Karnataka High Court
M Rathnam vs Susheelamma on 1 October, 2008
Equivalent citations: AIR 2009 KARNATAKA 79, 2009 (3) ALJ (NOC) 586 (KAR.), 2009 A I H C 1657, 2009 (2) AIR KANT HCR 518, (2009) 1 KANT LJ 434, (2009) 3 ICC 784
.% - Sr-2;: %%%%% 14 «
gs
abéut 27 years
-% 'p f%Iaian.
V. %%Agea abeut 27 years
Smt. Vclangani
IN THE men comm' or xanmmxm AT
DATED mm mm 1" mm? or j
BEFORE k % %
M. Rathnam
S/0. Late Maya,
Aged about 237
Sri. 5:» ~
S/0. Late ..
Aged ab0u.t_3_$3 yi;=:a..*=s.
SIi.S1iCk3Zf' A
S/e. Late_DhanpaI~ ,.
Aged _ about .35 V "
"Sig. 1.513: Dhanpai
Asia' [abwtfifi szws
S/0"." Dhanpal
-' S-V/o."Latc Dhanpal
K
W/0. Late Dhanpal
Aged about 60 years.
All are residing at No.4, 30*'! Cross,
Byrasandra, Tank Bund Road,
Bangalore --- 11. ~
(By SI'i.K.S. Nagaraja R;é..Q"'*Anja1iaya,. g%L'%§:gga-9;appakk%
and M.'I'. Nanaiah 85 Assts;=Advs.) "
Smt. Susheelamma,
Majar, R/0. 5/5,' ; _ '
sow cross,
Byrasandra' . ' '
Bangalznrc; ...Rc':spondc:nt
;'A<:.l.;tj.f.V._.'t'cir c.v. Nagesh, Adv.)
Regular Fifs't.~"'Appca1 is filed under sews of
CP(3;agair1st Judgment and Award dated 29.3.2001
..v_paa%séd;_«iI1 VO.S.No;-%--35/ 1986 an the file of the XI Add}.
(3ity' Giflil Jéixdygc, Bangalore City, dccrocing the suit for
& permancnt i11junction.
First Appeal Coming 0111 for dictating
H VV . tiiis day, the Court dclivcrcti the fol_Iowing:-
('*5-\'\---'-\Z>
JUDGMENT
The appellant Nos. 1 to 7 herein, representatives of the deceased; .<1e£eI:d:aiit"'I.§I(;s';"1:
in O.S.Ne.435/1986 on the §:: A§1e1, City Civil Judge. Baz13a1(;,.£1'1ereeir:.e__1'te_;V'T' in as V L' the 'Trial Court' for ;_shert)VAeb';€;i$ke.e21eHei1'g'ed.. r:z~; e legality and correctness of - decree dated 29.3.2001 petseed the suit er the performance of agreement. ggéfi in respect ef the suit ' eituate at 30:11 Cross, H. C. Byrasanexa. Road, , Bangaleze, * _ Ashefjs've'.u'1d a residential house.
in brief, the ease of the plaintifi' (11ei*ein:9.1:15te1*'V'pa1'ties are referred to as per their rank in tk1e..4_eI*iVg"§.11a1 suit before the Trial Court.) as averted in
-- "I3:e:?'f31aiI1t is as undert-
ti) O11 9.11.1984 the 2nd defendant let out the suit property in faveur of the plaintiff on 5-(""'-*'V' a monthly rent at' 223.310/---. At that the plaintifi' paid to the 2'14 defendant, .. of Rs.5,00{}/- towards security ~ the first Week of Octobetfw defendants approached the ' 'V T. their Proposal of 56111118 tt:e'wsfiitAi At that time the 18* defendient iI1fe;*tz1ec1A he was the owner of th¢_eSUit'pm'per~t;zvgnd7 he get the same' I3. 10. 1973 under the aflotmeiit mi: /7344 and mgregecr the building thewtt --.t"11§*v11de_..'H'VVThe plaintiff sheeree[tiefi¢::¢n.' 'te faurchase the said j2:'ope1ty"e:;1- i.e., on 5. 10.1985.
