Karnataka High Court
Sri Mohammed Khalleelulla vs Sri Akram Pasha on 3 November, 2022
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.NO.1389/2010(SP)
BETWEEN
SRI MOHAMMED KHALLEELULLA
AGED ABOUT 43 YEARS
S/O SHAIK MAHABOOB
NO.18/19, III CROSS,
JJR NAGAR, GORIPALYA,
BANGALORE-18
...APPELLANT
(BY SRI NIRUPAN GOWDA, ADVOCATE)
AND
1 . SRI AKRAM PASHA
MAJOR IN AGE
S/O LATE ABDUL RAHMAN KHAN
@ BACHE SAB,
NO. 47/6, III CROSS,
NIZAMUDDIN MOHALLA,
MYSORE ROAD,
BANGALORE -560 018
2 . SMT. AKHTAR BEGUM
MAJOR IN AGE
W/O ABDUL ALEEM SHARIFF,
NO. 18/1, ABBAS SAHEB STREET,
2
NIZAMUDDIN MOHALLA,
MYSORE ROAD,
BANGALORE-560 018
...RESPONDENTS
(BY SRI V.MANJUNATH, ADVOCATE FOR R1;
SMT.JYOTHI.S.K FOR SRI G.S.PRASANNA KUMAR
ADVOCATES FOR R2)
THIS RFA IS FILED UNDER ORDER XLI RULE 1 R/W
SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 24.6.2010 PASSED IN O.S.NO.5532/2002 ON THE
FILE OF THE V ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE, PARTLY DECREEING THE SUIT FOR RECOVERY
OF MONEY AND DISMISSING THE SUIT FOR SPECIFIC
PERFORMANCE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 09.09.2022, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
1. Unsuccessful plaintiff is the appellant. Present appeal is directed against the judgment and decree dated 24.06.2010 passed in O.S.No.5532/2002 by the V Additional City Civil and Sessions Judge, Bengaluru. 3
2. Parties are referred to as plaintiff and defendants for the sake of convenience as per their original ranking before the Trial Court.
3. Brief facts of the case are as under:
First defendant is the absolute owner of the property bearing site No.47 (old No.67) and now assigned with No.47/7, situated at 3rd Cross, Nizamuddin Mohalla, Mysore Road, Bangalore, comprising of a shop measuring 20 ft X 12 ft and a residential house with electricity and water connection measuring 30X20 feet (hereinafter referred to as 'suit property'). Father of the plaintiff Mr. Shaikh Mahaboob was the tenant in respect of the said shop premises, measuring 12X20ft and also the residential house. Mother of first defendant Smt. Rameeza Khanum promised to sell the shop to the father of the plaintiff and at her request father of the plaintiff vacated the residential house. Suit property was agreed to be sold for a sum of Rs.2,65,000/- under agreement of sale dated 20.05.1988.4
On the date of agreement sum of Rs.50,000/- was paid as earnest money. Later on, mother of the first defendant died on 22.07.1988 and thereafter, there was a confusion amongst the children born to the mother of the first defendant and second husband. The father of the plaintiff however continued to pay the rent of the shop to the first defendant. Thereafter, there was a settlement in respect of the confusion and the first defendant became the absolute owner of the suit property and he got the revenue entries mutated in his name and he confirmed to sell the property to the father of the plaintiff for total sale consideration amount of Rs.2.95,000/- and received further earnest money in a sum of Rs.1,00,000/-under a subsequent agreement dated 18.11.1999.
4. It is also contended on behalf of the plaintiff that the plaintiff was always ready and willing to perform his part of the contract, but the defendants did not respond to the request made by the plaintiff. It is also contended that first defendant postponed the execution of the sale deed on one 5 pretext or the other and plaintiff came to know in the fourth week of July 2002 that the first defendant sold the suit property to the second defendant on 13.5.2002. It is further contended that second defendant with full knowledge of the agreement of sale between the plaintiff and first defendant, purchased the suit property only to defeat the claim of the plaintiff and thus filed the suit and sought for suitable orders.
5. On receipt of suit summons, both the defendants appeared and filed separate written statements.
6. The first defendant denied that the claim made by the plaintiff is false, frivolous and suit is not maintainable in law. However, he admitted that he is the owner of the schedule property and the father of the plaintiff was a tenant of the first defendant. He denied the agreement of sale dated 20.5.1988 said to have been executed by Smt. Rameeza Khanum. He took a specific contention that the sale agreement is a forged document. He also denied the payment of earnest money of Rs.50,000/-. He denied the letter dated 21.1.2001 relied on by the plaintiff said to have 6 been written by the first defendant and he specifically contended that the said letter is a concocted document. However, he admitted sale made in favour of second defendant on 13.5.2002.
7. Second defendant in his written statement contended that he is a bonafide purchaser of the suit property for a valuable consideration and denied the allegation that there is a collusion between him and the first defendant. He also contended that the father of the plaintiff was aware of the sale transaction made by first defendant with him and he also informed about the sale to the father of the plaintiff. He further contended that when the father of plaintiff failed to pay the rent, a notice was also sent to him. But father of the first plaintiff has sent the rent by Money Order to the first defendant even after the sale deed was executed by first defendant only with an intention to harass the second defendant and sought for dismissal of the suit.
8. Based on the rival contentions of the parties, Trial Court raised the following issues:
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"1. Whether the plaintiff proves the defendant-1 was agreed to sell the suit schedule property for Rs.2,95,000/- and executed an agreement of sale dated 18.11.1999 by receiving advance amount of Rs.one lakh ?
