Karnataka High Court
Sri. Basappa S/O Lagamanna Gadenavar vs Sri. Basappa Channappa Radderhatti on 29 November, 2022
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.5527 OF 2010 (SP)
BETWEEN:
SRI. BASAPPA S/O LAGAMANNA GADENAVAR
AGE: ABOUT 56 YEARS, OCC: AGRICULTURE,
R/O: AINAPUR, TAL. ATHANI-591304,
DIST. BELAGAVI. ...APPELLANT
(BY SRI.PALLAVI S. PACHHAPURE, ADVOCATE FOR
SRI. SRINAND A. PACHHAPURE, ADVOCATE)
AND:
1. SRI. BASAPPA CHANNAPPA RADDERHATTI
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: AINAPUR, TAL: ATHANI-591304,
TAL: GOKAK, DIST: BELAGAVI.
2. SRI. LAGAMANNA GHULAPPA GADENAVAR
SINCE DECEASED BY LR'S
2A. SMT. SHIDDAWWA
W/O LAXMAN RADDERHATTI
SINCE DECEASED BY HER LR'S.
2A(A) SRI. APPASAB
S/O LAXMAN RADDERHATTI
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O: AINAPUR, VILLAGE, TAL: ATHANI,
DIST: BELAGAVI.
2A(B) SRI. ANNASAB
S/O LAXMAN RADDERHATTI
2
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O: AINAPUR VILLAGE, TAL: ATHANI,
DIST: BELAGAVI.
2A(C) SMT. SAVITA
D/O LAXMAN RADDERHATTI
W/O ANNASAB SULKUDE
AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
R/O: ALAS VILLAGE, TAL: SHIROL,
DIST: KOLHAPUR, MAHARASHTRA STATE.
2B. SMT. BHAGEERATI
W/O BASAPPA AINAPUR
AGE: ABOUT 66 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD WORK,
R/O HALYAL, TAL. ATHANI-591304,
DIST. BELAGAVI.
3. SRI. MALLAPPA LAGAMANNA GADENAVAR
AGE: MAJOR, OCC: AGRICULTURE,
R/O AINAPUR, TAL: ATHANI-591304,
DIST: BELAGAVI. ...RESPONDENTS
(BY SRI. JAGADISH PATIL, ADVOCATE FOR R1;
SRI. SANTOSH B. MALAGOUDAR, ADVOCATE FOR
R2A(A-C) AND R2 (B);
R3 SERVED AND UNREPRESENTED.)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CIVIL PROCEDURE CODE, 1908, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 17.04.2010, PASSED
BY THE PRESIDING OFFICER, FAST TRACK COURT, ATHANI, IN
R.A.NO.06/1992, CONFIRMING THE JUDGMENT AND DECREE
DATED 28.01.1992, PASSED BY THE COURT OF MUNSIFF,
ATHANI, IN O.S.NO. 406/1989.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 14.11.2022, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
3
JUDGMENT
Smt.Pallavi Pachhapure., learned counsel on behalf of Sri.Srinand A.Pachchapure., for the appellant and Sri.Jagadish Patil., learned counsel for respondent No.1 have appeared in person.
2. This appeal is from the Fast Track Court, Athani.
3. For the sake of convenience, the parties shall be referred to as per their status and ranking before the Trial Court.
4. The brief facts of the case are stated as under:
In the case of the plaintiff, defendant No.1 is the absolute owner and title holder of the land bearing R.S.No.258/05+4A/B1 measuring 03 Acre 12 Guntas situated in Athani Taluk. He agreed to sell to an extent of 1 Acre 20 Guntas, in R.S.No.258/05+4A/B1 on the northern side of the land to the plaintiff for consideration of Rs.22,500/- (Rupees Twenty Two Thousand and Five Hundred only) which is proper and correct market value. He 4 executed an agreement of sale on 07.08.1985 and received a sum of Rs.14,000/- (Rupees Fourteen Thousand only) as earnest money in cash and he handed over the actual possession of 01 Acre and 20 Gunta on the northern side. Due to inadvertence, the same was not mentioned in the agreement. But the first defendant agreed on the same in his affidavit dated:08.07.1986 which was executed by him in favor of the plaintiff. Hence it is stated by the plaintiff that he is in actual possession and wahiwat of the suit land to the extent of 01 Acre 20 Gunta from the date of the agreement. He requested the defendants several times to execute the registered sale deed, but they went on postponing the same.
