Karnataka High Court
Sri Manjegowda S/O Late Range Gowda vs Sri M R Manjegowda S/O Range Gowda on 22 August, 2012
Equivalent citations: 2012 (4) AIR KAR R 802, (2013) 2 KANT LJ 533 (2012) 4 KCCR 3430, (2012) 4 KCCR 3430
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 22ND DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
REGULAR SECOND APPEAL No. 476 OF 2007
BETWEEN:
MANJEGOWDA
S/O. LATE RANGE GOWDA
AGE 57 YEARS
R/O. MALLIGEVALU VILLAGE
AND ALSO AT KARIDOWDANAHALLI
KATTAYA HOBLI, HASSAN TALUK.
... APPELLANT
(BY SRI. VISHWANATH SABARAD, ADVOCATE)
AND :
1 M R MANJEGOWDA
S/O. RANGE GOWDA
AGE 48 YEARS
R/O. MUDDENAHALLY VILLAGE
KATTAYA HOBLI, HASSAN TALUK.
2 R CHANNEGOWDA
S/O. RANGE GOWDA
AGE 43 YEARS
POST MASTER ALUR AT & POST
HASSAN TALUK.
3 ANNEGOWDA
S/O. RANGEGOWDA
AGE 39 YEARS
R/O. KARIGOWDANNA HALLY
KUNDUR HOBLI, ALUR TALUK
HASSAN DISTRICT.
... RESPONDENTS
2
(BY SRI. B ROOPESH, ADVOCATE FOR R1
R2 & R3 ARE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 22.11.2006
PASSED IN R.A.No.170/2006 ON THE FILE OF THE
ADDL.SESSIONS JUDGE & PRESIDING OFFICER, FAST TRACK
COURT -III, HASSAN, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 6.4.2005 PASSED
IN O.S.No.207/2001 ON THE FILE OF THE PRL. CIVIL JUDGE
(JR.DN) & JMFC II COURT, HASSAN; AND ETC.
THIS RSA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The 1st defendant's second appeal calling in question divergent findings of the Addl. Sessions Judge and Presiding Officer, Fast Track Court-III, Hassan allowing judgment and decree dt. 22.11.2006 in R.A.170/2006 to set-aside the Judgment and decree dt. 6.4.2005 of the Prl. Civil Judge (Jr.Dn) and JMFC-II, Hassan, dismissing O.S.207/2001 and decreed the suit for specific performance of an agreement of sale of immovable property.
2. The 1st defendant instituted O.S.207/2001 for specific performance of an agreement of sale dt. 3 21.3.1991 executed by one Range Gowda agreeing to convey 20 guntas and 11 guntas of land in Sy.Nos.138 and 143 respectively of Malligevalu village, Hassan taluk, having received the full consideration of Rs.25,000/-, and further agreeing to execute and lodge for registration the sale deed, after the expiry of the period of non-alienation of 15 years from 2.3.1981, a condition on being conferred with occupancy right over the said tenanted agricultural lands, by the Land Tribunal, under Section 48-A of the Karnataka Land Reforms Act, 1961. According to the plaintiff, Range Gowda's two sons defendants 2 and 3 too extended their consent to the conveyance of the said properties by their father, by affixing their signatures as witness to the agreement of sale, in addition to the signature of one another witness by name Govinde Gowda. 1st defendant entered appearance and resisted the suit by filing a written statement inter alia denying the execution of the agreement of sale and receipt of Rs.25,000/- as consideration by his father Range Gowda, reported to 4 have died on 9.12.2000 and during his life time plaintiff had not issued notice for execution of the sale deed. In addition, it was contended that during the lifetime of Rangegowda the properties fell to his share in a partition, following which his name was recorded in the revenue registers in respect of the said properties where afterwards has been in peaceful possession and enjoyment of the same. It was also contended that the plaintiff and defendants 2 and 3 colluded in fabricating the alleged agreement of sale, so as to disentitle the 1st defendant to a claim to the properties. It was lastly contended that defendants 2 and 3 when accused of the murder of the 1st defendant's son were bent upon ensuring that the properties in question would not be available to the 1st defendant.
