Karnataka High Court
Siddalingamma W/O M Ramachandraiah vs Muddahanumaiah S/O Venkataiah on 31 January, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
R.S.A.No.2308/2011
BETWEEN:
SIDDALINGAMMA
W/O M RAMACHANDRAIAH
AGED ABOUT 42 YEARS
R/O NAGANAHALLI VILLAGE
HUTHRIDURGA HOBLI
KUNIGAL TALUK. ..APPELLANT
(BY SRI K B LOKANATH, ADVOCATE)
AND:
1. MUDDAHANUMAIAH
S/O VENKATAIAH
DEAD BY LRs.
R1(a) JAYAMMA
W/O CHANDRAPPA
MAJOR, R/O HURUKUNTE
BANAVADI POST
SOLUR HOBLI
MAGADI TALUK.
R1(b) ARAVINDAMMA
W/O NARAYANAPPA
MAJOR,
R/O NAGANAHALLI VILLAGE
HUTHRIDURGA HOBLI
2
KUNIGAL TALUK.
R1(c) BHAGYAMMA
W/O GIRIYAPPA
MAJOR, C/O MILITARY
HOTEL 'GANGANNA, No.860
1ST CROSS, NEAR SHANIDEVARA
TEMPLE, KAVERIPURA, KAMAKSHIPALYA
BANGALORE - 79.
4. RAMACHANDRAIAH
S/O MUDDAHANUMAIAH
DEAD NO LRs.
5. VENKATESHAIAH
S/O MUDDAHANUMAIAH
DEAD BY LRs.
5(a) BHAGYAMMA
W/O LATE VENKATESHAIAH
MAJOR.
5(b) PARAMESHAIAH
S/O LATE VENKATESHAIAH
MAJOR.
5(c) PAVANKUMAR
S/O LATE VENKATESHAIAH
AGED ABOUT 15 YEARS
MINOR, R/BY HIS N/G i.e.,
HIS MOTHER 5(a) i.e., BHAGYAMMA.
6. HANUMANTHAIAH @
BELASAIAH,
S/O MUDDAHANUMAIAH
AGED ABOUT 52 YEARS.
7. NARAYANAIAH
S/O MUDDAHANUMAIAH
3
AGED ABOUT 36 YEARS.
RESPONDENTS 6 & 7 ARE
R/O NAGANAHALLI VILLAGE
HUTHRIDURGA HOBLI
KUNIGAL TALUK. ..RESPONDENTS
(BY SRI Y C SURESH, ADVOCATE FOR C/R5(b)
SRI T N VISWANATHA, ADVOCATE FOR R1(b)
R1(a) & R7- SERVED, R5(c) MINOR REP. BY R5(a)
V/O DATED:12.09.2014 NOTICE TO R5(a) & R1(c)
ARE HELD SUFFICIENT, V/O DATED:18.02.2019
APPEAL AGAINST R6 IS DISMISSED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED:08.07.2011
PASSED IN R.A.No.30/2007 ON THE FILE OF THE SENIOR
CIVIL JUDGE & JMFC., KUNIGAL, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
23.06.2007 PASSED IN O.S.No.2/1999 ON THE FILE OF
THE ADDITIONAL CIVIL JUDGE (JR.DN) KUNIGAL.
THIS RSA COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appeal is directed against the Judgment and award dated 08.07.2011 passed in R.A.No.30/2007 by the Senior Civil Judge and JMFC, Kunigal, wherein appeal filed by the plaintiff against the Judgment and decree dated 23.06.2007 passed in O.S.No.2/1999 by the Additional Civil Judge (Jr.Dn), Kunigal, was 4 dismissed thereby confirming the Judgment and decree passed by the trial court. Being aggrieved by the appellate court Judgment and decree, plaintiff has filed this appeal.
2. In order to avoid confusion and overlapping the parties hereinafter shall be referred in accordance with the nomenclature given to them before the trial court.
3. To begin with, a suit for specific performance was filed by plaintiff -Siddalingamma in O.S.No.2/99 seeking specific performance of the sale agreement stated to have been executed on 21.12.98 in respect of the plaint schedule property of 9 ½ guntas of land in Sy.No.25/2, situated at Naganahalli Village, Hutridurga Hobli, Kunigal Taluk. The sale consideration of the schedule property is stated to be Rs.7,125/- and on the date of the sale agreement 5 plaintiff paid an amount of Rs.6,125/- to the defendant by way of advance amount towards sale price. It was agreed that the defendant was to execute the registered sale deed of the schedule property at the request of the plaintiff by receiving balance sale consideration of Rs.1,000/-.
