Karnataka High Court
Sri Thirumalaiah (Since Dead By His Lrs) vs Sri Munivenkatappa (Since Dead By Lrs) on 24 March, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2025:KHC:12259
RSA No. 279 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO.279 OF 2014 (SP)
BETWEEN:
SRI THIRUMALAIAH
(SINCE DEAD BY HIS LRS)
1. SRI GOPI
S/O LATE TIRUMALAIAH,
(SINCE DEAD BY HIS LRs)
1a. SMT. SARITHA,
W/O LATE GOPI, AGED ABOUT 40 YEARS
SRI MOHAN,
1b. S/O LATE GOPI, AGED ABOUT 20 YEARS,
SRI CHIVANTH,
S/O LATE GOPI,
1c. AGED ABOUT 18 YEARS,
SINCE MINOR REP BY HER MOTHER/
APPELLANT NO.1 AS NATURAL GUARDIAN
Digitally signed by 2. SRI RATHNAMMA
GEETHAKUMARI D/O LATE THIRUMALAIAH,
PARLATTAYA S AGED ABOUT 61 YEARS
Location: High
Court of Karnataka ALL ARE R/A NO.23,
9TH MAIN, 9TH CROSS,
BAPUJI NAGAR, MYSORE ROAD,
BANGALORE - 560 026.
...APPELLANTS
[BY SRI RAJESH MAHALE, SR. COUNSEL FOR
SRI JAYARAJ D.S., ADVOCATE FOR APPELLANTS (PH)]
AND:
SRI MUNIVENKATAPPA
(SINCE DEAD BY LRS)
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NC: 2025:KHC:12259
RSA No. 279 of 2014
1. SMT. KULLAMMA,
W/O LATE MUNIVENKATAPPA,
AGED ABOUT 74 YEARS,
2. SRI M VENKATAMMA
W/O M NARAYANASWAMY
AGED ABOUT 51 YEARS
3. SMT. PUTTAMMA,
W/O S.M. NARAYANASWAMY,
AGED ABOUT 47 YEARS
4. SMT. CHANDRAMMA
W/O K. RAJAPPA,
AGED ABOUT 45 YEARS
5. SRI RAMESH
S/O LATE MUNIVENKATAPPA
AGED ABOUT 37 YEARS
RESPONDENTS NO.1, 2, 4 & 5 ARE
R/A SARIGE BEEDHI,
SARJAPURA HOBLI AND POST,
ANEKAL TALUK-562125.
6. SMT. AMARAVATHI,
W/O SHIVAKUMAR,
AGED ABOUT 35 YEARS,
R/A NEELASANDRA,
BANGALORE - 560 047.
7. SRI SRINIVAS
S/O LATE THIRUMALAPPA
AGED ABOUT 57 YEARS,
NO.25, 9TH MAIN, 9TH CROSS,
BAPUJI NAGAR, MYSORE ROAD
BANGALORE - 560 026.
...RESPONDENTS
[BY SRI L. RAJANNA, ADVOCATE FOR R1 TO R6 (PH);
V/O DATED 29.02.2016 APPEAL AGAINST R7 STAND ABATED]
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT
& DECREE DATED 13.12.2013 PASSED IN R.A.NO.275/2006 ON THE
FILE OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BANGALORE RURAL DISTRICT, SIT AT ANEKAL, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
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NC: 2025:KHC:12259
RSA No. 279 of 2014
29.9.2006 PASSED IN OS.NO.178/1999 ON THE FILE OF CIVIL
JUDGE AND JMFC, ANEKAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
Challenging judgment and decree dated 13.12.2013 passed by II Addl. District & Sessions Judge, Ramanagara, in R.A.no.275/2006 and judgment and decree dated 29.09.2006, passed by Prl. Civil Judge (Jr.Dn.) & JMFC., Anekal, this appeal is filed.
2. Brief facts as stated are appellants herein were defendants in O.S.no.178/1999, filed for relief of specific performance of agreement of sale dated 20.11.1972, in respect of two properties namely, (i) Agricultural land bearing Sy.no.111/4, measuring 1 Acre 1 guntas, situated at Mahal Chowdenahalli village, Sarjapura Hobli and (ii) Mangalore tiled House property bearing no.626, measuring East to West 67 ft. and North to South 6 ft. situated at Sarjapura, Anekal taluk, for total sale consideration of Rs.1,400/- ('suit properties' for short) -4- NC: 2025:KHC:12259 RSA No. 279 of 2014
3. In plaint, it was stated, on 20.11.1972, defendant executed agreement of sale in favour of plaintiff agreeing to execute registered sale deed in respect of suit property after receiving entire agreed sale consideration of Rs.1,400/- and delivery of possession. It was stated, plaintiff and defendant were brothers and on several occasions, when plaintiff demanded execution of sale deed, defendant postponed it on some pretext. It was stated having paid entire sale consideration, plaintiff was ready and willing to perform his part of contract and got issued legal notice on 31.05.1999 calling upon defendant to execute sale deed as agreed. It was stated, defendant did not submit any reply, constraining filing of suit.
