Karnataka High Court
Smt Ameenabi vs C Motilal on 7 March, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:17025
RFA No. 1944 of 2016
C/W RFA No. 1945 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO.1944 OF 2016 (SP)
C/W
REGULAR FIRST APPEAL NO.1945 OF 2016(SP)
IN RFA No.1944/2016
BETWEEN:
SMT AMEENABI
SINCE DECEASED BY LRS
1. SMT. AHAMADUNNISA
D/O LATE. SYED HUSSAIN.
(SINCE DECEASED BY LRS APPL.NOS.3, 4 & 6)
2. SMT. HAMEEDUNNISA
D/O. LATE SYED HUSSAIN.
(SINCE DECEASED BY LRS APPL.NOS.3, 4 & 6)
3. SMT. NOORUNNISA
AGED ABOUT 42 YEARS
D/O LATE SYED HUSSAIN.
Digitally signed
by VANDANA S
4. SMT. GHOUSEUNNISA
Location: HIGH
COURT OF AGED ABOUT 32 YEARS.
KARNATAKA D/O LATE SYED HUSSAIN.
5. ANSAR
S/O LATE SYED HUSSAIN
(SINCE DECEASED BY LRS APPL.NOS.3, 4 & 6)
6. JAMEEL
AGED ABOUT 46 YEARS.
S/O LATE SYED HUSSAIN
(THE APPELLANTS 1, 2 AND 5 ARE DIED
WITHOUT MARRIAGE HENCE, APPELLANTS
3, 4 AND 6, WHO ARE THEIR SISTERS AND
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NC: 2024:KHC:17025
RFA No. 1944 of 2016
C/W RFA No. 1945 of 2016
BROTHER ARE THEIR ONLY HEIRS
AND SUCCESSORS).
APPELLANT NOS.3, 4 AND 6 ARE R/AT NO.2
GURIKAR RAMANAIK LANE
S.P. ROAD CROSS
BANGALORE - 560 002. ...APPELLANTS
(BY SRI. ANANTHA NARAYANA B N., ADVOCATE FOR
APPELLANTS 3, 4 & 6)
AND:
C MOTILAL
S/O CHANDANMAL
AGED ABOUT 58 YEARS
R/AT NO.922/2, 3RD FLOOR
DEVIDAS BLDG.
NAGARTHPET CROSS
BANGALORE-560 002. ...RESPONDENT
(BY SRI.M.V.VEDACHALA, ADVOCATE)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 01.10.2016 PASSED IN
OS.NO.2320/2000 ON THE FILE OF THE XXV ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR SPECIFIC
PERFORMANCE.
IN RFA No.1945/2016:
BETWEEN:
SMT AMEENABI
SINCE DECEASED BY LRS
1. SMT. AHAMADUNNISA
D/O LATE SYED HUSSAIN.
(SINCE DECEASED BY LRS - APPL.NOS.3, 4 & 7)
2. SMT. HAMEEDUNNISA
D/O. LATE SYED HUSSAIN.
(SINCE DECEASED BY LRS - APPL.NOS.3, 4 & 7)
3. SMT. NOORUNNISA
AGED ABOUT 42 YEARS
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NC: 2024:KHC:17025
RFA No. 1944 of 2016
C/W RFA No. 1945 of 2016
D/O LATE SYED HUSSAIN.
4. SMT. GHOUSEUNNISA
AGED ABOUT 32 YEARS.
D/O LATE SYED HUSSAIN.
5. ANSAR
S/O LATE SYED HUSSAIN
(SINCE DECEASED BY LRS - APPL.NOS.3, 4 & 7)
6. SYED MEHAMOOD
S/O HUSSAIN.
(SINCE DECEASED BY LRS - APPL.NOS.3, 4 & 7)
7. JAMEEL
S/O LATE SYED HUSSAIN
AGED ABOUT 46 YEARS.
