Karnataka High Court
C N Ananda vs H R Satish on 3 December, 2021
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
R.S.A.No.1080/2016
C/W
R.S.A.No.1079/2016
IN RSA 1080/2016:
BETWEEN:
CHARAN KUMAR
S/O RAVIKUMAR,
AGED ABOUT 19 YEARS,
RESIDING AT NO.2857,
19TH CROSS, CAUVERY CIRCLE,
HEBBALA MYSORE CITY-570017. ... APPELLANT
(By Sri Gangadharappa.A.V., Adv.)
AND:
1. H.R. SATISH
S/O RAMEGOWDA,
AGED ABOUT 35 YERAS,
RESIDENT OF HARURU VILLAGE,
MYLANAYAKANAHALLI DAKLE,
H. MOGENAHALLI POST, CHANNAPATNA TALUK,
RAMANAGARA DISTRICT-571501.
2. RAVIKUMAR
S/O LATE KRISHNA JETTI,
AGED ABOUT 49 YEARS,
3. SMT. NAGAMMA
W/O RAVIKUMAR,
HOUSEHOLD WORK,
AGED 42 YEARS,
2
4. KIRAN KUMAR. R.
S/O RAVIKUMAR,
AGED 21 YEARS,
RESPONDENTS 2 TO 4 ARE
RESIDING AT NO. 1413/1,
JATTIGARA BEEDHI, FORT,
CHANNAPATNA CITY,
CHANNAPATNA,
RAMANAGARA DISTRICT-571 501.
5. C.N. ANANDA
S/O. LATE NANJUNDASWAMY,
AGED ABOUT 50 YEARS,
RESIDENT OF KALANAGARA,
THATTEKERE ROAD,
CHANNAPATNA CITY,
RAMANAGARA DISTRICT-571501.
6. SMT. SAVITHRAMMA
D/O. LATE KRISHNA JETTY,
AGED ABOUT 58 YEARS,
RESIDING AT NO.1413/1,
JATTIGARA BEEDHI,
FORT, CHANNAPATNA CITY,
CHANNAPATNA,
RAMANAGARA DISTRICT-571 501. ... RESPONDENTS
(By Sri Keshava Murthy. B., Adv. for R1)
IN RSA 1079/2016:
BETWEEN:
C.N.ANANDA
S/O LATE NANJUNDASWAMY,
AGED ABOUT 50 YEARS,
NOW RESIDING AT KALAMMA TEMPLE STREET,
FORT, CHANNAPATNA CITY,
RAMANAGARA DISTRICT-571501. ... APPELLANT
(By Sri G.M.Ananda, Adv.)
3
AND:
1. H.R. SATISH
S/O RAMEGOWDA,
AGED ABOUT 35 YERAS,
RESIDENT OF HARURU VILLAGE,
MYLANAYAKANAHALLI DAKLE,
H. MAGENAHALLI POST, CHANNAPATNA TALUK,
RAMANAGARA DISTRICT-571501.
2. RAVIKUMAR
S/O LATE KRISHNA JETTI,
AGED ABOUT 49 YEARS,
3. SMT. NAGAMMA
W/O RAVIKUMAR,
HOUSEHOLD WORK,
AGED 42 YEARS,
4. KIRAN KUMAR. R.
S/O RAVIKUMAR,
AGED 21 YEARS,
5. CHARAN KUMAR
S/O RAVIKUMAR,
AGED ABOUT 19 YEARS,
6. SMT. SAVITHRAMMA
D/O. LATE KRISHNA JETTY,
AGED ABOUT 58 YEARS,
RESPONDENTS 2 TO 6 ARE
RESIDING AT NO.1413/1,
JATTIGARA BEEDHI,
FORT, CHANNAPATNA CITY,
CHANNAPATNA,
RAMANAGARA DISTRICT-571 501. ... RESPONDENTS
(By Sri Keshava Murthy. B., Adv. for R1)
THESE REGULAR SECOND APPEALS ARE FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 09.03.2016 PASSED IN RA.NO.19/2014 ON THE FILE OF
THE III ADDL. DISTIRICT AND SESSIONS JUDGE., RAMANAGARA.,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DTD 17.02.2014 PASSED IN OS.NO.41/2012 ON THE FILE
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OF THE SENIOR CIVIL JUDGE AND JMFC., CHANNAPATTANA,
RAMANAGAR DISTRICT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 25.11.2021, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
1. These two Regular Second Appeals are filed by defendant no.5 and defendant no.6 challenging the judgment and decree dated 17.02.2014 passed by the Senior Civil Judge & JMFC, Channapatna, in O.S.No.41/2012, which has been confirmed in R.A.No.19/2014 by the III Addl. District & Sessions Judge, Ramanagara, vide his judgment and decree dated 09.03.2016.
