp paper and paid advance amount of Rs.2,00,000/-. On 16.09.2009, 2nd defendant was 10 OS.26659/2014 in possession of house existing in the suit property. She promised to vacate the house within 3 months. Defendants 1 to 5 and 7 contend that plaintiff by misusing the signed stamp paper created agreement of sale and took the possession of a portion of house in which portion Smt. Lakshmikantha was residing. They contend that despite 2nd defendant agreed to vacate the remaining portion of house within 3 months, plaintiff illegally dispossessed her and took the possession of a portion of house in occupation of 2nd defendant. Defendants 2 to 5 and 7 admitted that on 16.3.2009 defendants 1 and 5 received additional advance of Rs. 50,000/- each , on 4.5.2009 and 5.7.2009 2 nd defendant received additional advance of Rs. 3,00,000/- each, on 30.06.2009 5 th defendant has received additional advance of Rs.1,00,000/- and on 25.10.2009, 1st defendant received additional advance of Rs.2,50,000/- from the plaintiff. Defendants 1 to 5 and 7 denied that on 1.4.2009 plaintiff paid additional advance of Rs.5,00,000/- to Smt. Lakshmikantha. Plaintiff colluding with his mother-in-law, the 6 th defendant created receipt to show that on 1.4.2009 Rs.5,00,000/- was paid to Smt. Lakshmikantha. They contend that plaintiff who took the 11 OS.26659/2014 possession of the suit property along with her mother-in-law , the 6th defendant by giving assurance of taking care of Smt. Lakshmikantha, did not take care of her properly. Therefore, they informed the plaintiff that they are not ready and willing to sell the suit property to him and offered to repay the advance amount received from him by deducting Rs.1,50,000/- which the 2 nd defendant already repaid to plaintiff. They contend that they voluntarily notexecuted agreement of sale dated: 16.03.2009 agreeing to sell the suit property to plaintiff. The said agreement was created and concocted by plaintiff by misusing their signatures on blank stamp paper. Therefore, they are not liable to execute the sale deed of suit property to plaintiff. Defendants 1to 5 and 7 contend that in the year 2009, the market value of the suit property was more than Rs.75,00,000/-. Plaintiff to knock off the suit property created agreement of sale for a paltry sum of Rs.30,00,000/-. Therefore, if the decree of specific performance is granted, they will be put to irreparable loss and injury. Defendants 1 to 5 and 7 contend that in the agreement of sale produced by the plaintiff, it is stated that sale deed is to be made 12 OS.26659/2014 within 6 months. Plaintiff did not take steps to get the sale deed of the suit property within 6 months. They contend that having regard to the recitals of agreement of sale, time is essence of the contract. Therefore, the instant suit filed by the plaintiff in the year 2014 ie., 5 years after making the alleged agreement of sale is hopelessly barred by limitation. On these and other grounds stated in the written statement defendants 1 to 5 and 7 pray to dismiss the suit.
4. 6th defendant, the mother-in-law of plaintiff filed written statement admitting the plaint averments and prays to decree the suit.
5. Defendant No.8 though appeared through counsel not contested the suit by filing the written statement.
6. On the basis of afore said pleadings, the following issues were formulated.
ISSUES
1. Whether the plaintiff proves that on 16.03.2009 Smt. R. Lakshmikantha wife of Late D.Rajabather and defendants 1 to 5 executed agreement to sell, agreeing to sell the suit property to him for a sum of Rs.30 lakhs and by receiving advance amount of Rs.2 lakhs?
13
OS.26659/2014
2. Whether the plaintiff proves that on 01.04.2009 he paid Rs.5 lakhs to Smt. R.Lakshmikantha and defendants 1 to 5 as further advance amount?
3. Whether the plaintiff proves that on 05.07.2009 he paid further advance amount of Rs.3 lakhs to 2nd defendant?
4. Whether the plaintiff proves that on the request of Smt. R.Lakshmikantha and defendants herein he (plaintiff) deposited a sum of Rs.46,000/- in the Manipal hospital to bear medical expenses of Smt.R.Lakshmikantha?
5. Whether the 1st defendant proves that plaintiff has created and concocted the suit agreement to sell by playing fraud on defendants and Smt. R.Lakshmikantha as contended in Para No.34(i) of written statement?
6. Whether the plaintiff proves that he is always ready and willing to perform his part of the contract to get the sale deed of suit property?
7. Whether the 1st defendant proves that the suit is barred by Law of limitation?
8. Whether the plaintiff is entitled for the relief of specific performance?
9. What order or decree?
7. Plaintiff examined as PW1 and produced documents marked at Ex.P.1 to Ex.P.22. 5 th defendant examined as DW.1, 14 OS.26659/2014 defendants 3 and 6 were examined as DWs 2 and 3. DW.2 has produced bank statement and it is marked at Ex.D. 1.
8. Heard the arguments on both side and perused record.
9. My findings on the above issues are as under:
ISSUE NO.1: In Affirmative.
ISSUE NO.2: Partly in Affirmative.
ISSUE NO.3: In Affirmative
ISSUE NO.4 In Negative
ISSUE NO.5 In Negative
ISSUE NO.6 In Affirmative
ISSUE NO.7 In Negative
ISSUE NO.8 In Affirmative
ISSUE NO.9 As per the final order
for the following:
REASONS
10. ISSUE NO.1 to 5: These 5 issues are in respect of
agreement of sale dated: 16.09.2009 and payments made in
respect of said agreement. Therefore, to avoid repetition of facts and evidence and also for convenience, they are taken together for consideration.15
OS.26659/2014
11. In the instant case, there is no dispute that the suit property belonged to late Rajabather, he purchased the said property under Ex.P. 3 registered sale deed dated: 28.11.1983, after his death, his widow and children effected partition of the properties left behind him by making Ex.P. 4 registered deed of partition dated: 13.04.2005, noticing some defects in the said deed of partition, Ex.P. 5 deed of rectification dated: 30.10.2006 was made under Ex.P. 4 partition deed the suit property fallen to the share of widow and sons of Rajabather and the vacant site situate adjacent to the suit property fallen to the share of defendants 6 to 8 the daughters of Rajabather.
