Bangalore District Court
M/S.Hastimal & Sons vs Sri P Tejaraja Sharma on 24 October, 2017
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT: SRI.BASAVARAJ B.COM., LL.M.
XLI Addl. City Civil Judge
Dated this the 24th day of October 2017
O.S.No.2290/1988
PLAINTIFFS : M/s.Hastimal & Sons
A Registered Partnership Firm of Cloth
Merchants, No.30, Dewan Soorappa's
Lane, Chickept Cross, First Cross Road,
Bangalore City-560 053.
Rep. by Partners
(a) Sri P Hastimal Jain
Aged about 64 years
S/o.Late Pannalal and
(b) Sri Tejraj H Jain
Aged about 33 years
S/o.P Hastimal Jain
Address as above.
(By Sri. SMS/MVR, Advocate)
V/s.
DEFENDANTS : 1. Sri P Tejaraja Sharma
S/o.Late Pukhraj Sharma
Major
R/a.No.10, Ranoji Rao Lane,
Kalasipalyam,
Bangalore-560 002
2 OS No.2290/1988
(By Sri. HSR, Advocate)
2. Sri B.M.Jagadisha
S/o.Late B.Maribasappa
Aged about 35 years
R/a.No.546/35, 63rd Cross
5th Block, Rajajinagar,
Bangalore-560 010.
(By Sri. SVS., Advocate)
3. Kum J.Rashmi
Aged about 6 years
4. Kum. J.Ramya
Aged about 2 years
Both 3rd and 4th daughters of
Sri B.M.Jagadisha
Defendant No.2 above, Minors
Rep. by natural
Guardian ad Litem
Sri B.M.Jagadisha and residing with him.
(By Sri P.W.H., Advocate)
Date of Institution of the Suit: 05.05.1988
Nature of the suit
(Suit on Pronote, suit for Specific performance
declaration & possession, suit
for injunction)
Date of commencement of 15.07.2010
recording of evidence:
Date on which the Judgment 24.10.2017
was pronounced:
Total Duration: Year/s Month/s Day/s
29 05 19
3 OS No.2290/1988
JUDGMENT
The plaintiff filed this suit for specific performance to direct the defendants to execute sale deed of the suit schedule property subject to the mortgage for the same price of Rs.2,02,500/- and register the same at their cost and do other needful acts that are necessary therefore and to receive the sale price (less the mortgage money) or such other amount, for cost of the suit and to pass such other reliefs.
2. The suit schedule property as described in the plaint is as under:-
SCHEDULE Premises with all appurtenances bearing no.30 situated in Dewan Soorappa's Lane, Chickpet Cross (1st Cross), Bangalore City-560 053, consisting of ground floor, 1st floor and second floor measuring east to west 12 feet or 3.66 meters and north to south 42 feet or 12.80 meters and bounded on the East by : Deevaramma's House West by : Premises No.29 North by : Bombay Anandbhawan 4 OS No.2290/1988 Premises, now of Sri.D.P.Sharma's Sharma Market Complex South by : Dewan Soorappa's Lane
3. The plaint averments in brief is as under:
The 2nd defendant was the full, absolute and exclusive owner of premises No.30 and 27 of 1st cross road, Dewan Soorappa's Lane, Chickept Cross, Bangalore and he mortgaged the same with possession under registered mortgage deeds dt.19.3.1980 for a sum of Rs.45,0000/- in favour of plaintiff who was tenant and plaintiff is continued in possession as agreed in the mortgage deed. Redemption of the said mortgage of the said properties is permissible as agreed there under only after 20 years and before 25 years etc., and plaintiff has also got other rights as detailed in the said mortgage deed.
Defendants No.3 and 4 minor daughters of the 2nd defendant born subsequently are also impleaded in this suit as they are also bound by acts of the 2nd defendant who is the Manager of the family.5 OS No.2290/1988
Subsequently, the 2nd defendant wanted partial release of only Western Portion of the property bearing no.27 from the said mortgage with possession dt.19.3.1980 as he had sold the same to M/s.Sundaram Textiles and approached plaintiff therefore and offered and agreed to give to plaintiff first option to purchase the other property No.30 and the eastern portion of No.27 etc., and in view of this specific offer registered release deed dt.21.9.1981 was executed between plaintiff and second defendant. Only the western portion of No.27 was released from the mortgage and the eastern portion of No.27 and the whole of No.30 continued under the said mortgage.
In view thereof, plaintiff has got the right of 1st option to purchase, that is pre-emption as per the terms agreed in the said registered release deed, the original of which is with 2nd defendant.
Defendant No.2 never notified the plaintiff about his intention to sell the suit schedule property. To plaintiff's surprise, he got two letters dt.21.3.1988 i.e. one from 2nd defendant and the other from 1st defendant that the 2nd 6 OS No.2290/1988 defendant has sold premises No.30 (Schedule property) to the 1st defendant under Registered Sale deed dt.19.3.1988 etc., Plaintiff got sent two replies dt.10.4.1988 to the defendants No.1 and 2 through his Advocate and both of them have evaded the Registered letters. Inview thereof copies of the said letters dt.10.4.1988 along with covering letter dt.21.4.1988 have been sent again to defendants No.1 and 2 under certificate of posting and the same has reached them. Plaintiff in the meanwhile got letter dt.11.4.1988 through 1st defendant's Advocate and reply dt.13.4.1988 along with copies of letters dt.10.4.1988 addressed to defendants No.1 and 2 was sent thereto and the same has been received by Advocate on 15.4.1988. As there was no response thereto, reminder letter dt.25.4.1988 has again been addressed to 1st defendants Advocate which has been acknowledged on 30.4.1988. Copy of the alleged sale deed dt.19.3.1988 has not been sent to plaintiff or his Advocate inspite of requisition.
Plaintiff now learns that the sale of schedule property is for a sum of Rs.2,02,500/- and subject to the Mortgage under 7 OS No.2290/1988 deed dt.19.3.1980 and that only Rs.45,000/- is left with the purchaser out of the sale consideration for redemption of the said mortgage. In addition to the principal sum, plaintiff is also entitled to other amounts as per tenor of the mortgage deed. The plaintiff has to get taxes paid to Corporation and repair charges together with interest on both at Rs.1.5-paise percent per month.
None of the defendants approached the plaintiff at any time. Plaintiff was apprised of the sale only by the letter dt.21.3.1988 referred to in paras above. Inview of the terms referred to in para 3 above, it was incumbent on the 2nd defendant and he was bound to issue due notice of the proposed sale in writing with three months notice and time before the sale deed. He was bound to intimate the intention of sale according to the letter and spirit of the clauses pertaining to pre-emption and plaintiff has right of first option to purchase schedule property as per the clause pertaining to pre-emption as envisaged in the release deed and he is exercising his right of first option to get the sale deed of the 8 OS No.2290/1988 schedule property at his cost and in accordance with law. Inspite of the said terms and conditions, without even informing the plaintiff of the proposed sale and without offering the same to plaintiff to purchase or issuing due notice as agreed defendants No.1 and 2 in collusion have brought into existence the alleged sale deed with malafide intention to deprive the plaintiffs legitimate right, if possible and with ulterior motive of making wrongful gain. 2nd defendant has not complied with his contractual obligations.
Plaintiff was always ready and willing to exercise his right of first option and is even now ready and willing to exercise his right of 1st option to purchase the property and get the sale deed registered in his name at his cost and do all that is necessary to complete the sale transaction and has necessary funds to do so.
The sale is illegal and not binding on the plaintiff. 2nd defendant or others claiming under him had no right to sell or execute sale deed and 1st defendant had no right to purchase the same without getting no objection from plaintiff after due 9 OS No.2290/1988 notice to him. The 1st defendant is also bound by the said terms. Plaintiff's rights are known to one and all including the 1st defendant who has also notice of the same.
The alleged purchase by 1st defendant is neither bonafide nor for value. 1st defendant has also to execute sale deed of the schedule property which is the subject matter of the sale deed dt.19.3.1988, No.30 eastern portion of the 1st and 2nd floor of premises bearing No.27 (though only no.30 is mentioned) in the sale deed the description including both no.30 and eastern portion of 1st and 2nd floors of premises bearing no.27 for the same price, defendants No.2 to 4 also joining him therein and plaintiff has such right of pre-emption.
Plaintiff exercised his right of 1st option and got notices issued as above that he is ready and willing to purchase the schedule property for the same price as mentioned in the registered sale deed subject to the mortgage. As the defendants have not complied, plaintiff humbly seeks for reliefs as prayed for hereunder. Plaintiff has all along been and even now and ever ready and willing to purchase the property and exercises 10 OS No.2290/1988 right of pre-emption and require sale of the schedule property to plaintiff, himself bearing al expenses of stamp and registration charges and other expenses if any. Hence prays to decree the suit.
4. The defendant No.1 appeared thorough his counsel and filed written statement contending that it is true that the defendants No.2 to 4 had been the full, absolute and exclusive owners of the suit schedule property and it is also true that the registered mortgage deed dated: 19/3/1980 had been executed by the defendant No.2 in favour of M/s Hasthimal & sons and H.R.Tej Ra Jain under the mortgage transaction. The clear intention of the parties to the document dated: 19/3/1980 in the context of the background of the mortgage transaction, the defendant No.2 had a right to redeem the mortgage deed any time, he would make the payment and such action has been taken by both the parties to the transaction vide registered release deed dated: 21/9/1981 under which there has been a partial release of the mortgage properties referred to in the 11 OS No.2290/1988 Deed dated: 19/3/1980. This accomplished fact and the plaintiffs have admitted this fact and the same established that the period mentioned in the mortgage deed was not the essence of the mortgage transaction. Besides, the very term is admittedly, a "Clog" on redemption and the same could not be insisted upon.