(THE APPELLANTS 1, 2, 5 AND 6 ARE DEAD
WITHOUT MARRIAGE AND THE APPELLANTS
3, 4 AND 7, WHO ARE THEIR SISTERS AND
BROTHER ARE THEIR ONLY HEIRS
AND SUCCESSORS).
APPELLANT NOS.3, 4 AND 7 ARE R/AT NO.2
GURIKAR RAMANAIK LANE
S.P. ROAD CROSS
BANGALORE - 560 002. ...APPELLANTS
(BY SRI. ANANTHA NARAYANA B N., ADVOCATE FOR
APPELLANTS 3, 4 & 7)
AND:
C MOTILAL
S/O CHANDANMAL
AGED ABOUT 58 YEARS
R/AT NO.922/2, 3RD FLOOR
DEVIDAS BLDG.
NAGARTHPET CROSS
BANGALORE-560 002. ...RESPONDENT
(BY SRI.M.V. VEDACHALA, ADVOCATE)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 01.10.2016 PASSED IN
OS.NO.6047/2004 ON THE FILE OF THE XXV ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR
EJECTMENT.
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NC: 2024:KHC:17025
RFA No. 1944 of 2016
C/W RFA No. 1945 of 2016
THESE APPEALS BEING HEARD AND RESERVED ON 07.12.2023
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
Both these appeals arise out of the impugned common judgment and decree dated 01.10.2016 passed in O.S.No.2320/2000 c/w O.S.No.6047/2004 by the XXV Addl. City Civil & Sessions Judge, Bangaluru City.
2. O.S.No.2320/2000 was filed by the respondent against the appellants for specific performance of a Sale Agreement dated 08.06.1997 in relation to the suit schedule premises and for other reliefs. Similarly, O.S.No.6047/2004 was filed by the appellants against the respondent for ejectment and other reliefs in relation to the very same suit schedule premises and for other reliefs. Both the suits were clubbed together and disposed of by the trial court vide impugned common judgment and decree whereby the suit in O.S.No.2320/2000 filed by the respondent was decreed in his favour while the suit in O.S.No.6047/2004 filed by the appellants was dismissed by the trial court. Aggrieved by the impugned common judgment and decree, appellants are before this Court by way of the present appeal.
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NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016
3. The brief facts giving rise to the present appeals are as under:
The respondent-plaintiff instituted the aforesaid suit in O.S.No.2320/2000 interalia contending that the 2nd defendant, Ansar was the owner of the suit schedule premises as described in the schedule to the plaint. It was contended that the 1st defendant- Ameenabi and 3rd defendant, Jameel were the mother and brother of the 2nd defendant and all of them entered into a registered Lease Agreement dated 28.09.1993, thereby leasing the suit schedule premises to the respondent-plaintiff, who paid deposit of Rs.4 Lakhs to the 2nd defendant by way of eleven cheques for himself and also on behalf of defendants 1 and 3. It was contended that subsequently, the defendants entered into a Sale Agreement dated 08.06.1997 with the respondent-plaintiff agreeing to sell the suit schedule premises in his favour for a total sale consideration of Rs.8 Lakhs. It was further contended that the aforesaid deposit of Rs.4 Lakhs already paid by the respondent-plaintiff would be treated as part and parcel of the sale consideration and the balance sale consideration of Rs.4 Lakhs was paid by the respondent-plaintiff to the 2nd defendant vide eight cheques for Rs.50,000/- each during the period from 26.10.1996 and -6- NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 08.11.1996. The respondent-plaintiff also contended that a period of two years was fixed under the Sale Agreement for completion of the sale transaction and execution of a registered Sale Deed in favour of the plaintiff.
3.1 The respondent-plaintiff contended that the 2 nd defendant was the owner of the suit schedule premises and the remaining defendants have been impleaded in the suit.
It was contended that the respondent-plaintiff was ready and willing to perform his part of the contract and since the appellants-defendants did not come forward and execute a sale deed despite issuance of legal notice dated 19.07.1999 by the plaintiff, he instituted the instant suit for specific performance and other reliefs against the defendants.