2. For the sake of convenience, the parties are referred to by the rank assigned to them in the court at first instance.
3. Brief facts of the case that would be relevant for the purpose of disposal of this appeal are, the plaintiff filed O.S.No.41/2012 before the Trial Court for the relief of specific performance of the agreement for sale dated 5 10.06.2010. It is the case of the plaintiff that defendants 1 to 3 being the owners of the suit schedule property and defendant no.2 as a representative and natural guardian of defendant nos.4 & 5 who are her children had executed an agreement for sale dated 10.06.2010 in respect of the suit schedule property for a sale consideration of Rs.6,45,000/- and under the said agreement of sale, an advance amount of Rs.6,00,000/- was paid by the plaintiff to the defendants and the defendants had agreed to execute the sale deed within four months from the date of the agreement and since they had failed to do so, the plaintiff had filed the suit for specific performance of the agreement for sale dated 10.06.2010.
4. The defendants after service of suit summons had entered appearance through their learned Counsel. Defendant no.1 had filed the written statement denying the plaint averments and contended that the alleged sale agreement was only a nominal deed and the signatures were obtained in the said agreement forcibly by putting the defendants under threat. Defendant no.6 had filed the 6 written statement denying the contention of the plaintiff and he has contended that the suit schedule property was purchased by him under the registered sale deed dated 26.09.2011 for a valuable consideration from the defendants, and thereby he is the absolute owner in possession of the same and accordingly prayed to dismiss the suit.
5. On the basis of the rival pleadings, the Trial Court framed the following issues.
Issues
1. Whether the plaintiff proves the suit agreement?
2. Whether the defendants prove that the suit schedule property has been already sold to C.N.Anand as contended?
3. Whether the plaintiff is entitled for the relief as sought for?
4. What order or decree?
6. During the course of trial, plaintiff examined himself as PW-1 and another witness was examined as PW-2. In 7 support of his case, plaintiff produced and got marked 15 documents as Exs.P-1 to P-15. The defendants did not lead any evidence nor they got any documents marked in support of their case. The Trial Court after completion of recording the evidence, heard the arguments addressed on behalf of the plaintiff. No arguments were addressed on behalf of the defendants. Thereafter, the Trial Court by its judgment and decree dated 17.02.2014 decreed the suit with costs directing defendants 2 to 5 & 7 to execute the sale deed in favour of the plaintiff in respect of the suit schedule property within one month from the date of the judgment after receiving the balance sale consideration of Rs.45,000/- from the plaintiff and in the event of the said defendants failing to execute the sale deed as directed, it was held that the plaintiff is entitled to get the sale deed executed through the court of law. The plaintiff was directed to deposit the balance sale consideration of Rs.45,000/- before the Trial Court before he files the petition for execution of the decree. Being aggrieved by the said judgment and decree passed by the Trial Court, 8 defendant no.6 had filed R.A.No.19/2014 before the First Appellate Court and the First Appellate Court dismissed the said appeal by its judgment and decree dated 09.03.2016. Being aggrieved by the same, defendant no.5 has filed R.S.A.No.1080/2016 while defendant no.6 has filed R.S.A.No.1079/2016.
7. Learned Counsel appearing for defendant no.5/appellant in R.S.A.No.1080/2016 submits that the appellant was a minor at the time of execution of the alleged agreement for sale dated 10.06.2010 and he was also a minor at the time of filing the suit for specific performance of the said agreement. He submits that the Trial Court had not appointed any guardian on behalf of defendant no.5 as required under Order XXXII Rule 3 CPC which is a mandatory requirement of law, and therefore, the impugned judgment and decree passed by the courts below cannot be sustained in law. He submits that the plaintiff has failed to prove his readiness and willingness to perform his part of the contract under the alleged agreement for sale and he also had not proved that he had 9 the balance amount with him, and therefore, the Trial Court had erred in granting the relief of specific performance. He submitted that defendants 2 & 3 who are the parents of defendant no.5 had not properly defended the case before the Trial Court and had not safeguarded the interest of the minor children and they had colluded with the plaintiff. He submitted that there was no legal necessity for selling the suit schedule property and the sale was not for the benefit of the family, and therefore, the said sale is not binding on the minor defendant. In support of his arguments, he has relied upon the judgment of the Hon'ble Supreme Court in the case of NAGAIAH & ANOTHER VS CHOWDAMMA (DEAD) BY LEGAL REPRESENTATIVES & ANOTHER - (2018)2 SCC 504, Civil Appeal No.760/2020 disposed of on 28.01.2020, RAM CHANDRA ARYA VS MAN SINGH & ANOTHER - AIR 1968 SC 954.