Admittedly, plaintiff has meddled with the security of the property i.e. the schedule property over which the mortgage transaction has taken place and the meddling of the property has been by the plaintiff immediately after 21/9/1981 and the matter of meddling had been the demolition of the stair case existed at one spot and putting up a new stair case in a different spot, the original stair case had been in the big hall portion in the ground floor to the southern side of the partition wall between the hall and a room at the northern end. After demolishing this stair case, the plaintiff had demolished the portion wall between the room and the hall, also and a new stair case has been put up at the southern end of the portion, even the structure of the roof has been meddled with. Since 12 OS No.2290/1988 the meddling of the secured property in this manner, the plaintiff herein has lost all the claimable rights which he would have claimed under mortgage deed dated:19/3/1980 and release deed dated: 21/9/1981. The same context also makes it clear that the plaintiff has committed "breach of terms and mortgage on fact" and also violation of law and consequently, the plaintiffs have no competence to invoke any term of the mortgage deed and to seek enforcement of the same.
Thus, it is clear that the recitals in the plaint about the term agreeing to sell the properties as portions of the premises No.27 and 30 as described to the deed but admittedly, both the portions of premises No.27 and 30 are fully covered in the description of the plaint schedule properties and a right of first option i.e. right of pre-emption and prior notice, etc., have all lost their relevance and significance in law and the default committed by the plaintiff in an by meddling with the secured property as mentioned supra.
The mortgage transaction admittedly has come about in a situation wherein, the plaintiff in this suit had been in 13 OS No.2290/1988 dominating position to subject the defendant No.2 to undue influence. This is clear by the fact that the plaintiff having given loans to the defendant No.2 much prior to the date of the mortgage deed and also making use of a loan between the defendant No.2 and the 3rd party and in that manner, the plaintiffs claiming to have lent a sum of Rs.20,000/- to the second defendant and also the fact that the second defendant obtained a loan of Rs.10,000/- from some other 3rd party and both the sums together added to make upto Rs.30,000/- the plaintiff had been in a dominating position to extract payments on demand from the second defendant in a situation wherein the defendant No.2 was not in a position to immediately pay back the sum of Rs.30,000/- on demand by the plaintiff. In this background, when the second defendant was financially in a bad position and was also in need of further sum of loan of Rs.15,000/- the plaintiff has given loan of Rs.15,000/- also on the date much prior to 19/3/1980. But, the plaintiff by using his dominant position and to exploit this situation and by wielding undue influence, the plaintiff forced the second 14 OS No.2290/1988 Defendant to execute the mortgage deed, but, no consideration having been paid under the mortgage deed. However, this defendant No.1 has learnt that the plaintiff herein got the mortgage deed only as and for the purpose of collateral security with the clear understanding between the parties that at any time, it is open to the second defendant or anybody claiming under or through him, to make payment of Rs.45,000/- and get the mortgage deed discharged and during that period till the mortgage deed is discharged, the plaintiff who had been a tenant under the 2nd defendant was not to pay the rents for the premises No.30 and that was the only benefit. This intention was not the intended transaction in the mortgage, but, it only a collateral security as also been exposed by the true facts that possession 21/9/1981 a partial release deed has come into existence, wherein a portion of the premises No.27 has been utilized from out of the mortgage deed and also neither under the mortgage deed dated:
19/3/1980, nor under the partial release deed dated:
21/9/1981, the defendant No.2 had given possession of the 15 OS No.2290/1988 premises No.27 to the plaintiff. All these go to show that the mortgage deed and the partial release deed had been only nominal and no more than a collateral security, but, no the principal transaction since the principal transaction is a loan for Rs.45,000/- are payable, at any time by the second defendant or anybody claiming under or through him, and till repayment, rent amount payable by the plaintiff to the second defendant or anybody claiming under or through him, would be beneficial to the plaintiff as not to pay the rents.
In these true facts and circumstances, the main transaction between the plaintiff and defendants No.2 to 4 is simple loan transaction and by discharge of the loan the document dated: 19/3/1980 is a subsequent document without consideration and further document dated: 21/9/1981 became a discharged document. Then both the documents would not be enforceable agreements as the same was and is void due to the subsequent conduct of the plaintiff is having meddle with the property referred to and shown in the recital of the two documents.16 OS No.2290/1988
It is in this context, this defendant No.1 has been insisting for the immediate redemption of the mortgage deed dated: 19/3/1980 and for the consequential reliefs to this defendant for which the defendant No.1 has filed suit O.S.No.1977/88 and the plaintiff herein, is the defendant in that suit. In the above facts and circumstances, the present suit of the plaintiff relied on an isolated term in the partial release deed said to be a term giving first option purchase right allegedly to the plaintiff herein and 3 months period notice with regard to the intended sale and the absence of the notice of the plaintiff about the sale transaction between the defendant No.1 and other defendants herein, are all not at all tenable since the defaulter has no right in law to seek for enforcement of the terms and conditions of the mortgage deed, that too after having violated the law relating to the mortgage and the secured property under the mortgage deed and therefore, the alleged claim of the plaintiff of his right of first option to purchase, i.e. the right of pre-emption are not enable in law, and they are illusory. More over, as assured by the 17 OS No.2290/1988 plaintiff to the defendant No.2 at the time of the sale transaction between the defendant No.2 and defendant, the plaintiff had made it clear that he is not interested in the property, but, in money transaction only.
In the light of the foregoing the plaintiff cannot be countenanced to content after the committed defaults as to make the allegations that the notified sale transaction between the defendant and the other defendants are not binding on the plaintiff and also to sail with the defendant No.1 is to join other defendants to execute the sale deed in favour of the plaintiff. Such a question does not arise in the plaintiff's case in favour of the plaintiff. The plaintiff in law, are bound by the sale transaction between the defendant and other defendants and the term of prior notice of right of first option to purchase, right of pre-emption having had been lost to the plaintiff and the plaintiff being not in a position to claim or enforce any term of the transaction under the mortgage deed dated 19/3/1980 and partial deed dated: 21/9/1981, this defendant has a right to obtain immediate redemption of the mortgage 18 OS No.2290/1988 deed with effect from the date on which the defendant has filed O.S.No.1977/88 and the plaintiff herein is liable under law for all consequential liabilities. In the above said facts, circumstances and position in law, the plaintiff is not competent to file and maintain and prosecute the present suit and his alleged clamour of right of pre-emption and his readiness and willingness to purchase the property, are all liable to be rejected as not tenable in the light of the defaults committed by the plaintiff herein. The plaintiff is not entitled in law to seek relief under Specific Relief Act or under any law.
The facts, circumstances, situation and position in law as has been explained in the preceding paragraphs make it clear that the alleged averred claims of the plaintiff are all imaginary and by the every action of the plaintiff in having meddle with the security property of the mortgage transaction, the plaintiff has reduced himself to a status of having no manner of right, title and interest under the two deeds relied upon by him, i.e. mortgage deed dated: 19/3/1980 and partial release deed dated: 21/9/1981 the defendants No.2 to 4 had 19 OS No.2290/1988 no manner of hindrance or inhibitions and therefore, they have entered into sale transaction with the defendant No.1 with respect to the schedule property and the plaintiff has no right to question the same. The sale transaction is binding on the plaintiff.
The plaintiff admittedly, was in possession as a mortgage at the time of institution of the suit. By virtue of redemption, defendant No.1 filed a suit in O.S.No.1977 of 1988. The said suit was decreed in part as per the order passed in Civil Appeal No.3008 of 2001 by the Hon'ble Supreme Court of India. In the said order, in addition to the fact that the right of redemption of the defendant No.1 was upheld, the defendant No.1 was directed to file a separate suit for ejectment since the status of the plaintiff reverted to that of the lessee on redemption of the mortgage. Hence, ejectment suit has been filed for recovery of possession in O.S.No.9833 of 2007 and the same is pending consideration. It is pertinent to mention that the Hon'ble Supreme Court in the aforementioned order has clearly held that if one of the terms between the mortgager and 20 OS No.2290/1988 the mortgagee was that the mortgagee shall have the right of preemption in case of mortgager wishes to transfer the property to a third party, such a condition operates as clog on the right of redemption. Such a right is unenforceable. In view of the foregoing facts, the plaintiff's claim of right of preemption and a decree on such basis is legally unsustainable and which was a fact in lis and finally adjudicated between the parties by the Apex Court of the Country. Except contending above, the defendant No.1 denied all other remaining plaint averments as false. Hence, prayed to dismiss the suit.
5. Upon service of summons, the defendant No.2 to 4 have appeared before the court through their counsel and filed written statement contending that the plaintiff has come to the court with unclean hands and guilty of suppression of material facts and conduct of the plaintiff is unfair.
The plaintiff has abused the process of law and has filed this suit with a distorted version of facts as a counter blast to 21 OS No.2290/1988 the suit filed by the 1st defendant against it for redemption of mortgage. This suit is filed with an ulterior motive and filed with the sole intention of dragging on the proceedings/suit filed by the 1st defendant in OS No.1977/88 on the file of the City Civil Judge, B'lore which is pending in Court Hall NO.5.
It is true that the plaintiff is the owner of property bearing No.30, D.S.Lane, Chickept, B'lore. The 1st defendant purchased the property under a registered sale deed dt.19.3.1988 for valuable consideration. It is true that the 2nd defendant had mortgaged the property bearing No.30 to the plaintiff under a usufructory mortgage deed dt. 19.3.1980. The 1st defendant purchased the property subject to the mortgage. Subsequently the first defendant filed a suit for redemption of mortgage which is pending in court hall No.5.
The plaintiff is in occupation of premises bearing no.27 and 30 as a tenant under a mortgage deed dt.19.3.1980. The 2nd defendant mortgaged the property in favour of the plaintiff. The conditions stipulated under the registered mortgage deed is unenforceable. The 2nd defendant who was in need of money 22 OS No.2290/1988 was under the thumb and control of the plaintiff and its partners. The partners of the plaintiff were lending money to the 2nd defendant but inequitable terms and misused the ignorance.
