Karnataka High Court
S N Raja vs Ramaiah on 22 February, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
R.S.A.NO.1022 OF 2018 (DEC/INJ)
BETWEEN:
S.N. RAJA
S/O LATE SRINIVASAIAH
AGED ABOUT 83 YEARS
R/AT SAMETHANAHALLI VILLAGE
HOSAKOTE TALUK
BENGALURU RURAL DISTRICT-560 067.
... APPELLANT
(BY SRI. MADHUKAR DESHPANDE, ADVOCATE)
AND:
1 . RAMAIAH
S/O LATE BYANNA
AGED ABOUT 67 YEARS
R/AT THIRUMALASETTYHALLI VILLAE
ANUGONDANAHALLI HOBLI
HOSAKOTE TALUK
BENGALURU RURAL DISTRICT-560 067.
2. SMT.SHANKARAMMA @ VANAJAMMA
AGED ABOUT 47 YEARS,
D/O LATE G.S.GOPAL RAO,
R/AT SAMETHANAHALLI VILLAGE,
HOSAKOTE TALUK,
BENGALURU RURAL DISTRICT-560 067.
... RESPONDENTS
2
(BY SRI.M.V.CHANDRASHEKAR REDDY, ADVOCATE FOR R1
R2- SERVED UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 26.03.2018 PASSED IN R.A.NO.167/2015 ON
THE FILE OF THE VII ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, AND
CONFIRM THE JUDGMENT AND DECREE DATED 14.09.2015
PASSED IN O.S.NO.253/1996 ON THE FILE OF THE
I ADDITIONAL SENIOR CIVIL JUDGE, BANGALORE RURAL
DISTRICT, BANGALORE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
09.01.2024 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is by the defendant No.1 aggrieved by Judgment and decree dated 26.03.2018 passed in R.A.No.167/2015 on the file of VII Additional District and Sessions Judge, Bangalore Rural District (first Appellate Court) by which the first Appellate Court while allowing the said appeal filed by the plaintiffs set aside the Judgment and decree dated 14.09.2015 passed in O.S.No.253/1996 on the file of I Additional Senior Civil Judge, Bangalore Rural District, Bangalore (trial Court) and declared that the plaintiff is the owner of the suit 3 schedule property to the extent of 1/4th share and was thus entitled to seek equitable partition by metes and bounds.
2. The above suit was filed by the plaintiffs for relief of declaration and permanent injunction against the defendants contending inter alia:
a) That the plaintiff No.1 is the son of plaintiff No.2 and they are the joint owners of immovable property bearing Sy.No.88 measuring 19 guntas situated at Thirumalashettihalli Village, Anugondanahalli Hobli, Hosakote Taluk, which was leased in their favour by its previous owner by name G.S.Gopal Rao-defendant No.2 in the year 1972 and that the plaintiffs have been in possession of the suit property ever since 1972 till date.
b) That the said defendant No.2 was the absolute owner of the schedule property by virtue of Deed of Exchange dated 19.09.1947 that was executed by one Srinivasaiah, the father of defendant No.1. 4
c) That during the existence of the lease period defendant No.2 had executed a registered deed of mortgage in favour of the plaintiffs on 28.11.1978 by receiving a sum of Rs.3,000/-. Thereafter, the said defendant No.2 had executed deed of sale on 02.07.1991 in favour of plaintiff No.1 for a sale consideration of Rs.10,000/-. Subsequent to execution of the aforesaid documents the names of the plaintiffs were entered in the revenue records. Thus, the plaintiffs became absolute owners of schedule property being in undisturbed possession and enjoyment of the same over 23 years. That they have invested amount for improvement of the schedule property.
d) That the defendants have no right, title and interest over the schedule property. However, defendants had filed an appeal before the Assistant Commissioner, Doddaballapur Sub-Division in R.A.No.92/91-92 challenging the mutation entries effected in the names of plaintiffs which was allowed by 5 order dated 24.08.1994. The plaintiffs carried the same in writ petition No.1650/1995 before this Court. This Court while disposing of the said writ petition observed that the parties shall establish their right over the schedule property in the Court of law of competent jurisdiction. Hence, the suit.