8. Learned Counsel for defendant no.6/appellant in R.S.A.No.1079/2016 submits that defendant no.6 is a bona fide purchaser of the suit schedule property having purchased the same for valuable consideration. He 10 submits that the plaintiff who is aware of the sale, has admittedly not questioned the validity of the said sale, and therefore, they are not entitled for the relief of specific performance. He submits that his vendors have colluded with the plaintiff after having sold the suit schedule property for valuable sale consideration which has resulted in an erroneous decree granting specific performance of the agreement in question.
9. Per contra, learned Counsel appearing for the plaintiff/respondent submits that prior to filing the suit, a legal notice was issued to the defendants calling upon them to execute necessary sale deed pursuant to the agreement for sale dated 10.06.2010. The defendants have issued a reply to the same not only denying the agreement for sale, but also denied the receipt of amount of Rs.6,00,000/- under the said agreement. They also contended that the value of the suit schedule property is more than Rs.10 lakhs, and therefore, it cannot be believed that the agreement for sale was executed for a sum of Rs.6,45,000/- and there was no necessity for 11 defendants 1 to 5 to agree to sell their property for such a low price. He submits that after the suit was filed on 22.09.2011, the Trial Court has granted an ad interim order of temporary injunction restraining defendants 1 to 5 from alienating the suit schedule property and inspite of the same, they have executed a registered sale deed dated 26.09.2011 in favour of defendant no.6 and since the sale deed is executed in favour of defendant no.6 during the pendency of the suit, the same is hit by Section 52 of the Transfer of Property Act, 1882 (for short, 'T.P.Act'), and further the said sale deed has been executed in violation of the ad interim order of temporary injunction granted by the Trial Court, and therefore, there is no necessity for the plaintiff to challenge the said sale deed executed in favour of defendant no.6. He submits that in the reply notice which has been issued on behalf of defendants 1 to 5, it has been specifically contended that defendants 1 to 5 have not executed any sale agreement in favour of the plaintiff and they have not received the amount of Rs.6,00,000/- under the said agreement. He submits that 12 since the plaintiff has paid a sum of Rs.6,00,000/- out of the agreed amount of Rs.6,45,000/- under the agreement for sale dated 10.06.2010, it can be safely presumed that the plaintiff had the means to pay the balance amount of Rs.45,000/- to defendants 1 to 5, and further, after the disposal of the suit on 17.02.2014, as directed by the Trial Court, the plaintiff has deposited the amount of Rs.45,000/- before the Trial Court on 19.03.2014, and subsequently, had filed an execution case before the Trial Court since the defendants who were directed to execute the sale deed had not come forward to do the same. Thereafter, the sale deed has been executed in favour of the plaintiff through the process of the court on 13.07.2021. He has relied upon the judgment of the Hon'ble Supreme Court in the case of SRI NARAYAN BAL & OTHERS VS SRIDHAR SUTAR & OTHERS - AIR 1996 SC 2371 and submits that since the suit schedule property is admittedly a joint Hindu family property and the minors had only an undivided share in the suit schedule property, the requirement of appointing a guardian on behalf of the 13 minors does not arise having regard to Section 12 of the Hindu Minority and Guardianship Act, 1956 (for short, 'the Act'). He has also relied upon the judgment of the co- ordinate bench of this Court in the case of VENKATAPPA VS VENKATASWAMY REDDY - ILR 2012 KAR 3403 and submits that since the sale deed has been executed in favour of defendant no.6 during the pendency of the suit, the same is hit by Section 52 of the T.P.Act, and therefore, there is no necessity for him to challenge the same.
10. I have carefully considered the rival arguments addressed on behalf of the appellants/defendants and the respondent/plaintiff and also perused the material evidence available on record.