4. On appearance, defendant filed written statement admitting relationship with plaintiff as brother, but denied execution of agreement of sale on 26.11.1972 and delivery of possession on receipt of Rs.1,400/-. It was stated, properties were purchased jointly by defendant and his two brothers. As defendant was working in KEB at Bengaluru, plaintiff was cultivating same. It was contended, after retirement defendant intended to cultivate suit property, but plaintiff did not give possession. Hence, defendant along with brother Srinivasaiah -5- NC: 2025:KHC:12259 RSA No. 279 of 2014 had filed O.S.no.615/1998. It was contended as agreement of sale was denied, question of plaintiff being ready and willing or about time not being essence of contract did not arise. Hence, sought dismissal of suit.
5. Based on pleadings, trial Court framed issues as:
1. Whether the plaintiffs prove that their father had entered into an agreement of sale with the defendants father by virtue of agreement dated 20.11.1972 and the possession was delivered on the said dated?
2. Whether the plaintiffs prove the passing of consideration of Rs.1400/-?
3. Whether the defendants prove that the agreement was concocted for the purpose of the suit?
4. Whether the plaintiffs are ready and willing to perform their part of contract?
5. Whether the plaintiffs are entitled for specific performance of contract?
6. What order or decree?
6. During pendency of suit, plaintiff and defendant died and their legal representatives were brought on record. Hence, daughter of plaintiff and two others were examined as PWs.1 to 3. Exhibits P.1 to P.7 were got marked. In rebuttal, defendant's son was examined as DW.1 and Exhibits D1 to D.3 were got marked.
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7. On consideration, trial Court answered issues no.1, 2, 4 and 5 in affirmative, issue no.3 in negative and issue no.6 by decreeing suit directing defendant to execute sale deed within two months.
8. Aggrieved, defendants filed R.A.no.275/2006 on various grounds. Based on same, first appellate Court framed following:
:POINTS:
1. Whether the appellants prove that there are just and reasonable grounds to allow I.A. no.II filed U/O 6 Rule 17 of CPC and permit them to amend the appeal memo?
2. Whether the appellants prove that the judgment and decree passed by the learned Prl., Civil Judge and JMFC Anekal in O.S.No.178/1999 dated 29.09.2006 is suffering from any irregularities or illegalities and calls for interference by this court in this appeal?
3. Whether the respondents prove that they are entitled decree of Specific Performance as prayed in the suit?
4. What order or decree?
9. On consideration, it answered points no.1 and 2 in negative, point no.3 in affirmative and point no.4 by dismissing appeal. Aggrieved, present appeal is filed. -7-
NC: 2025:KHC:12259 RSA No. 279 of 2014
10. Sri Rajesh Mahale, learned Senior Counsel appearing for Sri Jayaraj DS, advocate for defendant submitted appeal was challenging concurrent errors decreeing plaintiff's suit for specific performance. It was submitted, suit for specific performance was filed in respect of Ex.P1 - alleged agreement of sale dated 26.11.1972, claiming that entire sale consideration of Rs.1,400/- was paid on same day. It was submitted, admittedly plaintiff and defendant were brothers and suit property was part of Sy.no.111/4, totally measuring 3 Acres 3 guntas, purchased jointly by plaintiff, defendant and another brother and partitioned later each by taking 1 Acre 1 gunta. It was submitted, though Ex.P1 was allegedly executed on 26.11.1972, legal notice was issued on 31.05.1999 and suit was filed on 14.07.1999 after 27 years. Therefore suit was barred by time. Despite same, plaintiff had neither pleaded not produced material to establish suit was in time.
11. It was further submitted, plaintiff's daughter was examined as PW.1. She claimed to have witnessed execution of Ex.P1 even though she would have been only 13 years of age then and apparently incapable of understanding of contract. It was contended, both Courts failed to consider said aspect. It -8- NC: 2025:KHC:12259 RSA No. 279 of 2014 was submitted, an admission was elicited that suit was filed only after defendants had filed suit for declaration and possession. Based on above, both Courts ought to have dismissed suit on ground of delay.
12. It was submitted admittedly, as elder member of family, plaintiff was looking after properties, while defendant was employed in KEB and residing at Bengaluru and other brother was mason. It was submitted when defendant was gainfully employed and having sufficient source of income, plaintiff's claim that defendant was in need of money and executed Ex.P1, would not arise. It was created to knockoff suit property. Further, unlike asserted in Ex.P1, that plaintiff paid entire sale consideration on same day but failed to establish actual payment by examining witnesses. Absence of same, would falsify payment of consideration. It was submitted, even in plaint, assertion about payment of Rs.1,400/- was without any particulars and not supported by documents. It was submitted, virtually on similar facts, plaintiff had filed separate suit for specific performance against another brother, which was dismissed. Hence, both Courts failed to properly appreciate material and erroneously decreed suit.