3. Defendant No.1 filed written statement denying the plaint averments and specifically contended
a) That the alleged Deed of Exchange was an unilateral agreement executed by late Srinivasaiah in favour of Gopal Rao and the same was not the Deed of Exchange known under law. It is contended at the best the said document can be termed as an agreement of exchange but not as a Deed of Exchange. As such, it did not confer any right, title and interest in respect of the property sought to be exchanged either in favour of Srinivasaiah or Gopal Rao. Consequently Gopal Rao did not get any title in respect of property of Srinivasaiah 6 i.e., 15 guntas of land in Sy.No.88 or in Sy.No.223/4 of Samethanahalli Village nor did Srinivasaiah get any title in respect of land in Sy.No.227 of Samethanahalli Village or in Sy.No.19 of Thirumalashettihalli Village belonging to Gopal Rao. It is further contended that in the year 1960 land in Sy.No.227/1 which is one of the property sought to be exchanged remained with the ownership and possession of Gopal Rao and the said land in Sy.No.227/2 of which he was the khathedar was notified for acquisition for extension of Gandhi Kshetra by the then Government of Mysore under Karnataka Land Revenue Act under Gazette Notification dated 08.02.1960. The said notification was not challenged by Gopal Rao and the property that was sought to be exchanged under the document dated 19.09.1947 remained in the ownership and possession of Gopal Rao. It is also contended that neither Gopal Rao nor Srinivasaiah ever applied for effecting mutation entries in terms of exchange deed dated 19.09.1947. It is also 7 contended that alleged deed of mortgage executed by Gopal Rao in favour of plaintiffs did not confer any right, title and interest over the property in question since Gopal Rao did not have any right over the said properties.
b) It is further contended that the suit schedule property is a Shanubhogi Service Inam Land which vested in the State pursuant to Villagers Officers Abolition Act. Defendant No.1 who was one of the service holder of the said village applied for re-grant along with others including in respect of land Sy.No.88 of Thirumalashettihalli Village before the Tashildar who by order dated 23.12.1988 re-granted the schedule property in favour of defendant No.1. Accordingly mutation entries were incorporated superseding the earlier entries which have become final. In view of the re-grant, alienation made by Gopal Rao under registered sale deed dated 02.07.1991 has become void, as the same is in contravention of condition of prohibition of non-alienation 8 for 15 years. The re-grant is final and binding on Gopal Rao who is party to the proceedings, as such plaintiffs cannot claim title over the schedule property. Hence, sought for dismissal of the suit.
4. Based on the pleading, trial Court framed following issues:
"1. Whether plaintiff proves Sri. Gopal Rao became the legal owner of the suit schedule property on the basis of the deed of exchange dated:19.09.1947 executed by one srinivasaiah, the father of the defendant in favour of the vendor of the plaintiff, as alleged in the plaint?
2. Whether the plaintiff proves that they are the absolute owners of the suit schedule property, as alleged in the plaint?
3. Whether the plaintiffs prove that they are in physical possession and enjoyment of the suit schedule land and interference of the defendant as alleged in the plaint?
4. Whether the suit is bad for non-joinder of necessary parties?
5. Whether the defendant proves that he is the absolute owner of the suit schedule land as alleged in para-7 of the written statement?
6. What relief the plaintiffs are entitled? 9
7. What Order and Decree?".
5. Plaintiff No.1 examined himself as PW-1 and another witness as PW-2 and exhibited 258 documents marked as Ex.P-1 to P-258. On the other hand defendant No.1 examined himself as DW-1 and exhibited 41 documents marked as Ex.D-1 to D-41. The trial Court on appreciation of pleading and evidence answered issue Nos.1 to 4 and 6 in the negative and issue No.5 in the affirmative and consequently dismissed the suit with cost by its Judgment and decree dated 14.09.2015. Aggrieved by the same, plaintiffs preferred regular appeal in R.A.No.167/2015 before the First Appellate Court. Considering the grounds urged in the memorandum of appeal, the first appellate Court framed following points for its consideration:
"1. Whether the impugned judgment and decree is perverse, capricious or illegal?
