Karnataka High Court
Smt Sailaja Hanumanthappa Jalwadi vs H M Krishna Murthy Since Deceased Rep. By ... on 7 March, 2012
Author: Huluvadi G.Ramesh
Bench: Huluvadi G.Ramesh
IN THE HIGH COURT or: KARNATAKZX'«AT--.13Q$rNC}'AIsORE " A T
Dated this the 7"' day or.'Iv1;;rch,"2o12t_ '
Before
THE HON'BLE MR JUSTICE HIJLiW_4'19.1_ G RAMESH
Regular First Appeals /V 2008
fif'i'f1'5'f{'394/2008 ' '
l
y «:.InRlFjA. 426/2008
50 yrs, W/o late'H«D1}.alVfgadi.._'--...__ _
C/o S H Kannur, 1%_5g'3,SulrsashColonyl
_ _ ' _ 'I Z A'
Smt Sailaja Ha11u_n1anjtsllappa'--Jalwatli "
Rajesh }lanu'11iarrtnaplf§a.tlalxyla'dl;ll2§ yrs
S/o late Haixnnuanthappaj "
Priyadyarshini ll'ant11rran'thaj3pa.lJ alwadi
, A' 23 yv_rs5;.,D/o'latc: Hanumanthappa J alwadi
Tojlas;wini_H~anurnanthappa J alwadi, 22 yrs
D/o._laté Hann'rn.anth~appa J alwadi
2-4A aro r/a.~C/lo Naval gundi
; # 185,' 12"'. B Main, 6"' Block
"Rajajinagvar; Bangalore 560 010 Appellants
_ R.al{€sll Hanumanthappa Jalwadi
" 25} yrs, S/o H D Jalwadi, C/o S H Kannur
ll "#5/2, Subash Colony, Bijapur
4. N V.
Priyadarshini Hanumanthappa J alwadi
23 yrs, D/o late Hanumanthappa J alwadi
ll"
at Ex.D5 though Ex.D5 viz., the lease cum sale deed is adnnttedipgfisttsucfip,_ V
when the signature on Ex.D5 itself is denied, question of cotm__pai"ingttthec' it
signature thereon with the signature on the agreernent to sellldtoes 'not
arise. In the circumstances, the applicatiorndtoes nottdeserve
consideration. Moreover, no other docunient._has been 'produce--dtttby the
appellants in support of their ap_plicationi-statingthat to he vtheadmitted
signature of H D J alwadi for getting scienti_fi}; opin'io111.Vgt _
Learned senior counsel~represe_ritti:i g the appellants submitted, there
was a mortgage ofttthe alleged sriittptroperty at the relevant point of time
from H Dvfalwadi who "i's.th_e___allottee of the house by the Karnataka
Housing;VB'o.ard--v At the time of mortgage, this H D Jalwadi was
T'>__given only the rights, in the form of lease cum sale document
7_and--no ownership was transferred. There was no agreement executed.
4: talleged.4mortgage deed is not produced by the respondents and rather,
VVIV.'r,_the._agreeme'nt to sell is concocted. As per S23 of the Contract Act, even V if -there' a document, it is a contingent contract as H D Jalwadi died even tt"rbtetfore taking the property's ownership from the Housing Board. The W ownership is given to Shailaja w/o H D Jalwadi and she is n~)t'a p.a,r:t_<,§"to V' the agreement to sell as H D Jalwadi had not acq-uiI'ed.any'_'right 'transfer the property or the ownership. The alleged agre'ement"is voi-dgiand cartn'ot_.ii be enforced. Even the heirs of H D did."I'.o__t 'getiit-aniyflright"to convey. At the time the agreement was 'i'n,t_o, the'right_dver the Dropert)' was not perfected, it is deed was executed in favour of Shailajga an:d""not* vf':2'l'\«'.(§v"tI'I:' original allottee. According to the 1e'_arv:1ied_' it is for H D J alwadi to get the tire to the purchaser. On the death of H to convey the property has disappeared and this in favour of Shailaja in the year 1992. is not the party the agreement to sell. On the death of the becomes impossible for performance, agreement._t-becarne."unenforceable. The agreement also provides for T' vjpayment damages. In the event, good and marketable title is
-«.i.i'not.,_n:ade out" the vendor, the contract cannot be enforced. Further "~._a'cc_oidi_n.g_tofithe learned counsel, the suit is filed on completion of five . 1'iye.z§f§ of mortgage and the appellants are entitled for possession. At the 4' the respondents would be entitled for liquidated damages as it was a contingent contract and it becomesgnpossible to perform the contract. It 18 is further submitted, the respondents are also not capable _ the contract as the original respondent Krishnamurthy h.ad"'tio.:means'--of he income and he was not ready and willing to perform:theicontractVand*the_rea;g A was no occasion for H D Jalwadi to borrow__ money and therejspondeiits it have not proved payment of Rs.l,50,00(lu/l'r..in additio-n':Rs.:80,000/- admitted amount. Accordingly, in__'s~;ipp(.'>_rt (:)1i7AviIiis_a_r'gt1ment, counsel has relied upon several judgments which "ll shall refer:to;.:'._'ivf__need be, in the course of the order. * -- . ' ' . ' Appellants'...Vco'u.ns'elV'1.:;ha5 case of Dalsukh M Pancholi Vs "v[;ifgg'&i_i:.EmpIoyment Insurance Co., Ltd & Ors - AIR (34) it is held the court having refused approval,' the to the ground and had worked itself out.' The_contract being a contingent contract, the contingency having failed,"there_ was n*oxV_coxntra'ct which could be made the basis for a decree V Tor specific'-..performan'ce.