3.2 During the pendency of the suit, the 1st defendant, Ameenabi expired and her daughters were brought on record as her heirs and legal representatives. In addition thereto, her two sons, Ansar and Jameel were already on record as defendants 2 and 3 and they filed their separate written statements. Both of them took up identical defences by disputing and denying the allegations and claims made by the plaintiff. They admitted that they had leased the suit schedule premises in favour of the plaintiff -7- NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 under registered Lease Deed dated 28.09.1993 after receiving Rs.4 Lakhs by way of eleven cheques towards deposit for the lease. However, the alleged Sale Agreement dated 08.06.1997 was disputed and denied by the defendants, who contended that the said document was a forged and concocted document. It was contended that the respondent-plaintiff was a tenant under the defendants in respect of the suit schedule premises and his tenancy stood expire by efflux of time on 30.09.2003 and since the request and demands made by the defendants to vacate the suit schedule premises had not been complied with by the plaintiff, the defendants issued a notice dated 13.09.2003 and took necessary steps including filing O.S.No.6047/2004 for ejectment / eviction and other reliefs against the respondent-plaintiff. Accordingly, the defendants 2 and 3 sought for dismissal of the suit.
3.3 After institution of O.S.No.2320/2000 by the respondent, Smt.Ameenabi and her three sons namely, Ansar, Syed Mohamood and Jameel instituted O.S.No.6047/2004 for ejectment / eviction of the respondent from the suit schedule premises. As stated supra, Smt.Ameenabi having expired during the pendency of the suit, her daughters were brought on record along with her aforesaid three sons as her heirs and legal -8- NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 representatives. Even in this suit in O.S.No.6047/2004, the appellants took up contentions identical / similar to the contentions urged by them in O.S.No.2320/2000 and also contended that apart from the fact that the tenancy of the respondent under the appellants had been duly terminated, the respondent was also liable to pay mesne profits as well as arrears of rent of Rs.1,84,060/- to the appellants. Accordingly, the appellants instituted the aforesaid suit for eviction / ejectment, arrears of rent and other reliefs.
3.4 The respondent contested the said subsequent suit disputing the jural relationship of landlord and tenant between himself and the appellants. He also reiterated the various contentions urged by him in O.S.No.2320/2000 and contended that he had already instituted the said suit and as such, the present subsequent suit was not maintainable and liable to be dismissed.
4. Based on the above pleadings, the trial court framed the following issues in both the suits, which are as under:
"27. On the basis of the above rival pleadings of the parties in O.S.No.2320/2000, my learned predecessor-in-office has framed the following as many as 4 issues :
(1) Whether the plaintiff proves that the defendants have agreed to sell the suit schedule property for -9- NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 valuable consideration of Rs.8,00,000/- and received the full consideration amount? (2) Whether the plaintiff proves that he was always ready and willing to perform his part of the contract?
(3) Whether the plaintiff is entitled to the relief of specific performance of contract?
(4) To what order or decree?
28. On the basis of the above rival pleadings of the parties in O.S.No.6047/2004, my learned predecessor-in-office has framed the following as many as 8 issues :
(1) Whether there exists relationship of landlord and tenant between plaintiffs and defendant? (2) Whether there is legal and valid termination of tenancy of defendant of the suit schedule premises?
(3) Whether plaintiffs prove that defendant is in arrears of rent of Rs.1,84,060/- ?
(4) Whether suit is not maintainable as stated in para 8 and 10 of the written statement?
(5) Whether the plaintiffs are entitled to recover possession of the suit schedule premises ? (6) Whether plaintiffs are entitled for arrears of rent? (7) Whether plaintiffs are entitled for mesne profits ?
(8) What order or relief ?"
5. As stated supra, both suits were clubbed together by the trial court which treated the earlier suit in O.S.No.2320/2000 as the lead case and recorded common evidence. The respondent examined himself as PW.1 and documentary evidence at
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NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 Exs.P1 to P22 were marked. The appellants examined one Syed Mohamood as DW.1 and documentary evidence at Exs.D1 to D11 were marked on their behalf.