12. Plaintiff contends that defendants 1 to 5 and 7 and late Smt. Lakshmikantha to meet their legal necessity agreed to sell the suit property to him for a sum of Rs. 30,00,000/-. In this regard, Ex.P. 9 agreement of sale dated: 16.3.2009 was made.
Defendants 1,2 and 5 and late Lakshmikantha by receiving advance amount of Rs. 2,00,000/- executed Ex.P. 9 agreement of sale in his favour. Defendants 1 to 5 and 7 denied the execution of agreement of sale in favour of plaintiff. They contend that 16 OS.26659/2014 plaintiff and his mother-in-law, the 6th defendant by giving assurance to them that they will take care of Smt. Lakshmikantha with cunning intention to knock off the suit property took the signatures of defendants 1,2 and 5 on the blank stamp paper and created Ex.P. 9 agreement of sale .
13. Plaintiff to prove his case, that defendants 1,2,5 and late Lakshmikantha voluntarily executed agreement of sale agreeing to sell the suit property is placing reliance on his testimony. In the examination-in-chief he reiterated and reaffirmed the plaint averments. He produced Ex.P. 9 original agreement of sale dated: 16.03.2009. Defendants 1,2 and 5 in the written statement have admitted their signatures on Ex.P. 9 agreement of sale . Admitting their signatures they contend that plaintiff took their signatures s on blank stamp paper and created agreement of sale to knock off the suit property. In the cross- examination of PW.1,nothing has been elicited to substantiate their contention that plaintiff took the signatures of defendants 1,2 and 5 on the blank stamp paper.
17
OS.26659/2014
14. Defendants 1 to 5 and 7 in their written statement in para No.11,14 to 18, admitted receipt of advance amount of Rs.2,00,000/- on 16.3.2009, Rs. 1,00,000/- on 9.4.2009( defendants 1 and 5 received Rs.50,000/- each), Rs. 3,00,000/- each by defendant No.2 on 4.5.2009 and 5.7.2009, Rs. 1,50,000/- by 5th defendant on 30.06.2009 and on 2.5.2009 1st defendant received Rs. 2,50,000/- from plaintiff as further/additional advance. As contended by defendants 1 to 5 and 7 if they not executed Ex.P. 9 agreement of sale in favour of plaintiff, they would not have received advance amount from plaintiff. The fact that defendants 1,2 and 5 received advance amount and additional advance amount from plaintiff on different dates by executing Ex.P. 10( 1 to 4 and 6) receipts would support the case of the plaintiff that defendants 1,2,5 and late Lakshmikantha voluntarily executed Ex.P. 9 agreement of sale in his favour.
15. Admittedly, after making of Ex.P. 9 agreement of sale, 8th defendant filed O.S.No. 816.2010 claiming partition in the suit property and another property left behind by her father 18 OS.26659/2014 Rajabather. Plaintiff has produced Ex.P. 14 certified copy of plaint, written statement and interim application filed in the said case. In the said case, defendants 1,2 and 5 of the instant suit filed written statement along with Smt. Lakshmikantha, who is defendant No.1 in the said case. In page No.6 and 7 of the written statement, they admitted the execution of Ex.P. 9 agreement of sale in favour of plaintiff and also receipt of advance amount of Rs. 14,00,000/-. Admittedly, during the pendency of the said suit, plaintiff has issued Ex.P. 12 notice dated: 9.3.2012 to defendants 1,2, 5 and Smt. Lakshmikantha. After receipt of the said notice, defendants 1,2,5 and late Lakshmikantha issued Ex.P. 13 reply dated: 17.3.2012. In the said reply, they admitted the execution of Ex.P. 9 agreement of sale and receipt of advance amount of Rs. 14,00,000/- from plaintiff. Thus, from unequivocal admissions made by defendants 1,2,5 and late Lakshmikantha in Ex.P. 13 reply and in written statement filed by them in O.S.No. 816/2010, it is clear that defendants 1,2,5 and late Lakshmikantha voluntarily executed Ex.P. 9 agreement of sale dated: 16.3.2009 19 OS.26659/2014 agreeing to sell the suit property to the plaintiff for consideration of Rs.30,00,000/- and received advance amount of Rs. 2,00,000/-.
16. Plaintiff contends that on 1.4.2009 he paid additional advance of Rs. 5,00,000/- to Smt. Lakshmikantha. To prove the said payment plaintiff is placing reliance on Ex.P. 10(5) receipt. Defendants 1 to 5 and 7 stoutly denied payment of Rs.5,00,000/- to Smt. Lakshmikantha. DW.3 Smt. K. Prameela who is none other than mother-in-law of plaintiff in the cross-examination has admitted the signature of her mother Smt. Lakshmikantha in Ex.P. 10(5) receipt. The said signature is marked at Ex.P. 10(5a). DW.3 in the cross-examination made by defendants 1 to 5 and 8 has stated that she do not know how much of money plaintiff has paid to her mother and defendants 1,2 and 5 in respect of Ex.P. 9 agreement of sale . Therefore, though DW.3 the mother-in-law of plaintiff admitted the signature of her mother Smt. Lakshmikantha in Ex.P. 10(5) receipt, her statement in the cross- examination made by the Counsel for defendants 1 to 5 and 7 would not help the plaintiff to prove that he paid Rs.5,00,000/- to Smt. Lakshmikantha on 1.4.2009.