3. Defendants 2 and 3 filed their written statement admitting the case of the plaintiff and sought decree of the suit.
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4. In the premise of pleadings of parties, the trial court framed the following issues:
"1. Whether there is a cause of action to the plaintiff to file the suit?
2. Whether the plaintiff is entitled for the relief claimed in this suit?
3. What Order or decree?
Additional Issues :
1 Whether the plaintiff proves that the fatehr of defendants Rangegowda has executed the sale agreement on 21.3.1991 agreeing to sell the suit property for Rs.25,000/- and received entire sale consideration?
2 Whether the plaintiff proves that he was put into possession of the suit property as part performance of sale agreement? 3 Whether the plaintiff proves that he was ever ready and willing to perform his part of contract?
4 Whether the suit is within the period of limitation?"
5. Plaintiff was examined as PW-1 and another Govinde Gowda as PW-2 and marked 4 documents 6 Exs.P1 to P4, while 1st defendant was examined as DW-
1 and defendants 2 and 3 as DWs 2 and 3 and marked 4 documents Exs.D1 to D4. The trial Court having regard to the pleadings of the parties, the evidence both oral and documentary, more appropriately the admitted fact that DW2 & DW3 were accused of murder of the 1st defendants son, declined to accept their testimony as credible evidence and in the absence of examining the Notary Public before whom Ex.P1 agreement of sale was said to have been attested, coupled with the non-
examination of Chandrashekar, Advocate said to have drafted Ex.P1 and the vascillatory statements in the testimony of the plaintiff examined as PW-1 that he brought the stamp paper for drafting the sale agreement though when arraigned as defendant No.2 in O.S.151/2001 and examined as DW, in cross- examination testified that it was the defendant's father who brought the stamp paper for drafting the sale deed, as also unacceptable explanation as to why signature of DW, was not obtained on Ex.P1, held that Ex. P-1 was 7 not proved in evidence. The trial court further observed that there was not an iota of evidence to establish that the plaintiff was either put in possession of the suit schedule property on the date of execution of Ex.P1 agreement of sale by the alleged executant - Range Gowda, or the covenants in Ex.P1 disclosed the handing over of possession of the original certificate of registration consequent to the order of the Land Tribunal conferring occupancy rights of the suit schedule properties on Range Gowda. The trial court observed that the Suit instituted on 14.8.2011, five and half years after the expiry of the non-alienation period of 15 years from 2.3.1981 referred to in Ex.P1 without a plausible explanation as to why no demand was made to execute the sale deed during the lifetime of Range Gowda who reportedly died on 9.12.2000, accordingly declined to accept the explanation for the delay and applying the principles laid down in the reported opinions of this Court as well as that of the Apex Court, 8 answered the issues against the plaintiff and dismissed the Suit by Judgment and decree dt. 6.4.2005.
6. The lower Appellate Court having reappreciated the evidence on record held that the testimony of PWs 1 and 2 and that of DWs 2 and 3 were sufficient to establish the due execution of Ex.P1 agreement of sale by deceased Range Gowda and in the absence of material evidence to establish that the suit schedule properties fell to the share of the 1st defendant in a partition, coupled with the fact that defendants 2 and 3 none other than 1st defendant's brothers were willing to execute the sale deed as legal heirs of deceased Range Gowda, accordingly allowed the appeal, set-aside the Judgment and decree of the trial Court and decreed the Suit by Judgment and decree dt. 22.11.2006.
7. This appeal when admitted on 20.2.2007, the following substantial question of law was framed :-
"Whether the lower Appellate Court was justified in reversing the judgment and decree of the trial court where it had held that the plaintiff was not 9 ready and willing to perform his part of the contract and the suit was barred by time ?"
8. Having heard the learned counsel for the parties, perused the pleadings, evidence both oral and documentary and examined the Judgment and decree of the Courts below, the following additional substantial question of law arises for decision making:-
"Whether in the facts and circumstances, the Lower Appellate Court was justified in recording divergent finding that Ex.P1 was proved in evidence?"
