Karnataka High Court
Smt. Shivamma vs Smt. Gowramma on 13 September, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A. NO. 213 OF 2015 (SP)
BETWEEN:
SMT. SHIVAMMA
W/O LATE SRI SHIVAKUMAR
@ SHIVAKUMAR @ MYSORE SHIVANNA
AGED ABOUT 60 YEARS,
R/AT MASTENAHALLI VILLAGE,
HENNAGARA POST, JIGANI HOBLI,
ANEKAL TALUK, BANGALORE DISTRICT
PIN-562106
...APPELLANT
(BY SRI.C.R.GOPALASWAMY, SR.ADVOCATE)
AND:
1. SMT. GOWRAMMA
W/O SRI SHIVARUDRAPPA
(SINCE DEAD BY LRs)
1A. SMT.CHANDRAKALA
W/O D.R.SHIVAKUMAR
AGED ABOUT 50 YEARS,
R/AT NO.10/30, BEHIND BBR & BDCC BANDK
RAJARAO RAO, J.C.EXTENTION,
KANAKAPURA, RAMANAGARA DISTRICT-562117.
2
1B. SRI.RUDRARADYA
S/O LATE SHIVARUDRAPPA
AGED ABOUT 49 YEARS,
R/AT MASTEENAHALLI,
HENNAGARA POST, ANEKA TALUK,
JIGANI HOBLI,
BENGALURU DISTRICT-562106.
1C. SMT.SOWBHAGYA
D/O SIDDARAJU,
AGED ABOUT 38 YEARS,
R/AT MASTEENAHALLI DINEE,
HENNAGARA POST, ANEKA TALUK,
JIGANI HOBLI,
BENGALURU DISTRICT-562106.
1D. SMT. PAVITHRA
D/O SIDDARAJU
AGED ABOUT 26 YEARS,
R/AT NO.10/30, BEHIND VIJAYAN
NURSHING HOME, D.K.CERCLE, NEW PETE,
ANEKAL, BENGALURU-562106.
...RESPONDENTS
(BY SRI.G.S.BALAGANGADHAR, ADVOCATE FOR R1(A-D))
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 10.11.2014 PASSED IN
R.A.NO.154/2011 ON THE FILE OF THE III ADDL. DISTRICT &
SESSIONS JUDGE, BANGALORE RURAL DISTRICT, SIT AT ANEKAL,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND
DECREE DTD 24.2.2011 PASSED IN OS.NO.640/2006 (OLD
O.S.NO.526/2003) ON THE FILE OF THE CIVIL JUDGE (SR.DN) &
JMFC., ANEKAL.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.09.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The captioned second appeal is filed by the defendant No.2 questioning the judgment and decree of the Courts below in decreeing the suit in favour of the plaintiff filed for specific performance of contract.
2. For the sake of brevity, the parties are referred to as per their rank before the Trial Court.
3. The plaintiff instituted a suit for specific performance of agreement to sell dated 06.03.2000 executed by defendant No.1. The plaintiff is the daughter of original defendant No.1 Nanjamma and sister of defendant No.2. Therefore, plaintiff claimed that her mother has offered to sell the suit land in Sy.No.115/4 totally measuring 23 guntas and Sy.No.116/5 measuring 9 guntas. The plaintiff has claimed that sale consideration was fixed at Rs.85,000/- and the defendant No.1 executed the suit agreement by receiving advance amount of Rs.75,000/-. The plaintiff further pleaded 4 that it was agreed between the parties that balance sale consideration amount shall be paid before the sub-Registrar at the time of registration of sale deed. It was also contended that time stipulated under the agreement to sell was eleven months.
4. The plaintiff further pleaded that under the agreement, defendant No.1 agreed to get the schedule land surveyed and fix boundaries before expiry of stipulated period. The plaintiff alleged that she repeatedly requested the defendant No.1 to perform her part of contract and execute sale, but defendant No.1 went on postponing with an assurance that she would execute the registered sale deed. The plaintiff claimed that defendant No.1 is her mother and was hoping that her mother would complete the transactions. The plaintiff claimed that she was ever ready and willing to perform her part of contract. It was only when defendant failed to comply with the terms of the suit agreement, the 5 plaintiff issued legal notice on 19.05.2005 and therefore, was compelled to file the present suit.