The plaintiff who was in a fiduciary capacity obtained the mortgage by putting unreasonable terms and conditions which is suppressive and unequitable by using undue influence and exploited the ignorance of the 2nd defendant. In the circumstances, the contract entered into between the second defendant and the plaintiff is without free will and consent. In the circumstances, the covenants contained in the mortgage deed is void and unenforceable.
The plaintiff who was aware of the financial position and difficulties misused their power by their fiduciary capacity and control over the second defendant on the documents and obtained mortgage deed by putting unreasonable and unenforceable convenants under the document deed dt.19.3.1980.
23 OS No.2290/1988
Subsequently, when the defendant No.2 wanted to redeem the mortgage, but the plaintiff did not agree for the same. The plaintiff obtained the mortgage with possession for a very meager sum in a very busy commercial locality like D.S.Lane and Chickept and exploited the ignorance of the 2nd defendant. The plaintiff unnecessarily troubled and hurdled the defendant No.2 in redeeming the mortgage and misused their position and obtained the documents dt.19.3.1980 by un due influence and fraud. The plaintiffs have not allowed the 2nd defendant to sell the property by putting untenable conditions and when the defendant wanted to redeem the mortgage the plaintiff did not agree for the same and put the 2nd defendant in an embarrassing position, when he entered into an agreement of sale to sell a portion of the property to M/s.Sundaram textiles. In a way the plaintiffs throughout went on putting unreasonable terms and exploited the difficulties and miserable situation of the defendant and forced him to sign the documents according to their terms and conditions by using undue influence. The second defendant 24 OS No.2290/1988 who agreed to sell the portion of the property to M/s.Sundaram Textiles and entered into an agreement was in a fix in view of the conduct of the plaintiff. The plaintiff was not ready to redeem the mortgage in view of their conduct and unreasonable behaviour, the second defendant was put in backward position. The 2nd defendant was in a very feable state of mind and at that time the 2nd defendant who was not able to exercise free will executed the document. In the circumstances, he was not in a position to bargain with the plaintiff.
The 2nd defendant who was in helpless and in a pathetic condition agreed to the conditions put forward by the plaintiff. Therefore, the subsequent agreement between the plaintiff and the defendant is without free will of the 2nd defendant and those documents are signed by using undue influence. Hence, the documents are unenforceable as the contract between the parties was without free will and consent. The 2nd defendant who was very eager to sell the property to M/s.Sundaram Textiles was under the great pressure and undue influence of the plaintiff. The plaintiffs misused their position and dictating 25 OS No.2290/1988 the terms to the 2nd defendant and ultimately the 2nd defendant signed the document as per the dictation of the plaintiff. In the circumstances, he had no option except to sign the papers as desired by the plaintiff. In fact, the plaintiff exploited the helpless condition of the 2nd defendant.
The partial release deed executed by the plaintiff within two days after the defendant signed an agreement would clearly demonstrate that the plaintiff misused the position of the 2nd defendant and the document dt.19.3.1980 is unenforceable. Even though the defendant was prepared to redeem the mortgage in its entirety by paying full amount, the plaintiff did not agree for the same and exploited the situation and determined to take the flush and blood of the first defendant by putting unequitable terms.
For the reasons stated above, the contract entered into between the parties is unenforceable as the contract is opposed to the Indian Contract Act. In a nutshell contract is void-ab-initio and in the circumstances, the suit based by the plaintiff on this type of agreement is liable to be dismissed. 26 OS No.2290/1988 Without prejudice to the above contentions, the defendants submits as follows:
a) even otherwise the conditions contained in the document dt.19.3.1980 is contrary to Section 10 of the Transfer of property act and the conditions contained in the document is extremely vague and in the circumstances, it cannot be enforceable in law.
b) the terms stipulated in unjustified and the said document is unenforceable. The property mentioned in the agreement dt.19.3.1980 and the property conveyed under the sale deed executed by the 2nd defendant in favour of the 1st defendant is also different. In the circumstances, the suit for right of enforcement of pre-emption is not maintainable.
Alternatively the alleged document speaks regarding the 1st floor and 2nd floor and not in respect of the ground floor of the schedule premises. In view of the vagueness and uncertainty the document dt.19.3.1980 is not enforceable. 27 OS No.2290/1988
The plaintiff is not entitled to enforce the terms alleged under the document dt.19.3.1980 which is contrary to the statute inspite of it, the 2nd defendant informed the partner of the plaintiff by name Sri Hastimal that his intention before the starting of negotiations of the sale of the property. In fact the 2nd defendant on the assurance made by the partners of the plaintiff on 1.10.1986 in their shop have informed the 2nd defendant that they are not intending to purchase the property because they have constructed a multistoried complex near to the schedule property and in the said market complex the shops are vacant and in the circumstances, they are not prepared to invest any money to purchase the property. Further, they have stated that any how, there is a mortgage in their favour and the defendant is entitled to sell the property to any person of his choice subject to their mortgage because they are not interested in purchasing the property from the 2nd defendant. When the plaintiff refused to purchase the property, the 2nd defendant requested the plaintiff to deliver vacant 28 OS No.2290/1988 possession of the property so that he could sell the property to the third parties. The plaintiff did not agree for the same.
Afterwards, a panchayath took place in the shop of the plaintiff, in the presence of prominent persons of the locality who were the well-wishers of the plaintiff and defendants under the leadership of Vijayaraj Jain and S.Mahendra Kumar Conducted a Panchayath. In the said panchayath, the partners of the plaintiff firm and defendant put their case. The defendant requested the plaintiff to delivery vacant possession of the same. In the said panchayath, the partners of the plaintiff stated that they are not interested to purchase the property but they are not prepared to deliver vacant possession of the same and that they not come in the way of the 2nd defendant to alienate the property subject to their mortgage. The defendants wanted to record the agreement reached between them and give it in writing. The partner of the plaintiff firm who were present stated that it is not necessary to record it in writing because the agreement had been reached in the presence of the prominent persons of the locality. The 29 OS No.2290/1988 panchayatdars also endorsed the same view and stated that it is not necessary to record the agreement reached between the parties in writing and in view of the implicit faith and confidence on the plaintiff and assurance of the panchayatdars, the 2nd defendant did not insist the agreement reached between them, to be recorded in writing.
Subsequently, as an abundant caution before entering into an agreement of sale, the 2nd defendant again informed the plaintiff by his letter and under certificate of posting stating that he is intending to sell the property in question to the first defendant for a sum of Rs.2,02,000/-. The partners of the plaintiff who has received the said letter stated that they have already stated before the panchayatdars that they are not intending to purchase the property in question and the 2nd defendant is entitled to deal with the property as he likes and he can sell the same to the person of his choice.
The plaintiff who has allowed the defendants not complete the transaction has come forward with this suit only to blackmail and to abuse the process of law for gain and to 30 OS No.2290/1988 stall the proceedings of the redemption suit filed by the 1st defendant.
None of the defendants approached the plaintiff at any time. The defendant has completely believed the plaintiff and on their assurance and in view of the assurance of the panchayatdars he completed the transaction.
Now the plaintiff has come forward with the plea that the defendants are bound to issue notice of the proposed sale in writing within three months before executing the sale deed, even though it is not entitled to and it has waived their right before panchayatdars.
As an abundant caution, a notice was served on the plaintiff and he kept quite because the plaintiff is not interest to purchase the property. The plaintiff is aware of the sale deed in favour of the first defendant right form the date of agreement. In the circumstances, it is not entitled to enforce the alleged pre-emption rights.
The plaintiff at any point of time was ready and willing to purchase the property by exercising their right of option. 31 OS No.2290/1988
The first purchaser has purchased the property for valuable consideration. The plaintiffs have neither legal nor legitimate right of pre-emption. Alternatively, the alleged right is waived and abandoned by the plaintiff and in the circumstances, it is not entitled to exercise right of option to purchase the property at this juncture.
The partners of plaintiff who has given their no objection by their conduct and action is not entitled to claim the right of pre-emption. The sale made by the 2nd defendant in favour of the 1st defendant is binding on the plaintiff because the partners of plaintiff are aware of the sale transaction right form the date of agreement and the 1st defendant has purchased the same for valuable consideration. The plaintiff who has promised to complete the transactions in favour of the 1st defendant is estopped in law from contending that the sale is not binding on plaintiff.
The plaintiff's case is on the basis of the alleged first option claim to purchase the suit schedule property is not tenable since the plaintiff's reliance on the partial release deed 32 OS No.2290/1988 dt.21.9.1989 itself make it clear that the partial release deed has been in "absolute term without" any restraint and therefore, the claim of the plaintiffs with reference to an isolated portion particularly of the document is not tenable in law due to inconsistence and repugnancy and the alleged claim of the plaintiffs is imaginary. There is no agreement as such about the right of first option to purchase in favour of the plaintiffs with regard to the suit schedule property and there has been "no offer" and "no acceptance" and it is patently clear that there is also "no consideration" at all. Thus, it is clear that the plaintiffs have no case either as an agreement in favour of the plaintiff or as to enforce any such agreement. The transaction between the plaintiffs and the defendant No.2 even according to the mortgage deed dt.19.3.1980 itself is indubitably clear that the case made out by the plaintiffs is that the plaintiffs had given loan of Rs.20,000/- on 21.11.1979 paid by themselves and later on some third party (not the plaintiffs) had given a loan of Rs.10,000/- to the defendant No.2 and admittedly these two loan transactions have been 33 OS No.2290/1988 without any documents, except mentioning of some cheques. Hence, these sums of Rs.20,000/- and Rs.10,000/- as aforesaid, totally Rs.30,000/- have been purely simple loan transaction without any mention of mortgage transaction, even according to the plaintiffs. Even according to the plaintiffs it is only on 11.2.1980, a sum of Rs.15,000/- only has been paid to the defendant No.2 as a loan through a particular cheque no.712504/11.2.1980 on "Canara Bank", Avenue Road branch, Bangalore City without any document. Thus, the plaintiffs refer to those amounts i.e., Rs.20,000/-, Rs.10,000/- and Rs.15,000/- and all these are simple loan transaction and on the basis of these payments on 19.3.1980, on which date the plaintiffs position and situation was not in good condition, and on demand could no repay the loan amount which has been explained already in the foregoing paragraphs, the plaintiffs in a condition of duress and subjected to undue influence, have got executed the mortgage deed dt.19.3.1980 admittedly, without any consideration under the said mortgage deed.
