Karnataka High Court
S H Muniyappa vs Subba on 17 July, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
1
®
IN THE HIGH COURT OF KARNATAKA BANGALORE
DATED THIS THE 17TH DAY OF JULY 2013
BEFORE
HON' BLE DR. JUSTICE JAWAD RAHIM
R.S.A.No.1792 OF 2009
BETWEEN:
SRI.S.H.MUNIYAPPA,
S/O HANUMANTHARAYAPPA,
AGED ABOUT 60 YEARS,
R/O SHANUBOGANAHALLI VILLAGE,
HESARAGHATTA HOBLI,
BANGALORE NORTH TALUK.
...APPELLANT
(BY SHRI.B.T.INDU SHEKAR &
SHRI. ASHOK KUMAR D.N.ADVOCATES)
AND:
1. SRI.SUBBA, AGED ABOUT 55 YEARS,
S/O LATE KEMPAIAH.
2. SRI.KRISHNAPPA, AGED ABOUT 43 YEARS,
S/O LATE KEMPAIAH.
3.SRI.RAJANNA, AGED ABOUT 40 YEARS,
S/O LATE KEMPAIAH.
3. SMT.MUNIYAMMA, AGED ABOUT 70 YEARS,
W/O LATE KEMPAIAH.
ALL ARE R/O SHANUBOGANAHALLI
VILLAGE, HESARAGHATTA HOBLI,
BANGALORE NORTH TALUK.
...RESPONDENTS
2
(BY SHRI. A.BALAKRISHNAN, ADV.
FOR R1 - R3)
RSA FILED U/S 100 CPC, AGAINST THE
JUDGMENT AND DECREE DATED 11.11.2009 PASSED
IN R.A.NO.128/2004 ON THE FILE O THE PRESIDING
OFFICER, FAST TRACK COURT -III, BANGALORE
RURAL DISTRICT, BANGALORE, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DATED 18.3.2004 PASSED IN
O.S.NO.428/1996 ON THE FILE OF THE ADDL. II CIVIL
JUDGE (JR.DN), BANGALORE ETC.
THIS APPEAL COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Unsuccessful plaintiff is in appeal against judgment in R.A.No.128/2004 reversing the finding of the Trial Court in O.S.No.428/96 and dismissing the suit declining to grant decree for specific performance.
2. The appeal has been admitted to consider the following questions of law:
" 1) Whether the judgment and decree of the Appellate Court is sustainable as 3 respondent no.4, who was an appellant no.4 in the appeal died during pendency of the appeal and her LRs were not brought on record?
2) Whether the Appellate Court was right in holding mere acceptance of having signed the Ex.P.1 in blank is not enough proof to decree the suit for specific performance?
3) Whether the Appellate Court was right in placing burden of proof of Ex.P1 on the plaintiff when the defendant has admitted the signature appearing therein?
3. After admission of the appeal, learned counsel on both sides plead for expeditious disposal and hence the appeal is taken up for final disposal.
4. I have heard both sides substantially and perused the records, from which following facts manifest:
a) Appellant/Plaintiff filed a suit in O.S.No.428/1996 seeking a decree to direct the respondents 1 to 4 to execute an agreement of sale in his favour in respect of the property described in the schedule on the assertive contention that the suit 4 property was originally owned by one Kempaiah, father of the defendants 1 to 3 and the husband of defendant no.4. He died leaving behind them to succeed to his estate.
b) Under the family arrangement the suit property was assigned and allocated to the 1st defendant - Subba and thus he became absolute owner thereof from the year 1995. Having acquired right, title and interest in the property in the manner aforesaid, he agreed to sell unto him for consideration of Rs.4,000/- and the transaction culminated in a binding sale agreement on 5.7.1985. The plaintiff paid the entire sale consideration of Rs.4,000/- in acknowledgement of which Subba-1st defendant executed the sale agreement and also got it attested by his brothers - defendant 2 and 3 as consenting witnesses.
c) The plaintiff further averred, the 1st defendant delivered physical possession of the property and has improved the property at heavy cost. 5
d) Alleging that the defendants, without unjustifiable cause or reason, refused to fulfill the obligation under the agreement, he sought a decree.
e) The defendants 1 to 4 entered contest and denied vehemently all averments in the plaint. They traversed the statement in each of the paragraphs making it clear that at no point of time they had undertaken or agreed to sell the property unto the plaintiff nor there was any transaction of sale. They denied they had agreed to sell the property bearing Sy.No.94 and Sy.No.34/1, in consideration of Rs.