2. Whether the judgment and decree passed by the trial court in O.S.No253/1996 is called for any interference by this appellate court?10
3. What Order?".
6. On re-appreciation of evidence, the first appellate Court answered point Nos.1 and 2 in the affirmative and consequently allowed the appeal and set aside the Judgment and decree passed by the trial Court and declared that the plaintiff is owner of the suit schedule property to the extent of 1/4th share therein. Being aggrieved by the same, defendant No.1 is before this Court.
7. This Court by order dated 10.05.2018 admitted the appeal to consider the following substantial questions of law:
"Whether the father of the Defendant No.1 unilaterally, by way of exchange, transferred his ownership of immovable property of another property?
Whether Section 118 of Transfer of Property Act. 1882 recognizes unilateral exchange of properties?".11
8. Sri. Madhukar Deshpande, learned counsel for the appellant reiterating the grounds urged in the memorandum of the appeal submitted that:
a) That the alleged Deed of Exchange dated 19.09.1947 is an unilateral document which was never acted upon between the parties thereto. The said document not being in accordance with law, did not confer any title in favour defendant No.2. When the defendant No.2 himself had no right, title and interest over the suit schedule property he could not have conveyed anything to the plaintiffs.
b) Defendant No.2 had no land left in his ownership. He was owning 33 guntas of land in Sy.No.70 which he had already sold as such sale deed dated 02.07.1991 executed by him in favour of the plaintiffs is void and illegal.
c) That the trial Court had rightly come to the conclusion of deed of exchange dated 19.09.1947 is not 12 in accordance with the provisions of section 118 of the Transfer of Property Act, 1982 which the first appellate Court without even adverting to the said reasoning of the Trial Court has come to the conclusion that deed of exchange was valid and subsistent.
d) That the First appellate Court grossly erred in decreeing the suit by moulding the relief and holding that the plaintiff is entitled to seek equitable partition of 1/4th share in the land in Sy.No.88 of Thirumashettahalli Village without appreciating the fact that partition to be ordered either between the members of the family or the co-owerns, joint owners or between the purchasers or joint family warranting existence of joint ownership. That in the instant case defendant Nos.1 and 2 are not the owners of suit schedule property. The sale deed executed defendant No.2 in favour of the plaintiff on 02.07.1991 is not binding on the defendant No.1. As such the First Appellate Court could not have decreed for partition. 13
e) That the re-grant order dated 31.10.1986 was made in favour of four different and separate families of (1)defendant No.1, (2)defendant No.2, (3)Srinivas Rao and (4)S.Nagesh. Without appreciating the same the first appellate Court erred in ordering equitable partition.
f) That the first appellate Court has not taken into consideration of non-availability of land in Sy.No.88 for partition. The allotment of 1/4th share in favour of the plaintiff is erroneous and passed without taking into consideration the measurement of land in Sy.No.88.
g) The moulding of the relief could have been granted if the plaintiff had established the right over the property and in absence of the same, a suit for declaration could not have been converted into suit for partition.
h) Learned counsel relied upon the following judgment in support of his submission:
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1. Commissioner of Income Tax, Bombay Vs Rasiklal Manaklal and others reported in AIR 1989 SC 1333
2. M/s.Trojan and Co Vs R.M.N.N Nagappa Chetiyar reported in AIR 1953 SC 235
3. Bacchaj Nahar Vs Nilima Mandal and Another reported in (2008) 17 SCC 498 Thus, learned counsel for the appellant seeks for allowing of the appeal.
9. Sri.M.V. Chandrashekara Reddy, learned counsel for the respondent justifying the order passed by the first appellate Court submitted:
a) That in terms of deed of exchange dated 19.09.1947, father of defendant No.1 delivered the possession of 15 guntas of land in Sy.No.88 along with another land in favour of defendant No.2 and since the value of the property subject matter of Deed of Exchange less than Rs.50/- as on the said date registration of the said document was not required.15
b) That the defendant No.2 had executed usufructuary mortgage on 20.11.1978 in respect of 19 guntas of land for a sum of Rs.3,000/- and delivered the possession of the same to the plaintiff No.2-Byanna. That subsequently the very same 19 guntas of land was conveyed by defendant No.2 in favour of the plaintiff No.1 under deed of sale dated 02.07.1991.