34 OS No.2290/1988
The said mortgage deed has also not been acted upon since the plaintiffs and the defendant No.2 have clearly intended that the transaction is only a simple money loan transaction and due to inability of the defendant No.2 and 3 to repay the loan amount at any time, demanded by the plaintiffs, the schedule property has been treated only as collateral security and that is the intention of the parties not- withstanding the fact that the mortgage deed has been made out and brought into existence.
In fact and truth the premises No.27, remained in physical possession, with the defendant No.2 to 4 and the members of their family and even after 19.3.1980. Inview of the clear intention of the parties on 21.9.1981, a partial release deed has been brought into existence, whereby a part of the premises No.27, which is one of the items shown in the mortgage deed has been released which is on the western end of the premises No.27. The possession of this portion of premises No.27 and also the entire premises No.27, had been remaining with the defendants No.2 to 4 earlier to 1980 and as 35 OS No.2290/1988 on 19.3.1980 and subsequent to 19.3.1980, also and even under the partial release deed in respect of the portions of premises No.27, possession was not with the plaintiffs and therefore, the partial release deed has no significance except to make it clear that the portion of the premises NO.27 has been removed out of the mortgage deed dt.19.3.1980. The portion of the premises No.27 which remained with the defendant No.2 to 4 and the members of their family even after the partial release deed (and a portion having been sold to M/s.Sundaram Textiles, which has been referred to in the partial release deed regarding the sale transaction between defendant No.2 to 4 and the Sundaram textiles). Subsequently, the defendants 2 to 4 since the plaintiffs made out as partial release deed, the remaining portion of the premises No.27 was handed over to the plaintiffs and it is in this way the plaintiffs have come to hold and posses the suit schedule property described as premises No.30 in the suit schedule property.
The description of the suit schedule property converse admittedly both the portion of the premises No.27 which 36 OS No.2290/1988 portion was delivered to the plaintiffs after the western portion was sold to M/s.Sundaram Textiles and also premises No.30. hence, it is clear that the suit schedule property envelopes both the premises No.27 and 30 covered by the mortgage deed dt.19.3.1980, but excludes the portion released under the partial release deed dt.21.9.1981. The plaintiffs admit this fact in their own pleading. The case made out by the plaintiffs are on the basis of the mortgage deed dt.19.3.1980 and the terms of the mortgage deed referred to as to be continuing even in the partial release deed dt.21.9.1981 and in the later partial release deed and in the later portion of the said document alleged right of first option purchase and therefore, it is clear that the facts and circumstances and situation spelt out as the case of the plaintiff, make it clear that the terms of the mortgage as contractual, and statutory are over-ridingly paramount and the alleged right of the first option to purchase is "not an independent right" by itself. In these facts, circumstances and position of law, due to the fact that the plaintiff has "meddled" with the "Security-property" under the 37 OS No.2290/1988 mortgage and that act of the plaintiffs being "flouting and violating of the terms and conditions of the mortgage and also are violation of law creating mortgage, the plaintiffs have no "locus-standi" and have no competence to seek for the specific performance of the promises, terms and conditions under the deeds of mortgage dt.19.3.1980 and continued deed i.e. partial release deed dt.21.9.1981. Since the plaintiffs are defaulters in this sense, this Court is required to dismiss the suit of the plaintiff with costs. The facts relating to the "plaintiffs" having meddled with the "security-property", under the mortgage deed are explained here below:-
Admittedly, the plaintiffs were tenants of the defendant No.2 prior to 19.3.1980 in the property consisting of ground floor, measuring 12' X 42', having two portions as a small room of 12' X 10' and a hall of about 12' X 32' on the northern end and a portion wall between the room and the front portion of the southern side, and also to an extent of 10' X 32' in the first floor and 10' X 34' in the second floor and this much is the portion in the premises No.30 as prior to 19.3.1980 and also 38 OS No.2290/1988 as described in the mortgage deed dt.19.3.1980. The plaintiffs were playing monthly rent of Rs.499/- only. There was in existence a stair case in the southern side, big hall portion of 10' X 32' to the south of the partition wall, between the northern side small room and the southern side big hall and stairs was situate to the south of the partition wall, and this stair was the access and approach to the 1st floor within 10'X 32' on the southern side and further on the same vertically above space to the 2nd floor. The portion above the northern end small room and also the 2nd floor were portions of premises no.27 and entire premises No.27 has been in the occupation of defendant No.2 to 4 and their families as their residence and therefore, there was no connection or link or access between the northern end room in the ground floor as a tenamented portion to the plaintiffs and to the residential portions above that room, which had been in the occupation of defendant No.2 to 4 and their members of their family. It is also admittedly clear that under the mortgage deed dt.19.3.1980, no portion of the premises No.27 has been 39 OS No.2290/1988 delivered physically or otherwise to the plaintiffs herein and the same was the position even as on the making of the partial release deed dt.21.9.1981. Subsequently in the context of partial release deed and also due to the requests of the plaintiff the defendant No.2 delivered the portion of the premises No.27, situated above the ground floor northern room portion which was the tenamented portion to the plaintiffs herein, the first floor portion and the second floor portion of the premises No.27, and as portions of premises No.27 were handed over to the plaintiffs. The plaintiffs after taking over possession subsequent to 21.9.1981 during the subsistence of the mortgage, "demolished" that "stair case" and they have made a new stair-case in a different location within the northern room portion in the ground floor and making opening in the room of the ground floor to gain access above the ground floor into the portions of premises No.27 as it was done, and in this manner, the plaintiffs have deliberately meddled with the security property under the mortgage deed and of the law relating to the mortgage, the terms of the mortgage have been flouted and 40 OS No.2290/1988 violated by the plaintiff and therefore, the mortgage deed itself turned and became and reduced to a situation and status wherein the mortgagor or any successor to the mortgagor could immediately, or at any time, recover the possession of the mortgage property and terms and conditions of the two deeds viz., mortgage deed and the partial release deed, could be sought to be enforced by the plaintiff, and in this context, the second defendant herein in al fairness and equity, has provided for payment of Rs.45,000/- to the plaintiffs by leaving that amount in the hands of defendant No.1, the bonafide purchase for valuable consideration of the suit schedule property from defendant No.2, 3 and 4 without any hindrance of any manner and the plaintiffs were and are bound to deliver possession of the suit schedule property to defendants No.1 without indulging in any dilatory tactics any more. The plaintiffs have no manner of any claimable right title, or interest in the suit schedule properties. The defendants are not under any obligation or liability under the two deeds referred to by the plaintiff i.e. a mortgage deed and partial release deed. 41 OS No.2290/1988
Cumulative effect of the foregoing facts, circumstances and position in law, clearly and indubitably, establish that the plaintiffs never had any rights of he allegedly claim first option purchase right and in any event, the plaintiffs did not have any right of pre-emption in the above explained facts and circumstances, prior to the sale of the suit schedule property by the defendants 2 to 4 in favour of defendant No.1 and the plaintiff did not have any right of pre-emption after "meddling with the Security", property immediately, after 21.9.1981 and consequently, the plaintiffs had and have no subsisted or subsisting right of pre-emption and therefore, there 'was' and 'is' 'absolutely' no cause of action for the suit of the plaintiffs and therefore, the prayers are relief's of the plaintiffs in the suit are liable to be rejected by dismissing the suit with costs and compensatory costs.
The defendant No.2 to 4 allegedly claimed vested right of the 1st option to purchase in the suit schedule property is only imaginary and not the right in the suit schedule property and there is no vested right in the suit schedule property and the 42 OS No.2290/1988 suit is brought under the specific relief act for the specific performance, but the specific relief act does not countenance such a suit of the plaintiff and in exercise of the powers under the specific relief Act, due to the facts that the alleged claim of right of first option is not on the basis of any agreement, and the alleged agreement being 'void' for ' want of consideration' and also the plaintiffs having not approached this court with clean hand but only, after violating the important terms and conditions and volatile of legal obligation under law, only for strategy the false, fictitious and frivolous suit has been filed this court be pleased to hold that the suit of the pl is outside the law and more so outside the ambit scope and provisions of the Specific Relief Act.
The Corporation of the City of Bangalore has issued a notice for demolition on the ground that it is not fit for human habitation. The plaintiff waived his alleged right, and no point of time, the plaintiff was ready and willing to purchase the property. In the circumstances, it is not entitled to get 43 OS No.2290/1988 equitable relief from this Court. Among these and other grounds, the defendants prayed to dismiss the suit.
6. The plaintiff filed rejoinder/reply to the additional written statement filed by the defendants No.2 to 4 denying the same and contended that the defendants are both in law and on facts bound by the assertion of title together with the transaction of mortgage and the particular instance to it and the same having been acted upon by the original owner B.M.Jagadeesh and thus are estopped by conduct and by record to plead contrary to the same both in the sense that they form admissions, which could not be resiled from by the defendants. Sections 91 and 92 of Evidence Act prohibits such pleas being recognized in law. The defendants are further estopped from pleading that the documents in question and for consideration were hit by undue influence and fraud, more particularly when the 1st defendant has filed the suit in OS.1977/1988 to redeem the mortgage subject to which he claims to have purchased the property for seeking redemption. 44 OS No.2290/1988
The plaintiffs in this case have not been in any fiduciary capacity members nor had any control over 2nd defendant.
The plaintiffs got the right of first option to purchase as averred in the plaint by offer and acceptance of the parties crystallizing itself into a contract specifically incorporated in the written statement. The relationship was of mortgagor and mortgagee and not that of debtor and creditor. There was no duress between the plaintiff and the 2nd defendant. The right of first option is an independent right capable of being enforceable in law. The plaintiff can never be said to be a defaulter much less having meddled with property and further that they are flouting and violating the terms of mortgage and that they have no locus standi. The alleged notice of demolition on the ground that it is not fit for human habitation is self motivated by 1st and 2nd defendants using political influence nor their ends and suitable steps are taken by the plaintiffs. So, prays to decree the suit.