20
OS.26659/2014
17. PW.1 in the cross-examination at page No.20 has stated that since March-2009 till her death, Smt. Lakshmikantha was with him. He stated that at the time of making Ex.P. 10(1 to 6) receipts Smt. Lakshmikantha was not in a position to demand, collect or count the money. Plaintiff except stating that on 1.4.2009 he paid Rs. 5,00,000/- to Smt. Lakshmikantha has not stated who were present at the time of making payment. The say of PW.1 that though Lakshmikantha was not in a position to demand, collect or count the money, she received Rs.5,00,000/- from him as additional advance cannot be believed. In view of the above, I hold that plaintiff failed to prove that on 1.4.2009 he paid Rs. 5,00,000/- to Smt. Lakshmikantha.
18. As I have already stated above, in Ex.P. 13 reply, defendants 1,2,5 and Late Lakshmikantha admitted that in respect of Ex.P. 9 agreement of sale , they received a sum of Rs. 14,00,000/- from the plaintiff. In the said reply notice, they have not stated in the said Rs.14,00,000/-, who received how much of money from the plaintiff. But, in Ex.P. 14, the written statement filed in O.S.No. 816/2010 at page No.7 they split up the said 21 OS.26659/2014 Rs.14,00,000/- and stated that in the said Rs.14,00,000/- Smt. R. Lakshmikantha received Rs.3,00,000/- from the plaintiff. Therefore, from the admissions made by defendants 1,2,5 and late Lakshmikantha in Ex.P. 13 reply and in the written statement filed in O.S.No. 816/2010 marked at Ex.P. 14, it is evident that in respect of Ex.P. 9 agreement of sale, plaintiff paid Rs.3,00,000/- to late Smt. Lakshmikantha.
19. Plaintiff has stated that as per the request of defendants, he deposited Rs.46,000/- in Manipal Hospital to provide treatment to Smt.Lakshmikantha. Defendants 1 to 5 and 7 denied the said contention of plaintiff. To prove the payment of Rs. 46,000/- to Manipal Hospital for providing treatment to Smt. Lakshmikantha, plaintiff has produced Ex.P. 11 inpatient bill issued by Manipal Hospital In Ex.P. 11,bill the name of the person who paid money to the hospital is not mentioned . Therefore, Ex.P. 11, of no assistance to plaintiff to prove that to provide treatment to Lakshmikantha in Manipal Hospital, he deposited Rs.46,000/- in the hospital. In the cross-examination of DWs1 to 3, nothing has been elicited to prove that by obtaining the 22 OS.26659/2014 consent of defendants, plaintiff deposited Rs. 46,000/- in the Manipal Hospital to provide treatment to Smt. Lakshmikantha and defendants agreed to adjust the said amount towards part of the sale consideration.
20. Defendants 1 to 5 and 7 by admitting that in respect of Ex.P. 9 agreement of sale plaintiff paid Rs. 6 lakh to 2 nd defendant contend that she returned Rs. 1,50,000/- to plaintiff on 20.08.2009. To prove the same, defendant No.3 who was examined as DW.2 produced Ex.D. 1 bank statement. A perusal of Ex.D. 1 would show that on 20.08.2009 2 nd defendant transferred Rs. 1,50,000/- to the bank account of plaintiff. In the cross- examination of DW.2, the plaintiff has made a suggestion that Rs. 1,50,000/- transferred by 2nd defendant to his account on 20.08.2009 is relating to some other transaction and it is noway connected to the additional advance of Rs. 6,00,000/- received by her from plaintiff. DW.2 denied the said suggestion. In the cross-examination of PW.1, the Ld. Counsel for defendants 1 to 5 and 7 made a suggestion that after defendants 3 and 4 came to know about Ex.P. 9 agreement of sale the 2 nd defendant returned 23 OS.26659/2014 Rs. 1,50,000/- to him and requested to cancel the agreement of sale . PW.1 has denied the said suggestion. DW.2 is a B.Com Graduate, she is working in a private company. Therefore, she is having business knowledge. As stated by DW.2 in the evidence and suggestion made to PW.1 that after defendants 3 and 4 came to know about Ex.P. 9 agreement of sale, 2nd defendant informed the plaintiff to cancel the said agreement of sale , they could have issued notice to plaintiff to cancel the said agreement. DW.2 has not stated reason for non-issuance of notice to plaintiff for cancellation of Ex.P. 9 agreement of sale . Admittedly, 2 nd defendant received Rs. 6,00,000/- from plaintiff in respect of Ex.P. 9 agreement of sale . Therefore, if defendants 2 to 4 decided to cancel Ex.P. 9 agreement of sale , they have to return the said amount to plaintiff. DW.2 has not stated why her mother not returned Rs.6,00,000/- to plaintiff. Therefore, there is no cogent and convincing evidence to prove that Rs. 1,50,000/- transferred by defendant No.2 to the plaintiff on 20.08.2009 is a partial return of advance amount received by her from plaintiff. 24
OS.26659/2014
21. In view of the above, I hold that from the facts stated by PW.1 in his evidence and the admissions made by defendants 1 to 5 and 7 in para No.14 to 18 of the written statement, admissions made in Ex.P. 13 reply and Ex.P. 14 written statement filed in O.S.No. 816/2010 and from Ex.P. 10( 1 to 4 & 6) receipts, it is evident that in respect of Ex.P. 9 agreement of sale plaintiff paid in total Rs.14,00,000/- to defendants 1,2,5 and late Lakshmikantha. In the said Rs.14,00,000/- he paid Rs. 3,00,000/- to Smt. Lakshmikantha, Rs. 3,00,000/- to 1st defendant R. Shivaprakash, Rs.6,00,000/- to 2 nd defendant Smt. Pramavathi and Rs. 2,00,000/- to 5th defendant R. Naiana. In view of my aforesaid findings, I answer Issue No.1 and 3 in the Affirmative, Issue No.2 partly in the Affirmative, Issue No.4 and 5 in the Negative.
