Karnataka High Court
V Channappa S/O Chikkavenkatrayappa vs Channamma W/O Byrappa on 22 April, 2009
IN THE HIGH COURT OF KARNATAKA AT BAI§ (Z?¥AL.f}I§fE. K
DATED THIS THE 22ND DAY 09 APRIL'2_599; }; " _ -T '
BEFoRE.»w-
THE I~iON'BLE MR JUSTICE K Na.1KEsA§~iAvA;§AiéA??Ai§'Aé "
R.S.A NO. 597 0i~*:a0,__§_);;
BETWEEN:
1 VCHANNAPPA
S/O CHIKimVENKATRAfi'AF*Pz1 '
MAJOR AGRICULTURIST 1 - % '
PILLAGOND!'.HALLI*""'»-jf % ;
HAMLET u
MAND1KALH:;)13Lr ; A
CHIKABALMPUR
KOLAR D~IS'i°' , V * " 1
. . APPELLAN T
(BY SRM: B Siéf1r;r1*;rgr;sA1~§:"'s3R.' ADVOCATE av,
SRIJN. B_AYYA",¥§EDE)fSf;ADV.)
AND:
........--.....-....
. 1 3;:;mN'3Mm% %%%%% -4 .
% «,W,'C)'}3YR'APPA, MAJOR
% R; O"'BANE»8HALLI
HOBLI
'QIIKKABALLAPUR TALUK
KOLAR DEST
' n SEETHAPPA
_s/0 BYRAPPA
1Vir'iJOR
;R/O BANDAHALLI
V MANIDIKAL HOBLI
CHIKKABALLA?UR TALUK
KOLAR DIST
no}:1«-»joi11der of necessary parties as an the heirs of
deceased Byrappa are not impleaded as parties toV:§ie"'e}1it
and therefore, the suit is liable to be dismissed;
contended that the 15% defendant hes neve2'e'*e_${eeiited- " =
agreement muchless agI'C€IIl€I}t:'.,:'dE3_?;€'r_j}::'
favour of the plainfifi' ag'eein g'__to Vfhe '
properties for a sum of;_Rs.-4, nor T_'(;Vifiel§V\:rf5<2reci the
possession of the propeiigtoe V'0nVt;he date of the
alleged ag'eemer;t'to hogrjt" i3erfor1naI1ce of
the agreemerjjpte 'V fL1;etZr;erVTeo1V£:ttez1deci that prior
to and grant of occupancy right,
Byrappa his .- were and have been in
_Vvposses:;§Aio:7z. and of the suit schedule promrty
is not in possession of the property.
the ease of the piajntifi' that the
V ;;rope¥9t3z..vs?:af§s'éx1g{'eed to be sole for discharging the family
. " ~-Aceording to the defendants, the alleged ageement
_ is 'eefxeocted and fabriwted deeument. Therefore, the);
A A - % escmht for dismissal of the suit. 5/
4) In the light of the pleadings of the paI1:ie'e.,> the
trial Court: framed the following issues: 'V
i) [)9 the plaintiff proves the exeez1tioI1"-pf V em
agreement by the 15* defendant» on _18'.'(3Q.'j1982"., .
agreeing to sell the suit property on .behalf -tj1e"'
defendant Nos. 2 and 3 as a 'alsweil. 7.?
the Manager of the joint family'? " " A
ii) Do the plaintiff further preves the ~.pa3e:i1e;{1t of
consideration and V__de1iver§£.. (if . pessessiors by the
let defendant under the greeanent dated
13.02.1932? " 'A - L I A.
iii) 90 the is always
ready ige" part of
contract?
iv) Dod*--._the" iiezjtifled for the specific
perfoixnanceewagainst defendants?
V) \?£;'i1"a£. order QVr':;elief?.
the trial, the piajntifi examined himself
ae" .'1?W__._ 11 "examined two attestors to agreement as
V V' PWS. He marked the ageement of sale as Ex.P1
4_codpj,«.* of the reg'st'ra1:;ion certificate in Form Ne. 10
'.'.issi:eé1"*"by the Tahsfidar as Ex.P2. On behalf of the
"-«deferxdants, the let defendant examined herself as DWJI
and two more Witnesses were examined as DWS. 2 82; 3 to
"b
establish that the defendants are in possession of the
preperty. The defendants got marked the revemsie
in respect of the schedule property as
genealogical see as Ex.D.10 and celjtified eopjfief sale '*
deed as Ex.I)11.