9. In order to prove the due execution of Ex.P1 agreement of sale dt. 21.3.1991 by deceased Rangegowda, s/o Venkategowda, father of the defendants, it is asserted in the plaint that Rangegowda received Rs.25,000/- being the full sale consideration on 21.3.1991, handed over original grant certificate dt. 2.3.1981 Ex.P2 and put the plaintiff in possession of the lands agreed to be conveyed, for family necessities with a further covenant to execute and lodge for registration the conveyance deed after the expiry of the period of 10 non-alienation fixed under the grant certificate, while defendants 2 and 3 affixed their signatures to the agreement as attesting witnesses along with another Govinde Gowda. In addition, the plaint averments disclose an assertion of a fact that the said Rangegowda executed an irrevocable power of attorney in favour of the plaintiff on the very same day.
10. The testimony of the plaintiff examined as PW-1 discloses certain inconsistencies affecting its credibility. Admittedly, PW-1 did neither introduce in evidence the alleged irrevocable power of attorney said to have been executed by Rangegowda on 21.3.1991 in favour of the plaintiff nor tender a plausible explanation over why the document is not produced. There is also no evidence to substantiate the fact that the deceased Rangegowda executed an irrevocable power of attorney in respect of the suit schedule property. Again except for the statement of PW-1 that since the 1st defendant was not in station on 21.3.1991 his signature was not obtained as an attesting witness to Ex.P1, no plausible 11 explanation is forthcoming whether plaintiff had done his due diligence over the presence or absence of 1st defendant on 21.3.1991. The stamp paper upon which the agreement of sale is engrossed, is issued in the name of deceased Rangegowda, though there is no acceptable evidence in the testimony of PW, whether it is Rangegowda or the plaintiff who purchased the stamp paper, in view of the contradictions elicited in the cross- examination PW-1 stating that he brought the stamp paper to draft the agreement, while, when arraigned as defendant No.2 in O.S.151/2001 instituted by the 1st defendant and in cross-examination, testified that it was the defendants' father who brought the stamp paper for drafting the sale agreement. Except for an assertion that under Ex.P1 the plaintiff was put in possession of the schedule properties, relevant material to establish having taken possession of the suit schedule lands as on 21.3.1991 is not forthcoming. Admittedly, independent witnesses were not examined to corroborate the factum of delivery of possession of the 12 suit schedule lands to the plaintiff. Yet again the statement of PW1 that the original grant certificate dt. 2.3.1981 Ex.P2 was handed over by Rangegowda, does not find a place in Ex.P1 sale agreement. So also the testimony of PW-1 is not in the direction of establishing payment, in cash, of Rs.25,000/- allegedly received by the deceased Rangegowda on 21.3.1991, muchless to substantiate the factum of sale for family necessities.
11. PW2 Govindegowda the attesting witness to Ex.P1, claims to be the owner of the land situated to the east of the suit schedule lands, admits to be arraigned as one of the defendants in O.S.151/2001 instituted by the 1st defendant, for permanent injunction alleging interference with the 1st defendant's peaceful possession and enjoyment of the suit schedule lands. PW-2 further admits that 1st defendants younger brothers non others than the second and third defendants are accused of commission of the offence of murder of Somasekhar the 1st defendant's son and that the criminal trial is pending 13 before the District and Sessions Judge, Hassan and in which PW-2 is one of the witnesses.
12. The Deposition of DW-2 and DW-3 are in the direction of supporting the case of the plaintiff while admitting to be the younger brothers of 1st defendant, and accused of murder of 1st defendant's son and have a dispute over sharing the property belonging to the family. It is also their case that one Chandrashekar, Advocate drafted Ex.P1 to which they affixed their signatures as attesting witnesses.
13. The RTC Pahan is introduced in evidence by the plaintiff and the 1st defendant regards the change of mutation entries from the name of deceased Rangegowda to that of the 1st defendant during the year 1998-99 and is the cultivator of the suit schedule lands.