45 OS No.2290/1988
7. On the basis of the above pleadings of both the parties, the following issues have been framed by my learned predecessor in office:-
1) Whether the plaintiff proves due execution of mortgage deed dt.19.3.1980 by the 2nd defendant ?
2) Whether the defendants prove that the mortgage deed executed by the 2nd defendant in favour of the plaintiff was the result of undue influence by the plaintiff on the 2nd defendant and exploitation of the ignorance of the 2nd defendant by the plaintiff as contended in the written statement?
3) Whether the defendants prove that the covenants incorporated in the mortgage deed dt.19.3.80 are unreasonable and unenforceable?
4) Whether the contract entered into between the parties is opposed to the provisions of Indian Contract Act and void ab initio as claimed by the defendant ?
5) Whether the conditions contained in the documents dt.19.3.80 is contrary to S.10 of the transfer of property Act?
6) Whether the covenants of the deed dt.19.3.80 are vague and uncertain?
46 OS No.2290/1988
7) Whether the plaintiff is not entitled to claim the right of pre-emption as claimed in para No.13 of the written statement?
8) Whether the plaintiff is estopped in law from contending that the sale is not binding on the defendant as clamed in para No.16 of the written statement?
9) Whether there was a waiver of the right by the plaintiff as claimed in para No.17 of the written statement?
10) Whether the plaintiff is entitled for the direction against the defendants to execute the sale deed as claimed?
11) To what relief's are the parties entitled?
ADDL. ISSUES
1) Whether the plaintiff proves his locus standi to file the suit?
2) Whether 1st defendant proves that the transaction between plaintiff and the defendants is simple loan transaction?
3) Whether right of pre-emption under the agreement dt.21.9.1981 operates as a clog on the right of redemption of the mortgager as contended by the 47 OS No.2290/1988 defendant No.3 and 4 in para No.21 of the written statement?
8. The plaintiff in order to prove the case has examined his son as PW-1 and has got marked thirteen documents at Ex.P.1 to Ex.P.13. On the other hand the defendant No.2 and defendant No.1 examined themselves as DW-1 and DW-2 and got marked nine documents at Ex.D.1 to Ex.D.9.
9. Heard the arguments and perused the records of the case.
10. My findings to the above issues are as under:
Issue No.1 : In the affirmative
Issue Nos.2 to 6 : In the negative
Issue No.7 & : In the affirmative
Addl. Issue No. 3
Issue No.9 : In the negative
Issue No.8 & : In the negative
Addl. Issue No.2
Addl. Issue No.1 : In the affirmative
Issue No.10 : In the negative
Issue No.11 : In the negative, as per
final order for the
following:
48 OS No.2290/1988
REASONS
11. ISSUE NOs.1 TO 6:- Since these issues are
interconnected with each other hence in order to avoid
repetition of facts and evidence they are taken together for common discussions.
12. It is admitted fact that the defendant No.2 was the owner of the suit schedule property, which is the property bearing No.30. It is admitted fact that originally the plaintiff was the tenant in the suit schedule property for a period of 10 years under the lease deed dated 21.11.1979. It is admitted fact that the defendant No.2 executed Ex.P.1 - usufractury mortgage deed with possession dated 19.03.1980 in favour of the plaintiff with respect to mortgage of the suit schedule property and also with respect to property No.27. It is admitted fact that the defendants No.3 and 4 are the daughters of defendant No.2.
49 OS No.2290/1988
13. It is the case of the plaintiff that the defendant No.2 wanted money for his family necessities i.e. for putting up construction in his Rajajinagar property and he offered to mortgage the suit schedule property and also adjoining portion, which was in occupation of other tenant by name M/s Sundaram Textile and the plaintiff agreed to take the same under the registered mortgage deed. After some time the defendant No.2 wanted additional amount and hence he sold the portion of the property mortgaged to the plaintiff to M/s Sundaram Textiles and did not redeem the mortgage and requested the plaintiff to execute a partial release deed in respect of the portion of the property sold and the plaintiff also agreed to release the same without taking any consideration. The defendant No.2 wanted to dispose of all the properties including the suit schedule property and property No.27 to the tenants in possession and accordingly he had earlier executed agreement of sale in favour of other tenants including M/s Sundaram Textiles and also to M/s Hirachand Joharmal and similarly the defendant No.2 offered right of first option to 50 OS No.2290/1988 purchase the suit schedule property to the plaintiff and accordingly registered partial release deed dated 21.09.1989 was executed and duly registered.
14. It is the case of the defendant No.2 to 4 that defendant No. 2 was in need of money was under the thumb and control of the plaintiff and its partners. The partners of the plaintiff were lending money to the 2nd defendant but on inequitable terms and misused the ignorance. The plaintiff who was in a fiduciary capacity obtained the mortgage by putting unreasonable terms and conditions, which is suppressive and unequitable by using undue influence and exploited the ignorance of the 2nd defendant. In the circumstances, the covenants contained in the mortgage deed is void and unenforceable. The plaintiff who was aware of the financial position and difficulties misused their power by their fiduciary capacity and control over the 2nd defendant on the documents and obtained mortgage deed by putting unreasonable and unenforceable covenants under Ex.P.1. Subsequently, when 51 OS No.2290/1988 the defendant No.2 wanted to redeem the mortgage, but the plaintiff did not agree for the same. The plaintiff obtained the mortgage with possession for a very meager sum in a very busy commercial locality like D.S.Lane and Chickept and exploited the ignorance of the 2nd defendant. The plaintiff unnecessarily troubled and hurdled the defendant No.2 in redeeming the mortgage and misused their position and obtained the documents dt.19.3.1980 by un-due influence and fraud. The plaintiffs have not allowed the 2nd defendant to sell the property by putting untenable conditions and when the defendant wanted to redeem the mortgage the plaintiff did not agree for the same and put the 2nd defendant in an embarrassing position, when he entered into an agreement of sale to sell a portion of the property to M/s Sundaram textiles. The 2nd defendant who agreed to sell the portion of the property to M/s Sundaram Textiles and entered into an agreement was in a fix in view of the conduct of the plaintiff. The plaintiff was not ready to redeem the mortgage in view of their conduct and unreasonable behaviour, the 2nd defendant 52 OS No.2290/1988 was put in backward position. The 2nd defendant was in a very feeble state of mind and at that time the 2nd defendant who was not able to exercise free will executed the document. Therefore, the subsequent agreement between the plaintiffs and the defendant is without free will of the 2nd defendant and those documents are signed by using undue influence. Even though the defendant was prepared to redeem the mortgage in its entirety by paying full amount, the plaintiff did not agree for the same and exploited the situation and determined to take the flush and blood of the 1st defendant by putting unequitable terms. Even otherwise the conditions contained in the document dt.19.3.1980 is contrary to Section 10 of the Transfer of Property Act. When the plaintiff refused to purchase the property, the 2nd defendant requested the plaintiff to deliver vacant possession of the property so that he could sell the property to the third parties. The plaintiff did not agree for the same. Afterwards, a panchayath took place in the shop of the plaintiff, in the presence of prominent persons of the locality who were the well-wishers of the plaintiff and 53 OS No.2290/1988 defendants under the leadership of Vijayaraj Jain and S.Mahendra Kumar the partners of the plaintiff stated that they are not interested to purchase the property but they are not prepared to deliver vacant possession of the same and that they not come in the way of the 2nd defendant to alienate the property subject to their mortgage and in view of the implicit faith and confidence on the plaintiff and assurance of the panchayatdars, the 2nd defendant did not insist the agreement reached between them, to be recorded in writing.
15. The defendant No.1 with respect to the above issues taken such contentions as taken by the defendants No.2 to 4.
16. Firstly I would like to consider whether the Ex.P.1 is contrary to the provisions of Indian Contract Act as the defendant No.2 to 4 disputes that the said mortgage deed dated 19.03.1980 stating that it was the result of without free consent i.e. came into existence under coercion, undue 54 OS No.2290/1988 influence, fraud and exploitation of the ignorance of the 2nd defendant and it is opposed to the Indian Contract Act and the same is void-ab-initio.
17. The Section 14 of Indian Contract Act reads thus:
"Free consent' defined - Consent is said to be free when it is not caused by:
1) Coercion, as defined in Section 15, or
2) Under influence, as defined in Section 16, or
3) fraud, as defined in Section 17, or
4) misrepresentation, as defined in Section 18, or
5) mistake, subject to the provisions of Section 20, 21 and 22 Consent is said to be caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake".
18. So out of the above the defendants No.2 to 4
contends that there was coercion, undue influence and fraud was played on him by the plaintiffs to obtain the Ex.P.1. When 55 OS No.2290/1988 such being the case then the defendants No.2 to 4 have to state clearly how the coercion, undue influence and fraud was played on him and in which manner and the same has to be proved. Just stating that there was coercion, undue influence and fraud by the plaintiff is not sufficient to hold the same and such contention is very vague.
19. Further with respect to the Ex.P.1 is concerned the DW1 deposed as under:
I have studied upto to SSLC. I put my signature in English. It is true that normally before putting my signature on any document I will go through the contents of the document and then put the signature.
It is true that I am the Manager of my family. Whatever is good for my family I have undertaken those tasks. It is true that on 26.4.1978 I purchased the property bearing No.546/35 situated at Rajajinagar, Bangalore measuring 32 X 40 feet and I have constructed a four story building in the said space. I am doing textile business from the age of 18 years.
56 OS No.2290/1988So, from the above answer of the DW1 during the course of cross-examination it is clear that there was no financial difficulty for him as he was a businessman having worldly knowledge and even purchased the property in Rajajinagar. Hence, it cannot be said that the plaintiffs are in dominating position and taken the signature of the defendant No.2 on the Ex.P.1 without free consent i.e. under coercion, undue influence and playing fraud.