It is averred that the recital of the sale agreement dated:07.08.1985 executed by the first defendant in favor of the plaintiff clearly shows that the sons of the first defendant have given their consent for the agreement of sale in favor of the plaintiff. It was agreed that the first defendant along with his legal heirs (defendants 2 to 4) 5 shall execute the registered sale deed in favor of the plaintiff within one year from the date of the sale agreement. Hence, the plaintiff requested the defendants to execute the registered sale deed in his favor. It is averred that defendants 1, 3 and 4 agreed to execute the sale deed, but defendant No.2 who is the elder son of the first defendant dragged the matter on one or the other pretext. Hence the plaintiff issued legal notice through his counsel on 16.07.1986 by RPAD the same was acknowledged by all the defendants and defendants 1, 3 and 4 agreed to sell and execute the sale deed in favor of the plaintiff but the second defendant refused to execute the sale deed on the ground that he has not signed the sale agreement in favor of the plaintiff.
The plaintiff contended that he is always ready and willing to pay the remaining amount of Rs.8,500/- (Rupees Eight Thousand and Five Hundred only) towards the sale consideration and ready to perform his part of the contract. He also requested the defendants to accept the balance of 6 the consideration and execute the sale deed. Since defendant No.2 refused to execute the sale deed, the plaintiff was constrained to take shelter under the Court of law and filed a suit for specific performance.
After service of the suit summons, defendant No.1 appeared through his counsel and filed a written statement. Defendant No.1 in the written statement admitted all the plaint averments; he also admitted that he is ready to execute the sale deed. He further stated that defendants No.1, 3 and 4 were unable to perform their part of the contract at the instance of defendant No.2, who is not ready to perform his part of the contract. Defendant No.2 in collusion with the Revenue Officers got mutated his name in the village panchayat record in respect of suit property behind his back. Hence the said entry is not binding on him as it was entered in the revenue records behind and back of plaintiff and defendant No.1. Defendants 3 and 4 filed a memo through their advocate and they adopted the written statement filed by defendant No.1.7
Defendant No.2 appeared through his advocate and filed a written statement. He contended that defendant No.1 is not the absolute owner of the suit property. The property is also standing in the name of defendants 2 to 4. There is no irrigation facility in the suit land. He denied that his father executed the sale agreement in favor of the plaintiff on 07.08.1985; he never agreed to the agreement of sale and he has not signed the same.
The second defendant specifically contended that defendant No.1 was addicted to bad vices; Defendants 3 & 4 were minors and lunatics and they have no worldly knowledge. Plaintiff took advantage of these facts and got executed the agreement of sale in his favor. There was no legal necessity to sell suit property. Among other grounds, he prayed for the dismissal of the suit.
Based on the above pleadings, the Trial Court has framed the following issues:
8
ISSUES
1. Whether the plaintiff proves that the 1st defendant executed an agreement on 07.08.1985 agreeing to sell an extent of 1 acre 20 gun that of land in the suit schedule survey number in his favor?
2. What is the amount agreed to as a sale consideration?
3. Whether the plaintiff proves that he has advanced earnest money to the 1st defendant?
4. If so, what is the amount so advanced?
5. Whether the agreement dated 07.08.85 is binding on defendants No.2 to 4?
6. Whether the plaintiff proves that he is ready and willing to perform his part of the contract?
7. Whether the plaintiff is entitled to the specific performance of the agreement dated:
07.08.1985?