2. Whether the plaintiff proves that he was put in possession of the suit schedule shop premises in part performance of the contract?
3. Whether the plaintiff Proves that he has been always ready and willing to perform his part of the contract?
4. Whether the defendant-2 proves that she is a bonafide purchaser of the suit schedule property for valuable consideration?
5. Is plaintiff entitled the relief of Specific Performance?
6. To what order or decree?"
9. In order to prove the case of the plaintiff, plaintiff got examined himself as P.W.1 and Fayaz Ahamed as P.W.2. There were 12 documents relied on which were exhibited and marked as Exs.P1 to P12 on behalf of the plaintiff, comprising of agreement of sale said to have been executed by mother of first defendant as Ex.P1 and agreement of sale said to have been executed by first defendant in favour of plaintiff as 8 Ex.P.2, letter dated 21.01.2002 as Ex.P.3, certified copy of the sale deed executed by first defendant in favour of second defendant as Ex.P.4, Ex.P.5 is the original stamp vending licence, Exs.P.6 to P.8 are the licences issued by the Weights and Measures Department in the name of Shaik Mahaboob, Ex.P.9 to P.11 are the receipts and Ex.P.12 is the vakalath.
10. Contrary to the evidence placed on behalf of the plaintiff, first defendant got examined himself as D.W.1 and second defendant as D.W.2. They relied on six documents which were exhibited and marked as Exs.D.1 to D.6, comprising of certified copy of the sale deed dated 13.05.2002, notices dated 05.08.2002, 22.08.2002 and 16.08.2004, Ex.D.5 is the registered post receipt and Ex.D.6 is the postal acknowledgement.
11. The Trial Court heard the arguments in toto and on cumulative consideration of the material on record, allowed the suit of the plaintiff in part and decreed that the plaintiff is entitled for refund of earnest money in a sum of Rs.1,00,000/- with interest at 6% p.a., from the date of 9 agreement of sale dated 18.11.1999, till realization of the entire amount from the first defendant and denied the relief of specific performance of the said agreement.
12. Being aggrieved by the same, the plaintiff has filed the present appeal on the following grounds:
The impugned judgment and decree passed by the court below in so far as it relates to answering issue Nos. (2) & (3) in the negative and issue No.(4) in the affirmative to thereby deny the appellant to full and absolute rights of specific performance, is grossly unjust, technically unsound and legally untenable.
The learned City Civil Judge committed grave error of law in having held that the appellant was not in possession of the suit schedule property in part performance of the contract. It is respectfully submitted that such a finding is not based on a proper and correct appreciation of the documents Exs.P1 & P2 produced by the appellant, which, in clear unequivocal terms indicate that earlier the plaintiff/appellant's father was put in possession in part performance of the contract, the petition schedule shop and thereafter the appellant's father continued to do so and again the appellant was continued in part performance of the shop premises in pursuance of the next agreement. The impugned judgment and decree is certainly not based on proper appreciation of the materials available on record and is liable to be set aside.
10The learned City Civil Judge has exercised jurisdiction with material irregularity in having not answered issue No.(2) in the affirmative. It is not the case of the plaintiff/appellant that he was put in possession of the entire suit schedule premises in part performance of the contract. On the contrary, it is the specific case of the appellant that he was in part performance of only the shop premises comprised in the suit schedule property in part performance of the contract. Para 8 of the averments in the plaint have not been looked into nor correctly appreciated by the court below. In fact, even the issue No.(2) framed by the court below is rightly dealing with the question as to whether the plaintiff was put in possession of the suit schedule shop premise in part performance of the contract. Merely because the possession of the appellant or his father earlier in respect of the shop premises was that of at tenant i.e. prior to execution of Ex.P1 & P2, the court below cannot mechanically presume that the possession of the appellant continued to be that of a tenant and not in part performance of the contract. Exs.P1 & P2 explicitly states that the purchaser under the said agreement has been put in actual possession of the shop premise measuring 12 x 20 ft. inclusive of electricity facility. The reasoning given by the learned Judge that the agreement of sale as per Ex.P2 cannot be termed as a conveyance deed etc., are all devoid of any meaning or merit. Admittedly, Exs.P1 & P2 have been marked in evidence. When once both these documents have been marked, the contents thereof will have to be necessarily looked into as laid down by this Hon'ble Court. In this view of the matter, the finding rendered by the court below on issue No.(2) is perverse, 11 capricious and legally untenable. The impugned judgment is liable to be set aside on this score also. The learned City Civil Judge failed to appreciate that the Hon'ble Supreme Court has categorically held that there is no bar for a tenant to continue in possession of a tenanted premises under an agreement of sale executed by the landlord in his favour as a purchaser in part performance of the contract and that in such an event the similar rights of tenancy stands gets enlarged to a larger right of that of a purchaser in possession. The impugned judgment passed by the court below without appreciating this salient distinctive feature of law is liable to be set aside on this score also.