4. The possession of the schedule property is stated to have delivered by the defendant in favour of the plaintiff under the said agreement. It is also contended by the plaintiff that the sale agreement was executed by the defendant No.1 in order to counter medical expenditure and family necessity. The plaintiff claims that he was always ready and willing to perform her part of contract under the sale agreement but the defendant No.1 had been dodging to comply with his duty under one pretext or the other. The plaintiff got issued a legal notice to the defendant 6 No.1 on 23.12.98 which is marked as Exhibit P-5. The further grievance of the plaintiff is that the defendant did not care or bother to comply or reply to the legal notice.
5. The plaintiff claims cause of action on 21.12.98 which is the date of sale agreement. The defendant No.1 appeared before the court but did not file written statement. The other defendants 2 to 5 filed their statement to the effect that schedule property was granted by the Government in favour of Venkataiah, grandfather of defendants 2 to 5. Venkataiah left behind his wife -Thirumalamma, defendant No.1 and defendants 2 to 5 and daughters of defendant No.1 by name Jayamma, Aravindamma and Bhagyamma as successors. Thus, the contention of the defendants 2 to 5 is that the defendant No.1 never had any right over the schedule property.
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6. Learned trial Judge was accommodated with the oral evidence of PWs 1, 2, 3 and 4 and documentary evidence of Exhibits P-1 to P-6. The defendant examined DW-1 to DW-4 and Special Power of Attorney came to be marked as Exhibit D-1. Learned trial Judge framed the issues on the sale agreement dated 21.12.98, payment of advance amount, readiness, willingness, sufficiency of court fee and found that the plaintiff did not prove the agreement and also defendant No.1 was not competent as an absolute owner of the schedule property to sell the same. In addition to the fact that the agreement was surrounded by suspicious circumstances, suit came to be dismissed on 23.06.2007. The appeal being preferred by the plaintiff also came to be dismissed on 08.07.2011 on the ground of failure to prove execution and competency of the seller. 8
7. This court admitted the appeal preferred under Section 100 of CPC to consider the following substantial question of law framed on 08.01.2020:
"Whether the relief of specific
performance of any contract to sell
immovable property can be refused on the ground that the legal representatives of seller objected that the schedule property is ancestral/joint family property?"
8. Learned counsel for appellant Sri K.B.Lokanath would submit that the learned trial Judge followed by the first appellate Judge focused their entire concentration in discussing the nature of the schedule property as to whether it is a self acquired property or belonging to joint family. Learned counsel would further submit that there is no discussion or appreciation of evidence in respect of sale agreement, its execution, receipt of advance amount and the related.
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9. On the contextual reading of the Judgment of the trial court and first appellate court it is self explanatory that full and complete adjudication of all the matters in controversy has not happened.
10. Learned counsel for respondent No.1(b) Sri.T.N.Vishwanatha would submit infact the trial court and the appellate court as well have discussed the matter on execution of the sale agreement and sale consideration as well and given a crystal clear finding as to the failure of the plaintiff to prove the case for specific performance.
11. Learned counsel would further submit that the plaintiff has been hasty and never wanted to provide breathing time to defendant to understand what happened.
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12. As a matter of fact the sale agreement is claimed to have been executed on 21.12.98, the sale consideration amount is Rs.7,125/- and advance amount claimed to have been given is Rs.6,125/- balance Rs.1,000/- and specific time for sale agreement was not prescribed. Such being the case plaintiff invented urgency from nowhere and issued notice demanding the defendant to execute registered sale deed on 23.12.98 just within two days and suit being filed on 02.01.99. The conduct of the plaintiff is self explanatory of the fact that she wanted sale deed to be executed though no sale agreement was executed by defendant No.1. In the circumstances of the case the significant point that would arise for consideration is that when the sale agreement was executed by defendant No.1, father of defendants 2 to 5 the objections by defendants 2 to 5 assumed significance to the level of dismissing the suit. It is 11 the case of the defendants that the schedule property is the ancestral property in the sense it was granted to one Venkataiah, father of defendant No.1 who is none other than grandfather of defendants 2 to 5. Thus, when the schedule property is an ancestral one the defendant No.1 had no exclusive right, title, interest or possession over the schedule property and he could not have executed the same even if executed at the same time sale agreement is disputed.