22. ISSUE NO.6 AND 7:- To avoid repetition of facts and evidence and also for convenience, these 2 issues are taken together for consideration.
23. The Ld. Counsel for the defendants 1 to 5 and 7 has strenuously contended that in Ex.P. 9 agreement of sale , it is 25 OS.26659/2014 specifically stated that the sale transaction is to be completed within 6 months after 2nd defendant vacate the house existing in the suit property. DW.2 in her evidence has stated that in the month of September-2009 2nd defendant vacated the house existing in the suit property. PW.1 in the cross-examination has admitted that in the month of October-2009, he occupied the house existing in the suit property. Admittedly, within 6 months, after the plaintiff took the possession of the suit property, he did not come forward to get the sale deed of suit property by making payment of entire sale consideration and he also not issued notice to defendants 1,2,5 and late Lakshmikantha to execute sale deed of suit property in his name. He submits that from Ex.P. 22 bank statement of plaintiff would show that in the year 2009 and 2010 he was not having sufficient funds to pay balance sale consideration to get the sale deed of suit property. Thus, from the material on record would show that plaintiff is not ready and willing to perform his part of the contract. The Ld. Counsel for the defendants 1to 5 and 7 has strenuously contended that from the recitals of Ex.P. 9 agreement of sale, it is clear that time is 26 OS.26659/2014 essence of contract. Plaintiff has not taking steps to get the sale deed of suit property within 6 months from the date of he took the possession of the suit property. He filed the instant suit 5 years after making of Ex.P. 9 agreement of sale . Therefore, the instant suit is barred by limitation. In support of his arguments, he placed reliance on the following Judgments:
1. Civil Appeal No.7306/2013(I.S. Sikandar(D) By LRs Vs K. Subramani & Ors)
2. Civil Appeal No.3912/2015 (Fatehji & Company & Anr Vs L.M.Nagpal & Ors)
3. Civil Appeal No.10191/2018(Vijay Kumar & Om Prakash)
4. Civil Appeal No.8199/2009(Mehboob-Ur-
Rehman(Dead) through LRs Vs Ahsanul Ghani)
24. The Ld. Counsel for the plaintiff has strenuously contended that from the evidence on record would show that after making Ex.P. 1 agreement of sale , plaintiff has made payment of additional advance amount to defendants 1,2,5 and late Lakshmikantha as and when they demanded. As per the terms of Ex.P. 9 agreement of sale , after 2nd defendant vacated the 27 OS.26659/2014 house existing in the suit property, intimation is to be given to the plaintiff in writing. Admittedly, defendants have not given intimation to plaintiff in writing informing him regarding vacation of house existing in the suit property by 2nd defendant . He submits that within 1 year from the date of making Ex.P. 9 agreement of sale , 8th defendant filed O.S.No. 816./2010 and obtained injunction restraining the defendants from alienating the suit property. Plaintiff immediately, after came to know about the filing of the said suit, on 19.4.2011 filed application under Order 1 Rule 10 of CPC to implead him as party to the said suit and issued Ex.P. 12 notice dated: 9.3.2012 calling upon the defendants 1,2,5 and late Lakshmikantha to execute the sale deed of the suit property by receiving balance sale consideration. After receipt of Ex.P.12, notice, defendants 1,2,5 and late Lakshmikantha issued Ex.P. 13 reply. In Ex.P. 13 reply they stated that in view of the court has granted ad-interim temporary injunction restraining them from alienating the suit property, they kept Ex.P. 9 agreement of sale in abeyance till the disposal of the said suit. He submits that as per Article 54 of Limitation Act, the 28 OS.26659/2014 suit for specific performance is to be filed within 3 years from the date fixed for performance of agreement. As per the terms of the agreement of sale , the sale deed is to be made within 6 months after the plaintiff received written intimation from the defendants regarding vacation of house by 2nd defendant. Admittedly, defendants not intimated the plaintiff in writing regarding vacation of house by 2nd defendant. In view of defendants not complied the terms of Ex.P. 9 agreement of sale, they cannot put the blame on the plaintiff that he did not come forward to get the sale deed within 6 months after the 2 nd defendant vacated the house existing in the suit property. Further he submits that before expiry of 3 years from the date of 2 nd defendant vacated the house existing in the suit property, in view of 8 th defendant filed O.S.No. 816./2010 and obtained order of injunction, defendants 1,2,5 and late Lakshmikantha by issuing Ex.P. 13 reply have stated that they kept Ex.P. 9 agreement of sale in abeyance till the disposal of O.S.No. 816/2010. In view of they kept Ex.P. 9 in abeyance,time mentioned in Ex.P. 9 agreement of sale for performance of contract become redundant/ineffective. He submits 29 OS.26659/2014 that admittedly, defendants neither informed the plaintiff about disposal of O.S.No. 816/2010 nor withdrawal of their decision to keep Ex.P. 9 agreement of sale in abeyance. Therefore, having regard to the facts of the case, limitation to file the suit would start from the date of refusal by defendants to execute the sale deed. He submits that the plaintiff after waiting for a considerable period of time, issued Ex.P. 15 notice dated: 4.8.2014 calling upon the defendants to execute sale deed of suit property by receiving balance sale consideration. After receipt of notice, defendants neither gave reply nor come forward to execute the sale deed of suit property. Therefore, plaintiff has filed the instant suit on 4.12.2014 ie., within 4 months after service of Ex.P. 15 notice to defendants. Therefore, the instant suit is in time. He submits that the fact that after making Ex.P. 9 agreement of sale plaintiff has paid substantial amount to defendants 1,2,5 and late Lakshmikantha as additional advance whenever they demanded, filed application to implead him as party to O.S.No. 816/2010, issued Ex.P. 12 notice dated: 9.3.2012 and Ex.P. 15 notice dated:4.08.2014 would show that he is always ready and willing 30 OS.26659/2014 to perform his part of contract. In support of his arguments, he placed reliance on the following judgments:
1. (2005) 12 SCC 764(S.Brahmanand Vs K.R.Muthugopal)
2. (2006) 5 SCC 340(Panchanan Dhara Vs Mommatha Nath Maity)