The learned City Civil Judge committed grave error of law in answering issue No.(3) in the negative and holding that the appellant has failed to prove that he has been ready and willing to perform his part of the contract. The learned City Civil Judge appears to have been totally enamored by the statement made by PW1 in his cross examination, which the learned City Civil Judge has misconstrued to be an admission to the fact that the appellant had not issued any notice to the first respondent till the filing of the suit. What has been conveniently not noticed by the learned City Civil Judge is the fact that after the agreement dated 18.11.1997 executed i.e. Ex.P2, the appellant could not offer the balance consideration to the first respondent within six months, inasmuch as the first respondent was delaying the issue on the pretext that the tenant in the house portion comprised in the schedule property has not vacated the same. Moreover, the relationship between the 12 appellant and the first respondent was always cordial. The court below has also not given the document Ex.P3, which is a letter dated 21.01.2002 addressed by the 1st respondent to the appellant, its due purport, meaning and effect. In fact, the letter dated 21.01.2002 i.e. Ex P3 would clearly indicate that the first respondent admits that he could not get the tenant vacated despite his best efforts and that he would register the property and collect the balance amount as per agreement dated 18.11.2009 and that the appellant should wait for some time as he was already enjoying the shop in the building and he would cooperate in the matter. This express admission made by the respondent has been totally sidelined by the learned City Civil Judge by giving vague, strange and improper reasoning to the effect that the appellant should have shown by placing evidence as to what prompted the first respondent to issue Ex.P3. It is respectfully submitted that the learned City Civil Judge has committed grave error of law in not having given valid or cogent reasons to have held the issue No.(3) against the appellant and on the contrary as is evident from the reasoning given at para 11 indicates that the learned City Civil Judge has sought to give a strange reasoning that the appellant having not issued any notice to the 1st respondent.
The learned City Civil Judge has answered issue No.(4) in the affirmative, to the effect that the second respondent is a bonafide purchaser for value based on hypothesis, conjectures and surmises. Merely because the agreement of sale is not registered or that the Ex.P2 is not found in any public document, it cannot be gainsaid that the second respondent is a bonafide purchaser for value. Moreover, 13 thought the learned City Civil Judge refers to the express admissions made by the first respondent, DW1 in his cross examination to the effect that the second respondent was aware that the appellant being in possession of the shop and also of the fact that the respondent No.2 has not paid consideration amount to him, yet the learned Judge has presumed that the respondent No.2 is a bonafide purchaser for value. The overall cumulative analysis of the admissions made by the respondent No.1 in his cross examination would clinchingly demonstrate that firstly the respondent No.2 knew very well of the fact that the appellant was in possession of the shop in the property. Any purchaser of ordinary prudence would only make enquiries invariably with the tenant as to what is the nature of his possession or tenancy or as to when he would vacate the premises and in such an event, it would but be natural for a person in possession of the shop to keep the proposed purchaser posted of the rights of such a person in the shop. This common practice has not been looked into nor considered by the learned City Civil Judge. In fact, in a judgment rendered by the Hon'ble Supreme Court, it has been categorically held that a purchaser who does not make enquires with the person in possession of the property, be it a tenant or otherwise, cannot claim that he was not aware of the rights of such person in possession and that therefore he was a bonafide purchaser for value. Such a purchaser is deemed to have notice of the agreement of sale entered into by the vendor with the tenant/persons in possession. The impugned judgment and decree is certainly capricious, perverse and unjust.
14The learned City Civil Judge, as stated above, has again committed gross miscarriage of justice in having ignored the specific admission of the first respondent/DW1 that DW2 has not paid any consideration amount to him. This express admission has been sought to be diluted by the learned City Civil Judge by giving vague, untenable and meaningless reasoning.
The court below also failed to appreciate that even under Ex.P3, the first respondent admits that the appellant has been enjoying possession of the shops comprised in the plaint schedule property under the agreement dated 18.11.1999. This express admission made by the first respondent to the effect that the appellant is in possession of the shop comprised in the suit schedule property in part performance of the contract, has been expressly overlooked by the learned City Civil Judge causing traversity of justice.
The learned City Civil Judge has also failed to notice that DW1 admits that he has not issued any notice to the appellant before executing the sale deed in favour of the second respondent by cancelling the agreement or otherwise. Moreover, the second respondent is also residing in the same Nizamuddin Mohalla, Mysore Road, Bangalore and that she cannot feign ignorance of the transaction between the appellant and the respondent No.1, that too when she admits that the suit schedule property is near to the house where she is residing and that the appellant's father was doing business in that very property. She also admits that her son had filed a false complaint against the appellant and the appellant has been 15 acquitted in the said case. What has been lost sight of by the learned City Civil Judge is that the judgment and acquittal produced and marked as Ex.P13 clearly indicates that a false case has been filed by the owner of the 2nd respondent during the pendency of the suit in the court below to harass and vex the defendant and to coerce them to terms. The conduct of such a person under no circumstances can be construed as bonafide much less as a bonafide purchaser for value. Similarly, the learned City Civil Judge failed to appreciate that when respondent No.1 admits that he has not received any sale consideration from the second respondent, then the sale executed in favour of the second is a sham and bogus one and therefore also the second respondent cannot be a bonafide purchaser for value.