13. Learned counsel for defendant has relied upon paragraph 17 of the Judgment of the first appellate court which is as under:
"17. When the alleged agreement was entered into on 21.12.1998, certainly there was no occasion for the plaintiff to cause a legal notice on 23.12.1998. There was no time gap for the plaintiff to request the 1st defendant to get a sale deed registered. The plaint reads that the plaintiff has asked 12 the defendants several times to comply with the terms of the prior agreement. Certainly this pleading appears to be false as there was no scope for asking the defendant several times just within a gap of two days. Therefore the very agreement itself raises serious material doubts."
14. Learned first appellate Judge discusses the urgency of issuing notice on 23.12.98 in respect of an agreement dated 21.12.98 and filing suit regard being had to the fact that the very postal acknowledgement itself has reached the plaintiff back on 30.12.98. The point which the learned counsel for defendant wanted to drive is that the plaintiff in her wisdom chose to file the suit on presumption and assumptions driven by her greed on 02.01.99. This has been analyzed as a suspicion conduct by the learned appellate Judge. 13
15. Further learned counsel emphasizes on the said aspect and this is the reasoning of the first appellate court to hold the agreement itself as suspicious for denying the relief of specific performance.
16. In the circumstances of the case insofar as the material phases in a contract for sale of immovable properties would be entering into contract, tenability, performance and then discharge.
17. The best way of discharge of a contract is by performance. The breach of contract by either of the parties may be actual or anticipatory. When the party committing breach in a direct manner either in spoken words or in writing or refusal to perform part of contract it amounts to actual breach of contract. On the other hand when the due date of performance has yet not reached or when no due date is fixed and if it 14 is manifest to the plaintiff by the conduct of the defendant that there are no chances of expecting performance of contract from him it would amount to anticipatory breach of contract.
18. It is under these grounds the remedies for breach of contract is in. A person claims himself to be an aggrieved party in a contract when once finds that there are no chances of performance then there is no point in waiting for that period. Under the circumstances there is no wrong in issuing notice within two days and filing suit within short period of 10 days. Further insofar as sale agreement is concerned the execution of the sale is stoutly denied by defendants 2 to 5. The significance in this connection is none of them executed and it is executed by defendant No.1 who is none other than father of defendants 2 to 5. In this connection it is 15 necessary to mention that the cumulative effect of sale agreement executed by elder member of the family. To be precise when a joint family property is sold by father or senior member of such family in the normal circumstances when the sale is for compelling legal necessity and/or for benefit to the family, then such transfer holds good and bind the family. When a manager sells the property of the joint family not for either legal necessity or for benefit to the estate, when such transferor Member is a vagabond, it does not bind the entire family. However, the share of the such transferor member is bound. But a bonafide purchaser cannot be penalised for no fault of his. The share of such transferor (member) or Kartha (manager) of such family is bound by the same. In this connection it is necessary to mention that the concept of sale is transfer of ownership by seller to buyer and the doctrine of `Nemo dat quod non habet' 16 gains recognition as no one can convey better than what he has.
19. In this connection the tone and tenor of the sale agreement is that the details of the source of title of the schedule property to the defendant No.1 is never stated. On the other hand sale agreement proceeds on the premise that defendant No.1 Muddahanumaiah was the owner of the property.
20. As stated above suit was filed on 02.01.99. Written statement of defendants 2 to 5 is filed on 03.06.2000 wherein defendants 2 to 5 concurred and made vociferous assertions that the plaintiff is not entitled for specific performance on the ground of absence of title with defendant No.1. It is stated that defendant No.1 is having four sons, defendants 2 to 5 and three daughters as stated in the cause title and as 17 stated in paragraph 12 of written statement. The defendant No.1 chose silence instead of contest. Incidentally he is claimed to be executant of the sale agreement. Insofar as the manner in which the appellate Judge has appreciated the evidence on execution is far from satisfaction so also of the trial court. The action taken by the plaintiff cannot be replica of suspicion considered fatal to the sale agreement. In this connection the execution of the agreement is held in negative. Insofar as possession of the schedule property is concerned there is no discussion regarding possession of the schedule property whether the plaintiff was in possession as on the date of filing of the suit in pursuance to the sale agreement. In this connection paragraphs 18 and 19 of the Judgment of the appellate court is necessary to be mentioned.