6. After hearing the parties, the trial court upheld the claim of the respondent and rejected the claim of the appellants in both the suits and accordingly, proceeded to pass the impugned common judgment and decree decreeing O.S.No.2320/2000 in favour of the respondent and dismissing O.S.No.6047/2004 filed by the appellants. Aggrieved by the impugned common judgment and decree, appellants are before this Court by way of the present appeal.
7. Heard learned counsel for the appellants and learned counsel for the respondent.
8. The following points arise for consideration in the present appeals:
(i) Whether the appellant No.5, Ansar was the sole and absolute owner of the suit schedule property and was entitled to execute Sale Agreement dated 08.06.1997 in favour of the respondent?
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NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016
(ii) Whether the respondent was entitled to a decree for specific performance of the Sale Agreement dated 08.06.1997 in relation to the suit schedule property?
(iii) Whether the impugned judgment and decree passed by the trial court warrants interference in the present appeal? Re. Point No.(i):-
9. A perusal of the material on record will indicate that the respondent-plaintiff specifically contends that the suit schedule premises was owned and possessed by Sri Ansar, son of Late Syed Hussain arrayed as defendant No.2 in O.S.No.2320/2000 filed by the respondent. It is a matter of record that Smt.Ameenabi, wife of the said Syed Hussain was arrayed as defendant No.1, while their another son, Shri Jameel was arrayed as defendant No.3 in the said suit. It is also not in dispute that the aforesaid Syed Hussain has one more son Syed Mohamood, who is arrayed as plaintiff No.2 in O.S.No.6047/2004 filed by him along with his mother Smt. Ameenabi (plaintiff No.1 in O.S.No.6047/2004) and his brothers Sri. Ansar (plaintiff No.2 in O.S.No.6047/2004) and Sri.Jameel (plaintiff No.4 in O.S.No.6047/2004). In other words, Smt.Ameenabi, wife of Syed Hussain and their sons are the
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NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 plaintiffs in the said suit for ejectment filed by them against the respondent herein.
9.1 The appellants contended that the suit schedule premises originally belonged to the aforesaid Syed Hussain and upon his demise, Ameenabi and their children including their aforesaid three sons viz., Ansar, Jameel and Syed Mohamood succeeded to the estate of Syed Hussain including the suit schedule premises as co-owners / joint owners of the premises. As stated supra, respondent specifically contended that it was Ansar alone who was the owner of the suit schedule premises and consequently, the respondent was entitled to specifically enforce the Sale Agreement dated 08.06.1997 executed by Ansar in favour of the respondent in respect of the suit schedule premises. In the impugned judgment and decree, the trial court has accepted the contention of the respondent and rejected the contention urged by the appellants-defendants and recorded a finding that Ansar has executed the Sale Agreement for himself and also on behalf of his mother and brothers.
9.2 In my considered opinion, the said finding recorded by the trial court in the impugned judgment and decree that Ansar - defendant No.2 in O.S.No.2320/2000 / plaintiff No.2 in
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NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 O.S.No.6047/2004 was the owner of the suit schedule premises and had executed the Sale Agreement dated 08.06.1997 in favour of the respondent on behalf of his mother and brothers, is wholly erroneous and contrary to the material on record and deserves to be set aside for the following reasons:
(a) It is an undisputed fact that prior to execution of the Sale Agreement dated 08.06.1997, the aforesaid Ansar along with his mother Ameenabi and his brothers Jameel and Syed Mohamood had executed a registered Lease Deed dated 28.09.1993 (Ex.P22) along with deposit receipt dated 28.09.1993 (Ex.P21) in favour of the respondent, who took the suit schedule premises on lease from all of them and not from Ansar alone. In fact, in the said Lease Deed, Ameenabi and her three sons including Ansar have categorically declared and asserted that they are the owners of the suit schedule premises, which was being leased in favour of the respondent herein. It follows therefrom that Ansar alone was not the sole or exclusive / absolute owner of the suit schedule premises of which he was only a co-owner / joint owner along with his mother and brothers and consequently, the trial court
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NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 committed an error in coming to the conclusion that Ansar alone was the owner of the suit schedule premises.