25. Plaintiff who was examined as PW.1 has stated that after making Ex.P. 9 agreement of sale , he is always ready and willing to perform his part of contract to get the sale deed of suit property. From the evidence of PW.1 and the admissions made by Smt. Lakshmikantha and defendants 1,2 and 5 in Ex.P. 13 reply and Ex.P. 14 written statement in O.S.No. 816/2010 and the admissions made by defendants 1 to 5 and 7 in the written statement it is evident that within a month after making Ex.P. 9 agreement of sale plaintiff paid Rs. 1,00,000/- to defendants 1 and 5 on 9.4.2009, in the next month ie., on 4.5.2009 he paid Rs.3,00,000/- to 2nd defendant, in the month of June ie., 30.06.2009 he paid Rs. 1,50,000/- to 5th defendant , in the month of July ie., 5.7.2009, he paid Rs. 3,00,000/- to 2 nd defendant and 31 OS.26659/2014 in the month of October ie., on 25.10.2009 he paid Rs. 2,50,000/-
to 1st defendant. Thus, after making of Ex.P. 9 agreement of sale , every month as demanded by defendants 1,2 and 5 plaintiff made payments of additional advance amount to them and late Lakshmikantha .
26. As per the terms of Ex.P. 9 agreement of sale , 6 months time to complete the sale deed would commence from the date of plaintiff received written intimation from defendants regarding vacation of house existing in the suit property by 2 nd defendant. Admittedly, such written intimation was not given to plaintiff. Therefore, there is considerable force in the submission of the Ld. Counsel for plaintiff that in view of defendants not given written intimation to plaintiff regarding vacation of house by 2 nd defendant,they cannot put a blame on plaintiff that he did not come forward to get the sale deed within 6 months.
27. From the material on record would show that in the month of September or October-2009 2 nd defendant vacated the house existing in the suit property and in the month of October- 2009 plaintiff took the possession of the said house. Therefore, as 32 OS.26659/2014 per the terms of Ex.P. 9 agreement of sale 6 months time would commence from the month of October-2009. 6 months time would expire in the month of April-2010. A perusal of Ex.P. 14 would show that on 5.2.2010 8th defendant filed O.S.No. 816/2010 and obtained an order of injunction restraining the defendants from alienating the suit property. In view of injunction order the sale deed of the suit property cannot be made. Therefore, by issuing Ex.P. 13 reply dated 17.3.2012 defendants 1,2 and 5 have stated in view of injunction order granted in O.S.No. 816/2010 they kept Ex.P.9 agreement of sale in abeyance. Therefore, from the contents of Ex.P. 13 reply notice, it is clear that defendants have not cancelled Ex.P. 9 agreement of sale in view of sale transaction was not completed within 6 months after 2 nd defendant vacated the house existing in the suit property, on the other hand, they kept it in abeyance till the disposal of the said suit.
28. It is settled principle of law that party to the suit cannot approbate and reprobate. The Ld. Counsel for the plaintiff in support of his arguments that defendants are approbating and 33 OS.26659/2014 reprobating placing reliance on the judgment of Hon'ble Supreme Court of India in the case of Union of India Vs N. Murugeshan reported in 2021 SC(online) SC 895. In the said case in para No.26, the Hon'ble Supreme Court of India has held as under:
These phrases are borrowed from the Scott's law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. Once again, it is a principle of equity coming under the contours of common law. Therefore, he who knows that if he objects to an instrument, he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits. One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument while questioning the same. Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on near completion of the said enjoyment, thereafter questions the other part. An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and his presumption of knowledge while confirming an offer through his acceptance unconditionally.
29. The Hon'ble Supreme Court of India in the case of Panchanana Dhara cited supra in para No.22 has held as under:
A bare perusal of Article 54 of the Limitation Act would show that the period of limitation begins to run from the date on which the contract was to be 34 OS.26659/2014 specifically performed. In terms of Article 54 of the Limitation Act, the period prescribed therein shall begin from the date fixed for the performance of the contract. The contract is to be performed by both the parties to the agreement. In this case, the First Respondent was to offer the balance amount to the Company, which would be subject to its showing that it had a perfect title over the property. We have noticed hereinbefore that the courts below arrived at a finding of fact that the period of performance of the agreement has been extended. Extension of contract is not necessarily to be inferred from written document. It could be implied also. The conduct of the parties in this behalf is relevant. Once a finding of fact has been arrived at, that the time for performance of the said contract had been extended by the parties, the time to file a suit shall be deemed to start running only when the plaintiff had notice that performance had been refused. Performance of the said contract was refused by the Company only on 21.8.1985. The suit was filed soon thereafter. The submission of Mr. Mishra that the time fixed for completion of the transaction was determinable with reference to the event of perfection of title of the Second Respondent cannot be accepted. The said plea had never been raised before the courts below. Had such a plea been raised, an appropriate issue could have been framed. The parties could have adduced evidence thereupon. Such a plea for the first time before this Court cannot be allowed to be raised. Even otherwise on a bare perusal of the agreement for sale dated 18.4.1971, it does not appear that it was intended by the parties that the limitation would begin to run from the date of perfection of title. 35
OS.26659/2014 The Hon'ble Supreme Court of India in the case of Brahmanand Vs K.R. Muthugopal cited supra in para No.22 has held as under:
Thus, this was a situation where the original agreement of 10.3.1989 had a "fixed date" for performance, but by the subsequent letter of 18.6.1992 the Defendants made a request for postponing the performance to a future date without fixing any further date for performance. This was accepted by the Plaintiffs by their act of forbearance and not insisting on performance forthwith. There is nothing strange in time for performance being extended, even though originally the agreement had a fixed date. Section 63 of the Indian Contract Act, 1872 provides that every promisee may extend time for the performance of the contract. Such an agreement to extend time need not necessarily be reduced to writing, but may be proved by oral evidence or in some cases, even by evidence of conduct including forbearance on the part of the other party.