11. The plaintiff in order to establish his case, has examined himself as PW-1 and also another witness was examined as PW-2. PW-1 has reiterated the plaint averments during the course of his examination-in-chief and has produced the agreement for sale dated 10.06.2010 and got marked the same as Ex.P-1. It is the case of the 14 plaintiff that under the said agreement for sale, a sum of Rs.6,00,000/- has been paid by him to defendants 1 to 5 out of the agreed sale consideration of Rs.6,45,000/- and though he had called upon defendants 1 to 5 to execute the sale deed in his favour after receiving the balance sale consideration, they had refused to do so, and on the other hand, they disputed the agreement contending that the same was a nominal deed and the signatures were obtained by threat and coercion. Therefore, it is clear that the execution of the agreement for sale and the signatures found in the sale agreement is not disputed by the said defendants. Though they have contended that the signatures were obtained in the said sale agreement under threat and coercion, they have failed to prove the same by adducing cogent and acceptable evidence in this regard.
12. It is also required to be noted here that only defendant no.1 had filed the written statement and defendants 2 & 3 had not filed any written statement before the Trial Court though they had engaged the services of an advocate. Further, no evidence was led on 15 behalf of the defendants before the Trial Court nor was any document produced in support of their defence. Though defendant no.5 has now raised a contention that there was no legal necessity to sell the suit schedule property, such a contention cannot be appreciated for the simple reason that during the pendency of the suit, defendants 1 to 5 had executed yet another sale deed in respect of the very same property in favour of defendant no.6.
13. There is also no merit in the contention of defendant no.5 that the value of the suit schedule property was more than Rs.10 lakhs and therefore it cannot be believed that the agreement was executed by defendants 1 to 5 to sell the suit schedule property for a consideration of Rs.6,45,000/-, for the reason that the sale deed in favour of defendant no.6 has been executed by defendants 1 to 5 during the pendency of the suit for a sale consideration of Rs.4,00,000/-, which is much lesser than the agreed amount of sale consideration in the sale agreement executed by defendants 1 to 5 in favour of the plaintiff on 10.06.2010.
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14. Defendant no.5 has raised yet another contention in this appeal with regard to the mandatory requirement of law for appointment of a guardian in a suit filed against the minor under Order XXXII Rule 3 CPC. In support of this contention of his, learned Counsel for defendant no.5 has relied upon the judgment in Nagaiah's case supra. In the said case, the Hon'ble Supreme Court after referring to Order XXXII Rules 1 & 3 of CPC has held that in case where the suit is filed on behalf of the minor, no permission or leave of the Court is necessary for the next friend to institute the suit, whereas in the suit filed against the minor, it is obligatory for the plaintiff to get the appropriate guardian ad litem appointed by the court for such minor. A guardian ad litem is a special guardian appointed by the court in which a particular litigation is pending to represent a minor/infant, etc., in that particular litigation and the status of guardian ad litem exists in that specific litigation in which appointment occurs. In the said judgment, it has been also further held that the decree passed against the minor defendants 17 cannot be set aside even where certain formalities for the appointment of a guardian ad litem to represent the defendant have not been observed. In the said judgment, at paragraph 14, it has been observed as under:
"Not only, is there no provision for appointment of next friend by the court, but the permission of the court is also not necessary. However, even in respect of minor defendants, various High Courts are consistent in taking the view that the decree cannot be set aside even where certain formalities for the appointment of a guardian ad litem to represent the defendant have not been observed. The High Courts have observed in the case of minor defendants, where the permission of the court concerned under Order XXXII Rule 3 of the Code is not taken, but the decree has been passed, in the absence of prejudice to the minor defendant, such decree cannot be set aside. The main test is that there has to be a prejudice to the minor defendant for setting aside the decree."
15. There is no dispute with regard to the principle laid down by the Hon'ble Supreme Court in Nagaiah's case 18 supra, with regard to the requirement of appointment of guardian in a suit filed against the interest of the minor defendant. But the question that would arise for consideration in this appeal would be whether the appointment of guardian is necessary in a case where the minor has only a undivided share in the joint family property and adult member/guardian is available to take care of the interest of the minor in respect of his undivided share in the joint family property.
16. Section 12 of the Hindu Minority and Guardianship Act, 1956, reads as under:
"12. Guardian not to be appointed for minor's undivided interest in joint family property.- Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest:
Provided that nothing in this section shall be deemed to affect the jurisdiction of a 19 High Court to appoint a guardian in respect of such interest."
17. The Hon'ble Supreme Court in Narayan Bal's case supra, has held in paragraph 5 as under:
"5. With regard to the undivided interest of the Hindu minor in joint family property, the provisions afore-culled are beads of the same string and need be viewed in a single glimpse, simultaneously in conjunction with each other. Each provision, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislative in this beneficial legislation becomes manifest. Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family property. The natural guardian of the property of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated under Section 8, whereunder his powers and duties are defined. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a 20 guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the Joint Hindu Family property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under sections 6 to 12 of the Act, the previous permission of the Court under Section 8 of disposing of the undivided interest of the minor in the joint family property is not required."