6) The trial Court aiter"§"ea1'inV§g on V'
appreciation of the oi'-al a.rid_ " "evidezlce,
answered Issues~ 1 to 4 in that the
plaintiff has protrefii' e1l;eem:len"" eTi"l':."i,l'1.e..V: 'agreement dated
18.02. 15? defendant agreeing
to sell the'«si1it both on her behalf and
on behalf' ef 4ll'Defe11eia;d?.s:~; 2 and 3 as their guardian as
%¢;¢a11esl':l die 'i:a,anagéelfWsf the joint family, and that the
' proved the payment of consideration
and Ade1ive'I'y.3 possession of the property under the
l " 'A''a§§i'€eme:e'L- 1. The trial Court also held that the plai1'1tifl' has
dp:;~o:zee he is always ready arlcl Willing te perform his
ll the contrast and therefore, he is entitled for specific
3 ."15erfor:mance of the ageement. In that View of the matter,
10
noticed that though the subject matter of
one and the same, the trial Court did not _
but held independent trial in both {fie _
8) By separate §u&§¢in¢nt puassékf 0.8. " L'
No.12/2000 the ma: (teem: eisméesedme eeidexei in the
light of its finding eaeeeeee V3':e.i::}11e.':f'V$2gfee::2ent of sale,
possession of the_:V';zrop{:i4tj;%' 'efleéfivemd tn the
' plaintiff ._the 15* defenciant~
Charmammaevi$:1*1ot inpos$essior1~3f"i}1e property, as such,
she is not1e12ti§led the» injuncfion.
9);
j' " Agg§1ea'e§i' £216 judgement and éecree passed
'§Ii}3€tf€I}d8I1tS --~-- 1 t9 3 filed appeals in RA.
2003 on the file of the Civil Judge
(Sr.D:1. )"',:- chee'i;'3<e*.:eeee1;epur. RA. No.10-4/2001 related te %
% %e%&ff'%%:i:ee%%jm;:gemee: and decree passed in 0.3. N9.12/2000 and
I§;«;§;.';e-VVi*~'i'5eIA:i05 of 2001 rtziated :3 the judgement and decree
peeeee ee €18. Ne.115 of 1999. The Lower Appenete
9'?
11
Court heard both the appeais together and
them by common judgement dateci }5.04.2(}02.;
10) During the course of t}':'1Je:§tj§:igeine:1t,.:_'ti1eV
Agapeliate Court raised the Véioliowing T poi::its A . "fof ' = *'
consideration: V n
i) Whether the respo:1"d.ent'Ai11.th&%$::V'apma1s proves
that the appellant ~exe;iuteci' Vagzeement of
sale to sell the suitV"sehedule--""pro;}et'ty to him
on18.o2.193:a? t t e "
ii) Whether' " Cafiement dated
23.02. 298:2. enforoeé1h1e"iI11§f«1w?
iii) Whjethetf A' proves that he was
always 4:'eady~m1ci» to perform his part: of
Coni:t*¢3g3t?e " " '
iv) VfJi'1Ci;hCI'.V "me respondent proves that the
._§ippe1Ia:1t ----- tried to interfere with his ' ._ _posSe{ss;o1; axzd enjoyment of property? V)" . 'e-Whetfker the appellant proves that she was in to }a'Wf1;1 'e~ ptissession over the suit schedule p.ropert3r"as on the date of filing of the suit in 0.312/2000?
Vtwhefller the judgement and decree passed by ._ "the tria}. Court in both suits needs to be set aside or modifies}?
is/' 13 the defendant-Chammmma and her sons. the said judgement and decree passed by Appellate Court, the plaintifi'~Chan;;appa,-- " = appeals before this Court in :.._,,g;Iid_e 698/2002. Both the appealé w_ereV"ad'1§I1itted@%'flliowevef, when the appeals were counsel for the appellaiielilzv, withdrew the appeal in RSA 69£$'--o__f zooezeefi-3:4; Eat the finding of fact with regard to the delivezfiell is not open for quesfionivlvin in the light of that memo RSA 698/ 2(V)02_d vwles as withdrawn. Thus only
- ,1 "'re:11§.a.ir1ed for disposal. this appeal by this Court, the following question of law was framed for l H " " eoilsideration.