c) That the defendant No.2 had 1/4th undivided share in three properties bearing Sy.Nos.19, 70 and 88 by virtue of grant made by the land Tribunal. Sy.No.88 measures 6 acres 17 guntas, 1/4th of the share therein is equals to 1 acre.
d) Taking through the deposition of defendant No.1, learned counsel submitted that the defendant No.1 has admitted execution of deed of mortgage by defendant No.2 in favour of said plaintiff No.2 Byanna. That he has also admitted defendant No.2 was entitled for 1/4th share in the Shanbogh Inamthi lands. That he also 16 admitted execution of deed of sale dated 02.07.1991 by plaintiff No.2- Byanna and defendant No.2 in favour of plaintiff No.1 and also with regard to possession of the plaintiffs in respect of the said land. He also submitted that DW.1 categorically admitted the measurement of the land as shown in the Ex.P7 to be correct and also accepted the same as shown in the RTC.
e) Thus referring to the aforesaid admissions of DW.1 learned counsel submitted even according to the DW.1 the deed of exchange had been acted upon based on which defendant No.2 has been proved to be in possession of 19 guntas of land in Sy.No.88.
f) As regard the contention of the appellants in the first appellate Court moulding the reliefs in granting relief of partition, he submitted that during the pendency of the suit the plaintiff had filed an application seeking to amend the plaints for relief of partition which application was dismissed by vide Order dated 27.07.2007 said order 17 was carried by the plaintiff in W.P.No.15872/2007. This Court by order dated 18.07.2011 had observed that, "the plaintiff is entitled to seek general partition at the time of final arguments and that it is permissible for the parties to show the extent of interest they have in the property and the Court can also mould the relief, to grant the relief of partition to the extent of parties interest."
g) Learned counsel relied upon following judgments in support of his :
1. Bhagwan Kuaur and Ors. Vs Ranjith Singh and another reported in AIR 1990 PUNJAB AND HARYANA
89.
2. Aloka Bose Vs. Paramatma Devi and Ors reported in AIR 2009 SC 1527.
3. Kashinath Tewari and another Vs. Makchhed Tewari and Ors reported in AIR 1939 AII 504.
4. Dada Vaku Nikam Vs. Bahiru Hingu Nikam and Ors. Reported in AIR 1927 Bombay 627.
5. Ram Chandra and others Vs Hari Kirtan and another reported in AIR 2004 ALLAHABAD 345. 18
6. Dashrath Narayan Shinde and Ors Vs. Laxman Gangaram Ghag and Ors reported in 2010 (4) ABR (NOC) 384 (BOM).
7. Shivaramegowda (D) Vs. Smt.Kempamma by LR's reported in 2020 (2) KCCR 1307.
8. Deity Pattabhiramaswamy Vs.Hanymayya and others reported in AIR 1959 SC 57.
9. Vijay arun Bhagat and Ors. Vs. Nana Laxman Tapkire and others (2018) 6 SCC 727.
10. Heard. Perused the records.
11. Plaintiffs filed the above suit initially seeking relief of declaration of their ownership over the suit schedule property which is immovable property bearing Sy.No.88 measuring 19 guntas of Thirumalashettyhalli Village. The plaintiffs have traced the title of the said property from defendant No.2. Plaintiffs have relied upon an unregistered deed of exchange dated 19.09.1947 produced at Ex.P2 claiming the same to have been 19 executed by Srinivasaiah father of the defendant in favour of defendant No.2. The plaintiffs have also relied upon a registered deed of mortgage dated 28.11.1978 produced at Ex.P1, executed by defendant No.2 in favour of plaintiff No.2. Further plaintiffs have relied upon registered deed of sale dated 02.07.1991 executed in favour of plaintiff No.1 by defendant No.2 as well as Byanna the plaintiff No.2 produced at Ex.P-3. Apart from the aforesaid documents the plaintiffs have produced the order dated 23.12.1988 passed by the Land Tribunal as per Ex.P-6 granting lands in Sy.No.193 measuring 8 acres 19 guntas situated at Samethanahalli, land bearing Sy.No.19 measuring 22 guntas, Sy.No.70 measuring 1 acres 27 guntas and in Sy.No.88 measuring 6 acres 17 guntas of Thirumalashettihalli jointly in the names of the defendant No.2, S.Nagesha Rao, S.V.Keshavarao, Nagarathnamma, Ramarao and others. Apart from the aforesaid documents the plaintiffs have also produced 20 survey sketches and mutation register extracts and tax paid receipts.