4000/- as alleged.
f) Later, they filed additional written statement wherein, they narrated certain additional facts to show that in the year 1985 they wanted to perform the marriage of their sister and being in need of money approached the plaintiff. The plaintiff insisted them to sign on certain papers in blank. Having no choice, they signed certain blank papers to secure the loan. Which, they alleged, the plaintiff has misused their 6 signatures on blank papers and converted it into agreement of sale. This is, therefore, not binding on them. Each of the defendants took similar consistent plea, consequent to which, the learned Trial Judge framed following issues for consideration based on the material propositions:
" 1) Whether the plaintiff proves that the defendant executed an agreement of sale deed on 05/07/1985?
2) Whether the plaintiff proves
thatRs.4,000/- acknowledged by the
defendant?
3) Whether the plaintiff proves that the suit property is in actual possession of the plaintiff?
4) Whether the plaintiff proves that he is willing to perform his part of contract?
5) Whether the plaintiff proves that he is entitled to claim the relief of permanent injunction against the defendants?
6) Whether the defendant proves that the present suit is barred by time?
7) What order or decree? "
and in the enquiry that ensued the plaintiff tendered evidence as P.W.1 and examined one Ramaiah as P.W.2, to prove the transaction, and relied on 7 7 documents, while the defendants tendered evidence as D.W.1 and examined two witnesses as D.W.2 and D.W.3. They placed reliance on 6 documents.
g) The learned Trial Judge analysing the evidence opined plaintiff had placed sufficient evidence to establish his claim which outweighs the defence and thus decreed the suit by judgment and decree dated 18.3.2004.
h) Assailing it, all the defendants were in appeal in R.A.No.128/2004 disputing their liability to sell the properties described in the schedule describing the alleged agreement as sham and not binding on them. Muniyamma who was the 4th defendant in the suit was co-appellant with her sons and died during the pendency of the appeal. The surviving appellants (defendants) did not file any application to direct any other person to be brought on record as her legal heir.
i) Plaintiff who is appellant in this second appeal entered contest reiterating his case that that the 8 appellants including deceased Muniyamma was liable to execute the sale deed in terms of the agreement of sale-Ex.P1 in his favour and they had unjustifiably declined. Supporting the impugned judgment in his favour passed by the tria court, he sought dismissal of the appeal. No ground urged by her found favour with the appellate court which declared Ex.P1-agreement of sale is not proved in the manner known to law and held it to be unenforceable against the defendants who are appellants before it. Consequently the appeal was allowed by the impugned judgment and the judgment and decree of the trial court is set aside.
j) Assailing the appellate court's judgment, plaintiff is in this second appeal.
7. As recorded in the preamble to this judgment, this appeal has been admitted to consider the above mentioned substantial questions of law amongst which the first ground urged by the learned counsel for the appellant is, since Muniyamma (4defendant in the suit and 4th appellant in R.A.128/04 died during the 9 pendency of the appeal before the first appellate court and all her legal heirs were brought on record, thus the appeal abates in entirety and the judgment passed by the first appellate court in R.A.128/04 is a nullity.
8. To gain support to his submission, he placed reliance on the decision of Allhabad High Court reported in AIR 2007 NOC 647 wherein the learned single Judge, referring to Order XXII Rule 3, C.P.C. judgment, opined, in an appeal filed at the instance of some of the plaintiffs, if one plaintiff dies, the appeal had abated for not bringing the legal heirs of such plaintiff, and the entire appeal must fail, and the judgment and decree of the trial court becomes final. It is further observed that 'if the appeal in respect of the remaining plaintiffs was heard and decided in their favour, it would lead to inconsistent decrees in the same suit and consequently held that the entire appeal stood abated as there can be no two decrees in the same suit.' 10
9. Learned counsel then placed reliance in the decision of the apex court reported in MATINDU PRAKASH (DECEASED BY L.Rs.) .vs. BACHAN SINGH & OTHERS (AIR 1977 SC 2029) wherein the apex court referring to Rule 3 of Order XXII, C.P.C. held 'As appellant died during the pendency of the appeal, heirs or legal representatives were not brought on record during the pendency of the said appeal and thereafter before the High Court, two of the plaintiffs/appellants died and their heirs and legal representatives were not brought on record, the appeal abates.'
10. I have examined the case laws cited by the learned counsel, with reference to facts in this case. The dictum in both the decisions is not applicable as the facts and circumstances in the present appeal are totally different for the following reasons:
I) It is not in dispute that the appellant-plaintiff had filed the suit to enforce to enforce the alleged agreement of sale-Ex.P1 on the assertive contention that Subba-1st defendant had entered into the 11 agreement to sell the schedule property unto him being the absolute owner and had obtained the consent of his mother-Muniyamma and his brothers, viz., Krishnappa and Rajanna.
II) There is a clear averment in the plaint that the schedule property was owned by Kempaiah who died leaving behind his wife-Muniyamma (4th defendant) and 3 sons, Subba, Krishna and Rajanna.