V' " "Whether the agreement for sale amounts to _ an alienation under Section 61(1) 91" the KLR Act 14 and the agreement executed by the mother binds Defendants --- 2 and 3 ?"
33) I have heard Sri. CB. Srinivas, leaz*'1'ie'c.iVV' Advocate appearing for the appellant 'V --.
Reddy, learned counsel respondents/defendants. ' ' ' .
14) Sri. QB. Set1io1"1§dvoeate, submitted that in the 'V of the Lower Appellate of property agreed
to be said :VAt3ee:o{7-ielivered under the agreement, the not justified in holding that there " a tI'.Var:sfer of pfoperty within the meaning of 51;;
"of the KLR Act. He would further submit %__/' "__L§i;:iier Section 61(1) does not relate to an V .9.g1*ee1:1V""1ez1¢;:.ei";sale;as}what is prohibited under Section the said Act is sale, gift, exchange, mortgage, lease er }3_!$Si§1ment Therefore, the Lower Appellate Court has "-«eemmitted error in holciing that the egeement is void. He 15 would fmther submit that the Lower Appellate failed to consider that the 15' defendant ageed V property for the benefit of the family and to antecedent debts of the family, thefefore, Defendants ~ 2 and 3 also. 'Ifherefore,Wr_le the Lower Appellate Court oulghffto have the V appeal and affirmed .T'ofo.the' Court.
Alternatively he discretion of the Court, 3:'; gpecjfic performa;nf3§; l directed refund of the tllellllegreexnent together with interest by' wgtyl of Q11 Afiliewother hand, Sri. Vivek S. Roddy, gppearitlg for the respondent submitted V of the specific case of the plaintjfi' that ' " tl1e_lfAg'eem.ent-Ex.P1 the possession of the property A legs delivered to the plaintifi', the Lower Appellateflourt is ':'_';}1.,1.e1E:ifie(i in holding that it amounted to uansfer of property " " the meaning of Section 61 of the KLR Act and §"
16
therefore, the Lower Appellate Court has rightly heki"t1x1at the agreement: is void and unenforceable. __ ffie' _ submitted that the appeflant/plsinfifi » advantage of the finding of the Lovfijer the possession has not been c%eii1(ere{i'!:<§"'t1r1e * the ageexnent as recited the appeal fiied against circumvent the pfskfibition _ under» thev 'Jover--come the invalid v_ _~;'_Th§§refQ1fe,._" iije "s1Jvi1'§Vi'1:1itted that in the light at' tL1ee_.eef1te11i:a:::'_0f iI«:l:'AlQ_E:'£gI'{'J("31}16I1t was void and unerfloreeable. further submit that absolutely no evideneeVV'h_es.,bVee:i by the plaintifi' on record to . .indic.ai:e 'V ajieged agreement was for the legal for discharging the famiiy debts 30 as to bmde'serei1d;é::ts%;2 and 3. He would further submit that vef'y..§;e{:if.a1s in the ageemeI1t--Ex.P1 cleariy indicates A.Vaf3')'t=,'f£i:I1C€3 of any famiiy necessities or the antecedent V' and therefore, even if the Ageement-Ex.P1 is held as fralid and enforceable in law, it would not bind the other 17 V '4 heirs of Byrappa including Defendants -- 2 and 3,j_=at the best it may bind only the share of 15' Defezjtiant. Therefere, he submitted that this is not a case exercise of discretion to grant relief...'V_' <}§v ' _ performance. He further submitted'. ' has not sought for alternative "re'};ief cf "(sf , consideration paid under the Lower Appellate Court. is :§:1oi:;_ such relief.