12. Perusal of the Deed Of Exchange at Ex.P.2 reveal that the said document has been executed by Srinivasaiah, father of defendant No.1 in favour of defendant No.2 in terms of which the said Srinivasaiah has agreed to give land in Sy.No.223/4 measuring 1 acre 20 guntas and land in Sy.No.88 measuring 32 guntas both valuing Rs.50/- to defendant No.2 in exchange of land in Sy.No.227 measuring 1 acre and land in Sy.No.19 measuring 6 guntas both valuing Rs.50/- belonging to said defendant No.2. The said document also speaks about Srinivasaiah having taken the possession of the land.
13. Defendant No.1 apart from disputing evidentiary value of the said document at Ex.P-2 has also contended the said document is merely an unilateral agreement executed by Srinivasaiah and the same was 21 never acted upon. It is also contented that under the said document at Ex.P-2 defendant No.2 did not get any right, title and interest in respect of 15 guntas of land in Sy.No.88 or in Sy.No.223/4 belonging to Srinivasaiah, nor did Srinivasiah get any right, title and interest in respect of land in Sy.No.227 or in Sy.No.19 belonging to defendant No.2. It is also contended consequently could not have executed a registered deed of mortgage dated 20.11.1978 as per Ex.P-1 in favour of plaintiff No.2 and said deed of mortgage is of no consequence. Similarly, execution of deed of sale dated 02.07.1991 as per Ex.P-3 by defendant No.2 and plaintiff No.2 in favour of plaintiff No.1 did not create or confer any rights. As regard the revenue entries it is contended that in the appeal filed by the defendants against the order mutating the names of the plaintiffs, the same was allowed setting aside the mutation entries M.R.No.15/1989-90. Writ petition filed by the plaintiffs was also dismissed.
22
14. As regard the execution of deed of exchange at Ex.P2 is concerned the said document has been executed by Srinivasaiah the father of the defendant No.1 wherein he has agreed to give lands in Sy.No.223/4 measuring 1 acre 20 guntas and land in Sy.No.88 measuring 32 guntas both valuing Rs.50/- to defendant No.2 in exchange of land in Sy.No.227 measuring 1 acre and land in Sy.No.19 measuring 6 guntas both valuing Rs.50/- belonging to said defendant No.2.
15. Learned counsel for the appellant in furtherance to his submissions on the substantial question of law regarding unilateral transfer of ownership of immovable property and its recognition under Section 118 of the Transfer of Property Act relying upon Judgments of the Apex Court in the cases referred to hereinabove insisted that in order to constitute `exchange' as defined under Section 118 of the Transfer of Property Act two persons should be part of the document and should execute the 23 same in the manner provided for transfer of property by sale. He referred to the judgment of the Apex Court in the case of Commissioner of Income Tax, A.P. and also in the case of Income Tax Commissioner, Bombay (Supra) to contend that exchange is a reciprocal transfer of interest in the immovable property. That an exchange involves transfer of property by one person to another. That there must be mutual transfer of ownership of one thing for the ownership of another. Thus, he submitted that Ex.P-2 being unilateral document cannot be termed as an exchange.
16. Per contra, learned counsel for respondent/plaintiffs relied upon the Judgment of the Punjab and Haryana High Court in the case of Bhagwan Kaur and others (supra) wherein it is held that unregistered deed of exchange can be relied upon when it was followed by delivery of possession. He also relied upon the Judgment of the Apex Court in the case of Aloka Bose (supra) wherein it is held that all 24 agreements of sale are bilateral contracts as promises are made by both vendor agreeing to sell and purchaser agreeing to purchase as such, such agreements need not be signed by both the parties and if signed only by the vendor the same is valid and enforceable by the purchaser. He also relied upon the Judgment of Allahabad High Court in the case of Kashinath Tewari and anr. to contend that even if deed of exchange which is unregistered does not confer a legal title to the lands covered by exchange a party to the exchange acquires full title to the property by continuous possession for over 12 years openly and adversely to other party to the exchange. He also relied upon the Judgment of Bombay High Court in the case of Dada Paku Nikam (supra) to contend where in pursuance of an oral agreement there has been an actual exchange of land and parties have remained in possession ever since that date without any question being raised the doctrine of part performance applies and therefore bar under Section 54 of Transfer of 25 Property Act in reality is removed. He further referred to Judgment of the Allahabad High Court in the case of Ramachandra and others and the Judgment of High Court of Bombay in the case of Dasharath Narayan Shinde and others to contend that immovable property value of which is less than 100/-, the transfer can be either by registered instrument or by delivery of property.