The learned City Civil Judge committed grave error of law in having answered issue No.(5) only partly in the affirmative. The judgment of the Division Bench of this Hon'ble Court reported in ILR 2009 KAR Page 3533 "Dr.S.K. Ghatak and Ors. Vs. Prabhir Roy" and another has no application to the facts of the present case. The learned City Civil Judge failed to appreciate that the Hon'ble Supreme Court has held that the initial burden to show that the subsequent purchaser was a bonafide purchaser consequently rests on the shoulders of such subsequent transferee. In the instant case, excepting the tell tale statement of DW2/2nd respondent, there is nothing on record for the second respondent to have discharged this burden. Moreover, the evidence of DW1 clearly clinched the issue and the respondent No.2 having 16 failed to discharge the burden cannot be held to be a subsequent purchaser for value. The second respondent is not a bonafide purchaser in good faith for value without notice of the agreement in favour of the appellant. The learned City Civil Judge failed to appreciate that the readiness and willingness need not be proved from the date of the agreement till the date of hearing of the suit. The learned City Civil Judge failed to exercise the discretion vested in him under Section 20 of the Specific Relief Act properly and correctly by assigning cogent and valid reasons. The impugned judgment and decree is liable to be set aside on this score also. For having not exercised the discretion of specific performance in favour of the appellant, the learned City Civil Judge has not been guided by judicial principles. The doctrine of competitive hardship has not been looked into.
It is now well settled by the Hon'ble Supreme Court that it is well settled principle that any cases of contract for sale immovable property, the grant of relief of specific performance is a rule and its refusal an exception based on valid and cogent grounds and further that the defendant cannot take undue advantage of his own wrong and then plead that decree for specific performance would be unfair advantage to the plaintiff. In the instant case, the salient principles of law aptly applies to the facts of the appellant's case and the learned City Civil Judge having not applied this principle of law to the case of the appellant has committed grave error of law.
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The learned City Civil Judge committed grave error of law in having declined to grant the relief of specific performance solely because he has returned a finding on issue No.(3) against the appellant.
Cumulatively, the judgment and decree passed by the court below is illegal and liable to be set aside."
13. Reiterating the grounds urged in the appeal memorandum, counsel for the appellant Sri Nirupam Gowda vehemently contented that the Trial Court having recorded a finding that the agreement dated 18.11.1999 having been proved by the plaintiff, failed to properly appreciate the material on record in holding that the plaintiff was not ready and willing to perform his portion of the contract and wrongly dismissed the suit of the plaintiff for specific performance and sought for allowing the appeal.
14. Per contra, learned counsel for the first and second respondents supported the impugned judgment. Counsel for the first respondent contended that the agreement was denied by the first defendant, but the same has not been properly appreciated by the Trial Court. 18 Learned counsel for the first defendant also contended that the material on record is hardly sufficient to show that plaintiff is entitled for the relief as prayed for and sought for dismissal of the appeal.
15. Learned counsel for the second defendant also contended that the second defendant is a bona fide purchaser for value and therefore, the Trial Court has rightly taken note of the fact that the plaintiff was not ready and willing to perform portion of his contract and denied the relief of specific performance. He further contended that the suit of the plaintiff being decreed in part, is based on valid, cogent and convincing reasons in the impugned judgment and sought for dismissal of the appeal.
16. In support of the arguments put forth on behalf of the respondents, the learned counsel for the respondent No.2 has relied on the decision of the Hon'ble Apex Court in the case of U.N. Krishnamurthy (Since Deceased) through legal representatives v. A.M. Krishnamurthy, reported in 2022 SCC OnLine SC 840.
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17. In view of the rival contentions, following points would arise for consideration:
1) Whether the plaintiff has successfully established that he was always ready and willing to perform his portion of the contract?
2) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?
3) What order?
18. In the case on hand, plaintiff filed his affidavit in lieu of his examination in chief as contemplated under order XVIII Rule 4 CPC, reiterating the contents of the plaint. In his further examination in chief, he identified the sale agreement entered into by his father with mother of the first defendant as Ex.P.1. An agreement of sale executed by first defendant in his favour as Ex.P.2. He also identified the signature of himself and the first defendant on Ex.P.2 as Exs.P.2(a) and P.2(b). He marked the letter dated 21.01.2002 said to have been written by the first defendant 20 as Ex.P.3 and identified the signature of the first defendant as Ex.P.3(a). He marked the certified copy of the sale deed executed by the first defendant in favour of the second defendant as Ex.P.4 and original stamp vending licence is marked as Ex.P.5. Likewise licences issued by the Weights and Measures Department in the name of Sri Shaik Mehaboob are marked as Exs.P.6 to P.8.
19. In his cross-examination on behalf of the first defendant, he admitted that he has studied upto SSLC and a criminal case is pending against him. He denied the suggestion that Exs.P.1 and P.2 are concocted documents. He has answered that Smt. Rameeza Khanum died on 22.07.1988 and he was aged 21 years by then. He admits that in the year 1979 there was a fire accident in the house of the mother of the first defendant and her daughter died in the said incident. However, he denied the suggestion that Smt. Rameeza Khanum also sustained injuries on her both hands. But, admitted that she sustained injuries only on her right hand. He denied the suggestion that after the said 21 injury, Rameeza Khanum was not in a position to subscribe her signature to any of the documents. He specifically denied that the signature found on Ex.P.1 said to have been subscribed by Rameeza Khanum is a forged signature. He has also answered that elder brother of first defendant by name Fayaz Ahmed signed on Ex.P.1 who is his uncle. He denied that in active collusion with his uncle he created Ex.P.1. He answered that his father has paid a sum of Rs.50,000/- cash to Rameeza Khanum on 20.05.1988. He denied that no consideration was paid by his father to Rameeza Khanum.