5. Defendant No.1-mother was placed exparte, while defendant No.2 on receipt of summons, tendered appearance and filed written statement. Defendant No.2 contended that present suit for specific performance is instituted on the basis of a created agreement. Defendant No.2 claimed that suit is based on created agreement and therefore, seriously disputed the due execution of suit agreement. The defendant No.2 has taken a specific contention that defendant No.1 has lawfully transferred the suit schedule properties in her favour under registered gift deed dated 21.03.2002 and therefore contended that plaintiff is fully aware of the gift deed executed by her mother in her favour. Defendant No.2 contended that without questioning the gift deed, the present suit for specific performance is not maintainable and therefore, sought for dismissal of the suit.
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6. The plaintiff to substantiate her claim examined herself as PW.1 and also examined two witnesses as PWs.2 and 3 and adduced documentary evidence vide Exs.P-1 to P-13. Defendant No.2 examined herself as DW.1 and relied on documentary evidence vide Exs.D-1 to D-35.
7. The Trial Court having examined the oral and documentary evidence answered issue Nos.1 to 4 in the affirmative. The Trial Court referring to the evidence of PWs.2 and 3 who were witnesses to the suit agreement vide Ex.P-1 has held that plaintiff has succeeded in proving the due execution of suit agreement. Having examined the evidence of scribe who is examined as PW.2, the Trial Court was of the view that nothing worth is elicited in the cross-examination of these two witnesses and they have stood the test of cross- examination and therefore, proceeded to hold that plaintiff has succeeded in proving the due execution of the suit agreement. While examining issue No.3, the Trial Court having referred to the relationship of the plaintiff with defendant No.1 and in 7 absence of contest by defendant No.1-mother, was also pleased to answer issue No.3 in the affirmative and therefore, a categorical finding was recorded by the Trial Court holding that plaintiff is ever ready and willing to perform her part of contract. While dealing with gift deed, the Trial Court was of the view that the gift deed executed by defendant No.1 which is subsequent to suit agreement would not take away the right of plaintiff emanating under the suit agreement vide Ex.P-1 and therefore, held that defendant No.2 is liable to execute the sale deed in favour of plaintiff along with defendant No.1. On these set of reasonings, the Trial Court decreed the suit.
8. Feeling aggrieved by the judgment and decree of the Trial Court, the defendant No.2 preferred appeal before the Appellate Court.
9. The Appellate Court has also independently assessed the oral evidence let in by the plaintiff. The Appellate Court has examined the evidence of scribe and 8 witness to the suit agreement and on examination of oral evidence of the witnesses, was also of the view that the suit agreement was prepared as per the instructions given by the defendant No.1. The Appellate Court having meticulously examined the oral evidence of the witnesses coupled with several admissions tendered by the defendant No.2 in cross- examination was also of the view that plaintiff has succeeded in proving agreement and there is no rebuttal evidence let in by the defendant No.2 to disbelieve the transactions between plaintiff and defendant No.1. Minor discrepancies in the evidence of PWs.2 and 3 was ignored by the Appellate Court. It is in this background, Appellate Court has concurred with the findings of the Trial Court on due execution of suit agreement and readiness and willingness. Appellate Court was also of the view that plaintiff is entitled for discretionary relief of specific performance of contract.
10. These concurrent findings of the Courts below are under challenge at the instance of the defendant No.2. 9
11. This Court vide order dated 27.02.2019 was pleased to admit the appeal on the following substantial questions of law:
"1) In the absence of any prayer for cancellation of the Gift Deed executed in favour of the second defendant/appellant prior to the suit whether the courts below were right in holding that the plaintiff is entitled for specific performance of contract?
2) In the absence of any pleadings and prayer whether the Courts below were right in holding that the Gift Deed executed in the name of the appellant/second defendant is not binding on the plaintiff?"