14. Regard being had to the evidence both oral and documentary, the trial court declined to accept as credible evidence the testimony of PWs-1, 2 and DWs 2 14 and 3. The non-examination of (i) the stamp vendor who allegedly issued the stamp paper in the name of Rangegowda; (ii) Chandrashekar, advocate who allegedly drafted Ex.P1; (iii) the Notary Public before whom Ex.P1 is alleged to have been attested and recorded in his books, coupled with non production of a record maintained by the Notary Public over due execution of Ex.P1 by Rangegowda, which would have thrown light upon relevant facts to whether it was the father of the defendants or the father of the plaintiff who executed Ex.P1 since names of both the fathers is Rangegowda. In the circumstances, the trial court observed that the testimony of the Notary Public would have been crucial and the best piece of evidence to prove Ex.P1 to be executed by Rangegowda, s/o Venkategowda. The trial court disbelieved the testimony of PW-2, DWs 2 and 3 since they had an axe to grind against 1st defendant.
15. The admission of PW-2 to be arraigned as party defendant in O.S.151/2001 instituted by the 1st defendant alleging interference with the 1st defendant's 15 peaceful possession and enjoyment of the suit properties; that there was property dispute between 1st defendant, the eldest brother and siblings defendants 2 and 3; and that DWs 2 and 3 were accused of committing the act of murder of Somashekhar, the son of the 1st defendant, and cited as one of the witnesses in the criminal prosecution, the trial court observed that PW-2, DWs. 2 and 3 had strained relationship with the 1st defendant and therefore, their testimonies were unacceptable.
16. The lower Appellate Court having failed to consider these aspects, in a very cavalier manner accepted the testimony of PWs 1 and 2 and DWs 2 and 3 to dislodge the findings of fact that Ex.P1 was proved, which in my considered opinion is perverse and unacceptable. In other words, plaintiff failed to prove the due execution of Ex.P1 by Rangegowda, s/o Venkategowda, the father of the defendants. 16
17. Assuming that Ex.P1 is proved, the question for consideration, as rightly pointed out by the trial court, is the institution of the suit for specific performance of the agreement of sale 5½ years after the date of expiry of the period of non alienation of 15 years from 2.3.1981, the date of issue of the grant certificate Ex.P2. In the first place, PW-1 admitted to the fact that no notice was issued to deceased Rangegowda, S/o Venkategowda during his lifetime (since is reported to have died on 9.12.2000) calling upon him to execute and lodge for registration the sale deed. The self interested testimony of PW1 that on several occasions when he made enquiries with deceased Rangegowda, promises were extended for execution of conveyance deed, is not corroborated by independent witnesses. Indisputably satisfactory explanation is not forthcoming for instituting the suit 5 ½ years after the expiry of 15 years non-alienation period though the condition in Ex.P1 is that the sale deed would be executed on expiry of the said period. So also there is no explanation as to 17 why the suit was not instituted within three years from 2.3.1996, the date of expiry of 15 years non-alienation as contained in Ex.P2. The suit suffers from delay and latches.
18. The Apex Court in Manjunath Anandappa Urf Shivappa Hansi -v- Tammanasa & others1 having considered its earlier decisions on the point of readiness and willingness on the part of the purchaser and regard being had to Section 16(c) of the Specific Relief Act that it is discretionary for the trial courts to decline specific performance where time is not the essence of contract and the plaintiff must perform his part of the contract within a reasonable time and reasonable time should be determined by looking into all the circumstances and nature of property observed thus:
"13. Section 16(c) of the Specific Relief Act reads thus:
"Specific performance of a Contract cannot be enforced in favour of a person -1
AIR 2003 SC 1391 18 ........
who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant."
The words 'date fixed for the performance' under Article 54 of the Limitation Act came up for consideration before the Apex Court in Ramzan -v- Smt.Hussaini2 when it was observed thus:
" The words "date fixed for the performance" in Article 53 does not require that a particular date from the calendar must be mentioned in the document. It is sufficient if the basis of calculating the date fixed for performance is found in the document. The doctrine of id certum est quod certum reddi potest which means that cerainty need not be ascertained at the time; for if, in the fluxion of time, a day will arrive which will make it certain, that is sufficient is applicable."