20. The DW1 further deposed in the cross-examination as under:
"It is true that my maternal uncle Siddalingappa is an Advocate. It is true that my maternal uncle Siddalingappa has drafted the sale deed and release deed. It is true that my material uncle Siddalingappa is the legal adviser to our family. It is true that normally before executing any registered document I will be taking the legal opinion of my maternal uncle Siddalingappa."
57 OS No.2290/1988So from the above answer of DW1 during the course of cross- examination it is further clear that he used to take the legal advice from his maternal uncle Siddalingappa. So it is not open for the defendant No.2 to say that he was under the coercion, undue influence and fraud made him to sign the Ex.P.1. The defendant No.2 has not shown which clause of Ex.P.1 makes the document as void document or how it is void document and the contention of the defendant No. 2 to 4 is vague one. Hence it cannot be said that the Ex.P.1 is a void document.
21. The DW1 further admitted in the cross-examination as under:
"It is true in the sale deed dt.6.2.1981 by Jagadeesha to M/s Sundaram Textiles in page 7 of the sale deed it is mentioned WHEREAS SECOND VENDOR HEREIN HAS MORTGAGED THE SCHEDULE PORTION AND SHOP NO.30 D.S.LANE, CHICKPET CROSS, BANGALORE CITY FOR RS.45,000/- BY MORTGAGE DEED DATED 58 OS No.2290/1988 19.3.1980............AND MORTGAGE IS SUBSISTING".
So, this admission at an undisputed point of time in his own document proves the mortgage in favour of plaintiff. In the same para he has further admitted that Rs.45,000/- is withheld in respect of usufructury mortgage dt.19.3.1980 of M/s P.Hastimal and sons.
22. The DW1 further admitted in the cross-examination as under:
"It is true that Ex.P.1 is the registered mortgage executed by me in favour of plaintiff. It is true that I have put my signatures on all the pages of Ex.P.1 and I have also put my signature on the corrections made in it. It is true that the property was mortgaged for Rs.45,000/- in favour of plaintiff and I have received the amount of Rs.45,000/- which I had left with Sundaram Textiles".59 OS No.2290/1988
So, the defendant No.2 admitted about the terms of mortgage, period and nature of mortgage and also admits the mortgage could only be redeemed after 20 years.
23. So, there was due execution of registered mortgage deed dated 19.3.1980 with its terms and conditions. It cannot be said that there was undue influence, exploitation etc. and on the other hand the unequivocal admissions of defendant No.2 clearly establish that he has voluntarily executed the documents out of his own wish and desire and the documents are drafted at the instance of his uncle, who was a practicing Advocate and the Ex.P.1 is not opposite to the provisions of Indian Contract Act and void ab-initio.
24. The defendants No.2 to 4 contention that the covenants incorporated in Ex.P.1 is unreasonable and unenforceable. The defendant No.2 has not shown that which are the unreasonable and unenforceable conditions contained in Ex.P.1. Hence, it cannot be said that the Ex.P.1 is 60 OS No.2290/1988 containing covenants, which are un reasonable and unenforceable.
25. The defendant No.2 without prejudice to the contention taken with regard to the Ex.P.1 as the same is contrary to Section 10 of Transfer of Property Act. Section 10 of Transfer of Property Act reads as under:
"Condition restraining alienation:
Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him:
Provided that property may be transferred to or for the benefit of a women(not being a Hindu, Mohammedan or Buddhist), so that she will not have power during her marriage to transfer or charge the same or her beneficial interest therein". 61 OS No.2290/1988 So to apply the above provision there must be condition restraining the transfer of property permanently. There is no such condition in Ex.P.1 with regard to the alienation of the suit schedule property. Hence, it cannot be said that the conditions contained in Ex.P.1 is contrary to Section 10 of Transfer of Property Act.
26. The defendants No.2 to 4 contended that the property mentioned in the agreement dt.19.3.1980 and the property conveyed under the sale deed executed by the 2nd defendant in favour of the 1st defendant is also different. Alternatively the alleged document speaks regarding the 1st floor and 2nd floor and not in respect of the ground floor of the schedule premises. Hence in view of the vagueness and uncertainty the document dt.19.3.1980 is not enforceable.
27. From the Ex.P.1 it could be seen that the 2nd defendant was selling the properties to the occupants of the building as tenants or mortgagees and so also he had sold 62 OS No.2290/1988 other portion to M/s Sundaram Textiles, who is another tenant. The Clause contemplates market value and there is no restraint and the option of quoting the value of the property was given to the 2nd defendant and the written notice is only contemplated. There is no uncertainty in the terms imposed and it is the 2nd defendant, who voluntarily got the said term imposed promising the plaintiff that he would sell the property to plaintiff when he intended to sell and it is only if the plaintiffs are not agreeable, then he will sell to outsiders. The defendants having taken partial release of property and having taken the advantage from the plaintiff he is not entitle to raise such pleas of uncertainty or vagueness.
28. Further, as stated above the suit schedule property is the property No.30 consisting of ground floor, 1st floor and 2nd floor. The Ex.P.1 is pertaining to the property No.30 consisting of ground, 1st and 2nd floor and property No.27 is only the staircase in the ground floor, 1st floor and 2nd floor. So, it is very clear that the Ex.P.1 contains the ground floor 63 OS No.2290/1988 also. Hence, it cannot be said that there is vagueness and uncertainty in Ex.P.1.
29. So, from the discussions made above, I am of the opinion that plaintiff proved due execution of mortgage deed dated 19.3.1980 and the defendants failed to prove that the mortgage deed executed by the 2nd defendant in favour of the plaintiff was the result of undue influence and exploitation of ignorance of him and the covenants incorporated in the mortgage deed are unreasonable, unenforceable, vague and uncertain and the contract entered between them is opposed to the provisions of Indian Contract Act and void-ab-initio and the conditions contained in the mortgage deed is contrary to Section 10 of Transfer of Property Act. Hence, Issue No.1 is answered in the affirmative and Issue Nos.2 to 6 are answered in the negative.
30. ISSUE NOs.7, 9 AND ADDL.ISSUE No.3: It is the case of the defendants No.2 to 4 that the plaintiff is not entitle 64 OS No.2290/1988 the right of pre-emption as claimed in para No.13 and the plaintiff waived its right and the right of pre-emption operates clog on the redemption of mortgage.
31. The defendants No.2 to 4 do not dispute the execution of Ex.P.2 registered release deed in favour of the plaintiff agreeing to give first option to purchase the suit schedule property.
32. The clause of Ex.P.2 at Page No.9 reads as under:
"It is further agreed that if at any time the second party either himself or through his uncle Rudrappa want to sell premises No.30 Dewan Soorappas Lane EFHIE Ground Floor and GHIEG of first or second floor or premises portions of No.27 which exactly stand on premises No.30 that is portion marked as EFGLE of 1st and 2nd floor, which are mortgaged to the first part and which is in his possession are to be sold or proposed to be sold, the first party shall be given the first option to purchase the same. Due notice of 65 OS No.2290/1988 any such proposed sale shall be given to the first party in writing with three months notice and time so that first party may make arrangements for purchase. It is only in case he is not prepared to purchase the same, then only the property may be sold to others at the quoted rate or more but no for less'.
33. The DW1 during the course of cross-examination in so far the clause of first option to purchase in favour of plaintiff is concerned deposed as under:
"It is true that I had requested the plaintiff to release the portion of the mortgaged property that was sold to Sundaram textiles and the plaintiff had also agreed for the same. It is true that plaintiff executed the partial registered release deed dt.21.9.1981 in my favour as per the settled terms and conditions in respect of the property".
34. In page 7(para 2) DW1 has admitted regarding Ex.P.2 as under:
66 OS No.2290/1988
"The original of Ex.p.2 might be with me. It is true that I have executed Ex.P.2. It is true that my maternal uncle Siddalingappa also identified the parties before the registrar at time of execution of Ex.P.2. It is true that I have put my signature on each page of Ex.P.2 and the witness volunteers that his maternal uncle Siddalingappa informed him the contents of the document and then he has put his signature. It is true that Ex.P.2 was scrutinized and drafted by my maternal uncle Siddalingappa.
35. In Page 9 of Cross examination of DW1, he has admitted regarding notice as under:
"I have not given any notice in writing to plaintiff stating that he has obtained Ex.P.2 by practicing fraud. I have not given any notice to plaintiff informing him about my intention to sell the property and asking him to purchase the property for market value if he so desired. It is true that my uncle Siddalingappa is not a person who will defraud me.67 OS No.2290/1988
36. In page 11 of cross-examination, DW1 deposed as under:
"I did not intimate in writing to the plaintiff that I was intending to sell the suit property to defendant no.1 for hearing the say of the plaintiff showing consideration amount. It is true that the terms and conditions of Ex.P.1 and P.2 are different and they are registered on different dates".
So, from the above recitals of Ex.P.2 and admissions of the DW1 clearly goes to show that the defendant No.2 got the same drafted through his maternal uncle Siddalingappa and he explained the terms and conditions to the defendant No.2 and thereafter defendant No.2 has signed on that document and thereafter the same was registered. Such being the case, the defendant No.2 is bound by the terms and conditions mentioned therein and he cannot dispute the same and committed breach of contract and hence he is liable to convey the suit schedule property in favour of the plaintiff. 68 OS No.2290/1988
37. The DW1 admitted that he does not know that the plaintiff is doing partnership business and that they have earned goodwill in the area and he does not know whether they have any other shop for business.
38. The DW1 during the course of the cross examination admitted the readiness and willingness of the plaintiff to purchase the suit schedule property and also admitted that he wanted to sell the portions to the tenants in occupation which clearly proves that he executed the Ex.P. 2 with an intension to sell the same to the plaintiff
39. The DW1 during the course of the cross examination further admitted as under:-
"It is true that during 1986-87 the financial condition of the plaintiff was good. it is true that the plaintiff had the capacity to purchase the suit property by paying the price during that period. the original of ex.p.2 might be with me".69 OS No.2290/1988
"It is true that i had the intention of selling the property to the tenants who are in occupation of portion of the property".