17. It is necessary at this juncture to refer to Section 118 of the Transfer of Property Act which defines the term exchange as under:
118. "Exchange" defined.- when two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "exchange".
A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.
18. Thus, second part of the section provides the mode of transfer of property by exchange to be made in the manner provided for the transfer of property by sale. 26 Appropriate also to refer to Section 54 of the Transfer of Property Act which apart from defining the term "sale" also provides "how the sale to be made".
"Section 54. - "Sale" defined- "sale" is a transfer of ownership in exchange for a price paid or promised or part- paid and part-promised.
Sale how made.--Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.--A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.
19. Apex Court in the case of Aloka Bose (supra) dealing with validity of an agreement signed only by one of the parties, in a case for specific performance at Paragraph 7 has held as under:
7. All agreements of sale are bilateral contracts as promises are made by both - the vendor agreeing to sell and the purchaser agreeing to purchase. On the other hand, the observation in S.M. Gopal Chetty (supra) that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by 27 a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it. Section 10 of the Act provides all agreements are contracts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the provisions of the Contract Act. The proviso to section 10 of the Act makes it clear that the section will not apply to contracts which are required to be made in writing or in the presence of witnesses or any law relating to registration of documents. Our attention has not been drawn to any law applicable in Bihar at the relevant time, which requires an agreement of sale to be made in writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter-offers by letters or other modes of recognized communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser.
There is, however, no practice of purchaser alone signing an agreement of sale.
20. The aforesaid Judgment of the Apex Court has been relied upon by the Division Bench High Court of Kerala in the case of VASU VS PARUKUTTY AMMA AND OTHERS reported in 2012 SCC Online Ker. 31547 and at paragraph 15 has gone on to hold that after the decision of the Apex Court in the case of Aloka Bose there is no scope any more for anybody to contend 28 that an agreement of sale or sale deed (deed of conveyance) executed by the prospective vendor or vendor as the case may be, is a unilateral document or instrument and is not a contract which can be enforced in law.
21. Necessary at this juncture to also refer to Sections 32 and 34 of the Registration Act, 1908 (prior to insertion of Section 32A by Act No.48 of 2001 w.e.f.24.09.2001) and Rules 41 and 71 of the Karnataka Registration Rules, 1965, (prior to insertion of sub-rules
(iii), (iv), (v), (vi) and (vii) w.e.f 4.4.2002). The said provisions did not contemplate presence of the person in whose favour the conveyance being executed at the time of effecting the registration of the document conveyance. It is only after the amendment to Registration Act, 1908 in the year 2001 whereby Section 32A was inserted and amendment to Rule 71 of Karnataka Registration Rules 1965 in the year 2002 presence of buyer is made compulsory at the time of registration of deed of 29 conveyance. Apex Court had an occasion to take note of this aspect of the matter in the case of H.P.PUTTASWAMY VS. THIMMAMMA AND OTHERS reported in (2020) 13 SCC 125 wherein at paragraph 10 it has been held as under;
"10. We find from the judgment of the Trial Court and the First Appellate Court that the respective parties had led evidence of execution and subsequent registration of the deeds but the first two courts did not reject the contention of the second set of defendants that there was no execution by Madegowda (since deceased) of the deed of sale to Manchegowda (since deceased). The case has been decided in favour of the plaintiff on the ground that the buyer was not present at the time of registration of sale deed. There is evidence to the effect that the second defendant (Manchegowda) had not come to the office of the SubRegistrar at the time of execution of the sale deed. But as per law as it stood at the material point of time, there was no necessity of presence of purchaser at the Registration Office during the registration of sale deed. The deed was executed by Madegowda and that aspect has not been disputed. The deed in question does not fall within Sections 31, 88 and 89 of the Registration Act. Section 32 of the said Act does not require presence of both parties to a deed of sale when the same is presented for registration. In such circumstances, we do not find any reason to interfere with the judgment of the High Court. The present appeal is accordingly dismissed."