_ til) 1!); ageement was entered _ pI.a1'r1t1'.fl' and the 18* ~ defettdégxtt whemunder the 1st defendant sell to the plaintiff the suit A property for a total consideration of Rs__f11,75,0GO/ - and received from the piaintifl' ya sum of Rs.5,000/-- as advance at' the said " sale consideration amount It was ageed that the plaintifl' shall pay to the 18* defendant the balance consideration at' c~-------'"'~\..»-----
Rs.I,75,000/- at the time of regstzration Qf'*--._ sale deed which was to be executed . three months from 8.10.1985 and regetratiorz charges were to be - _ plaintiff. Thereafter 0.; j**'%2fl5.eT. 1985 .._.:th.e._ 'T defendant No.1 again the"
plaintiff a sum of Rs.5.eoo/4% a.1.m......; advance and he e;*_1do19setz_1:ent_?to that efi'ect on the__ (ii!) On_ informed the 93:6 --w3;S'I'ea.Eiy to pay the amount of Rs. 1.65.060} the 18* defendant to execute. the. in her favour. But the ,2na_ defeudant, %w1i¢ is the Wife of the 1s:
V ai"--%:he instigation of her relatives, ..Vg<3t i$S«1.ied_ the legal notice dated 7.11.1985, . edtfxe plaiI1t:ifl'a11eg'I1g that by taking A uI1f;iue.e.dvantage of her old age and illiteracy tI1eH_ 3- pIaiI1tifi' had secured her LTM on a I '-stamp paper under the pretext of securing a lean of Rs.5o,0eo/-. Again on 23.11.1935 thmugll the same counsel, the defendant No.2 got issued a rejeinder allemhg that the ("--..f""*'1...---«-----......- defendant Noel and 2 are the owners 01' schedule property.
(iv) On 7.1.1986 the p1amerr got telegazn to the defendanteeeerequeefinge {hem A V to execute sale deed .Ej_1er:' faxfouf if 8.1.1986 by ac<:ep§;ingA"'.__'the A consideration "Rs. 1,65§O0f}'/ in response to the the 'counsel for the defendafzte isenediv calling upon the V xerox eepy of the "s.ni.19sed;* the plaintiff wenitéfl te" ._Ofl'"i{:e_""ef Sub-Registrar at j City, along with the be lance' " :.deez1ei:CEer*ation amount of _ _vRs.'1';"€3f§;OQQ/§'~.at1dV Waited rmm 10.30 am to p."1:'e.....at~ the said oflice, for the defendants, but they did not turn up for the sale deed.
10.1.1986 once again the defendants get issued another notice to the plaintifl' V' calling upon her to ferward copy of sale agreement. However, the p1aintifi' did 1101; send any repty to the said notice. The plaintiff has always been ready and willing to C""""('\"-"""\__,_../ perform the essential terms ef the suit which are to be performed by her. It was agreed on 8.10.1985 between the parties that an execution of the sale deed by the defendafite: A. in favour of the plaintiff; the latter "
pay to the former monthly __:en_tin of the premises in oeeupatziexiaof 4' f A at
(vi) The cause of aetiot1:vL"ef% the 8.10.1985 the date subsequently detaand notice and also gggpen the defenda:1t$:A'fafleci'Vte: deed in favotret .13}: receiving from her 1:114:-;= 'V ba1a1"1e_e arilount, therefore, the p11ai11tifi1'fi1e<3;he:f suit seeking decree for '_ jjerfomzance of agreement of sale ii:lf:1"~!'11e alternative, for repayment of the of Re. 10,000/»- with interest '' the rate of 10% finm the date of agfeettnent till repayment and also V' " * _eovri1pensatioz1 for breach of contract and V'"~'pem1anent injunction restraining the defendants from alienating the suit eehedule property in favour of any other person/s.
,_......r'\...,___\_/
3. The defendants Nos. 1 85 2 have contended in their Written statement as under: A 'V V. 't . (:1 Beth the defendant Nee} we :2; We L admitting the avermee%e"'ie4 tl;e'_4'Apl ev;§.i§t'I.;;s:x:te'.it the plaintifi' enterixig Am the agreement wen tfie«<1efeedaeis on 1e:,1e934_eee dispute the rate not Rs.310/.. aeegtwas Rs.35og_ pa, month. of the J V and physical ' - -- . V Jef ' defendants, ' with A_ 4' off the entire suit A scneauxe plaintifi' obtained "their tiiuxiih impression on some . ..peep'e:*$""finder the pretext of securing _ of Rs.50,000/- for the defendants some Netionalized Bank and «ihereafter, While taking the thumb impression of the defendants the plaintiff played fraud and mis- represented the defendants. She also exercised coercion on the defendants in C
(ii) obtaining their thumb impression on a blank stamp paper.