Thus, in this case there was a variation in the date of performance by express representation by the Defendants, agreed to by the act of forbearance on the part of the Plaintiffs. What was originally covered by the first part of Article 54, now fell within the purview of the second part of the Article.
Pazhaniappa Chettiyar v. South Indian Planting and Industrial Co. Ltd. and Anr. was a similar instance where the contract when initially made had a date fixed for the performance of the contract but the Court was of the view that "in the events that happened in this case, the agreement in question though started with fixation of a period for the completion of the transaction became one without such period on account of the peculiar facts and circumstances already explained and the contract, therefore, became one in which no time fixed for its performance." and held that was originally covered by 36 OS.26659/2014 the first part of Article 113 of the Limitation Act, 1908 would fall under the second part of the said Article because of the supervening circumstances of the case.
30. In the instant case from the material on record it is evident that before expiry of 6 months from the date of vacation of house by 2nd defendant, 8th defendant filed O.S.No. 816/2010 and obtained injunction order restraining the defendants and late Lakshmikantha from alienating the suit property. Therefore, defendants 1,2 and 5 issued Ex.P. 13 reply notice on 17.3.2012 stating that they kept Ex.P. 9 agreement of sale in abeyance till the disposal of the said suit. When such is the case, they are estopped from contending that as per the terms of Ex.P. 9 agreement of sale , time is essence of contract and in view of sale deed was not made within 6 months after 2 nd defendant vacated the house existing in the suit property, the agreement of sale would come to an end, therefore, plaintiff cannot seek the relief of specific performance after expiry of 6 months
31. In the instant case, admittedly, defendants 1,2,5 and late Lakshmikantha by issuing Ex.P. 13 notice dated: 17.03.2009 have stated that in view of the court has granted injunction order 37 OS.26659/2014 in O.S.No. 816/2010 restraining them from alienating the suit property , they kept Ex.P. 9 in abeyance till the disposal of the said suit. Therefore, as per the observation made by Honble Supreme Court of India in the above cited judgments, limitation would not commence till O.S.No. 816/2010 is finally disposed off and defendants intimated the plaintiff regarding disposal of the said case or vacation of injunction order and consequently withdrawal of the decision of keeping Ex.P. 9 agreement of sale in abeyance. When such is the case, the contention of defendants that as per the terms of Ex.P. 9 agreement of sale , time is essence of contract and in view of sale deed was not made within 6 months after 2 nd defendant vacated the house existing in the suit property, the instant suit filed 5 years after making Ex.P. 9 agreement of sale is barred by limitation does not hold water.
32. Admittedly, plaintiff is the employee of Manipal Hospital. A perusal of Ex.P. 20 certificate would show that he is working as Officer in the department of Admission and billing in Manipal Hospital. A perusal of Ex.P. 21 salary slip would show that the take home salary of plaintiff is Rs.92,488/- per month. A 38 OS.26659/2014 perusal of Ex.P. 22 statement would show that he has been maintaining considerable amount as bank balance in his account. Having regard to the salary and bank balance of plaintiff he is eligible to avail home loan to purchase suit property. When such is the case, the contention of defendants 1 to 5 and 7 that plaintiff is/was not having financial assistance to purchase the suit property cannot be accepted.
33. I went through the judgments cited by the Ld. Counsel for defendants 1 to 5 and 7 regarding readiness and willingness and when the time is essence of contract in the agreement of sale of immovable property. In view of my aforesaid findings, I hold that the said judgments are not applicable to the facts of the case on hand. In view of the above, I hold that plaintiff proved that after making Ex.P. 9 agreement of sale , he is always ready and willing to perform his part of the contract and defendants 1 to 5 and 7 failed to prove that suit is barred by limitation. In view of the above I answer Issue No.6 in the Affirmative and Issue No.7 in the Negative.
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34. ISSUE NO.8: The Ld. Counsel for plaintiff has strenuously contended that the Specific Relief Act is amended in the year 2018. As per amendment to section 10 now the relief of specific performance is not a discretionary relief. He submits that though the said amendment is prospective while deciding the case for the specific performance filed prior to the amendment made in the year 2018, the court has to keep in mind the intention of the legislation taking away the discretionary powers of the court in granting the relief of specific performance. In support of his arguments, he placed reliance on the judgment of Hon'ble Supreme Court of India in the case of Sughar Singh Vs Hari Singh. Para No.10 of the said judgment reads thus:
Now, so far as the finding recorded by the High Court and the observations made by the High court on Section 20 of the Act and the observation that even if the agreement is found to be duly executed and the plaintiff is found to be ready and willing to perform his part of the Agreement, grant of decree of specific performance is not automatic and it is a discretionary relief is concerned, the same cannot be accepted and/or approved. In such a case, many a times it would be giving a premium to the dishonest conduct on the part of the defendant / executant of the agreement to sell. Even the discretion under Section 20 of the Act is required to be exercised judiciously, soundly and reasonably. 40
OS.26659/2014 The plaintiff cannot be punished by refusing the relief of specific performance despite the fact that // 22 // the execution of the agreement to sell in his favour has been established and proved and that he is found to be always ready and willing to perform his part of the contract. Not to grant the decree of specific performance despite the execution of the agreement to sell is proved; part sale consideration is proved and the plaintiff is always ready and willing to perform his part of the contract would encourage the dishonesty. In such a situation, the balance should tilt in favour of the plaintiff rather than in favour of the defendant - executant of the agreement to sell, while exercising the discretion judiciously.