8. Whether the plaintiff is entitled to a refund of the earnest money?9
9. Whether the plaintiff is entitled to interest by way of damage, and if so at what rate?
10. What decree or order?
ADDITIONAL ISSUE:
Whether the plaintiff is entitled to the alternative relief of perpetual injunction order as prayed for?
To substantiate the claim, the plaintiff examined as PW1 and three more witnesses as PWs.2 to 4 and produced sixteen documents which were marked as Ex.P.1 to Ex.P.16. On behalf of the defendants, defendant No.2 was examined as DW1 and two more witnesses were examined as DWs.2 & 3 and no documents were marked on their behalf.
On the trial of the action, the suit came to be decreed and defendants 1 to 4 were directed to execute the registered sale deed in favor of the plaintiff in respect of northern 01 Acre 20 Gunta land out of the suit/land R.S.No.258/5+4A/B/1 situated at Ainapur Village, Athani Taluk after receiving the balance consideration amount of 10 Rs.8,500/- (Rupees Eight Thousand and Five Hundred only) from the plaintiff within two months from the date of the Judgment and Decree.
The second defendant preferred an appeal before the First Appellate Court. On appeal, the Judgment and Decree of the Trial Court were confirmed and modified as defendant/ appellant and respondents 2(a), (b) and 3 shall execute the registered sale deed in favor of the plaintiff/ respondent No.1 within 3 months from the date of the decree, after receiving part of the sale consideration which is due to them from the plaintiff. The Court also ordered that the plaintiff shall deposit the balance of the sale consideration of Rs.8,500/- within a period of two months from the date of the decree if it is not already deposited. Hence, the second defendant has filed this Regular Second Appeal is filed under Section 100 of CPC.
5. Learned counsel for the appellant and respondent No.1 urged several contentions. 11
Learned counsel for the appellant has placed relied on the decision in KUNHAYAMMED VS. STATE OF KERALA reported in 2000 (6) SCC 359.
6. Heard the contentions urged on behalf of the respective parties and perused the appeal papers and records with utmost care.
The detailed narration of facts would not call for reiteration. This appeal has arisen out of a suit for a specific performance.
To substantiate the contention the plaintiff Basappa was examined as PW1. He deposed that the father Lagamanna executed the agreement of sale on 07.08.1985 and he had agreed to sell the northern side i.e., 1 Acre 20 Guntas in Sy.No.258/5+4A/B/1 and received earnest money of Rs.14,000/- (Rupees Fourteen Thousand only) and agreed to execute the sale deed within one year after receiving the balance consideration.
12
I may extract the relevant portion of his evidence as under.
"£À£ÀUÉ F zÁªÉAiÀÄ 4 d£À ¥ÀæwªÁ¢UÀ¼À ¥ÀjZÀAiÀÄ EzÉ. ¥ÀæwªÁ¢UÀ¼É®ègÀÆ L£Á¥ÀÆgÀ UÁæªÄÀ zÀªÀgÄÀ EzÁÝgÉ. ¢B7-8-85 gÀAzÀÄ 1£Éà ¥ÀæwªÁ¢ ®UÀªÄÀ uÁÚ £À£ßÀ eÉÆvÉ zÁªÉAiÀÄ d«Ää£À°è 1 JPÀgÉ 20 UÀÄAmÉ d«ÄãÀ£ÀÄß GvÀÛgÀ¢QÌ£À£ÀßzÀÄ £À£ÀUÉ 22500 gÀÆ.UÀ½UÉ ªÀiÁgÁlªÀiÁqÀÄ®Ä M¦à CzÀgÀ°è 14000 gÀÆ. UÀ¼À£ÄÀ ß ªÀÄÄAUÀqÀ ºÀtªÁV ¥ÀqÉzÀÄPÉÆAqÁ. ºÁUÀÆ CzÀgÀ §UÉÎ PÀgÁgÀÄ ¥ÀvÀæ §gÉzÀÄPÉÆlÖ. 1£Éà ¥ÀæwªÁ¢ £À£ÀUÉ PÀgÁgÀÄ ¥ÀvÀæ §gÉzÀÄPÉÆqÀĪÀ PÁ®PÉÌ G½zÀ ¥ÀæwªÁ¢ 2 jAzÀ 4 ºÁdgÀÄ EzÀÝgÀÄ."