20. He admits that his father was a tenant in respect of suit property in the year 1988. He denied suggestion that after death of Rameeza Khanum, first defendant was collecting rent from his father, but he has answered that elder brother was collecting rent. He has answered that first defendant informed him that he is interested in selling the property prior to 1989 and thereafter Ex.P2 was entered into. He denied that signature of the first defendant on Ex.P2 is a 22 forged signature and he has forged the signature of the first defendant. He admits that witnesses of Exs.P.1 and P.2 are one and the same persons.
21. He has answered that second defendant has purchased the suit property on 13.05.2002. He denied the suggestion that his father has sent the rent by money order to the first defendant in the year 2002. He denied that Ex.P.3 is a concocted document and it does not bear the signature of the first defendant. He has admitted that after execution of Ex.P.2, he has not issued any notice to the first defendant till filing of the suit. He admits that second defendant has filed a suit for Ejectment against him and his father in O.S.No.11033/2006.
22. In his cross-examination on behalf of the second defendant, he has denied the suggestion that the second defendant is the owner of the suit property. However, in the very next breath he admits that second defendant has purchased suit property from first defendant on 13.05.2002 and khatha of the suit property stands in the name of second 23 defendant. He denied the suggestion that the second defendant is the bona-fide purchaser of the suit property without the notice of suit agreement. He denies the suggestion that he is tenant of the shop portion of the suit property under second defendant. He admits that second defendant has leased out residential portion of the suit property in favour of the tenant and said tenant is in possession of the same. He admits that second defendant has filed O.S.No.11033/2006 against him and his father for Ejectment. He admits that before the residential portion was leased out to a fresh tenant, himself and his father were in occupation of the residential portion of the suit property under the first defendant's mother as tenant.
23. On behalf of the plaintiff Sri Fayaz Ahmed has been examined as P.W.2. He has filed an affidavit in lieu of his examination in chief wherein he has stated that Shaik Mahaboob was a tenant in respect of shop premises measuring 12'X20 ft which is the portion of the suit property and he was also tenant in respect of the residential house in 24 the suit property of the mother of the first defendant by name Smt. Rameeza Khanum. Further stated that Rameeza Khanum had promised to sell the suit property in favour of the plaintiff and at her request plaintiff's father vacated the residential house. As per promise, Rameeza Khanum executed Ex.P.1 on 20.05.1988 in favour of the father of the plaintiff for a sale consideration in a sum of Rs.2,65,000/- and inducted the father of the plaintiff in actual possession of the shop premises in the suit property with electricity connection as part performance of the agreement. It is also stated that a sum of Rs.50,000/- was paid by Rameeza Khanum as earnest money and there is a mention in Ex.P.1 about the same. He has stated that elder brother of first defendant namely; Azam Pasha has signed as witness to the agreement dated 20.05.1988. He has also stated that after death of Smt. Rameeza Khanum, first defendant became the absolute owner of the suit property and he approached the plaintiff and his father and offered to sell the suit property including the shop premises for a sale consideration of Rs.2,95,000/-. He further stated that plaintiff accepted the 25 offer and paid a sum of Rs.1,00,000/- as advance in cash and the same is duly acknowledged by the first defendant.
24. It is further contended that plaintiff was formally put in possession of the shop premises with electricity connection as part performance of agreement dated 18.11.1999. It is further stated that in the agreement dated 18.11.1999, first defendant has received a sum of Rs.1,00,000/- as advance and first defendant has agreed to execute sale deed after receipt of the balance sale consideration.
25. In his cross-examination, he has admitted that plaintiff is his sister's son. He has answered that he is not aware of when the father of the plaintiff was tenant of the suit property. He admits that there was a rent agreement, but he does not know when it was executed. He admits that first defendant's mother had not promised to sell the shop, but she had already sold it. He denied the suggestion that the mother of the first defendant did not execute the sale 26 agreement dated 20.05.1988 and there was no offer made by Rameeza Khanum in this regard and no advance amount was received by her. He has answered that Azam Pasha has signed Ex.P.1 as witness in his shop on 20.05.1988 and he has also signed the same on the same day. He denies the suggestion that signature of Rameeza Khanum is forged on Ex.P.1. He answered that Rameeza Khanum died on 17.07.1988. He admits that he does not remember date on which first defendant approached the plaintiff expressing his willingness to sell the property. He denied the suggestion that there was no offer made by the first defendant nor received Rs.1,00,000/- as advance amount by first defendant. He has answered that stamp paper Ex.P.2 was purchased by first defendant - Akram on 18.11.1999. But he does not know the name of the stamp vendor. He has answered that it is the father of the plaintiff who paid the amount of Rs.1,00,000/- and it was 100/- rupee bundles. He denied that Ex.P.2 is forged document.
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26. First defendant Akram Pasha filed his affidavit in lieu of his examination in chief by re-iterating the contents of the written statement.
27. In his cross-examination, he admits that suit property and adjoining property was under the ownership of his mother and father of the plaintiff was the tenant in the suit property under his mother. He admits that Rameeza Khanum had six children from her first husband and three children from the second husband. He admits that in the partition the suit property was fallen to his share and adjoining the property has fallen to the share of his brother Azam Pasha. He admits that Azam Pasha was residing with his mother.