22. Thus, that the conclusion that can be arrived from the above provisions of Section 118 read with Section 54 of the Transfer of Property Act and from the 30 Judgment of the Apex Court and the provisions of Registration Act, 1908 and Rules 1965, prior to amendment, is that conveyance of property could be made whether immovable or movable only by vendor and there was no requirement of purchaser joining the execution of the deed of conveyance. Since Section 118 of the Transfer of Property Act mandates that transfer of property by way of exchange has to be made in the manner provided for transfer of property by way of sale, the aforesaid position of law is squarely applicable in the case of conveyance by way of exchange as well.
23. Another aspect of the matter is that perusal of Ex.P-2 would reveal that Srinivasaiah had declared that he was conveying his property by way of exchange in favour of defendant No.2 in consideration of defendant No.2 conveying his properties as mentioned therein. The said document also refers to possession having been given/delivered. As already noted value of properties is shown as Rs.50/-. As such there was no requirement of 31 compulsory registration of the document. As rightly taken note of by the First Appellate Court the value of the properties subject matter of the said deed of exchange shown to be Rs.50/- the same did not require registration. Even if the contention of the defendant No.1 that the said document at the most was an agreement and not a concluded document creating any right in favour of the parties thereto is to be accepted, the fact remained that such a transaction indeed had taken place.
24. In fact in the cross-examination recorded on 02.04.2014 defendant No.1 has admitted and identified the signature of his father Srinivasaiah found on Ex.P2 which is marked as Ex.P2A. Such a transaction is neither barred nor prohibited.
25. There is yet another aspect of the matter requiring consideration regarding defendant No.2 having share, right and title over the schedule property. 32 Admittedly even according to defendant No.1 possession of the suit schedule property has been with the plaintiffs in pursuant to deed of mortgage at Ex.P-1 and deed of sale at Ex.P-3. It is not that defendant No.2 did not have any pre-existing rights over the suit properties. He was Shanbhogh having specific share in the subject property.
26. Necessary at this juncture to refer to the grant order dated 23.12.1988 passed by the Tahsildar in the re-grant proceedings bearing No.AJOA(1)CR89/83-84 and 207/72-73 which is produced at Ex.P6 to ascertain if the defendant No.2 otherwise entitled for any share, right title and interest in the suit schedule property. The aforesaid document and Ex.P6 is relied upon even by the defendant No.1 to justify his claim over the property. The contents of the said Ex.P6 reveal that the re-grant was sought and the same was granted in respect of Sy.No.193 measuring 8 acres 19 guntas situated at Samethanahalli, and land bearing Sy.No.19 measuring 22 guntas, Sy.No.70 measuring 1 acres 27 guntas and in 33 Sy.No.88 measuring 6 acres 17 guntas of Thirumalashettyhalli jointly in the names of the defendant No.2, S.Nagesha Rao, S.V.Keshavarao, Nagarathnamma, Ramarao and others.
27. In the said order the defendant No.2 has been held to be entitled for half share in land bearing Sy.No.193, measuring 8 acres 19 guntas situated at Samethanahalli and 1/4th share in land bearing Sy.No.19 measuring 22 guntas, Sy.No.70 measuring 1 acres 27 guntas and in Sy.No.88 measuring 6 acres 17 guntas of Thirumalashettyhalli.
28. Paragraph No.8 of the said order refers to statement made by defendant No.1 to the effect that since the defendant No.2 has already taken half share in Sy.No.70 while he was entitled only for 1/4th share in Sy.No.70, he be granted lesser share in Sy.No.88. He has further stated to Defendant No.2 had already created 34 a mortgage to an extent of 19 guntas of land in Sy.No.88 in favour of Munishamappa.