According to the plaintiff himself, there was a family arrangement between the legal heirs of Kempaiah in which the entire schedule property was assigned and given to Subba-1st defendant to be the absolute owner. It is his specific case that Subba having thus acquired absolute right, title and interest in the schedule property by virtue of the family arrangement had offered to sell the schedule property to him. Thus it is not in dispute plaintiff had sought a decree basically against Subba-1st defendant and had brought into the party array his mother-Muniyamma-4th 12 defendant and his brothers-Krishnappa and Rajanna as consenting witnesses to the said transaction.
III) Ex.P1 which is said to be an agreement of sale also speaks of the fact that the transaction is inter alia between the appellant-plaintiff and Subba-1st defendant, while Krishnappa, Rajanna and Muniyamma are shown as consenting witnesses to the said transaction. In view of such clear assertion in the plaint, it admits of no doubt that the plaintiff filed the suit for specific performance basically against Subba but did not show the liability of other defendants. In the plaint there is no averment that Krishna-2nd defendant, Rajanna-3rd defendant and Muniyamma-4th defendant had any subsisting right, title and interest in the subject matter of the suit in view of the family partition between them allotting the schedule property to the 1st defendant-Subba. Plaintiff has clearly averred that 2nd defendant-Krishnappa, 3rd defendant- Rajanna and 4th defendant-Muniyamma were brought into the party array in the suit as they signed Ex.P1 as 13 consenting witnesses. In fact against his own proposition in the plaint he sought a decree against all the defendants to enforce the agreement which escaped the notice of the trial court and appellate court. In short, he had sought to enforce the agreement of sale only against Subba and has brought the other defendants as formal parties.
IV) In this fact situation, it is clearly evident that the plaintiff had cause of action against Subba and he had not raised any cause of action against all the legal heirs of Kempaiah who was the owner of the property in question and died intestate.
V) Legal action was therefore in personem against the 1st defendant Subba and not all legal heirs of Kempaiah.
11. In the circumstances we have to examine whether upon the death of Muniyamma-4th defendant the appeal abated in entirety, or whether the appeal could proceed.
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12. From the material available on record and the material propositions in the pleadings of the parties, it is clear plaintiff though was aware that Kempaiah was the owner of the property and upon his death his legal heirs had succeeded to his estate, but on his own volition stated that the property in question after the demise of Kempaiah was transferred unto Subba-1st defendant who was the absolute owner and in exercise of such marketable title, he had entered into an agreement to sell the property unto him. In the circumstances, cause of action was only against Subba-1st defendant though, of course, he brought his two brothers and mother as co-defendants in the suit. In this fact situation, the question is upon the death of Muniyamma-4th defendant, whether the right to sue or defend survived on the remaining defendants and not other legal heirs had to be brought on record.
13. Learned counsel has placed reliance on Rules 3 and 4 of Order XXII, C.P.C. to contend, upon the 15 death of one of the appellants, the entire appeal abates. But on the basis of facts discussed above, it can be affirmatively held that Muniyamma admittedly is shown as the mother of defendants 1 to 3 and she was co-appellant along with her sons in R.A.128/04. During the pendency of the appeal, she died, but the appeal was pursued by her 3 sons, viz., Subba, Krishnappa and Rajanna. As there is no dispute they are her sons born out of the wedlock with Kempaiah, they were her legal heirs, and as they were already on record in judicial proceedings (suit or appeal), the suit or appeal could proceed.
14. In this regard, our attention is necessarily drawn to Rule 2 of Order XXII, C.P.C. which envisages:
"Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or 16 plaintiffs, or against the surviving defendant or defendants".
The provision itself adumbrates that in a case where there are more plaintiffs or defendants than one and any one of them dies, and where the right to sue survives on the surviving plaintiffs or plaintiff alone, or surviving defendants or defendant alone, the court shall cause entry to that effect to be made in the record and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. Admittedly Muniyamma was one of the defendants in the suit and one of the appellants in the appeal. Defendants 1 to 3 derive their genetic relationship from her and therefore, they were her legal heirs. As they were already on record, upon death of Muniyamma, the right to sue or defend survived on her sons, viz., defendants 1 to 3 who were appellants in the appeal. As the appeal was continued by the remaining appellants, upon death of Muniyamma the appeal did not abate in entirety.
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15. It must be made clear, if other persons in the party array as defendants were not to be her legal heirs and if the cause of action was against her and all other defendants, then perhaps a view could have been taken that in the absence of her legal heirs being brought on record, the appeal would abate. In the instant case, as Muniyamma was survived by her sons who were already on record, the appeal would not abate. Therefore the first ground urged by the appellant's counsel in answer to the first substantial question of law framed is unacceptable, and it has to be affirmatively held that upon the death of Muniyamma, R.A.128/04 had not abated as her legal heirs were co-appellants herein.