35. While answering issue no.1 I have held that plaintiff proved the execution of Ex.P. 9 agreement of sale dated:
16.3.2009 by defendants 1,2,5 and late Lakshmikantha agreeing to sell the suit property to him for a sum of Rs. 30,00,000/-.
While answering Issue No.6 I have held that plaintiff is always ready and willing to perform his part of the contract. While answering Issue No.5 I have held that defendants 1 to 5 and 7 failed to prove that plaintiff created and concocted Ex.P. 9 agreement of sale by playing fraud. While answering issue No.7, I have held that defendants 1 to 5 and 7 failed to prove that the suit is barred by law of limitation. From the material available on record, it is evident that after making the Ex.P. 9 agreement of sale , plaintiff, his wife and mother-in law, the 6th defendant to 41 OS.26659/2014 take care of Smt. Lakshmikantha took the possession of the suit property. Therefore, though plaintiff did not take possession of the suit property in part performance of Ex.P. 9 agreement of sale , as per the oral understanding between the parties he took the possession of the said property and residing therein along with his family members. After making Ex.P. 9 agreement of sale as and when defendants 1 to 5 and 7 demanded, he paid in total Rs.14,00,000/ to them. Thus, the plaintiff has paid nearly 50% of the consideration amount. When such is the case, plaintiff has made out a case to grant the relief of specific performance in his favour.
36. From the contentions taken by defendants 1 to 5 and 7 in the written statement would show that admitting their signatures on Ex.P. 9 agreement of sale and also receipt of advance amount and additional advance amount they contend that plaintiff by playing fraud created the said agreement of sale. While answering Issue No.1 to 4 I have negatived the said contention. In addition to the above contention, they contend that in the year 2009 the market value of the suit property was more 42 OS.26659/2014 than rupees 75 lakhs. In the meeting of family members took place on 16.3.2009 plaintiff and his mother-in-law, the 6 th defendant came forward to take care of Smt.Lakshmikantha. Believing them, they accepted the offer of plaintiff to sell the suit property to him for a sum of Rs. 30,00,000/-. Defendants 1 to 5 and 7 contend that as per the assurance, plaintiff did not take care of Smt. Lakshmikantha properly. Plaintiff contend that there is no connection between he taking care of Lakshmikantha and execution of Ex.P. 9 agreement of sale . He contends that defendants 1,2,5 and late Lakshmikantha executed Ex.P. 9 agreement of sale for their legal necessity. Plaintiff in the plaint or in the evidence except baldly stating that defendants 1,2,5 and late Lakshmikantha executed Ex.P. 9 agreement of sale for their legal necessity has not stated what was the said legal necessity. In the cross-examination of DWs 1 to 3 nothing has been elicited to prove that at the time of making Ex.P. 9 agreement of sale , defendants 1,2,5 and late Lakshmikantha were in need of money to meet any legal necessity.
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37. From the recitals of Ex.P. 9, agreement would show that under the said agreement of sale , possession was not handed over to plaintiff. Plaintiff has stated that he took the possession of the suit property in the month of October-2009. He also admitted that the defendants 1 to 5, 7 and 8 handed over the possession of the suit property to him and his mother-in-law, the 6th defendant to take care of Smt. Lakshmikantha. Admittedly, plaintiff is working in Manipal Hospital. Therefore, from the evidence on record would show that defendants 1,2,5 and late Lakshmikantha executed Ex.P. 9 agreement of sale and handover the possession of the suit property to the plaintiff and his mother- in-law to take care of Smt. Lakshmikantha. As contended by plaintiff if there is no connectioin between execution of Ex.P. 9 agreement of sale and the responsibility of taking care of Lakshmikantha by him and his mother-in-law, there is no necessity for the defendants to handover the possession of the suit property to him though it is mentioned in Ex.P. 9 agreement of sale . Therefore, from the evidence available on record, it cannot be said that there was no connection between execution of Ex.P. 9 44 OS.26659/2014 agreement of sale and giving responsibility of taking care of Smt. Lakshmikantha to plaintiff and his mother-in-law. In view of the above, I hold that the material available on record would support the contention of defendants 1 to 5 and 7 that Ex.P. 9 agreement of sale was made in favour of plaintiff in view of and his mother- in-law given assurance to them to take care of Smt. Lakshmikantha.
38. Admittedly, plaintiff is the son-in-law of 6 th defendant. Therefore, Ex.P. 9 agreement of sale was made among the family members. Ex.P. 9 agreement of sale was made on 16.3.2009. The court can take judicial notice of escalation of market value of the suit property from 2009 to 2022. When the agreement of sale is made among the family members, normally the consideration would be reasonable and not the actual market value. Having regard to the circumstances prevailing in the family of defendants in the year 2009, there is no reason to disbelieve the contentions of defendants 1 to 5 and 7 that the consideration amount shown in Ex.P. 9 agreement of sale is less than the prevailing market value.
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39. It is settled principle of law that the relief of specific performance is the discretionary relief. Since Ex.P. 9 agreement of sale was took place between the family members, the case was referred to Lok-Adalath for amicable settlement. For various reasons, it was not settled amicably. In view of my findings that plaintiff has proved the execution of agreement of sale , payment of nearly 50% of consideration amount to defendants, readiness and willingness to perform his part of contract and also the factum of he taking possession of suit property, he made out a case to grant the relief of specific performance. Having regard to the circumstances under which Ex.P. 9 agreement of sale was made and the escalation of market value of the suit property in 12 years the court is of the opinion that to do justice while granting the relief of specific performance in favour of plaintiff, it would be just and reasonable to direct the plaintiff to pay additional consideration of Rs.30,00,000/- to defendants.