Suffice it to note that the second defendant denied the sale agreement. He has specifically contended that his father was addicted to bad vices and his younger brothers have no worldly knowledge as they are mentally challenged children. Before this Court also, he adhered to the said contention.
Learned counsel Smt.Pallavi Pachchapure., in presenting her argument strenuously urged that defendant 13 No.2 has not signed the agreement of sale. She has also argued that defendants 3 and 4 are mentally challenged children. They have not signed the agreement. Hence the plaintiff has played fraud.
By way of answer, learned counsel Sri.Jagadish Patil replied that defendants 3 & 4 have worldly knowledge and he denied that they are mentally challenged children. Learned counsel also argued that defendants 1, 3 and 4 have not denied the agreement. The second defendant is a signatory to the agreement, however, he denied the same. The contention about fraud is concerned, counsel Sri.Jagadish Patil., vehemently contended that there is no pleading and the second defendant cannot contend the same in the second appeal.
I have examined the submission about the denial of sale agreement; mental condition of defendants 3 & 4 and about the fraud minutely.
14
The first argument, in this case, has centered around the denial of the sale agreement, mental condition of defendants 3 & 4 and their age; the second is about fraud.
I find extracting the relevant portion of the evidence of parties helpful in indicating the right approach.
I may extract the relevant portion of the chief examination of PW1 as under:
"FUÀ £À£ÀUÉ vÉÆÃj¹zÀ ¤±Á£É ¦.1 PÀgÁgÀÄ ¥ÀvÀæ £ÉÆÃrzÉ. CzÀÄ 1£Éà ¥ÀæwªÁ¢AiÉÄà £À£ÀUÉ §gÉzÄÀ PÉÆnÖzÀÄÝ EzÉ. CzÀgÀ°è 1£Éà ¥ÀæwªÁ¢AiÀÄ ¸À» EzÉ. PÀgÁgÀÄ ¥ÀvÀæªÀ£ÀÄß ¤±Á£É ¦.1 JAzÀÄ £ÀªÄÀ Æ¢¸À¯Á¬ÄvÀÄ. ¤±Á£É ¦.1 gÀ°è 1£Éà ¥ÀæwªÁ¢ C®èzÉà ¥ÀæwªÁ¢ 2 jAzÀ 4 PÀÆqÀ vÀªÀÄä ¸À» ªÀiÁrzÁÝgÉ. D J¯Áè ¸À»UÀ¼À£ÀÆß PÀæªÀĪÁV ¤±Á£É ¦.1 (J) jAzÀ (r) JAzÀÄ £ÀªÄÀ Æ¢¸À¯Á¬ÄvÀÄ. EzÀ®èzÉÃ, ¸ÁQëUÀ¼ÁzÀ ±ÉÃRgÀ UÁtUÉÃgÀ ªÀÄvÀÄÛ ºÉÆ£ÀߥÁà ¥Ánî J£ÀÄߪÀªÀgÀÄ ¸ÁQëUÀ¼ÁV ¤±Á£É ¦.1 gÀ°è ¸À» ªÀiÁrzÁÝgÉ.