"It is true that the plaintiff was ready to purchase the suit property".
"It is true at the time of sale talks plaintiffs were in possession of suit property. I had given copies of Ex.P.1 and P.2 and Encumbrance Certificate to defendant No.1 at that time. it is true that the defendant no.1 was knowing about the rights of plaintiff over the suit property during sale talks under Ex.P.1 and P.2".
So the DW1 admits that he was in need of money to construct his own house at Rajajinagar and the intention of the defendant No.2 was to sell the respective portions of the properties to the tenants who are in occupation of the property and he knew that the plaintiff was in possession of the suit schedule property and knowing about the rights of the plaintiff over the suit schedule property during the sale talks under Ex.P.1 & 2 and the plaintiff had capacity to purchase the suit schedule property. This goes to show that the ready and 70 OS No.2290/1988 willingness of the plaintiff to purchase the suit schedule property.
40. The defendants No.2 to 4 contended in para No.13 of the written statement that the plaintiff is not entitled to claim right of preemption on many grounds. The first one is that before entering into agreement of sale, the defendant No.2 informed the plaintiff his intention to sell the suit schedule property to defendant No.1 and then the plaintiff told that he may deal with the property as he likes as he has stated before the Panchayatdars as they are not intending to purchase the same and now the plaintiff came forward with the plea that the defendants bound to issue the notice of 3 months before executing the sale deed even though he is not entitled and he has waived his right before the Panchayatdars. As stated above, the DW1 during the course of cross-examination admitted that his intention of selling the suit schedule property was not intimated to the plaintiff. It is the case of the defendants No.2 to 4 that the panchayat was held through the 71 OS No.2290/1988 prominent persons by name Vijayaraj Jain and Mahendra Kumar. The DW1 during the course of cross-examination deposed that he do not know said Vijayaraj Jain and Mahendra Kumar. The defendant No.2 has not examined the said Vijayaraj Jain and Mahendra Kumar. Atleast there is no suggestion to the PW1 that panchayat was conveyed in the presence of the said Vijayaraj Jain and Mahendra Kumar. Hence, it cannot be said that the defendant No.2 informed the plaintiff regarding his intention to sell the suit schedule property as per the market value before the panchayat and the plaintiff told that they don't want to purchase the property and he may do as he likes.
41. Second one is the plaintiff was not ready and willing to purchase the property exercising their right of option. It is the case of the plaintiff that he came to know regarding the sale of the suit schedule property through the two letters dated 21.03.1988 of defendants No.1 and 2 and then he sent reply dated 10.04.1988 through the registered post and the 72 OS No.2290/1988 same was evaded by the defendants No.1 and 2 and thereafter the letter was sent under certificate of posting and the same has reached them and in the meanwhile he got letter of the defendant No.1 dated 11.04.1988 and reply dated 13.04.1988 and as there was no response again remainder letter dated 25.04.1988 was addressed to the 1st defendant. The Ex.P.4 and P.5, which are the letters dated 21.03.1988 written by the defendants No.1 and 2 respectively to the plaintiff regarding the purchase and sale of the suit schedule property respectively by them. The Ex.P.6 is the letter written by the plaintiff to the defendant No.2 reminding the Ex.P.1 and P.2 and his right of first option to purchase and to execute the deed accordingly. Ex.P.8 is the letter of the plaintiff to the defendant No.2 stating that he is ready and willing to purchase the suit schedule property. Ex.P.10 is the letter of the defendant No.1 to the plaintiff and defendant No.2 that to stating that defendant No.1 purchased the suit schedule property subject to mortgage and called upon the plaintiff to receive Rs.45,000/ and to redeem the suit schedule property. 73 OS No.2290/1988 Ex.P.11 is the reply of the plaintiff to the Ex.P.10 stating that the contention of the defendant No.1 was not tenable and he has got right of preemption. Ex.P.12 is the letter of the plaintiff to the defendants No.1 and 2. The defendants No.2 to 4 do not dispute the letters written by the plaintiff regarding his right of preemption and ready and willingness of the plaintiff to purchase the suit schedule property. The DW1 during the course of cross-examination admitted as under:
"It is true that the plaintiff was ready to purchase the suit schedule property."
So, the plaintiff was ready and willing to purchase the suit schedule property. Hence, it cannot be said that the plaintiff was not ready and willing to purchase the suit schedule property.
42. Third one is that the first defendant purchased the property for valuable consideration and the plaintiffs have neither legal nor legitimate right of preemption and alternatively alleged right is waived and abandoned. Though the defendant No.1 might have purchased the suit schedule 74 OS No.2290/1988 property for valuable consideration, but the plaintiffs have got legal and legitimate right in view of the right of first option to purchase the suit schedule property under the Ex.P.2 and hence as stated above it cannot be said that the plaintiffs have waived and abandoned their right.
43. The fourth one is that the plaintiff, who was given their no objection by their conduct and action and hence not entitle for right of preemption. The defendants No.2 to 4 have not shown in which manner the plaintiffs by conduct and action have given their no objection to sell the suit schedule property by the defendant No.2 to the defendant No.1.
44. The fifth one is that the sale made by the defendant No.2 in favour of 1st defendant is binding on the plaintiff because the partners of the plaintiff aware of the sale transaction right from the date of agreement and the 1st defendant has purchased the same for valuable consideration and the plaintiff, who has promised to complete the 75 OS No.2290/1988 transaction in favour of the 1st defendant is estopped in law from contending that the sale is not binding on them. As stated above the plaintiffs were not aware about the sale of the suit schedule property in favour of the defendant No.1 by the defendant no. 2 and hence the said Sale Deed dt:19.03.1998 is not binding on the plaintiffs and the plaintiffs are not estopped from contending that the Sale Deed dt.19.03.1998 is not binding on them.
45. The defendant No.1 at para No.2 and defendants No.2 to 4 at para No.21 of their written statements contended that the right of preemption under the Ex.P.2 operates as a clog on the right of redemption of the mortgage stating that admittedly the plaintiff was in possession of the suit schedule property as on the date of suit and by virtue of mortgage, the defendant No.1 filed OS.No.1977/1988 for redemption of mortgage and the same was decreed in part and as per the Civil Appeal No.3008/2001 of Hon'ble Supreme Court of India, wherein the right of redemption was upheld and the defendant 76 OS No.2290/1988 No.1 was directed to file separate suit for ejectment since the status of the plaintiff reverted that of the lessee on redemption of mortgage and hence the OS.9833/2007 was filed for ejectment and the same is pending and the Hon'ble Supreme Court of India clearly held that if one of the terms between the mortgagor and mortgagee was that the mortgagee shall have the right of preemption in case of mortgagor wishes to transfer the property to a third party, such a condition operates as a clog on the right of redemption and such right is unenforceable.
46. The learned Advocate appearing for the plaintiff vehemently argued that firstly the orders in Ex.D.7 is not with respect to the this suit and it is with respect to the OS.1977/1988. Secondly in this suit the defendant No.2 filed memo on 21.04.2010 to dispose of the suits in terms of observations made by the Hon'ble Supreme Court of India in Civil Appeal No.308/2001 and on that this court has passed orders on 29.03.2011 by observing that there is no directions 77 OS No.2290/1988 or observations by the Hon'ble Supreme Court of India to dispose this suit and OS.1977/1988 and the defendant No.2 has not challenged the same. Thirdly, the Hon'ble Supreme Court of India held that the redemption and right of preemption are entirely different, distinct and separate one and in the said order nowhere it is observed that the first option to purchase cannot be enforced. Fourthly, since the first option to purchase is not in the deed of mortgage and it is in the independent deed i.e. release deed and hence it do not amount to clog on the redemption of mortgage.
47. Admittedly the defendant No.1 purchased the suit schedule property under the registered sale deed dated 19.03.1988 from the defendant No.2. As stated above, I came to the conclusion that the plaintiff has got right of first option to purchase the suit schedule property and before selling the suit schedule property the defendant No.2 has not given opportunity to purchase the suit schedule property. Admittedly the defendant No.1 filed OS.1977/1988 for redemption of 78 OS No.2290/1988 mortgage. The Ex.D.1 to 4 are the certified copies of the plaint, written statement, I.A. under Order 12 Rule 6 r/w Section 151 of CPC and Orders on I.A. under Order 12 Rule 6 r/w Section 151 of CPC in OS.1977/1988 respectively shows that the present defendant No.1 filed OS.No.1977/1988 against the present plaintiff for redemption of mortgage and possession and in that he filed the I.A. under Order 12 Rule 6 r/w section 151 of CPC to decree the suit in view of the admission and the same was rejected by the 11th Addl. City Civil Judge, Bangalore city dated 31.5.2000. Ex.D.5 and D.6 are the c/c of the orders and decree in CRP.No.2020/2000 respectively discloses that the present defendant No.1 aggrieved by the orders of 11th Addl. City Civil Judge, Bangalore preferred the same before the Hon'ble High Court of Karnataka and the same was allowed by setting aside the orders of 11th Addl. City Civil Judge, Bangalore. The Ex.D.7 is the c/c of the orders passed by the Hon'ble Supreme Court of India in Civil Appeal No.3008/2001, which was filed against the impugned orders of Hon'ble High Court of Karnataka and 79 OS No.2290/1988 the same was allowed. The Ex.D.8 is the C/c of the plaint in O.S. No. 9833/2007 filed by the present defendant No.1 against the present plaintiff for ejectment.
48. For the sake of convience I would like re produce the observation made by the Hon'ble Supreme Court of India in Civil Appeal No. 3008/2001 wherein in para No. 6 & 7 it is held as under:-
"There are basically two points involved in this case--(1) Whether the plaintiff had a right to get possession on redemption of his mortgage and (2) whether the provision in agreement dated 21.9.1981 that the mortgagee will have a right of pre-emption operates as clog on the right of redemption of the mortgagor."