By obtaining the thumb iI11pI'€SSiQI]_~ the blank stamp papers by "
and also playing fi'a_u_d. ten tiietxiifitiie plaintiff falsely AA ageement of sate. defentzignts were sneaked V--t}c11c)"w ageement ,.{3f sale 'after 'they.
furnished eopy:v'ef~ The defendants tat t the said Rst.5,0do/:t 8t}it3. 1935 and L or Rs.5,000/- on advance of the 2:ox1sic1e.ratioi1"é11119unt in respect of the sale" suit schedule property by 2 in favour of the plaintifi', as ' ._}aIi;eged by the plairltiff. The defendants . §§:-fire net at all executed any written agreement nor did they enter irlte any oral ageement with the plaintiff' ageeing ta sell the said property for a. total censideration cf Rs.1,75,000/- as alleged by the plamfifl'.
(--.....(""*"""\..------
II plaintiff and also the defendants, the Trial Court decreed the suit of the plaintifi' directing the defendants to execute the remetcred sale deed in favogrf the plaintiff as per agreement of sale after re<:ei'.**-ziriig. V hf considerafion amount of Rs.1;'6A5;0QQfA- ' 'C;-ne"'. month fiom the date of plam.' tifl' shall deposit balance"co"z1siderationh1to the Court within two andvvgeththe sale deed execuiéth. decree which is challengedv aippellants who are the legal the deceased defendant Nos.1V AA S be seen from the memorandum of appeal, .tf1o'i;gf1vV'the impugled judment and decree is Kattacukeci' the appellants herein on several greuzzds, [coma be seen from the memorandum of appeal Ran, the learned Counsel for the V VV' . u u appellants-defendants submitted during his C'*--r'\"'\------*"\-
arguments that he would confine his on wound No.12 as stated in the appeal as to the findings recorded. by 'V' issue Ne.5 only. He further submitted dispute the fndings recoraevd-...by the ' L' impugled judgment pt: other uise11es3__, 1.5;,' ieeuei Nos.1 to 4aI1d6to8. V %_
5. Iss1.te.::No_.5 the pminrw is entitled J?-9? of sale of the suit 'anevéemd by the Trial Court;
in L favour of the plaintifi'.
Aleamted counsel for the appellant- " cofiteiided that While executing the said sale in favour of the plaintiff, defendant fife ne¥zee§--.3:e:isrepresented, never played any fraud on t"-.the He further submitted that as could be the averments in the plaint itself and also . the evidence of PW.1 plamtiff', it was only after verifying the documents issued by the CITB in favour of ¢----lP""""""\.---
I5 its abselute owner, despite he having no such exxtiaerity. He further urged that the 18* lifetime and, after his demise Jt1N1e_ pze'eenti: " " 2 defendants, did not acquire title {jet from then CITB and the 1iiiffi'fi.eent date of the impugned judg;t1ient.'decreeA..3and the same position is there" te therefore, the Trial Court sneeze deem the suit of the plaintifi'.
contentions taken by the leexflzeci tceuxieei' the sides, the only paint that gaesc rot mykeeetexminaeon in this appeal is :
V. the impugxed judment and V' V. 2 V W the defendant (appellants execute and regster in favour of u Elie: (respondent herein), absolute AA sage deed in respect of suit property, despite V' v «these defendants net having any title to the suit property even as on the date of the decree, is sustainable?"
r 'A 'V V' "'..je?hetherV the transferor acted fraudulently or _ j efliat is material is that he did make a » representation and the transferee has acted on it.
It was on the said facts and finding of High' Honfble Supreme Court observed at paragraph Noefifib of its judment in the said ease as un;ier;_ 1' V. u 2 Pm-a.15: "This reasoning is open to it.' that it ignores the principle uriderlgéirig S.43} 3 section embodies, as "=st:ated,..V_ 9; estoppel and enacts that £t.r'uV?hO t a representation shall 'allege the contrary as against Va" l;.v1~;¢% on that representatio§I1;"'jo;;.r:t?'It %j1zi:mé3.teI'i€1iv--...vrhether the transferor tiidej'.-er--.fi?;;uiit11enfly in making the itfi'1e.:VoriIy--v eeeterial to find out Whether in has been misled. It is to be notetfe the decision under consideration, ghrefi, the relevant words of tiffere, a person erroneously now, as amended by Act 20 of I 3""where' a person fraudulently or eue;teet1elf:§1*eereeents", and that emphasises that 'ufor the purpose of the section it matters not itzzieoenfly in making the representation, and that y-W argued that Section 43 does net attract f we 'Act«-1977' regarding the revival of contraetua} A ' ~ V rights of parfies created prior to the passirxg of decision of this Court in the case of sri. nfipra Channabascwa Deshflcendra Vs. C.P. Kant:-am reported in 113.8 2008 K&£.__805 head note in the said decision reads as under : _ H .