CªÀgÀ ¸À»UÀ¼À£ÀÄß PÀæªÄÀ ªÁV ¤±Á£É ¦.1 (E) ªÀÄvÀÄÛ (J¥sï) JAzÀÄ £ÀªÀÄÆ¢¸À¯Á¬ÄvÀÄ. ¤±Á£É ¦.1 PÀgÁgÀÄ ¥ÀvæÀ §gÉAiÀÄ®Ä ¨ÉÃPÁUÀĪÀ ¸ÁÖöåA¥ï PÁUÀzÀªÀ£ÄÀ ß 1£Éà ¥ÀæwªÁ¢ ®UÀªÀÄuÁÚ GUÁgÀ RÄzÀð UÁæªÄÀ ¢AzÀ vÉUÉzÀÄPÉÆAqÀÄ 15 §AzÁ. ¤±Á£É ¦.1 £ÀÄß vÀªÄÀ äuÁÚ PÀnÖªÄÀ ¤AiÀÄ£ÀÄߪÀªÀ£ÀÄ 1£Éà ¥ÀæwªÁ¢ ºÉýzÀ ¥ÀæPÁgÀ §gÉzÁ. CªÀ£ÄÀ §gÉzÀ ªÉÄÃ¯É CzÀ£ÀÄß J®èjUÀÆ N¢ ºÉýzÀ£ÄÀ . J¯Áè ¥ÀæwªÁ¢UÀ¼ÄÀ CzÀgÀ°è §gÉzÀÄzÀPÌÉ M¦à CªÀgÀªÀgÀ ¸À» ªÀiÁrzÁÝgÉ. ¸ÁQëzÁgÀgÀÄ 1£Éà ¥ÀæwªÁ¢ ºÉýzÀ ¥ÀæPÁgÀ ¤±Á£É ¦.1 gÀ°è ¸À» ªÀiÁrzÀ£ÀÄ. ¤±Á£É ¦.1 PÀgÁgÀÄ ¥ÀvæÀzÀ°è J¯Áè ¥ÀæwªÁ¢UÀ¼ÀÄ ¸À» ªÀiÁrzÀ ªÉÄÃ¯É £Á£ÀÄ 14,000/- gÀÆ.UÀ¼À£ÀÄß ªÀÄÄAUÀqÀªÁV 1£Éà ¥ÀæwªÁ¢ ®UÀªÄÀ tÚ£À PÉÊAiÀÄ°è PÉÆmÉÖ. 1£Éà ¥ÀæwªÁ¢ ¤±Á£É ¦.1 gÀ°è ¸À» ªÀiÁqÀĪÀ PÁ®PÉÌ G½zÉ®è ¥ÀæwªÁ¢UÀ¼ÄÀ ªÀÄvÀÄÛ ¸ÁQëzÁgÀgÄÀ DUÀ ºÁdgÀÄ EzÀÝgÀÄ."
In the cross-examination, he has deposed as under:
"¥ÀæwªÁ¢ 3 ªÀÄvÀÄÛ 4 §ÄzÀÞ¨æÀsªÄÀ tÂAiÀĪÀjzÁÝgÉ J£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî."
Suffice it to note that the plaintiff deposed that he is always and ready willing to perform his part of the contract. The other witnesses have supported the case of the plaintiff.
It is pivotal to note that defendant No.2 alone denied the sale agreement. The father and other two sons supported the case of the plaintiff. The second defendant 16 contends that he has not signed the document i.e., the sale agreement. The second defendant deposed that he studied up to 10th standard and he carefully read the papers and then only sign the documents.
The relevant portion of his cross-examination reads as under:
"£Á£ÀÄ ªÉÄnæPï ªÀgÉUÉ ±Á¯É PÀ½wzÉÝãÉ. £Á£ÀÄ AiÀiÁªÀÅzÉà PÁUÀzÀ ¥ÀvæÀzÀ°è ¸À»ªÀiÁqÀĪÁUÀ CzÀgÀ°è §gÉzÀÄzÀ£ÀÄß N¢ ¸À»ªÀiÁqÀÄvÉÛãÉ."