18. A co-ordinate bench of this Court in GANGOJI RAO & ANOTHER VS H.K.CHANNAPPA & OTHERS - AIR 1983 KAR 222, while considering the question whether the natural guardians of the minor could legally and validly sell the 21 property of their minor wards for legal necessity or for the benefit of the estate, has observed in paragraphs 11 & 12 as under:
"11. It is necessary for answering these points to understand and appreciate the scheme of the Act. Section 6 of the Act speaks of natural guardians of a Hindu minor. It reads:
"The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property) are -
(a) in the case of a boy or an unmarried girl -
the father, and, after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother :
XX XX XX XX XX
12. Thus, reading the above section carefully, it becomes clear that this section excludes the undivided interest of the minor -
his or her undivided interest in the joint 22 family property. The Legislature, in its wisdom, has used the words 'his or her undivided interest'. If the words 'Joint Family' were used in the sense of coparcenary as used in the common (Hindu) Law, it is obvious that there would be no share of a female in the Hindu coparcenary because a female member is not given any status in the coparcenary. It consists of three generations of male descendants i.e. sons, grandsons and great- grandsons of the holder of the joint property. Since the Legislature has used 'his or her undivided interest in the joint family property' and excludes it from the purview of S.6 of the Act, it becomes clear that the term 'joint family property' is used in wider sense including the shares of those female members who have a share in the joint family property e.g., the mother's share, the daughter's share etc. A joint Hindu family consists of all persons directly descended from a common ancestor, and includes their wives and unmarried daughters. This is made further clear by S.12 of the Act, which reads:
"Guardian not to be appointed for minor' undivided interest in joint family property :23
Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest :
Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest."
Thus, in this Section, the Legislature has, in its wisdom, stated 'the property is under the management of an adult member of the family' and the coparcenary, in male member of the coparcenary, implying thereby that in the joint family, in the wider sense in which it is used under the Act, a female adult member can also become the manager of the family and, in that case, the Court is not competent to appoint a guardian. In fact this is different from the common (Hindu) Law concept in a coparcenary."
19. In the case on hand, it is not in dispute that the suit schedule property is a joint family property and defendant no.5 was a minor at the time of execution of the agreement 24 for sale and at the time of filing the suit for specific performance. Admittedly, defendant no.5 had only undivided interest in the suit schedule property. Having regard to Section 12 of the Act and also the pronouncement of the Hon'ble Supreme Court in Narayan Bal's case supra and of this Court in Gangoji Rao's case supra, I am of the considered view that in a case where the minor defendant has only an undivided interest in the suit schedule property, the court has no power to appoint a guardian, more so when the parents of the minor defendant who are the natural guardians were very much available to take care of the interest of the said minor in the joint family property.
20. The further contention of the learned Counsel for defendant no.5 that the parents of the minor have not safeguarded the interest of the minor, and there was no necessity to sell the suit schedule property, etc., is liable to be rejected for the reason that in the sale deed which has been executed in favour of defendant no.6 during the pendency of the suit, it has been mentioned that the sale 25 deed is being executed by defendants 1 & 3 to meet their day to day needs and also to re-pay the hand loans availed by them. In view of this specific statement made by defendants 1 & 3 in the sale deed executed in favour of defendant no.6 during the pendency of the suit, the contention of defendant no.5 that his parents have colluded with the plaintiff and that the agreement for sale was made in favour of the plaintiff without there being any legal necessity and the said sale was not for the benefit of the minor, etc., fails, and accordingly, the said contentions are rejected.