12. Learned Senior counsel Shri C.R.Gopalaswamy, has made his submissions in the context of substantial questions of law framed by this Court. Reiterating the substantial questions of law framed by this Court, he would contend that the present suit for specific performance filed by the plaintiff is not at all maintainable. He would contend that defendant No.1 has transferred the entire extent in favour of defendant 10 No.2 under registered gift deed dated 21.03.2002 vide Ex. D-20. Therefore, he would contend that it was incumbent on the part of plaintiff to seek relief of declaration questioning the gift deed and would contend that the present suit is not at all maintainable. Though the present appeal is filed under Section 100 of CPC, learned Senior Counsel has persuaded this Court to examine the oral evidence of PW.1 and the witnesses examined on behalf of plaintiff. Referring to the oral evidence let in by the plaintiff, he would contend that the suit agreement is a fraudulent document and the same can be gathered from the evidence let in by the plaintiff.
13. Learned Senior Counsel has made an attempt by pointing out that there were lot of inconsistencies in regard to payment of sale consideration and also witness signing the suit agreement. He has also questioned the credibility of PW.3 who is the attesting witness to the suit agreement. Learned Senior Counsel would point out that evidence of PW.3 would not inspire confidence and therefore, his evidence was liable to 11 be discarded. Referring to several discrepancies in the evidence of witnesses and PW.1, he would contend that both the Courts erred in not drawing adverse inference against the plaintiff who has manipulated and created the suit agreement vide Ex.P-1. He would also contend that nothing prevented the plaintiff to summon the defendant to the Court as she was residing with plaintiff. He would further contend that plaintiff was very much aware of the gift deed in favour of defendant No.2 and therefore, he would contend that unless and until gift deed is declared as null and void, both the Courts erred in passing decree calling upon the defendant No.2 to execute sale deed and therefore, he would contend that the concurrent judgments suffers from serious perversity and therefore, would warrant interference at the hands of this Court.
14. To buttress his arguments, learned Senior Counsel has placed reliance on the following judgments:
"1. B.Vijaya Bharathi Vs. P.Savitri and Ors - AIR 2017 SC 3934.12
2. A.Lewis and Another Vs. M.T.Ramamurthy and others - (2007) 14 SCC 87.
3. Palanisamy & 3 others Vs. A.Palaniswami & 2 Others - 1997-2-L.W.744.
4. Vasanthi vs. Venugopal (Dea) Through Legal Representatives - (2017) 4 SCC 723."
15. Per contra, learned counsel appearing for the plaintiff would however counter the arguments canvassed by the learned Senior Counsel. He would contend that both the Courts have concurrently held that due execution of suit agreement is proved and plaintiff has also succeeded in proving her readiness and willingness to perform her part of contract. Therefore, he would contend that there is no scope for enquiry and the concurrent judgments of the Courts cannot be re-examined by this Court under Section 100 of CPC. He would point out that there is no scope to asses the oral and documentary evidence in an appeal under Section 100 of CPC. Insofar as substantial question of law formulated by this Court, he would contend that the law is no more res integra. 13
16. Referring to the provisions of Section 40 of Transfer of Property Act, he would contend that plaintiff is asserting right under the agreement to sell and therefore, she has independent right to enforce the contract and the burden is on the plaintiff to prove due execution and readiness and willingness. Therefore, he would contend that there is no need for plaintiff to challenge the gift deed. The validity of the gift deed to the entire extent is subject to adjudication of plaintiff's right under the suit agreement and therefore, he would contend that the concurrent judgments rendered by the Courts below are in accordance with law and would not warrant any interference.
17. Learned counsel would also point out that there is absolutely no rebuttal evidence to doubt the transaction between the plaintiff and defendant No.1. If plaintiff really intended to grab the suit schedule property, then she would have made a claim in respect of entire extent. The fact that 14 suit agreement relates to only half share in the suit schedule properties clearly indicates that the transaction is genuine and no malafides can be attributed to the transactions between plaintiff and defendant No.1. Insofar as conduct of defendant No.2 is concerned, he would contend that her conduct is found to be grossly unfair. While defendant No.2 is asserting absolute title over the entire extent by placing reliance on the gift deed in her favour, however, during trial, she has gone to the extent of denying her LTM/signature on the registered gift deed.
18. Heard learned Senior Counsel appearing for the defendant No.2 and learned counsel appearing for the plaintiff. I have given my anxious consideration to the pleadings and oral and documentary evidence.