(b) A perusal of the material on record including the Lease Deed, Lease Deposit receipt and other evidence will clearly indicate that on his own showing the respondent had not only admitted that he had taken the suit schedule premises on lease from Ansar and his mother and brothers but also that all of them were joint owners / co-owners of the suit schedule premises; having admitted the joint title of Ameenabi and the brothers of Ansar over the suit schedule premises as well as their status as landlords, the respondent was clearly estopped from disputing their joint title nor their status as landlords and as such, the said contention urged by the respondent was liable to be rejected and the findings recorded by the trial court in this regard deserve to be set-aside.
(c) In order to establish that the suit schedule premises was originally owned and possessed by Syed Hussain, husband of Ameenabi and father of Ansar and others, the appellants produced Ex.D10, tax paid receipt dated 19.07.1984 at an undisputed point in time and the cumulative effect of the said document along with other material on record is sufficient to
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NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 come to the conclusion that the suit schedule premises was owned jointly by Ansar and his mother and brothers, who had succeeded to the premises upon the demise of Syed Hussain and on this score also the findings recorded by the trial court deserve to be set-aside.
(d) The trial court failed to consider and appreciate that except stating that the Ansar was the sole and exclusive owner of the suit schedule premises, the respondent had not produced any other legal or acceptable evidence to establish the said contention; the trial court proceeded on the basis that the Khata extracts and tax paid receipts which stood in the name of Ansar established his title over the suit schedule premises; in this context, the trial court failed to appreciate the well settled principle of law that Khata standing in the name of Ansar and paying taxes would not have the effect of creating / vesting absolute title in him, especially in the light of the specific contention put forth in the cross-examination of DW.1 by the respondent himself, who has elicited that after the demise of Syed Hussain, khata was transferred to the name of Ansar pursuant to letter, documents, etc., given by the other heirs of Syed Hussain; the said contention put-forth in the cross-
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NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 examination of DW.1 by the respondent would also indicate that even according to the respondent himself, Syed Hussain was the original owner and no-objection was given by all his heirs to transfer the Khata into the name of Ansar; it is trite law that No Objection Certificate / document given by all the heirs of Syed Hussain nor change of Khata into the sole name of Ansar, pursuant thereto would not have the effect of conferring absolute title in the suit schedule premises in his favou,r especially when Khata is not a document of title and on this ground also, the findings recorded by the trial court deserve to be set-aside.
(e) The trial court failed to consider and appreciate that in the suit in O.S.No.2320/2000 filed by him, the respondent has put-forth mutually inconsistent and destructive pleas by alleging on one hand that defendant No.2 (Ansar) was the owner of the suit schedule premises and contradicting the same by alleging that Ansar had received the Sale consideration for himself and also on behalf of the other defendants viz., his mother, defendant No.1 and brother, defendant No.3; further, the notice at Ex.P8 dated 19.07.1999 issued on behalf of the respondent for specific performance was issued not only to Ansar but also to Ameenabi and his brothers Syed Mohamood and Jameel by
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NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 contending that all of them had jointly executed the Sale Agreement at Ex.P1 dated 08.06.1997 in favour of the respondent; however, a perusal of the Sale Agreement will indicate that the same had been executed only by Ansar and not by his mother or brothers; these facts and circumstances borne out from the material on record are also a pointer to the fact that the suit schedule premises was not owned and possessed by Ansar alone but jointly by him along with his mother and brothers and findings recorded by the trial court deserve to be set-aside on this score also.