"'I'ransfer of property Act 1882 ~-- Seotiorr:43jVe:V§ H Transfer by unauthorized "Mid V subsequently acquires interest transferred ---- HELD, when er persot1._y§it$1 3 title transfers the property "eonside_r_a5'c;on subsequently the t1'ansfemrfs**tit 1e-- Becomes' perfect in law, the transferee .eI;tit1<:d""..pAez1foree the terms of the contxmvz-_t.. "doet1'ine of feeding = ey cgmpggr 1é*URTHER HELD, The "of the fact that the Mutt:
is not tire abeelmte' of the property but technieaflyi eye law was in perxnissive 5 1 meems of mm did not prehibit elienatiorx, .._M1.1tt being aware of its imperfect land has created usufiuctuazy mo:-r.g1ge'fo§:* a period of 99 years. Therefore, it facts of the ease -~ ON FACTS, HELD, when thereA is no express prehibition in the provision of ,5--»--..J""""'s.._..,--.-...
'Aet- 1977* and in View of the provisions of 43 of the T. P. Act, it is inequitable in the eY¢;~*ef"t:1:e.jj % _ law to hold that after regent in fa*vou;*_"ofV i11sfmi holder, the Contractual commitments betu§ee2?:'.tlV1:e..i'e~ A mam holder and the alianee epx-iorstgj passing of 'Act- 1977' would not "V T. ' * "
Suflice it to say that forf the -- while considering the decisions of in AIR 1952 SC 847 and also observations of this Conn; i11€.tiie..__s;?fioi.fe" eaxmot be applied to the facts of the A' 3
18. As Aobsexved... the defendant No.1 and also the; 'precee'ded with the transaction v._irt11e'of the allotment order issued by the theii ""'of the first defendant in respect of the the ist cieferidant had an a11t§1ority to sell away the said " with the building constructed thereon and the eoiild safely purchase the same. Thus it is clear that (--~§\"""\...,.--..
area of the land, it was really a dispute with regard to the area to the Land which was the subject matter of agreement ef sale, or, to put it differently, new much area of the agreed to be sold was in dispute between the was wim regard to the area of the Ia11_d...tt1at r}=fere_ K V' suffering from a mutual mistake. The Oi' ._ much essential to the the __f§2jieeV""'W1iieh, " L' ineidentafly, was to be calcxglatetlt-~~eti'_:«thet_baeie' ef area. Thus the nxistake with tsfere suffering related to a While observe ea the Hoefble Supreme Court held E % ._' pre£?idee"tI1at an ameement weuld be mid .. ~ the parties to the ageement were 3 as to the matter of fact essential _ to the a.$*ee:*Iient. The mistake has to be mutual iIi,ei'der that the agreement be treated as both the parties must be shown to be * etfffefing from mistake of fact." [ Paras 21 and :22} (_..r\\_,_ would be entitled to the alternative relief as prayed for suit. However, since there is no ageelnent to whenever the defendants are to refundte the K V' amount of advance money, the any rate. Therefore, the interestVaa:"e!ajniedV__b3*. @ V 18 percent p.a. cannot "me saici-eafiount of advance. a d V' d '
24. Further, V' in the said ageement that committed by the defendant, double the amount of advance money'; by the plaintiff', I feel that ends' fef } met with if the appellant» te refund to the plaintifl' the 'adi%aaee::a.faennti.~of Rs. 10,000/~ with interest thereon at rate per annum from the date of the said ' " 'akg;:'ee"meat date of actual payment. in the result, the point that has arisen for my 4: 'defieerxnination is answered in the 'Negative' and in favour ef 4Mfi the appellant-defendants. The present appeal is allowed and the impugxed judgment and decree ifs. aside. However, the appellant --- defengiants " " 2 the respondent - plaintiff the advance 5:'. with interest thereon at flat rate'tV;)f..6 ptéi*r:§:1:t_ --5t1ie "
date of ageement till the date of shall pay the said amount with six months from today. Them 'is4:1<3..ord§:f;é1's NOTE: After th§: _i11dgmet:t in the open Court on 1.1o.2oo83:nett¢asé ems to be listed on 3.10.2008 again for "Afi:er itéax'z'ng the Icamed counsel for both the __'a{1teinafive prayer' the operative portion 01' .judQ;fi<.=:ntiV: ilxét was dictated on 1. 3.0.08 came to be tjrtiodifitcti 'and the same is incorpcrated above.
/G15 Sd/-
Iudge