29. Further in the cross-examination recorded on 02.04.2014 defendant No.1 has admitted that Srinivasiah, Narayanappa, Defendant No.2 and Srinivas Rao belonged to Shanbogh family as sharers and that he has admitted the contents of Ex.D4 and Ex.P6. He has also admitted that lands subject matter of Ex.P6 were allotted to the share of the parties as indicated therein in that Defendant No.2 was entitled 1/4th share. Further though he has admitted that as per Ex.P1 dated 20.11.1978 suit schedule property was mortgaged in favour of plaintiff No.2 and that as per deed of sale dated 02.07.1991 plaintiff No.2 and G.S.Gopal Rao-Defendant No.2 had conveyed the said property in favour plaintiff No.1, and also admitted that the plaintiffs are in possession of the suit property, however, he has contended that execution of said mortgage deed and sale 35 deed is illegal. Similarly he has also contended that the possession of the plaintiffs is also illegal.
30. In the light of the contents of the Ex.P6 granting 1/4th share in favour of Defendant No.2 in the lands referred to thereunder and in the light of statement made by defendant No.1 in the said proceedings before the Tahsildar and also in the light of admission made by the defendant No.1 during his cross-examination it can be safely inferred that defendant No.2 had his vested right and privilege in respect of the subject land which was recognized resulting in re-grant to an extent of 1/4th shares referred to in the said order. It also leads to inference that he had indeed executed deed of mortgage in respect of 19 guntas of land in respect of Sy.No.88 in favour of the plaintiffs as per Ex.P1 dated 26.11.1978.
31. The contention of learned counsel for the appellant that defendant No.2 had conveyed entire land which was allotted to his share under the re-grant and 36 that he had not retained any land for him to execute documents namely mortgage deed at Ex.P1 and deed of sale at Ex.P3 in favour of plaintiffs cannot be accepted as no material evidence in this regard has been brought on record by the appellant. However, as already noted contents of re-grant at Ex.P6 and the very own admission of the defendant No.1 regarding the plaintiffs being in the possession of suit schedule property pursuant to mortgage deed and deed of sale, defy the said submission made on behalf of the appellant.
32. As regards the contention of the appellants in the first appellate Court moulding the reliefs in granting relief of partition, learned counsel for the appellant referred to He also referred to Judgments of the Apex Court in the case of M/s.Trojan and Company and in the case of Bacchaj Nahar (supra) to submit that the First Appellate Court in the absence of pleading and proof could not have converted the suit of declaration and moulded the relief granting relief of partition without 37 there being pleading and opportunity to the defendant to place his case.
33. Per contra, learned counsel for the respondents relied upon the judgment of the Coordinate Bench of this Court in the case of Shivarame Gowda (deceased by Lrs)(supra) wherein it has held that even the absence of prayer for a lesser relief and without there being any amendment to the plaint the Court can pass a decree for a lesser relief based on a oral and documentary evidence on record.
34. It is necessary to note that as submitted by the learned counsel for the respondents that during the pendency of the suit the plaintiff had filed an application seeking to amend the plaint for relief of partition which application was dismissed vide order dated 27.07.2007 said order was carried by the plaintiff in W.P.No.15872/2007. This Court by order dated 18.07.2011 had observed that;
38
"the plaintiff is entitled to seek general partition at the time of final arguments and that it is permissible for the parties to show the extent of interest they have in the property and the Court can also mould the relief, to grant the relief of partition to the extent of parties interest."
35. As such no infirmity can be found in judgment and order passed by first appellate court moulding and modifying the relief.
36. For the aforesaid reasons and analysis it can be said that the finding and conclusions arrived at by the First Appellate Court regarding transfer of ownership of the subject property made by defendant No.2 in favour of the plaintiff in furtherance to the transfer of ownership made by the father of defendant No.1 under deed of exchange, and in terms of deed of sale dated 02.07.1991 cannot be found fault with. The substantial questions of law framed for consideration are answered accordingly. 39
Consequently the appeal is dismissed. Judgment and order passed by the First Appellate Court dated 26.03.2018 passed in R.A.No.167/2015 on the file of VII Additional District and Sessions Judge, Bangalore Rural District, is confirmed.
Sd/-
JUDGE SBN