9.3 The aforesaid facts and circumstances clearly establish that the trial court committed an error in coming to the conclusion that Ansar alone was the sole and absolute owner of the suit schedule premises; interestingly, the trial court holds that Ansar alone was the owner on the ground that the appellants were Muslims to whom the concept of joint family and partition were not applicable; the undisputed fact that the appellants are Muslims and had succeeded to the suit schedule premises upon the demise of Syed Hussain as tenants-in-common / co-owners / joint owners under principles of Mohammedan law leads to the sole inference that the suit schedule premises was owned by all the appellants
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NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 and that Ansar was not the sole or exclusive owner of the suit schedule premises. Under these circumstances, I am of the considered opinion that the trial court committed an error in upholding the claim of the respondent and rejecting the claim of the appellants and consequently, the findings recorded by the trial court in this regard deserve to be set-aside.
Point No.(i) is accordingly answered in favour of the appellants and against the respondent.
Re: Point No.(ii):-
10. The next question that arises for consideration is as to whether the trial court was justified in passing a decree for specific performance in favour of the respondent against the appellants in respect of the suit schedule premises; at the outset, it is relevant to state that while dealing with point No.(i) supra, I have already come to the conclusion that Ansar alone was not the sole and absolute owner of the suit schedule premises, which was owned and possessed jointly by him along with his mother Ameenabi and his brothers Syed Mohamood and Jameel and all of them would be co-owners / joint owners entitled to undivided share in the suit schedule premises; it follows therefrom that Ansar alone was neither entitled nor competent to execute the Sale Agreement at
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NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 Ex.P1 dated 08.06.1997 in favour of the respondent in respect of the entire premises including the undivided share of his mother and brothers; consequently, the respondent would not be entitled to enforce the said Sale Agreement against Ameenabi and the brothers of Ansar, who had undisputedly not executed the said Sale Agreement in favour of the respondent.
10.1 Under identical circumstances relating to execution of a Sale Agreement by only a co-owner in respect of property without concurrence by the other co-owners resulting in lack of complete and total title in favour of only the co-owner, who had executed the Sale Agreement, in the case of Pemmada Prabhakar and others Vs. Youngmen's Vysya Association and others - (2015) 5 SCC 355, the Apex Court held as under:
22. The High Court dismissed the second appeal without adverting to the substantial questions of law that were framed in the second appeal at the admission stage itself stating that there is no substantial question of law for its adjudication. The first appellate court and the second appellate court committed a serious error in law in not noticing the relevant important findings of fact recorded by the trial court on the contentious issues on proper appreciation of pleadings and evidence on record with reference to the legal submission made on behalf of the parties:
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NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 22.1. The trial court after proper appreciation of evidence on record, particularly, Ext. A-1, the agreement of sale, has held that it is not a valid agreement and no rights can flow from it in favour of the plaintiffs in the light of the fact that the signatures of Defendants 1 and 2 were obtained on different dates on blank papers as they were in financial crisis and that fact is proved by producing Exts. B-1 to B-8 to show that the entire family (Defendants 1 to 6) were in financial crisis and they were forced to pay the debts to their creditors.
Therefore, they were in urgent need of money and they approached PW 1 for financial help, who obtained the signatures of Defendants 1 and 2 on blank paper and the same was fabricated as a receipt. The said receipt was not signed by Defendants 3 to 6.
22.2. The mother of Defendants 1 and 2 is one of the co- sharers of the suit schedule property as a Class I legal heir to succeed to the intestate property of her deceased husband, which was his self-acquired property left by him, as he had purchased the same vide sale deed Document No. 5174/1970 dated 24-11-1970 from his vendors. In fact, there is a reference made in this regard in the agreement of sale executed by Defendants 1 and 2 to the effect that after the demise of Pemmada Venkateswara Rao, the father of Defendants 1 to 6, the property devolved upon them jointly and they are enjoying with absolute rights. 22.3. As per Section 8 of the Hindu Succession Act, 1956 the general rules of succession would be applicable in the case of a male Hindu dying intestate, the relevant portion of which reads as under:
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NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 "8.General rules of succession in the case of males.--The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter--
(a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule;"
In the Schedule of the said Act, Class I heirs are son, daughter, widow, mother and others. In view of the enumeration of Class I heirs in the Schedule, the mother and sisters of Defendants 1 and 2 are also co-sharers of the property left intestate by the deceased Pemmada Venkateswara Rao.