Suffice it to note that, in the present case, the father entered into a contract with the plaintiff. The sons i.e., defendants 2, 3 and 4 have consented to the sale agreement. The same is evident from the contents of the sale agreement. The Trial Court extenso referred to the material on record and concluded that the plaintiff has proved the sale agreement. The First Appellate Court reappraised the facts and concluded that the plaintiff has proved the sale agreement. The First Appellate Court has examined the evidence on record and reappraised it. I am 17 satisfied it has been appreciated from the correct perspective. Hence, I decline to invite interference.
Let me answer the contention about the mental condition of defendants 3 and 4. As already noted above, the second defendant pleaded that his younger brothers have no worldly knowledge and are mentally challenged. It is pivotal to note that except for saying that defendants 3 and 4 have no worldly knowledge, nothing is said that defendants 3 and 4 are mentally challenged children. There is no medical evidence that defendants 3 and 4 are mentally challenged children. On the contrary, a careful perusal of the documentary evidence depicts that defendants 3 and 4 were admitted to a regular school where normal children study. There is no evidence about the state of mind. Hence, the contention that defendants 3 and 4 are mentally challenged is perfectly hopeless.
Turning now to the other question about fraud, I have examined the material on record in this case very minutely. 18 Before I answer the point about fraud let us quickly glance at fraud.
FRAUD; Fraud and mistake as grounds for relief are alike founded on ignorance. There can be no mistake where there is no ignorance; there can be no fraud where there is no mistake.
"Fraud," said De Grey, C, J., "is an intrinsic, collateral act, which vitiates the most solemn proceedings of a court of justice. Lord coke says it avoids all judicial acts ecclesiastical and temporal."
The proper method of impugning a judgment for fraud is by action. In exceptional cases, it may be done upon a motion for a new trial. But in proper cases, other remedies may be available. Thus, the verdict of a Court obtained by fraud upon it may be set aside. To sustain an action to impeach a judgment, actual fraud must be shown; mere constructive fraud is not, at all events after a long delay, sufficient.
19
Reverting to the facts of the case, let me see whether the plaintiff has played fraud. The plaintiff-initiated action and sought relief for specific performance. Suffice it to note that except for the second defendant all other defendants admitted the sale agreement. The second defendant has taken certain contentions about the sale agreement etc., As is well known that fraud must be pleaded and proved. I may venture to say that either there is a pleading or evidence to this effect. In the present case, there is nothing on record to show that fraud is played upon the defendants much less upon the second defendant. In my view, the contention about fraud is also satisfactorily hopeless.
As the last resort, it is argued that defendants 3 and 4 were minors at the time of the agreement and they have not signed the agreement of sale.
Considered the submission with care. Suffice it to note that Lagammanna the father has agreed with the plaintiff 20 and his sons consented. It is pivotal to note that the father and the other two sons have not denied the sale agreement; it is only the second defendant who resisted the suit by taking contentions about mental capacity, fraud & minority and urged that the agreement of sale cannot be enforced against the defendants. It is also relevant to note that there is no challenge to the guardians' contract. Applying the doctrine of mutuality, the contract sought to be enforced is helpful to the other defendants.
The law is well settled that the relief of specific performance is discretionary. In exercising discretion, the Court should take into account the circumstances of the case, the conduct of the parties, and the respective interests under a contract. The exercise of discretion to order specific performance would require the Court to be satisfied that the circumstances are such that it is equitable to make such a decree. In the present case, both the Courts have exercised the discretion properly. The appellant has failed to satisfy this Court that the discretion exercised by 21 the Courts below is perverse, arbitrary, capricious and unreasonable or against judicial principles.
To summarize, I can safely hold that the terms of the agreement are certain and the parties were ad idem and the plaintiff has proved the agreement and enforceability of the agreement. Hence, the plaintiff is entitled to a decree for specific performance.
There is nothing more than this in the case. In view of what I have said as to the facts and law, I think the contention of the plaintiff must prevail. I, therefore, agree with the order passed by the Trial Court and First Appellate Court.
The substantial question of law framed by this Court has been answered accordingly.
As a result, the Regular Second Appeal is dismissed.
Sd/-
JUDGE TKN