19. The plaintiff is seeking enforcement of agreement to sell dated 06.03.2000 vide Ex.P-1. The plaintiff contend that her mother has agreed to sell half share in the suit 15 schedule properties and therefore, she offered to sell half share for a sale consideration of Rs.85,000/- and plaintiff in terms of suit agreement paid advance amount of Rs.75,000/-. PWs.2 and 3 who are examined on behalf of the plaintiff have categorically stated that the suit agreement was prepared by the scribe at the instructions of defendant No.1. They also deposed in regard to payment of advance sale consideration. In cross, plaintiff has succeeded in proving that defendant No.1 was mentally fit and healthy. Both the Courts have concurrently held that suit agreement is proved and plaintiff has also further proved that she is ever ready and willing to perform her part of contract.
20. It is trite law that in a suit for specific performance, plaintiff is not required to seek any further relief. Defendant No.2 is resisting the suit agreement on the ground that defendant No.1 has gifted the entire extent in her favour under registered gift deed dated 21.03.2002 vide Ex.D-20. In a suit for specific performance of contract, the Court is only 16 bound to examine the due execution of suit agreement and issue relating to readiness and willingness. Therefore, the contention of defendant No.2 that the present suit for specific performance is not maintainable without questioning the gift deed cannot be acceded to. It is more than trite that right of an agreement holder emanates from the agreement to sell. His rights are to be determined and decided in terms of the suit agreement. The subsequent gift deed in favour of defendant No.2 would not take away the rights of the plaintiff who is trying to enforce the suit agreement by filing a suit for specific performance of agreement to sell. Therefore, the right of plaintiff is not depending on subsequent acquisition of title by defendant No.2 under registered gift deed. On the contrary, the right of the defendant No.2 under registered gift deed is subject to the adjudication of plaintiff's right under suit agreement vide Ex.P-1. Therefore, the contention of defendant No.2 that plaintiff cannot maintain the present suit without questioning the gift deed has no legs to stand and 17 such a proposition cannot be accepted. Accordingly, the first substantial question of law is answered in the negative.
21. The second substantial question of law framed by this Court is also liable to be answered in the negative. The gift deed executed by defendant No.1 in favour of defendant No.2 is subsequent to agreement to sell. Therefore, the validity of the gift deed to the entire extent will be always subject to the decree that would be passed in a specific performance suit. Though defendant No.2 has acquired title over the suit schedule properties pursuant to registered gift deed, the said right is always subject to the decree that would be passed in a suit for specific performance of contract. An agreement holder's right under the agreement to sell is an independent right. Therefore, the question of seeking relief of declaration to the effect that gift deed does not bind the plaintiff would be totally unnecessary. If plaintiff succeeds in proving due execution of suit agreement, then defendant No.2 18 who has acquired right and title under registered gift deed would be in fact bound by the decree and in terms of the suit agreement. If decree in a suit for specific performance binds the donor/defendant No.1, then it would also bind the donee/defendant No.2. Her absolute title under the gift deed is subject to adjudication of the suit agreement. Therefore, the second substantial question of law is also liable to be answered in the negative.
22. The relief of specific performance is discretionary and is governed by sound judicial principles. The grant of relief is at the discretion of the Court. The Court, if all the ingredients are available, is bound to exercise discretion and direct specific performance unless it should be what is called highly unreasonable to do so. In exercising discretion, the Court should take into account the circumstances of the case, the conduct of parties and their respective interest under the contract. It is also a trite law that as an ordinary rule, specific 19 performance should be granted and has to be denied only when equitable considerations show that damage would constitute an adequate relief. In the present case, if the discretionary relief of specific performance is declined, it is the plaintiff who would be put to irreparable loss and denial of specific performance of contract would inflict more injury on the plaintiff than on the defendants. Even if decree for specific performance is granted in favour of plaintiff, defendant No.2 who is plaintiff's sister would still retain remaining half share and therefore, no prejudice will be caused to defendant No.2 if discretionary relief of specific performance is granted in favour of plaintiff.
23. The judgments cited by the learned Senior Counsel for the defendants has no application to the present case on hand.
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24. Accordingly, I pass the following:
ORDER The second appeal is dismissed.
Sd/-
JUDGE CA