22.4. As could be seen from the agreement of sale Ext. A-1 undisputedly, the third brother and 3 sisters (Defendants 3 to 6) and their mother have not executed the agreement of sale in favour of the plaintiffs. Therefore, the same is not enforceable under Section 17 of the Specific Relief Act, 1963. The mother lived up to September 2005 and the aforesaid legal heirs of the deceased Pemmada Venkateswara Rao got equal shares in the suit schedule property.
23. It is further contended on behalf of the defendants that the first appellate court and the High Court have failed in not applying the legal principle laid down by this Court in Lourdu Mari David [Lourdu Mari David v. Louis Chinnaya Arogiaswamy, (1996) 5 SCC 589] , wherein this Court held that the party who seeks to avail of the equitable jurisdiction of a court and specific performance decree being equitable relief must come to the court with clean hands. In other words, the party who makes false allegations against the defendants does not come with clean hands and therefore, it
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NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 is not entitled to the equitable relief of specific performance decree from the court.
27. With reference to the abovesaid rival contentions, the following points would arise for our consideration:
27.1. (i) Whether the plaintiffs are entitled for the decree for specific performance of the agreement of sale (Ext. A-1) when agreement of sale entered between the plaintiffs and Defendants 1 and 2 who do not have absolute title to the property?
27.2. (ii) Whether in the absence of execution of the agreement of sale, Ext. A-1 by the other defendants/co-
sharers is it valid, even assuming that agreement of sale is valid, there is breach of terms and conditions of the contract on the part of the plaintiffs in not paying the sale consideration amount of Rs 1,70,000 within 10 days from the day of vacating the tenants, Rs 50,000 on 30-11-1993 and an amount of Rs 1,50,000 on or before 30-3-1994 to the defendants and the plaintiffs are entitled for the decree of specific performance of the agreement of sale? 27.3. (iii) Whether the plaintiffs are entitled for discretionary relief of specific performance under Section 20(2) of the Specific Relief Act when it has not approached the court with clean hands?
27.4. (iv) What relief?
Answer to Point (i)
28. It is an undisputed fact that the suit schedule property is self-acquired property by late Pemmada Venkateswara Rao as he had purchased the said property vide sale deed Document No. 5174 of 1970 dated 24-11-1970 from his vendors. It is also an undisputed fact that the said property is
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NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 intestate property. He is survived by his wife, three sons and three daughters. The said property devolved upon them in view of Section 8 of Chapter II of the Hindu Succession Act as the defendants are Class I legal heirs in the suit schedule property. Undisputedly, the agreement of sale, Ext. A-1 is executed only by Defendants 1 and 2. The third son, mother and three sisters who have got equal shares in the property have not executed the agreement of sale. In view of the matter, the agreement of sale executed by Defendants 1 and 2 who have no absolute right to property in question cannot confer any right whatsoever upon the plaintiffs for grant of decree of specific performance of agreement of sale in their favour. The said agreement is not enforceable in law in view of Section 17 of the Specific Relief Act in view of the right accrued in favour of Defendants 3 to 6 under Section 8 of the Hindu Succession Act.
29. The provisions of Section 17 of the Specific Relief Act in categorical terms expressly state that a contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor who does not have an absolute title and right upon the property. It is worthwhile to extract Section 17 of the Specific Relief Act, 1963 here:
"17.Contract to sell or let property by one who has no title, not specifically enforceable.--(1) A contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor--
(a) who, knowing not to have any title to the property, has contracted to sell or let the property;
(b) who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt."
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NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 In view of the aforesaid provisions of the Specific Relief Act, the agreement of sale entered into between the plaintiffs and some of the co-sharers who do not have the absolute title to the suit schedule property is not enforceable in law. This aspect of the matter has not been properly appreciated and considered by both the first appellate court and the second appellate court. Therefore, the impugned judgment is vitiated in law.