21. Yet another contention raised by the learned Counsel appearing for defendant no.5 is with regard to readiness and willingness of the plaintiff to perform his part of the contract and also his capacity to pay the balance sale consideration of Rs.45,000/- to the defendants. As already observed by me, defendants 1 to 5 have not denied the execution of the sale agreement, but have contended that the signatures were obtained on the said deed by threat and coercion. Therefore, the execution of the document 26 and the signatures found in the document are admitted. The plaintiff has paid a sum of Rs.6,00,000/- to defendants 1 to 5 under the said agreement. He has issued a legal notice to the said defendants prior to the filing of the suit, and in reply to the same, the defendants not only refused to perform their part of the contract after receiving the balance amount of Rs.45,000/- from the plaintiff, but they also contended that the said sale agreement was a nominal deed and the signatures were obtained forcibly on the said deed. Therefore, the plaintiff has proved that he was ready and willing to perform his part of the contract under the agreement and it is defendants 1 to 5 who have refused to execute the sale deed after receiving the balance sale consideration of Rs.45,000/- from the plaintiff. Further, in compliance of the direction issued by the Trial Court which had disposed of the suit on 17.02.2014, the plaintiff has deposited the balance amount of Rs.45,000/- before the Trial Court on 19.03.2014. This would further go to show that the plaintiff was not only read and willing to perform his part of the contract, but he had also the 27 financial capacity to pay the balance amount of Rs.45,000/- to his vendors. The judgment of the Hon'ble Supreme Court relied upon by the learned Counsel for defendant no.5 in Sukhwinder Singh's case (Civil Appeal No.760/2020) supra, is, therefore, not applicable to the facts and circumstances of the present case and it is a settled position of law that the judgment can be relied upon as a precedent only if the same is applicable to the fact situation of the case on hand.
22. Learned Counsel for defendant no.6 has contended that the plaintiff is not entitled for the relief of specific performance without there being a challenge to the sale deed executed in favour of defendant no.6 and also for the reason that defendant no.6 is a bona fide purchaser of the suit schedule property. The suit was filed on 22.09.2011 and the Trial Court on the application filed by the plaintiff under Order XXXIX Rules 1 & 2 of CPC had granted an ad interim order of temporary injunction restraining the original defendants from alienating the suit schedule property. Inspite of the said order, within four days 28 thereafter, i.e., on 26.09.2011, the original defendants 1 & 3 have executed the sale deed in favour of defendant no.6. From a perusal of the sale deed, it is seen that the said sale deed has been executed only by defendants 1 & 3, though it is the admitted case of defendant no.6 that the suit schedule property is the joint family property of defendants 1 to 5. Further, the suit schedule property has been sold under the sale deed dated 26.09.2011 in favour of defendant no.6 for a sale consideration of Rs.4,00,000/-, whereas the agreement for sale which was executed in favour of the plaintiff was for Rs.6,45,000/- and out of the same, a sum of Rs.6,00,000/- was already paid by the plaintiff to defendants 1 to 5. Therefore, it is very clear that only to defeat the suit claim, the original defendants had executed the sale deed in favour of defendant no.6. Since the sale deed is executed during the pendency of the suit and also in violation of the ad interim order of temporary injunction restraining the original defendants from alienating the suit schedule property, the said transaction is hit by Section 52 of the T.P.Act, and 29 therefore, there is no requirement for the plaintiff to question the said sale deed. The co-ordinate bench of this Court in Venkatappa's case supra, has held that the sale deed executed after the institution of the suit is hit by the principles of lis pendence as provided under Section 52 of the T.P.Act and whatever transaction that is made during the pendency of the suit is subject to the result of the suit and there is no necessity for the plaintiff to seek any relief for setting aside the sale deed in view of Section 52 of the T.P.Act. I am in respectful agreement with the said judgment rendered by the co-ordinate bench of this Court, and therefore, the contention of the learned Counsel for defendant no.6 that unless the validity of the sale deed executed in his favour is challenged, the plaintiff is not entitled for the relief for specific performance is liable to be rejected.
23. Further, having regard to the fact that the suit schedule property has been purchased under the sale deed for a much lesser sale consideration compared to the agreement for sale and also having regard to the fact that 30 all the original defendants had not come forward to execute the sale deed in favour of defendant no.6, it can be safely held that defendant no.6 is not a bona fide purchaser of the suit schedule property and only to defeat the suit claim, a sale deed was executed in his favour, which otherwise is hit by the principles of lis pendence as provided under Section 52 of the T.P.Act.
24. Under the circumstances, I am of the considered view that the Trial Court as well as the First Appellate Court on due appreciation of oral and documentary evidence available on record, have rightly decreed the suit of the plaintiff and the said finding of fact concurrently rendered by the courts below does not call for interference by this Court in exercise of its power under Section 100 CPC. It is settled position of law that unless a substantial question of law arises for consideration, the finding of fact recorded by the courts below cannot be interfered by this Court in exercise of its power under Section 100 CPC. On a overall appreciation of the arguments addressed on behalf of the appellants and the entire evidence available 31 on record, no substantial question of law arises for consideration in these appeals which warrant admission of these appeals. Accordingly, I decline to entertain these appeals. These regular second appeals are, therefore, dismissed.
Sd/-
JUDGE KK