40. Defendant No.3 who was examined as DW.2 has stated that she and her brother, the 4th defendant are not the parties to 46 OS.26659/2014 Ex.P. 9 agreement of sale. Therefore, plaintiff cannot seek the relief of specific performance against them.
41. In the instant case, defendant No.1 has filed written statement. Defendants 2 to 5 and 7 adopted the said written statement. In the written statement, defendants 2 and 3 have not taken the contention that they had no knowledge regarding execution of Ex.P. 9 agreement of sale executed by their mother, the 2nd defendant. 3rd defendant who was examined as DW.2 in the cross-examination has stated that she is the witness to Ex.P. 10(2) payment receipt. In the cross-examination, DW.2 has admitted that her mother received Rs.6,00,000/- from plaintiff as part of sale consideration. Therefore, from the facts stated by DW.2 in the cross-examination would show that though she is not a party to Ex.P. 9 agreement of sale , she consented for the said agreement of sale by receiving part of consideration along with her mother, the 2nd defendant by executing Ex.P. 10(2) receipt and by adopting written statement filed by defendant No.1. Therefore, DW.2 cannot be allowed to contend that she is not a party to 47 OS.26659/2014 Ex.P.9 agreement of sale , therefore, she is not liable to execute the sale deed .
42. 4th defendant, the son of 2nd defendant is admittedly, not a party to Ex.P. 9 agreement of sale . He has not entered into witness box. He also adopted the written statement filed by defendant No.1. Therefore, in the instant case, the contention of defendants 1 to 5 and 7 is one and the same. The suit property is measuring 1400 Sq.ft . In the suit property, defendants 2 to 4 together have 1/4th share. The 1/4th share of 1400 Sq.ft is 350Sq.ft. In the said 350 Sq.ft, defendants 2 to 4 are each entitled for 1/3 share. The said 1/3rd share would comes to 116 ½ sq.ft. Admittedly, the house is existing in the suit property. Therefore, it is not feasible to divide the suit property to give 116 ½ sq.ft of property to defendants 3 and 4. In such a case,as per the Partition Act, a small portion of share is to be given to the sharer having more than 50% of share in the property by fixing the market value of that share. In the foregoing paras taken into consideration the escalation of the market price and to do substantial justice I have granted additional consideration of Rs. 48
OS.26659/2014 30,00,000/- to defendants. Since the sale transaction took place among the family members and the mother of defendants 2 and 3 not only executed Ex.P. 9 agreement of sale but received Rs.6,00,000/- as per part of sale consideration from plaintiff and utilised it for the benefit of her children viz., defendants 3 and 4. When such is the case, as I have stated above, in view of defendants 3 and 4 adopted the written statement of defendant No.1 they cannot be allowed to contend that they are not the parties to Ex.P. 9 agreement of sale, therefore they are not liable to execute the sale deed. In view of my aforesaid findings I hold that justice would be met if the defendants are directed to execute the sale deed of suit property in favour of plaintiff by receiving balance sale consideration of Rs.16,00,000/- and additional consideration of Rs. 30,00,000/-. In view of the above, I answer Issue No.8 in Affirmative.
43. ISSUE NO.7:- In view of reasons & findings on above Issues, I pass the following:
ORDER Plaintiff's suit is decreed with cost.
Defendants are directed to execute the
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sale deed of suit property in favour of
plaintiff within 3 months by receiving
balance consideration of Rs. 16,00,000/-
and additional consideration of
Rs.30,00,000/-
******
(Dictated to the Judgment-Writer, transcript thereof corrected and then pronounced by me in the open court on this the 12 th day of January 2022 ) (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75) ANNEXURES:-
LIST OF WITNESS EXAMINED FOR THE PLAINTIFF:
PW1 Sri. L. Muniraju
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1&2 2 death certificates
Ex.P.3 Certified copy of sale deed dt: 28.11.1983
Ex.P.4 Certified copy partition deed dt: 13.04.2005
Ex.P.5 Certified copy of rectification deed dt: 30.10.2006
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Ex.P.6 Khata certificate
Ex.P.7 Khata extract
Ex.P.8 Tax paid receipts
Ex.P.9 Sale deed dt: 16.03.2009
Ex.P.10(1to6) Receipts
Ex.P.11 Hospital bills
Ex.P.12 Notice dt: 9.3.2012 issued to defendants
Ex.P.13 Reply dated: 17.3.2012 given by defendants 1,2 & 5
Ex.P.14 Certified copies of plaint, written statement, interim
application in O.S.No. 816/2010
Ex.P.15 Notice dt: 4.8.2014 issued to defendants
Ex.P.16 Postal receipts
Ex.P.17 Postal acknowledgment
Ex.P. 18(1 to 3) Information letters
Ex.P. 19(1&2) Returned postal covers
Ex.P. 20 Letter dt:24.04.2019 issued by Manager of Manipal
Hospital
Ex.P. 21 Salary slip of plaintiff
Ex.P. 22 Copy of Bank statement
LIST OF WITNESS EXAMINED FOR THE DEFENDANTS:
DW1 Sri. R. Naraina
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DW2 Smt. Vidya
DW3 Mrs. K. Pramila
LIST OF DOCUMENTS MARKED FOR THE
DEFENDANTS:
Ex.D.1 Statement of account pertaining to Premavathy V
(MOHAMMED MUJEER ULLA C.G.)
LXXIV Addl. City Civil & Sessions Judge,
Mayohall Unit, City Civil Court,
Bengaluru. (CCH - 75)