28. He further admits that he used to visit out station frequently on account of his business commitments. He admits that he is not aware of the transaction made by his mother and his brother Azam Pasha. He denies that his mother and Azam Pasha have executed an agreement with father of the plaintiff. He identified the signatures of his 28 brother Azam Pasha on three documents and as such those three receipts were marked as Exs.P.9 to 11 and signatures are Exs.P.9(a), P.10(a) and P.11(a). However, he failed to identify the signatures confronted to him on Ex.P.4. He admits that on Ex.P.1 it is written as Rameeza Khanum on every page. He admits that during the life time of his mother, properties were not partitioned. The partition took place after the death of his mother. He admitted that he acquainted with Fayaz Ahmed, but he cannot identify his signature. He admits that after the death of his mother, his brother Azam Pasha was collecting the rents from father of the plaintiff. But, after the property has fallen to his share he is collecting the rents. He identified his signature on Ex.P.12 vakalath and the same was marked as Ex.P.12(a). He has answered that he cannot estimate the value of the suit property in the year 1988 and in the year 1999. He admits that plaintiff is in possession of the suit property i.e., the shop. He admits that earlier the adjoining house portion was also in 29 occupation of father of the plaintiff and in the year 1999 he is residing in the said house. He denied the suggestion that Ex.P.2 is signed by him. He denied the suggestion that he received Rs.1,00,000/- advance from the plaintiff. He denied the signature found on Ex.P.3. He further admits that second defendant has not paid any consideration amount to him. He admits that he has not issued any notice to the plaintiff before executing the sale deed in favour of the second defendant. He denied that he had agreed to sell the suit property in a sum of Rs.2,95,000/- to the plaintiff.
29. Second defendant Smt. Akthar Begum has filed her affidavit in lieu of her examination in chief reiterating the contents of her written statement. In her further examination, she marked the certified copy of the sale deed dated 13.05.2002 as Ex.D.1, notice dated 05.08.2002 as Ex.D.2, notice dated 22.08.2012 as Ex.D.3, notice dated 16.08.2004 as Ex.D.4, receipt as Ex.D.5, postal acknowledgement as Ex.D.6.
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30. In her cross-examination by the plaintiff, she has answered that Akram Pasha, Shaik Mehaboob and Mohammad Kalil Ulla are not her relatives. She has answered that she cannot identify the signature of Akram Pasha or Rameeza Khanum, since she has not seen their signatures earlier. She denied that she is a witness to Ex.P.1. She also denied that she is a witness to Ex.P.2. She has answered that she cannot identify the suit property by postal address. However, she has stated that she has seen the suit property and it is very nearer to her residence. She admits that Shaik Mehaboob was doing business in the suit property. She pleaded ignorance about Exs.P.1 and P.2. She admits that Shaik Mehaboob has not paid rents to her and so also the plaintiff. She has answered that she has paid the sale consideration by cash and she had no difficulty to pay the amount through cheque or demand draft. She denied that she had the knowledge of Ex.P2 before the sale of the suit property in her favour. She admits that her son has filed a complaint 31 against the plaintiff and plaintiff is acquitted in the said criminal case. She identified the judgment of acquittal as per Ex.P.13.
31. Learned counsel for the appellant sought for re- appreciation of the above evidence on record and sought for allowing the appeal.
32. In the case on hand, it is the specific case of the plaintiff that there was an agreement of sale Ex.P.1 executed by Smt.Rameeza Khanum who is the mother of the first defendant. It is also specific case of the plaintiff that after the death of Rameeza Khanum, the suit property had fallen to the share of the first defendant and therefore, first defendant entered into another agreement with the plaintiff which is marked at Ex.P.2. First defendant has categorically denied his signature on Ex.P.2. So also denied the signature on Ex.P.3 which is a letter said to have been written by the first defendant to the plaintiff. 32
33. Except, confronting the admitted signatures on the receipts which are marked as Exs.P.9 to P.11 and on the written statement and vakalath, plaintiff did not choose to get the matter referred to the hand writing expert to prove that the first defendant has signed Ex.P.2. However, the Trial Court in the impugned judgment has recorded a categorical finding that the suit agreement Ex.P.2 stands proved while recording finding on issue No.1 in affirmative. The first defendant has not challenged the said finding by filing a cross appeal or cross objection. Therefore, in the case on hand, no further discussion with respect to proof of Ex.P.2 is necessary.
34. However, while answering issue Nos.2 to 4, the learned Trial Judge has discussed in detail the oral and documentary evidence on record. Since the suit agreement stands proved and it has not been challenged by the first defendant, payment of advance amount of Rs.1,00,000/- also stands proved. There is no dispute that the father of the plaintiff was in possession of the suit 33 property (shop property) and the residential unit. Plaintiff has stated in the plaint that plaintiff was always ready and willing to perform his portion of the contract.
35. It is well settled principles of law that mere pleading that plaintiff was always ready and willing to perform his portion of contract would not suffice to meet the requirements under Section 16 of the Specific Relief Act. There is a clear admission in the cross-examination of P.W.1 that he did not issue notice to the first defendant for execution of the sale agreement. Admittedly, even as per P.W.1 when mother of the first defendant died, first defendant offered to sell the suit property by executing Ex.P.2 on 18.11.1989 and formally he was put in possession of the suit property.
36. When there was no further payment made by the plaintiff, first defendant sold the property in favour of the second defendant on 13.05.2002 as could be seen from Ex.D.2.
34
37. Learned counsel for the appellant contended that when the Trial Court admitted the case of the plaintiff that Ex.P.2 is the genuine document and when sum of Rs.1,00,000/- was already paid by the plaintiff to first defendant, the plaintiff has discharged his burden that he was ready and willing to perform his portion of the contract and since there was no demand made by the first defendant, he could not pay the balance amount and insist executing the sale deed in his favour. But, defendant No.1 sold the property in favour of the second defendant, clandestinely and thus appeal needs to be allowed.