16. We now go to the second substantial question of law framed whereby a decision has to be taken as to whether the appellate court was right in holding mere admission of having signed Ex.P1 in blank is not enough proof to decree the suit for specific performance. The answer to this question lies 18 in the defense taken by the respondents who were appellants before the first appellate court. The 1st defendant-Subba and his brothers, viz., Krishnappa- 2nd defendant and Rajanna-3rd defendant as also Muniyamma (deceased) had been consistently contending they had borrowed loan from the plaintiff to perform the marriage of 1st defendant's sister and to secure the loan transaction, plaintiff had insisted them to sign some papers which he misused it as the agreement marked as Ex.P1. To support their contention that Ex.P1 evidences only loan transaction and is not an agreement of sale, they have not only pleaded but proved that the value of the property was much higher. The sale consideration shown is only Rs.4,000/-. The agreement is of the year 1985 and relates to sale of property measuring one acre bearing Survey No.34/1 situate in Shanbhoganahalli village, Hessarghatta, Bangalore North. It is also material to note, though the agreement of sale is alleged to have been executed on 5.7.1985, the plaintiff filed suit to enforce the agreement in the year 1996 after an 19 inordinate delay of 11 years. It is also evident from the contention of the plaintiff that there was no action on his part to enforce the alleged agreement even for specific performance within a reasonable time as is referred to in Section 46 of the Indian Contract Act.
17. In order to sustain action for specific performance of an agreement, the plaintiff has the primary burden of proving that the agreement sought to be enforced is an agreement of sale executed consciously by the defendant and it must spell out consensus ad idem, meeting of minds. Unless the plaintiff establishes lawfulness in the transaction legally acceptable oral or documentary, he will not be entitled to a decree for specific performance. Besides, as envisaged under Section 16(c) of the Specific Relief Act, plaintiff had the duty to establish he was ready and willing to perform his part of the obligation under the agreement. Learned counsel for the appellant tried to wriggle out of the situation contending plaintiff had no obligation to perform under the agreement as 20 he had paid the entire amount of Rs.4,000/-. But the agreement at Ex.P1, comes in a shadow of doubt and in the light of specific defense laid by the defendants that it was not a sale transaction but only to secure return of Rs.4,000/-, plaintiff had to establish his case. In the circumstances, the appellate court was right in holding that mere acceptance by the defendants that they had signed Ex.P1 is not enough proof that it was a binding contract of sale and is not proof enough to decree the suit for specific performance.
18. Regarding the next substantial question of law framed in this appeal, it has to be held that the burden of proof that Ex.P1 was a valid agreement enforceable in law against all the defendants was on the plaintiff and the burden had not shifted on the defendants merely because they had admitted their signature of Ex.P1.
19. In the circumstances, I am satisfied the trial court had erred in not examining the plaintiff's case in 21 the above perspective and merely on the basis that defendants had admitted the signature on Ex.P1, decreed the suit. Such finding of the learned trial judge is certainly unsustainable. Learned appellate judge on re-appraisal of evidence, has appreciated all the material on record in the correct perspective resulting in the impugned judgment, setting aside the judgment of the trial court. Such judgment needs no interference.
20. Before parting, it is necessary to mention that in order to decree the suit for specific performance, courts are required to keep in mind Sections 10 and 20 of the Specific Relief Act which envisages the circumstances in which specific performance of the agreement could be ordered and the circumstances in which it has to be denied. This is a fit case where the circumstances enumerated under clauses (a), (b) and (c)of Section 20 of the Act had to be applied which the trial court had failed. The trial court has also failed to record reasons for the defense 22 taken by the defendant that great hardship will result if Ex.P1 is treated as an agreement of sale to compel them to sell the property in question.
21. Lastly it must also be noticed that the recitals of Ex.P1 are contrary to the material on record and contrary to the material propositions in the pleadings and evidence laid by the plaintiff. Plaintiff contended, he had agreed to purchase the property bearing Survey Nos.34/1 and 94, whereas Ex.P1 describes the schedule property as Survey No.94/2 in respect of Survey No.34/1. The plaintiff has categorically admitted in his evidence that the property described in Ex.P1 and the description of the property in the schedule to the plaint are different. He tried to overcome the manifest error contending boundaries indicated in the agreement show the particular extent of land which can be identified as Survey No.94 and therefore, boundaries have to prevail, and the court has to treat it as Survey No.34/1. Such plea is wholly unacceptable and 23 therefore all such contentions of the appellant's counsel are worthy only of rejection.
22. In the given set of circumstances and in the absence of proof that Ex.P1 is consciously executed by the defendants to sell the property unto the plaintiff, no case is made out by the plaintiff to interfere with the judgment of the appellant court.
23. In the result, the questions of law framed in the appeal are answered against the appellant and in favour of the respondents. The appeal, therefore, fails. The judgment of the appellate court impugned in this appeal is confirmed. In the circumstances, there is no order as to costs.
Sd/-
JUDGE Msu/vgh*