16) As below have reeerdedj 'that the piaintifi has satisfactofi1y"proved A:i;i1e"eT§:§ec*{1tion of the ag'eement--Ex.P1 by Defendarfly of the schedule property and i""§a.$%si§1g{consideration of Rs.4,100/-- under the to Defendant No.1. It is also _pertiiient.--__te -eéfie that the defendants have not filed emss---- .. , ., before this Ciourt against the said fmding of the jbelew. Therefere, it is not apex: to the defendants T * "contend that the execution of the ageement is not '4 "proved. Therefere, the next prime question required to be «M 18 coneidered is, as to whether the agreement is void irifterms of Section 61 of the MR Act. There is no dispete.' suit schedule property was a tenanted , application filed by Byrappa, " A' defendant and father of Defend.gntsAandeV3V; L, rights in respect of the was conferred on the by the Registration iesued in Form No.10 by the The certificate is dated 02.0%; of Ex.P'2 and Ex.D1, it is cieeir prohibifion for transferring the ganteti '@136 of sale, gift, etc. for a period of _ V15 from of issue of certificate. Therefore, "or his successors could not have alienated manner or could not have parted with 33oseeesie:iéVof"1n;he preperty in any manner till O2n01.199'7. within a few days after the issuance. of __"--eer€§fiee,te~Ex.P2 and Ex.D1, the said Byrappa died ieaving . V '4 his widow and two sons as admitted by the plaintiff 21 (3), if any such traxtsfer takes place in oonu'avent.§on of sub--seetion (1), such land would vest Governmerlt free from all encumbrances ._1z:o3 d ., 2 shall be disposed of by the f} 'V accordance with the provisions-of Section 77"3;$&:a.V_V$11.fip1t1s. 'v land. Thus, reading of that there is a total prohibitioi1_ at the land of which occupancy to a tenant for a period of takes place in cont3'avet1fioi}"'~ the iand would vest with ..free from all encumbrances.
The expression Property" has not been defmed .V'I..5«_j.-"xci :
4....1}ndef«%t.1iet''Aet.1\Se(:tjo:;--5 of the 'Fransfer of Property Act, "x2_§~i":iCh_. Vis;.VA_vt§1e..iVAge1jaera1 law of the zand dealing with the tra1*1s1'e1:' of the expression 'I'ra13,sfer of property' _ beteavttdefiaed to mean an act by which a living person eonvey~s property, in present or in futuze, to one or more living persons.
22
18) The Lower Appellate Court. relying upon a decision of the learned Single Judge of this Comit in Ramegowda Vs. Assistant Commissioner (ILR
259), which is the ease arising under the prov"£sione.:ef se/sq' (Prohibition of Transfer of t,an<;£s):' teggelhaist held that the ageement of sale eoueiedsatith possession amounts to of The expression "Transfer ef beenvtitseecificafiy defined under the said of the Act, wherein, it is sgleésgiy stated etuirav-.egi'eement coupled with delivery . tofvt'vpossess§.e11.,._ would constitute "Transfer of Property" tile said Act. It is in the fight V of the def§r1it.ieii at 'Transfer of Property 'in the said V. ggieecisioxi, was held that the élgf'€€Ifl€I1t coupled. with weuid amount to Transfer of V in the KLR Act, the expression 'I'ransfer £~'I'e§efty" has not been defined, we cannot borrow _ --deftefden feund in other Act. Nevertheless, though under it is recited that the peseeesien of the property @/ 23 agreed to be sold has been delivered to the purchaser, as a matter of fact, the Lower Appellate Court has recorded a finding that possession of the property delivered to the plaintiff. The Lower iias _ set aside the specific firlding recorded this regard and therefore, mere in s. regarding delivery of possessioziiiiiiafiijiiout delivery of possession having cannot be said that it would amount tovffi'-rei3sfer:»of Reading ef Seeiion 61 iiidieates that What is prohibittid is property by way of sale, gift, exchange, im,oi1:gage,""}ease--«._erV assignmem but, there is no _vVproiii§;>§itioi1 gfieciion 61 from eritering into an
3._a,gi'eemeriLi.ef, Therefore, in my considered opinion, Court was not justified in holding that 'A ..