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13. It was submitted, Section 17(c) of Registration Act mandated registration of agreement of sale involving transfer of possession and payment of consideration. Both Courts had merely stated that plaintiff had paid necessary stamp duty and penalty and ignored non-registration would be fatal leading to dismissal of suit. Hence, following substantial questions of law were proposed for consideration:
a. Whether both Courts erred in decreeing suit even when plaintiff failed to establish payment of consideration?
b. Whether impugned judgment and decree were passed ignoring that suit was barred by limitation?
c. Whether both Courts failed to appreciate, Ex.P1 being unregistered was in violation of Section 17(c) of Registration Act and as such unenforceable?
14. On other hand, Sri L Rajanna, learned counsel for plaintiff submitted, appeal was against concurrent findings of fact and could not be interfered with under Section 100 of CPC. It was submitted, both Courts after appreciation of evidence rightly held Ex.P1 as proved and decreed suit. It was submitted to establish his case plaintiff's daughter was examined as PW.1. During cross-examination, defendants failed to elicit any admissions to disprove Ex.P1 nor produced any material to
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NC: 2025:KHC:12259 RSA No. 279 of 2014 substantiate same. It was submitted, since witness as well as scribe of Ex.P.1 were dead, their children were examined as PWs.2 and 3. Said witnesses identified signatures of respective fathers (Witness and Scribe) on Ex.P1. Nothing material was elicited to discredit their deposition. It was submitted, defendant's son examined as DW.1, though deposed in terms of written statement, admitted in cross-examination that plaintiff and defendant were brothers and in partition, his father got suit property.
15. He also admitted about execution of Ex.P1, plaintiff being in possession and payment of taxes by plaintiff. Further admission that defendant could read and write in Kannada and signing in Kannada also corroborated plaintiff's case. Insofar as dismissal of suit filed against other brother, it was submitted, though suit was dismissed by trial Court, same was reversed in appeal and reversal confirmed by this Court in RSA no.2193/2008 disposed of on 14.06.2018.
16. It was submitted, insofar as non-payment of consideration, both Courts concurrently recorded finding of fact that plaintiff had paid consideration and proved Ex.P1. Therefore, same cannot be interfered in second appeal. Insofar
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NC: 2025:KHC:12259 RSA No. 279 of 2014 as suit being barred by limitation, it was submitted, though agreement was executed in year 1972, same was after receiving entire sale consideration by defendant and putting plaintiff in possession of suit property. It was submitted, in Ex.P1, there was no stipulation of time within which sale deed was to be executed. Therefore, time was not essence of contract. Moreover, plaintiff had specifically pleaded even after several requests, defendant kept postponing execution of sale deed. Therefore, suit filed immediately after refusal to answer legal notice demanding execution of sale deed would be within period of limitation. It was submitted, said contention was examined and negatived by both Courts. Hence, no substantial question of law was involved and prayed for dismissing appeal.
17. Heard learned counsel, perused impugned judgment and decree and record.
18. This second appeal is by defendant challenging concurrent findings decreeing suit for specific performance. Main grounds urged are suit being barred by limitation, failure to prove payment of consideration and agreement of sale being unenforceable due to non-registration, under Section 17(c) of Registration Act.
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NC: 2025:KHC:12259 RSA No. 279 of 2014
19. First contention about bar of limitation is on ground that suit for specific performance was filed on 14.07.1999, after issuing legal notice dated 17.05.1999 demanding performance in terms of agreement of sale - Ex.P.1 dated 26.11.1972 i.e., after 27 years.
20. Admittedly, trial Court did not frame any issue about limitation. Perusal of written statement filed would reveal that there was no specific ground urged. While passing impugned judgment and decree trial Court observed that in Ex.P1 did not contain any stipulation about time within which sale deed was to be got executed. Seller had agreed to execute sale deed as and when demanded by agreement holder and in case of default any loss were to be caused to purchaser, same would be reimbursed from other immovable properties of seller. Based on same, it observed time was not essence of contract and as defendant had failed to execute sale deed when demanded by plaintiff by issuing Ex.P3 - Legal Notice, plaintiff was entitled for specific performance.
21. Only in appeal an attempt for amending Appeal Memo for inclusion of plea of suit being barred by limitation
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NC: 2025:KHC:12259 RSA No. 279 of 2014 appears to have been made by filing IA-II. However, appellate Court rejected application on ground that no such plea was taken in written statement and application filed did not seek amend written statement. Besides, if defendant denies agreement of sale, fact that he admitted plaintiff being in possession of suit property and failed to recover possession would, as per ratio laid down by Hon'ble Supreme Court in Ravinder Kaur Grewal v. Manjit Kaur, reported in 2019 (8) SCC 729, confer title on plaintiff by adverse possession.