, 'Counsel has also relied upon the Division Bench decision of this 'VC.€:ll.lI'{-»l~fi':[h€ case of Sanjay K Shetty Vs B Narayana Shetty -- ILR 2006 1080 regarding securing the report of the expert and also with regard \>/ to provisions under S.45 of the Evidence Act and also the exercyistepofg power under $.73 of the Evidence Act as to the opinion writing expert and as to the authenticity of the signatures. _. ~ . In the case of B R Mulani Vs Dr.A -B Asu5a(hdnara;vZtizq - if 1993 Supp. (4) SC 743, relied upon by Court looking into the clause containedviinftlie suit filed by the plaintiff for specific performance for an option to the defendant either to t'i1"e': property or to sell the suit property fixed (Rs.1,l0,000/~) and referring thé wherein the plaintiff had also taken unfair advantage rental amount with himself at Rs.2,000/-- Pfti -month.' of the suit till the matter reached r1i{;liVity--, that the is not entitled for a decree of specific performarlce, 'while " exercising equity, refused the decree for specific T' v.rplertformance__thougliordered for payment of damages. c.i'inV'thei'icase of Kanshi Ram Vs Om Prakash Jawa,l & Ors - 593, relied upon by the appellants' counsel, referring to S.20 Specific Relief Act, the Apex Court held that though the rise in W 20 prices of the property during the pendency of the suit may not " . consideration for refusing to decree the suit for specific perfoirmai;--c_1e*, but granting decree for specific performance of conitiavctcof' lIIlI1ilQV'.~'fcV1l.)'1éh property is not automatic and it is one of the discretion to be.eXercised'=--on'vt i sound principles that has to be guided by justiice, equit'y.._ good conscience and fairness to both the parties.
To a similar ef't'e{:t;eoijnsel*hasg re/l'ied«.upo:n-- .th_e_decision in the case ofA C/irulappan v€,§Ai;.;:zy}:" 1yaik";ie'jr;f2yb00,i szlsicc 600. In the case ofMayawrirzfiiiVsiTK(iushalya Devi .-- (1990) 3 SCC 1, referring to of Specific Relief Act, the Apex Court held that there be Va'lii.d'i'and.:binding ciontract between the parties and there should be consensus ad idem; .lflthe-stipulation of the terms are uncertain, there can no specific performance when there is no contract at all. ii'-Per» ccnt1'a, counsel for the respondents submitted, the original Krishna Murthy had lent money to H D Jalwadi and there was a "'r11Qiir:fgage and thereafter, as H D Jalwadi was unable to pay the instalments from time to time, he had borrggwed an amount of Rs1,50,000/~ apart from L3,?' 21 Rs.80,000/- and having delivered possession, had also . agreement to sell. The father in law of Krishna Murhty w'a's= and if he had the capacity to pay the amount. The cla'uses_-insthe'leaselclim:sale*= agreement as well as the agreement to sell -included_ the pa:.tiie.a{_end their if legal heirs as such, contract has not been terminated onthe ideathgof H D Jalwadi rather, the contract had been co'.htin:1.1.ed«andieven the KHB had executed the sale deed in favour of the and the sale agreement also containedasgciauseiiby of is'uc_€,eeidiirgii to the estate and the defendants being' "th§.."}gj,ei1seficiary ie., H D Jalwadi and so also the iiKrisi:iia--.lv1urti'ry,.. Llontinued as parties to the contract and it isnot la per the lease cum sale deed executed in favourk)/fiiHV 15 the KHB, on the death of H D J alwadi, his «].§eg_iali'heir others have succeeded to his estate and in 'the 99i2i,vi..pthe"*KHB executed a sale deed in favour of Shailaja. Duringi'thiQ'*i'.1ife Jalwadi, in continuation of the mortgage, 21 agreenientv--..Vof was entered into and respondent Krishna Murthy inpossession. H D Jalwadi was in financial need and there for H D Jalwadi to enter into agreement and one
-- brother in law of Krishna Murthy was aware of the i"~«.transaction and he has given evidence upon the death of the original W the suit for specific performance. To the similar effect_-is"'tvhefDiVi:sion Bench decision of this Court in the case of Y0,gamI_9i.§a7 if [LR 1992 KAR 717.