*\\i'\
-since 'iV3)x.P1 it is recited that possession of the divas deiivered to the plaintiff, it amounted to of property and it is prohibited under Seetien 6:
' 3 Act, (&/K 24
19) In the light of the finding recorded by theésower Appellate Court that possession has not been 'to the plaintifi', the Lower Appeliate Court was K holding that it amounted to -I contravention of prohibition under Seetion f1'11erefote,V ~' the said finding of the Lower Afifieflate egxoneous and comxaxy to the law W611. eeVt1l1e..»Vfaet-siteetixon of the case. Merely becattse me. to be valid, ipsofacto the relief Of Specific performs;riee.'- T. eiitiretvésale consideration has been paiCi'--ut1der- itself. It is not the case of the defendafifs t h.'-at consideration was inadequate to tItie"'pi"e#.7ai1iz1g market price of the property of time.
A serious question urged by the defendarzts tenfotceebflity of ag"ee1:nent against other heirs of Admittedly, as on the date of Ex.P1, other heirs '::'_4'efv--£-fizrappa were minors. Though the piamtjfi' in his plaint @ 26 ignorance about the financial condition of the defendants. He appears to have not made a_1_z;1y*_ about the financial conditions of the --«.. defendant. There is absoiutely no evidenee the family of the defendant _Vinet1n4ed v were in dire need of mortey to debts.
Even the contents of V Lt iiot:A..:'iI1d_icate that the proposed sale weeeifot t:1j®essities for discharging ()Vrif,'v_v'ttte"'VVother hand, the executarncof she is selling this propertyito Therefore, there is absolutely _Vevicie1*;ee._to« ijrove that the sale was for and " '~33; the ehildren and that the said sale was the family or for discharging the famfly such sale cannot bind the other heirs of
- 3.«.4_'Byrappa._dia'xt best, it weuld only bind the share of the 18* d What would be the share of the 1%' Defendant . depend on the answer to the question whether the ifgrant of occupancy rights in favour of Byrappa was in his 27 individuai capacity or as the Manager of the joint comprised of himself, his wife and his Absolutely no evidence is placed on ., The parties have not directed tkxexlieelvee. Therefore, it carmot be c1ear1y»tVstgted"afs7to wieieméi L. the interest of the 15* (siefendaht, The quantum of share to entitled to would depend '3.'9n_1_a whether the property was the individual property the other heirs of Byratppaiviat-e~ riot proper for this Court to record a fmtititggoh of the matter. Therefore, it ~' any opinion in this regard. Having w"I1eir.ti}1aAt..t:he'teggreement-Ex.P1 would only bind the shape of t"heV'"15* and in View of the fact that what would the of share of the 15* defendant cannot be h ascertained, in my opinion, this is not a fit case ' 'exercising the dieeretion in favour of the plaintifi' for ,.grant of specific performance. It is well-settled law that, «%/ 29 of driving the parties to axitother round of iitigatjon, in my opinion, mterest of justice would be met, if ixasteazipof granting specific grerformance of the agreement to ~ 3 of share of the defendant, refund of the H amount is directed. No doubt the 'iI1 hi'5'»' not sought for refund of the cox:sidefa,ti0.fi pa,i.d."_;11r15J3fV '' agreement. Of course, as per Se¢'ti§11 22(2)'--'Sj£::c1i:'1<;i?é}ief Act, relief 0f refund {if eaxfiest m(§§1éy¥'j<pgé;id._ or ciépoéft made shail not be ganted by the for the relief of specific p€I'f0£ifl'Ei§';D("18 <:0:i3irac{[,' --i_1LI:;1_§é§s such relief is claimed aég an -3.1fei.r¢ati:z¢"r¢1fv:.:f.-- However, provisio to sub-- section (2) €>fV.$ecti€5n--f22' e':Iir;:{(§4évers the Court to aliow the plaiyztifi any st.éigeVf V0 f tliaz procaedings, to amend the piaint V. iiiiclfile _§z%.'¢E§4A;2:ayer for refund, Where the plaixcxtiff has not Before this Court an ' Ora} request on Vhehaiffif was made to aliew the plaintifi to seek f€:"f11nd., Regard being had to the facts and I» gjircfifiistfinces of the case arid in the light of £316 discretion T in the Caurt: to allow the ylaintifi to seek such .'é::1tem.ative prayer, ii is just and neaessary to permit the