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"18. It is pertinent to note that soon after issuance of Ex.P5 notice on 23.12.98 without even giving opportunity to the 1st defendant to come forward and comply with the demand made in the notice or to refute the same by way of reply, the plaintiff has rushed to the Court on 02.01.1999 just within 10 days of causing the notice to file the present suit. In fact as per Ex.P6 acknowledgement card the notice was served upon the 1st defendant on 26.12.1998. Therefore within 7 days of service of the notice the plaintiff has filed this suit which is highly suspicious. Therefore it appears that the intention of plaintiff was to file this suit all along. Otherwise it is impractical and improbable for any person to cause a notice within two days of entering into the agreement and file a suit within 10 days of causing the legal notice. No material was putforth by the plaintiff to clarify this situation. Therefore the entire case of the plaintiff fails to inspire confidence.19
19. Even the evidence brought on record by the plaintiff raise material doubts regarding her case. All the witnesses have admitted that suit property belonged to the defendants. They also testify that defendants No.2 to 5 had stoutly refused to execute any agreement with respect to the suit property. When it was well within his knowledge that defendants No.2 to 5 had refused to execute any such agreement, PW.4 the scribe ought not to have drafted the alleged sale agreement. This also raises serious doubts regarding execution of Ex.P2 agreement."
21. In other words the learned trial Judge and first appellate Judge have concentrated on the aspect of competency of defendant No.1 who has neither filed his written statement nor adduced his evidence. When the purchaser plaintiff was fully aware that there was no consensus among the family members or that there was neither legal necessity nor benefit to 20 the estate of the defendant family, she would be doing so at her risk. Further the land is stated to have been granted to one Venkataiah father of defendant No.1 in other words grandfather of defendants 2 to 5. Further insofar as possession of the land is concerned the plaintiff claims that she has entered into possession under the agreement but the sale agreement is drafted on Rs.50/-. In this connection paragraph 22 of the Judgment of the appellate court is as under:
"22. EX.P-2 speaks that the possession of the suit property was handed over right at the time of the agreement. It is pertinent to note that Ex.P2 has been drafted on stamp paper of Rs.50-00. Since possession itself was shown to be handed over, it was to be valued in par with a conveyance deed. But it was not done so. Therefore the stamp duty paid on Ex.P-2 is insufficient. Such being the case Ex.P2 21 becomes an insufficiently stamped document and in view of the prohibition U/Sec.34 of Stamp Act, Ex.P2 cannot be looked into for any purpose including a collateral purpose."
The Karnataka Stamp Act Amendment dated 01.04.95 is as under:
i) possession of the property is delivered or is agreed to be delivered [before]executing the conveyance.
Same duty as a conveyance (No.
20) on the market value of the property.
Which prescribes the duty payable in respect of contract of sale of immovable properties wherein possession is delivered by seller to the purchaser under the agreement.
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22. In the over all circumstances of the case I find the trial court committed serious error in not comprehensively adjudicating the matter on the execution of agreement dated 21.12.98. With reference to finding regarding possession at the same time the trial court has not whispered regarding the effect of delivery of possession under the sale agreement and the matter does not see complete adjudication of all the points of controversy. In the written statement there is no allegation of addiction to vices against defendant No.1 by claiming that he is a vagabond or spendthrift. In the over all consideration of the matter, it is necessary to refer Section 17 of the Specific Relief Act which runs as under:
17. Contract to sell or let property by one who has no title, not specifically enforceable.--
(1) A contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor--23
(a) who, knowing himself not to have any title to the property, has contracted to sell or let the property;
(b) who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt.
(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of movable property.
23. In the context and circumstances trial court erred in slipping and not noticing the crucial matters relating to aspects stated above which is repeated by the appellate court. I find both the trial court and appellate court erred in ignoring point of law regarding sale agreement dated 21.12.98 Exhibit P-2. In the circumstances morefully stated above whereby complete and effective adjudication of all the matters in controversy are not available in the Judgment. Judgments of both the trial court and appellate court 24 are liable to be set aside and matter requires to be remanded to the trial court for consideration on the points stated above. Thus I proceed to pass the following:
ORDER Appeal is allowed.
Judgment and decree of first appellate court and trial court are set aside. Matter is remanded to the trial court for adjudication afresh.
Parties be given opportunity to file their additional pleadings, documents and oral testimony.
In order to avoid wastage of judicial time the parties need not wait for notice from the trial court and case shall be called in the open court on 04.03.2020 on which day plaintiff and defendants shall appear and learned trial Judge considering the age and stage of the case shall try to dispose of the 25 case as expeditiously as possible within an outer limit of six months.
All contentions of the parties are left open. No costs.
Sd/-
JUDGE SBN