30. Even assuming for the sake of argument that the agreement is valid, the names of three sons are mentioned in the agreement of sale, out of whom the agreement is executed by Defendants 1 and 2 and they assured that they would get the signatures of the third brother, namely, Srinivasa Rao and also of the remaining three sisters. At the time of execution of this agreement signatures were not obtained. Therefore, the agreement is not executed by all the co-sharers of the property which fact is evident from the recitals of the document itself. Hence, the plaintiffs are not entitled for specific performance decree. This vital factual and legal aspect has been ignored by both the first appellate court and the second appellate court. Therefore, the impugned judgment is vitiated both on facts and law. Accordingly, Point (i) is answered in favour of the defendants.
10.2 As held by the Apex Court in the aforesaid judgment, an Agreement of Sale entered into between the plaintiffs and only some of the co-sharers, who do not have absolute / total title to the suit schedule property was not enforceable in law. In the instant
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NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 case, as stated supra, Ansar alone did not have absolute title over the suit schedule property of which he was only a co-sharer along with his mother and brothers and consequently, the Sale Agreement was not enforceable in respect of the suit schedule premises and failure to appreciate this by the trial court has resulted in erroneous conclusion.
10.3 The trial court has come to the conclusion that Ansar was the owner of the suit schedule premises and that he had received the entire sale consideration on behalf of the other defendants also; as stated earlier, in the light of the undisputed fact that the Sale Agreement at Ex.P1 was executed by Ansar alone, who was merely a co-sharer / co-owner of the suit schedule premises along with his mother and brothers, who were also co- sharers / co-owners along with him, the respondent-plaintiff was not entitled to specifically enforce the Sale Agreement against the appellants in respect of the suit schedule premises.
10.4 In this context, it is relevant to state that though Syed Hussain and Ameenabi had three sons, Ansar, Jameel and Syed Mohamood, the respondent-plaintiff in O.S.No.2320/2000 did not implead Syed Mohamood as a defendant in the said suit which was one for specific performance and bad for non-joinder of necessary
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NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 parties and the same was liable to be dismissed on this ground also. Under these circumstances, I am of the considered opinion that the trial court clearly misdirected itself in coming to the erroneous conclusion that the respondent was entitled to a decree for specific performance against the appellants in respect of the suit schedule premises.
Point No.(ii) is also accordingly answered in favour of the appellants and against the respondent.
Re: Point No.(iii):-
11. While discussing Point Nos.(i) and (ii), I have already come to the conclusion that the trial court has not correctly and properly considered and appreciated the entire material on record and upheld the claim of the respondent for specific performance of Sale Agreement and dismissed the claim of the appellants for eviction / ejectment of the respondent from the suit schedule property by rejecting their claim in this regard. Upon re- appreciation, re-evaluation and re-consideration of the entire material on record, I am of the view that the impugned judgment and decree passed by the trial court warrants interference by this Court in the present appeal.
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NC: 2024:KHC:17025 RFA No. 1944 of 2016 C/W RFA No. 1945 of 2016 Point No.(iii) is also accordingly answered in favour of the appellants and against the respondent.
12. In the result, I pass the following:-
ORDER
(i) RFA Nos.1944/2016 and 1945/2016 are allowed;
(ii) The impugned common judgment and decree dated 01.10.2016 passed in O.S.No.2320/2000 c/w O.S.No.6047/2004 by the XXV Addl. City Civil & Sessions Judge, Bangaluru City, is hereby set-aside;
(iii) O.S.No.2320/2000 filed by the respondent is hereby dismissed;
(iv) O.S.No.6047/2004 filed by the appellants is hereby decreed in favour of the appellants as sought for by them against the respondent;
(v) The respondent is granted time upto 31.07.2024 to quit and deliver vacant possession of the suit schedule premises to the appellants.
Sd/-
JUDGE Srl.