22. In instant case, both Courts have concurrently held plaintiff had established due execution of Ex.P.1 - agreement of sale after receipt of entire sale consideration and delivery of possession. Incidentally, defendant had also sought to contend agreement as being barred due to Fragmentation Act. In this context, Hon'ble Supreme Court in Munishamappa v. M. Rama Reddy, reported in 2023 SCC OnLine SC 1701 has held:
"10. The Agreement to Sell is not a conveyance; it does not transfer ownership rights or confers any title. What is prohibited or barred under the Fragmentation Act was the lease/sale/conveyance or transfer of rights. Therefore, the Agreement to Sell cannot be said to be barred under the Fragmentation Act. The appellant filed the suit for specific performance after the repeal of the Fragmentation Act. The suit could have been
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NC: 2025:KHC:12259 RSA No. 279 of 2014 decreed without there being any violation to the law once the Fragmentation Act itself had been repealed in February 1991. Further, the High Court did not hold that the suit was barred by Section 5 of the Limitation Act. The First Appeal Court had considered this aspect and having decided the said issue in favour of the appellant, we need not go into that question at this stage. What is further noticeable is that the respondents received the full consideration and had also transferred the possession of the property in question, as such other defences may not be available to them. Even the issue of readiness and willingness on the part of the appellant would not be relevant.
11. For all the reasons recorded above, the appeal deserves to be allowed. The impugned order and judgment of the High Court dated 10.11.2010 is hereby set aside, and the judgment of the First Appellate Court dated 17.04.2008, decreeing the suit of the appellant, stands restored."
(emphasis supplied)
23. Apart from above, Hon'ble Supreme Court in Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana, reported in 2012 (1) SCC 656, while deciding validity of transfers of immovable property under agreements of sale, held:
"26. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/will transactions are not "transfers" or "sales" and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreements of sale. Nothing prevents the affected parties from getting registered deeds of conveyance to complete their title. The said "SA/GPA/will transactions" may also be used to
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NC: 2025:KHC:12259 RSA No. 279 of 2014 obtain specific performance or to defend possession under Section 53-A of the TP Act. If they are entered before this day, they may be relied upon to apply for regularisation of allotments/leases by development authorities. We make it clear that if the documents relating to "SA/GPA/will transactions" have been accepted/acted upon by DDA or other developmental authorities or by the municipal or Revenue Authorities to effect mutation, they need not be disturbed, merely on account of this decision."
(emphasis supplied)
24. Insofar as contention that there was no proof of payment of consideration, there is specific admission by DW-1 that since 20.11.1972, plaintiff was in possession and had constructed house and bore-well in it and cultivating land using water from bore-well and was paying land revenue. Though specific suggestion about delivery of possession on receipt of Rs.1,400/- as consideration, specific defence was set-up that defendant was drunkard and taking advantage of such situation, plaintiff had got him to execute agreement of sale without actual payment of consideration. By taking such contention, defendant admitted execution of agreement of sale, but failed to substantiate contention about non-receipt of sale consideration during cross-examination of PW-1. Only effort is making suggestions which were denied. In fact, statement that only at time of agreement of sale, father of PW-1 had paid
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NC: 2025:KHC:12259 RSA No. 279 of 2014 money elicited during cross-examination of PW-1, would run contrary to defendant's case. There is no observation by trial Court that same was volunteer statement of witness.
25. Insofar as contention about agreement of sale being unregistered would be hit by Section 17 (1) (c) of Registration Act, 1908, it is seen, said provisions reads:
"17. Documents of which registration is compulsory. -- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;"
26. A bare perusal of same would indicate that said provision would apply only to documents or deeds creating declaring, assigning or extinguishing any right title or interest
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NC: 2025:KHC:12259 RSA No. 279 of 2014 in property. As held by Hon'ble Supreme Court in Meghmala v. G.Narasimha Reddy, reported in 2010 (8) SCC 383, as well as per Suraj Lamps (supra), an agreement of sale does not create any right or title in favour of intending buyer. It is also seen, until amendment of Registration Act by Act no.48 of 2001 w.e.f. 24.09.2001, an agreement of sale did not require registration. Therefore, Ex.P1 would not be hit by Section 17 (1) (c) of Registration Act.
27. In view of above discussion, none of grounds urged merit consideration. No substantial question of law including those proposed arise for consideration. Hence, Appeal is dismissed, with no order as to costs.
Sd/-
(RAVI V HOSMANI) JUDGE Psg/AV/GRD List No.: 1 Sl No.: 39