38. Plaintiff in his cross-examination has clearly admitted that he did not make any efforts in furtherance of Ex.P.2. He also admits that his father had not filed any suit against the first defendant. On perusal of Ex.P.2, it is seen that the same is executed on 18.11.1999. The time that is stipulated for completion of the sale is six months. Admittedly, within six months plaintiff did not offer the 35 balance sale consideration to the first defendant and demanded for execution of the sale deed.
39. In this regard, the explanation is sought to be offered by appellants by resorting to the contents of Ex.P.3. Ex.P.3 reads as under:
"From, Akram Pasha No.47/6, III Cross, Nizamuddin Mohalla, Mysore Road, Bangalore-560 002.
To Mohammed Khaleelulla, No.18/19, 3rd Cross, J.J.R. Nagar, Goripalya, Bangalore 560 018.
Dear Khaleel, I am doing my best to get the tenant of the house No.47, 3rd Cross, Nizamuddin Mohalla, Mysore Road, Bangalore - 560 002, to vacate the same. However, he has asked for some more time. As soon as he vacates, I will register the property to you and collect the balance sale amount as stated in the agreement dated 18.11.1999. Please wait for sometime. Anyway you are enjoying the possession of the shop in the said 36 building under the said agreement dated 18.11.1999. I will do my best and co-operate in the matter.
Thanking you, Yours faithfully, Sd/-
(AKRAM PASHA)"
40. First defendant has denied Ex.P.3 and has taken a specific contention that it is a concocted document. Why first defendant on his own wrote a letter to the plaintiff on 21.01.2002 is a question that remains unanswered. Further, whether Ex.P.3 was handed over to the plaintiff by hand or was it sent by post is also a question that remains unanswered.
41. Admittedly, Ex.P.3 is written in English language. Considering the educational qualification of the plaintiff or the first defendant, who got drafted the contents of Ex.P.3 is yet another question that remains unanswered on behalf of the plaintiff. Therefore, the Trial 37 Court did not believe that first defendant himself has sent a letter as per Ex.P.3. When there was no occasion to first defendant to write Ex.P.3, it is for the plaintiff to establish under what circumstances that Ex.P.3 came into existence. Further, there is no explanation forthcoming either in the examination in chief of P.W.1 or P.W.2 as to how Ex.P.3 came into existence. Therefore, the explanation offered on behalf of the plaintiff for non demand for execution of the sale deed after six months which is the time stipulated to conclude the contract, cannot be countenanced in law.
42. No doubt, there cannot be any dispute as to the principles of law enunciated in the decisions relied on by the learned counsel for the appellant. However, on careful perusal of these decisions referred to supra, the facts of the case in the decisions relied on by the learned counsel for the appellant is altogether different from the facts of the present case and therefore, those decisions are not of much avail insofar as the plaintiff in getting the sale deed registered.
38
43. There is a specific finding recorded by the Trial Court with cogent and convincing reasons, which on re- appreciation, this Court does not find any legal infirmity in recording such finding by the Trial Court that plaintiff was not ready and willing to perform his portion of contract, other questions need not be gone into even though the Trial Court has raised the issue that the second defendant is a bona-fide purchaser for value.
44. In the case of Smt. Padmini Raghavan Vs. Mr. H.A. Sonnappa reported in ILR 2014 KAR 233 this Court at Paras 40 has held as under:
"40. In a suit for specific performance the plaintiff should not only plead and prove the terms of the agreement, but also plead and prove his readiness and willingness to perform his obligation under the contract in terms of the contract.
41. Section 16 of the Specific Relief Act reads as under: -39
"16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person-
(a) who would not be entitled to recover compensation for its breach; or
(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or
(c) 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 the performance of which has been prevented or waived by the defendant.
Explanation.- For the purposes of clause (c),-
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.40
42. This provision has been the subject matter of interpretation by the Apex Court on several occasions:
43. The law on the point is well settled. The Supreme Court in the case of N.P.THIRUGNANAM (DEAD) BY LRS vs DR R.JAGAN MOHAN RAO AND OTHERS [(1995) 5 SCC 115] has held as under: -
"5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act 1963 (for short, 'the Act'). Under Section 20, the court is not bound to grant the relief just because there was valid agreement of sale.
Section 16(c) of the Act envisages that plaintiff must plead and prove that he had
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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a 41 condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract."
44. The Supreme Court in the case of HIS HOLINESS ACHARYA SWAMI GANESH DASSJI vs SITA RAM THAPAR [(1996) 4 SCC 526] has held as under: -
42
"2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27.2.1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff's part of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and 43 intended to abide for the time which disentitles him as time is the essence of the contract."
45. The Supreme Court in the case of RAM AWADH (DEAD) BY LRS AND OTHERS Vs ACHHAIBAR DUBEY AND ANOTHER [2000 (2) SCC 428] interpreting section 16 of the Specific Performance Act 1963 has held as under: :
"6. The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in Jugraj Singh's case is erroneous.44
46. The Apex Court in the case of P.D'Souza v. Shondrilo Naidu [ 2004 (6) SCC 649] has held as under :
"It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of the contract. The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf."
47. The Supreme Court in the case of ANIGLASE YOHANNAN V. RAMLATHA (2005) 7 SCC 534 [SCC p 540, para 12) has held as under:
"12. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to 45 grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief."