It was further held thus:
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"Under the agreement the date for the defendant-seller to execute the sale deed was fixed, although not by mentioning a certain date but by a reference to the happening of a certain event, namely, the redemption of the mortgage; and, immediately after the redemption by the plaintiff purchaser, the defendant became liable to execute the sale deed which the plaintiff was entitled to enforce. The period of limitation thus started running on that date. The case was therefore, covered by the first part of Art.54 (third column) and not the second part."
Learned Single Judge of this Court in K.Venkoji Rao -v- M.Abdul Khuddur Kureshi3 having regard to the expression 'date fixed for the performance' under Article 54 of the Limitation Act observed thus:
"The meaning of the expression 'date fixed for the performance' will have to be understood in a correct perspective. Though the word 'date' is used in Art.54 of Limitation Act it should not be taken that a particular date should be specifically stated in the agreement. In fact, even if the time of performance cannot be ascertained at the time 2 AIR 1990 SC 529 3 AIR 1991 KAR 119 20 of performance, it may be said to be a case where the date is fixed for the performance of the contract. For example, an agreement to execute a sale-deed after 'saguvali chit' is given can be construed as an agreement where date is fixed. Further, the date that can be fixed with reference to a future event which is certain to happen is the date on which such event takes place."
In Veerayee Ammal -v- Seeni Ammal4, the Apex Court having regard to Section 20 of the Specific Reliefs Act over a whether time was essence of contract observed thus:
" 11. When, concededly, the time was not the essence of the contract, the appellant-plaintiff was required to approach the Court of law within a reasonable time. A Constitution Bench of this Hon'ble Court in Chand Rani (Smt.)(dead) by LRs
-v- Kamal Rani (Smt.) (dead) by LRs (1993(1) SCC 519 held that in case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (I) from the express terms of the 21 contract: (ii) from the nature of the property; and
(iii) from the surrounding circumstances, for example, the object of making the contract. For the purposes of granting relief, the reasonable time has to be ascertained from all the facts and circumstances of the case.
19. In K.S. Vidyanadam & Ors. v. Vairavan5 this Court held:
"Even where time is not of the essence of the contract, the plaintiffs must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property."
20. The word "reasonable" has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word "reasonable". The reason varies in its conclusion according to ideosyncrasy of the individual and the time and circumstances in 4 AIR 2001 SC 2920 22 which he thinks. The dictionary meaning of the "reasonable time" is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means as soon as circumstances permit.
In Law Lexicon it is defined to mean "A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstance will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than 'directly'; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea."
21. In V.S.Munirathanam, since deceased by LRs -v- P.Sundaram & others6, a learned Single Judge of this court held thus:
5
1997 (3) SCC 1 6 ILR 2004 KAR 2328 23 " The facts disclose that plaintiff paid the entire sale consideration amount by 22.4.1974, it is about two years before the stipulated time for payment of the consideration amount under Ex.P1. But the plaintiff remained inert despite the refusal of the first defendant to execute the sale deed, no legal action is initiated immediately. It is one thing to say that within the stipulated period of limitation the suit is fled and that the plaintiff has performed his part of the contract by paying the sale consideration. But to appreciate the stand point of second defendant, the laches on the part of the plaintiff in not filing the suit immediately makes all the difference in law. It may not be that the suit is barred by limitation, but on the ground of laches, the plaintiff would not be entitled to the relief of specific performance."
In the light of the aforesaid settled principles of law bearing on the dispute brought before court, in my considered opinion divergent findings recorded by the lower Appellate Court, are unsustainable in law. In the circumstances, the substantial questions of law are 24 answered in the negative holding that the lower Appellate Court was not justified in reversing the judgment and decree of the trial court.
In the result, this appeal is accordingly allowed.
The Judgment and decree of the lower Appellate Court is set-aside restoring the Judgment and decree of the trial court. No costs.
Sd/-
JUDGE ln