"Taking the second question first, learned counsel for the Petitioner relied on a decision of the House of Lords in Lewis V/s Frank love Ltd. 1961 All. E.R.
446. In this decision it was clearly laid down by the house of Lords that where one of the terms arranged between the 80 OS No.2290/1988 mortgager and the mortgagee was that the mortgagee should have a right of preemption in case the mortgager wishes to transfer the property to a third party such a condition operates as a clog on the right of redemption of the vendee from the mortgager. We fully agree with this view. Hence we decide this second point in favour of the respondent who is the vendee of the mortgager."
From the above observation of the Hon'ble Supreme Court of India it is very clear that though the said order is not arising out of this suit but in that point of Law with regard to right of pre-emption of the plaintiff on the basis of Ex.P.1 & P.2 is discussed and given finding that the right of pre-emption sought by the plaintiff under Ex.P.2 is clog on the mortgage. The orders passed by this court on 29.03.2011 is pertaining to the rejection of memo to club this suit and OS.1977/1988 and to pass common judgment and it was rejected and not challenging the same by the defendants No.2 to 4 will not loose any right and the plaintiff will not acquire any right. Since the Hon'ble Supreme Court of India in Civil Appeal No.308/2011 81 OS No.2290/1988 clearly held with regard to Ex.P.1 and P.2 of this suit and hence the above observation directly applies to this suit and relying on the same, I am of the opinion that the right of preemption under the Ex.P.2 operates as a clog on the right of redemption of mortgage.
49. So, from the discussions made above the defendants proved that the plaintiff is not entitled to claim right of pre-emption and it operates as clog on redemption of mortgage and defendants failed to prove that the plaintiff waived the right of pre-emption. Hence the issue No.7 & Additional Issue No.3 are answered in the affirmative and Issue No.9 is answered in the negative.
50. ISSUE NO.8 & ADDL. ISSUE NOs.1 & 2:- It is the case of the defendants No.2 to 4 as contended in para No.16 of the written statement that the plaintiff is estopped from contending that the sale is not binding on them and the 82 OS No.2290/1988 transaction between the plaintiff and defendant No.2 is simple loan transaction and there is no cause of action to file the suit.
51. The contention of the defendant no. 2 to 4 at para No.16 of the written statement that the plaintiff is estopped from contending that the sale is not binding on them is on many grounds, which are over lapping.
52. The first one is that there is no offer and no acceptance and also no consideration. It is came in the cross- examination of DW1 that the defendant no. 2 offered to mortgage the suit schedule property and other properties as he was in need of money and the plaintiffs accepted for the same. So also I already came to the conclusion that there was offer and acceptance and the Ex.P.1 is supported by consideration.
53. The second one is that the transaction between the plaintiffs and the defendant No.2 even according to the mortgage deed dt.19.3.1980 itself is indubitably clear that the 83 OS No.2290/1988 case made out by the plaintiffs is that the plaintiffs had given loan of Rs.20,000/- on 21.11.1979 paid by themselves and later on some third party (not the plaintiffs) had given a loan of Rs.10,000/- to the defendant No.2 and admittedly these two loan transactions have been without any documents, except mentioning of some cheques. Hence, these sums of Rs.20,000/- and Rs.10,000/- as aforesaid, totally Rs.30,000/- have been purely simple loan transaction without any mention of mortgage transaction, even according to the plaintiffs. Even according to the plaintiffs it is only on 11.2.1980,a sum of Rs.15,000/- only has been paid to the defendant No.2 as a loan through a particular cheque No.712504/11.2.1980 on "Canara Bank", Avenue Road Branch, Bangalore City without any document. Thus, the plaintiffs refer to those amounts i.e. Rs.20,000/-, Rs.10,000/- and Rs.15,000/- and all these are simple loan transaction and on the basis of these payments on 19.3.1980, on which date the plaintiffs position and situation was not in good condition and on demand could not repay the loan amount which has been explained already in the foregoing 84 OS No.2290/1988 paragraphs, the plaintiffs in a condition of duress and subjected to undue influence have got executed the mortgage deed dt.19.3.1980 admittedly without any consideration under the said mortgage deed.
54. From the Ex.P.1 it is very clear that in all Rs.45,000/- was received by the defendant No. 2 including the amount of Rs.30,000/- received previously. Just as on the date of Ex.P.1 the defendant No.2 received only Rs.15,000/- it does not make the transaction as simple loan transaction as both the parties agreed to treat the said Rs.30,000/- as also the mortgage money and there is no clause in the Ex.P.1 that the amount of Rs.45,000/- has to be repaid with interest after particular time
55. The third one is that the Ex.P.1 has not been acted upon since the plaintiffs and defendant No.2 have clearly intended that the transaction is only a simple money loan transaction and due to inability of the defendants No.2 and 3 85 OS No.2290/1988 to pay the loan amount at any time demanded by the plaintiffs the suit schedule property has been treated only as collateral security. In fact the premises No.27 remained in physical possession of defendants No.2 to 4. As stated above, the defendant No.2 duly executed the Ex.P.1. Admittedly the Ex.D.1 to D.4, which are the plaint, written statement, IA and orders on IA in OS.No.1976/1988 shows that the defendant No.1 filed the same against the plaintiffs for redemption of mortgage stating that the suit schedule property and the property No.27 is in possession of the plaintiff. Hence, it cannot be said that the Ex.P.1 is not acted upon and the Ex.P.1 is treated as collateral security and the possession of the suit schedule property is with the defendants No.2 to 4.
56. The fourth one is that since the plaintiff meddled with the property by demolishing the staircase and made a new staircase in a different location and thereby the plaintiff has lost right of preemption. During the course of cross- examination to the PW1 even there is no suggestion to him 86 OS No.2290/1988 that the plaintiff meddled with the suit schedule property by removing the staircase and fixing the new place. There is no condition in the Ex.P.2 that in such a case of meddling with the property the plaintiff will loose the right of preemption.
57. Fifthly the defendants contended in the written statement that they have given notice to the plaintiff with regard to intended sale to the 1st defendant for a sum of Rs.2,02,000/- and he send the letter by certificate of posting, but the defendants have not produced such letter to the court and thus the claim of the defendants became false.
58. So, the defendants failed to prove that the plaintiff is estopped in law from contending that the sale is not binding and the plaintiff has no cause of action to file the suit and the transaction between the plaintiff and defendant No.2 is loan transaction. Hence, Issue No.8 and Addl. Issue No.2 are answered in the negative and Addl. Issue No.1 is answered in the affirmative.
87 OS No.2290/1988
59. ISSUE NO.10: In view of my findings on Addl. Issue No.3 the plaintiff is not entitle to get direction against the defendants to execute the sale deed. Hence, Issue No.10 is answered in the negative.
60. ISSUE NO.11: In view of my findings on Issue No.10 and Addl. Issue No.3 the plaintiff is not entitle for the reliefs sought in this suit. Hence, Issue No.11 is answered in the negative. In the result, I proceed to pass the following:
ORDER The suit of the plaintiff is dismissed.
Under the facts and circumstances of the case, no order as to costs.
Draw decree accordingly.
(Dictated to the judgment writer on computer, thereafter corrected and then pronounced by me in the open court, on this the 24th day of October 2017).
( BASAVARAJ ) XLI ADDL.CITY CIVIL JUDGE BANGALORE 88 OS No.2290/1988 ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 Sri Tejraj.H.Jain
b) Defendant's side:
D.W.1 B.M.Jagadish
D.W.2 P.Tejraj Sharma
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 Original deed of mortgage with
position dt.19.3.1980
Ex.P.1(a) Signature of B.H.Jagadisha
Ex.P.1(b) The plan annexed with Ex.P.1
Ex.P.2 The original registered partition lease
deed dt.21.9.1981
Ex.P.2(a) Signature of PW-1s father
Ex.P.2(b) Signature of Jagadisha
Ex.P.2(c) PW-1s signature
Ex.P.2(d) Plan annexed with Ex.P.2
Ex.P.2(e) Signature of PW-1, Pw-1s father and
Jagadisha
Ex.P.3 Form No.1 issued by registrar of
firms
Ex.P.4 The letter by P.Tejalajasharma
Dt.21.3.1988
Ex.P.4(a) Postal cover
Ex.P.5 Original letter by Jagadish
dt.21.3.88
Ex.P.6 Copy of notice issued by plaintiffs
Ex.P.7 Unopened postal cover with
acknowledgement
89 OS No.2290/1988
Ex.P.8 Copy of notice dt.10.4.1988
Ex.P.9(a) Unopened cover with
acknowledgement
Ex.P.9(b) Copy of notice dt.10.4.1988
Ex.P.10 Copy of notice dt.11.4.1988
Ex.P.11 Reply by plaintiffs dt.13.4.1988
Ex.P.11(a) Postal acknowledgement
Ex.P.12 Legal notice dt.20.4.1988
Ex.P.13 Another legal notice dt.25.4.1988
Ex.P.13(a) Postal acknowledgement
b) Defendants' side :
Ex.D.1 Certified copy of plaint filed in OS
No.1976/1988
Ex.D.2 Certified copy of written statement
filed in OS No.1977/1988
Ex.D.3 Certified copy of I.A. No.9 filed in OS
No.1977/1988
Ex.D.4 Certified copy of order passed on I.A.
No.9
Ex.D.5 Certified copy of order assed by the
Hon'ble High Court in CRP
No.2020/00
Ex.D.6 Certified copy of decree passed in
CRP No.2020/2000
Ex.D.7 Certified copy of judgment passed in
Civil Appeal No.3008/2001
Ex.D.8 Certified copy of plant in OS
No.9833/2007
Ex.D.9 Certified copy of memorandum of
appeal in RFA No.79/2013
( BASAVARAJ )
XLI ADDL.CITY CIVIL JUDGE
BANGALORE
90 OS No.2290/1988