Further, counsel has reliedupon thei'deeisi--oin"-in. the case ofillotilal Jain Vs Smt Ramdasi Devi & Ors ) regarding S.21 of the Specific Relief Act an alternative relief is not a bar i The decision' supra is also relied upon to contend, regardingiitalgirig the circumstances of the case and unfair advantage to the--Vpla_i_nti.ff as against the defendant. C0iu'11.s.e1~v.for'i respondents relying upon Nirmala Anand's cascade. :'iV7_citecl supra)Vlconteiiriedf'that plaintiff should not be denied the relief of "ia.specific performance despite price escalation and also to contend that a f 'condit'i.ona'1':lecree for specific performance passed on payment of further V' il_':,on*si--deration, to avoid taking undue advantage and herself in the event if V ' *._the~ decree for specific performance is passed. 24 In the light of the arguments advanced, the point~s"'tliatj'arise for if consideration are -
Whether the trial court is justified in holdilig that'!-'ll borrowed a sum of Rs.80,000/- from thel.p--lai'1i-tiff.KrishnaNlurthy and mortgaged the suit property with Whether the trial court is justified ..in'--.hol.diil_g "that'"iH_-~ll) Jalwadi had received a sum of Rs.l,5~0;0QQ'I'*- from tglleiplaitnitii'f_"fro.ini.itime to time; Whether the trial csitittfisi"jii;-tifiati.ji'j-'iii'--h_t§'li:1ihg that H D Jalwadi had executed an agreemenltilsalicgiin of'l'he...p}faintiff agreeing to sell the suit property for__a to execute the sale deed receiving the balance consideration of Whether the trial °toti'it . is justified in holding that the plainfiff Krishnvamuftliy entitled "'fo§....specific performance while directing the defendants to registered sale deed by receiving the balance consitla--iatia_it of~l{s«..7_0,0'QC/-;
.gjil'Whether the44_trialVcou'l'j't justified in holding that plaintiffs are entitled for _:p(3'_If1411.21Il€I1[ injuncti;_on against the defendants; Ii filed by the legal representatives of H D Jalwadi - 'W'hether_the trial court is justified in holding that plaintiffs are not entitled ' for possession of the suit schedule property;
Whether the trial court is justified in holding that defendants are able to prove that H D Jalwadi executed'?/e agreement of sale dated ll.l0.l990 What is also not in dispute is, an amount of Rs.80,000/-- has been * by H D Jalwadi from Krishna Murthy. It is alsoithesay cgfhthe"
legal representatives of H D Jalwadi that there was a_"niortgage~b:ut, if not registered. According to them, the mortgage deed is onlyla.:.col.lateral security for the loan borrowed and the sam_e:"was -not such, the document is not binding on traiisipire's,ii.in the case on hand, whether or not the mortgage deed thleI.g,Cllourt, whether it is registered or gduri-ngi_1'9ib8.j_lthevl'said--winortgage deed has come into existence Murthty from H D Jalwadi for " thellllperiod of lease cum sale agreement executed 'in '~Jlaiwadi by KHB. Even assuming that it was a collateral"security, noticed is before completion of the mortga.ge aA.perrnane'1'It'lease, according to Krishna Murthy, for further' finiancialv._needs_and also to pay the instalments to KHB, H D Vylalwadi Rs.l,50,000/- from time to time thereafter and 'j'&.?,.1.SQie.xyeCuted 'agreement to sale. In this context, when the execution of "mortgage deed is admitted, though it was in accordance with i" not, becomes inconsequential on coming into existence of the ' agreement to sell. What is not in dispute is, Krishna Murthy was iilfgiven possession by H D Jalwadvi'/for having received Rs.80,000/-- and 28 on Ex.D5. Of course, looking into the signature on Ex.D1 and _ there are two signatures. In that context, when DW 1 'iiasdenied the signature of H D Jalwadi in Ex.D5, comparing said document with that of Ex.P2 ~ agreement, idoeswnot agr,isIe._. "Even'.as'< per the lease cum sale agreement, H Dlljialwadi was._su'ppVose.d: pay instalments to the KHB from time 'to._t_ime_;'l'As"per agreernentto sell, H D Jalwadi had agreed to executelltheg of Krishna Murthy after he obtainsa 'KHB, by receiving the balance conside;rat1l§nV;5f-V'-.'"yj1nl._:proof of the document at Ex.P2, PW 1 oi§:.aVt.toiii:ey:v'holders/V"brother-in--law of Krishna Murthy who party' at Ex.P2, has deposed that H D Jalwadi has