This Court further held that the averments relating to readiness and willingness are not a mathematical formula which should be expressed in specific words and if the averments in the plaint as a whole, do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract, the fact that the wording was different, will not militate against the readiness and willingness of the plaintiff. The above observations cannot be construed as requiring only a pleading in regard to readiness and willingness and not `proof' relating to readiness and willingness. In fact, in the very next para, this Court clarified that Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. Therefore, the decision merely reiterates the need for both pleadings and proof in regard to readiness and willingness of the plaintiff. 46
48. The Supreme Court in the case of M.M.S. INVESTMENTS, MADURAI AND OTHERS Vs V.VEERAPPAN AND OTHERS [2007 AIR SCW 4809] has held as under:-
"5. Questioning the plea of readiness and willingness is a concept relatable to an agreement. After conveyance the question of readiness and willingness is really not relevant. Therefore, the provision of the Specific Relief Act, 1963 (in short the 'Act') is not applicable. It is to be noted that the decision in Ram Awadh's case (supra) relates to a case where there was only an agreement. After the conveyance, the only question to be adjudicated is whether the purchaser was a bona fide purchaser for value without notice. In the present case the only issue that can be adjudicated is whether the appellants were bona fide purchasers for value without notice. The question whether the appellants were ready and willing is really of no consequence. In Ram Awadh's case (supra) the question of the effect of a completed sale was not there. Therefore, that decision cannot have any application so far as the present case is concerned. Once there is a conveyance the concept would be different and the primary relief could be only cancellation."47
49. The Supreme Court in the case of AZHAR SULTANA vs B. RAJAMANI AND OTHERS [AIR 2009 SC 2157] has held as under:-
"18. Section 16(c) of the Specific Relief Act, 1963 postulates continuous readiness and willingness on the part of the plaintiff. It is a condition precedent for obtaining a relief of grant of specific performance of contract. The court, keeping in view the fact that it exercises a discretionary jurisdiction, would be entitled to take into consideration as to whether the suit had been filed within a reasonable time. What would be a reasonable time would, however, depend upon the facts and circumstances of each case. No hard and fast law can be laid down therefor. The conduct of the parties in this behalf would also assume significance.
50. The Supreme Court in the case of MAN KAUR (DEAD) BY LRS vs HARTAR SINGH SANGHA [(2010) 10 SCC 512] has held as under:-
"12. Section 16(c) of the Specific Relief Act 1963 (`Act' for short) bars the specific performance of a contract in favour of a plaintiff "who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of 48 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).
Explanation (ii) to section 16 provides that for purposes of clause (c) of section 16, "the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.
Thus in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract.
51. Thus, Section 16(c) of the Act envisages that plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If 49 the plaintiff fails to either aver or prove the same, he must fail. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief.
52. Thus in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. It is indisputable that in a suit for specific performance of contract, the plaintiff must establish his readiness and willingness to perform his part of the contract. The readiness and willingness on the part of the plaintiff to perform his part of contract 50 would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till the date of the decree, he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract.
53. Readiness and willingness refer to the state of mind and conduct of the purchaser, as also 51 his capacity and preparedness on the other. One without the other is not sufficient. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. In so far as willingness is concerned, it reflects the mental attitude of the plaintiff to part with or pay the balance sale consideration agreed to be paid. If there are any reservations without any justification, or it is made conditional on the happening of any event which is not agreed upon, it shows his unwillingness to perform his part of the contract. The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a),
(b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) 52 has not been complied with and it is for the court to determine whether it has or has not been complied with.
54. Therefore, it is necessary to see whether there is a proper plea which satisfies the requirement of Section 16(c) of the Specific Relief Act, 1963. In para 4 it is stated that the plaintiff was ever ready and willing to perform his part of the obligation and he was ever ready with the balance sale consideration amount and that the plaintiff requested the defendant more than a dozen times to come and execute the sale deed. In para 5 of the plaint the plaintiff has averred that right from the date of execution of the agreement he was ready to perform his part of the obligation as contemplated under the agreement. On the other hand the defendant had evaded to execute the sale deed on one pretext or the other. The plaintiff during 1993 had got issued two legal notices to the defendant. Though the defendant received the said notice, she never replied nor complied."
53
45. Applying the legal principles enunciated in the above decision to the facts of this case, the long silence of the plaintiff even after the expiry of period of six months from 18.11.1999 stipulated in Ex.P.2, is not explained by the plaintiff in the pleadings or in evidence. Since the Trial Court has disbelieved Ex.P.3. Since no other material is available on record, this Court is of the considered opinion that the plaintiff has failed to prove that he was always ready and willing to perform his portion of the contract. Accordingly, the grounds urged in the appeal are hardly sufficient to annul the impugned judgment.
46. Learned counsel for the second respondent has relied on the judgment in the case of U.N. Krishnamurthy (Since Deceased) Through LRs v. A.M. Krishnamurthy, reported in 2022 SCC OnLine SC 840:
47. Insofar as finding recorded by the Trial Court on issue No.3, no further discussion is necessary on issue 54 Nos.4 and 5. Hence, point Nos.1 and 2 are answered in the Negative.
48. Regarding point No.3: In view of foregoing discussion on point Nos.1 and 2, following order is passed:
ORDER Appeal sans merit and is hereby dismissed.
No order as to costs.
Sd/-
JUDGE MR