executled__the agreei'nent:l::iC'gatled ll.l0.1990 in his presence and heis one of attesting the agreement and, one more witness has'Vbeeng'ex_arnined 2 -- Chikkarangaiah. He has also deposed to the effect that also received the amount and agreed to execute v7'i_the sale deed in respect of the suit schedule property by receiving the iyy'gs;1mg consideration of Rs.70,000/--. The amount of Rs.80,000/-- paid by to H D Jalwadi is not in dispute. The further payment of Vi iR3l,ll',50';O00/- has been spoken by PWs l and 2. In the cross--exarnination 1, it is stated Krishna Murhty had paid an amount of Rs.39,250/- to 30 mortgage deed and also the agreement to sell, having agreed to re~ce.i_ve'__the; L balance amount of Rs.70,000/-- at the time of execution of K It is stated by him that an of Rs.50,0Q0/- wasgiipaidpigto; Krishna Murthy at the time of execution of a_greement'= Further, it is noticed in thezijevidenice herseli" that H D J alwadi had made payment to KHBVA to the tune of Rs.39,250/-- and Rs.14,0no/J}: uoii":4.5.199l. In her affidavit evidence, cum sale agreement executed by -'twelve years and it is not alienable and as such, herdhusbanrl'rv.hiad.AiA'1ioi:Tiéiinsierable title and there was no alienation of ;the suit housgeii Viln the cross-exarnination, this Shailaja on lookigngiiintoviiithelidocunient at Ex.D5 --lease cum sale agreement executed by KHB,:_ha's stated signature on Ex.D5 is not that of her husband. also denies the' signature on Ex.P2, though she admitted possession of .s'ui_t"propertyV"oy the legal representatives of Krishna Murthy. She also gstates._in'the' cross examination, she does not know how much amount H D liaiwadi-'had received from Krishna Murthy subsequent to receipt of however, she has denied that H D Jalwadi has received Rs.1,50,000/-- from Krishna Murthy subsequent to the mortgage amount. It \~l"
4» 32 view of the matter, it is noted that there was a contract entered furtherance of the mortgage, wherein the plaintiff Krishna _ in possession and thereafter, it is also the eviden.ce"of'PWs: '1;2i--: if to time a sum of Rs.l,50,000/-- was paidi'-_towp'a1'ds tire":
instalments to the KHB. In the absen-éle'«-of any'-such otn:eri..do.c_urnent l produced by the defendants themselves other been denied by themselves as the signa-tui'e_fclund_i~s_not that of H D Jalwadi, then necessarily,__except,the'_ ftgméreii other cogent evidence produced llalvvadi and also in the factual background lithe as rightly noticed by the trial court, H D Jalwadi in favour of Krishna Murthy to sell thoei V' "
the Mulani Vs Dr A B Aswathanarayana -- ILR I991 K}l.R"2_224;' Bench of this Court, having noticed that the "gagrecment i'tselfv--..gi.vcs'llan option to the vendors to repay money advanced lforselljpmpertyfreferring to S20 of the Specific Relief Act, has held it is Vfy.ggflotfjtist',and"appropriate to grant decree of specific performance taking V p v_ tlieilright to pay of and safe guard the property. XV 33 Further, in the Division Bench judgment of this":----CourLir:i"in Y0gambika's case referred supra, one of the senior judge i\yiho'Aai's»a.iparty to the earlier judgment, in similar circumstances'ahas'_'held, even' case°'of°7.' non-alienation for ten years from the datelef allotment, .not§2a'=bar--'to decree specific performance.
In the case on hanclgthere sale agreement executed by KHB in favour D Jalwadi for his financial needs,----borro'v,ied;f'1a:j: Rs';--so,0i)o/-- by mortgaging the property and possession and thereafter, Ex.P2 ~ sale agreement has.._j " eiiéistence and also an amount of Rsil ,j50,000/.-ihast' been out the payment of instalments to the KIiIB_.u I Thus, __Murthy is said to have made payment of Rs.2,3(i)i,O(l(l/:i'andiirernainiing Rs.70,000/-- was due to be paid as per the disagreement and 'sale deed was to be executed for Rs?» lacs. In the if ijcoinitexti, even inisirriilar situation this Court itself referring to this type of I"gtransact"ion"i:e., lease cum sale agreement, in favour of the vendor and "in-turn entered into an agreement to sell, has held that specific "gi"aper'formance can be ordered. In this case, substantial amount of iRs.2,30,000/-- has been paid to the vendor and remaining Rs.70,000/-- was V