Karnataka High Court
Basavareddappa S/O Fakirappa ... vs Mallikarjunagouda S/O ... on 7 February, 2011
Bench: N.K.Patil, A.N.Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
TH
7
DATED THIS THE DAY OF FEBRUARY, 2011
PRESENT
THE HON'BLE MR. JUSTICE N.K.PATIL
AND
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
REGULAR FIRST APPEAL NO.836/2004
BETWEEN:
1. BASAVAREDDAPPA S/O FAKIRAPPA HASARADDI
AGE: 51 YEARS 0CC: AGRICULTURE.
R/O HALYAL, HUBLI TQ. & DIST: DHARWAD.
2. SMT. BASAWWA, W/O LATE FAKIRAPPA
HASARADDI : DIED ON 2.8.04.
APPELLANTS
(BY SRI V.P. KULKARNI, ADV.)
AND:
MALLIKARJUNAGOUDA
S/O CHANNABSANAGOUDA HANUMANTHAGOUDAR,
AGE: 51 YEARS 0CC: AGRICULTURE
R/0 HALYAL TQ: HUBLI,
DIST: DHARWAD. : RESPONDENT
(BY SRI R.P. UGARGOL, ADV.)
This appeal is filed under Section 96 of CPC against
the Judgement and Decree dated: 13.04.2004 passed in
O.S. No. 225/98 on the file of the PrI. Civil Judge (Sr. Dn.),
Hubli, dismissing the suit for specific performance and
decreeing the suit for refund of suit claim of 4,32,00O/-
and directing the appellants herein to pay the same with
% p.a. to the respondent herein.
interest at 9
This appeal having been reserved, this day,
A.N.VENUGOPALA GOWDA J., pronounced the following:
JUDGMENT
The defendants in the suit from which this appeal arises are the appellants. The respondent/plaintiff sued for specific performance of contract or in the alternative for refund of the amount of Rs.4,32,000/- with interest.
2. The case of the respondent/plaintiff was that:
The appellants are the son and wife respectively of Late Fakirappa Shivappa Hasaraddi, who died on 18.06.1997 and that, he is the son of younger sister of defendant No.2. It was stated that, in the year 1994, F.S.Hasaraddi had handed over to him the agricultural land 3 measuring 7 acres comprised in Survey No.18 of Shahar Veerapur, Taluk Hubli under "Undu Biduva Karar" and thereafter, to meet the financial requirements, received 4,32,OOO/- on various dates till December 1996 and on 24.12.1996, entered into an agreement of sale with him to sell the said items of properties for consideration of 5,OO,OOO/- and acknowledged the receipt of 4,32,OOO/-
under a deed dated 24.12.1996 and agreed to executed a registered sale deed by receiving the balance amount of 68,OOO/- before the Sub-Registrar. It was further averred that, actual possession of the said properties was also handed over in terms of the agreement. It was alleged that, after the death of said F.S.Hasaraddi on 18.06.1997, the defendants being his heirs, went on postponing the registration of sale deed and filed O.S No.231/1998 in the Court of Civil Judge (Jr. Divn.,) Hubli, for permanent injunction and denied the execution of sale deed, in view of which, the suit was filed.
4
3. The appellants / defendants in their written statement denied the alleged possessory right of the plaintiff by virtue of "Undu Biduva Karar" and also denied the execution of agreement to sell dated 24.12.1996 by Sri F.S.Hasaraddi. They also denied the receipt of 4,32,O00/- from the plaintiff by F.S.Hasaraddi. They contended that, the plaintiff being the son of younger sister of defendant No.2, had taken financial help on several occasions from Late F.S.Hasaraddi and such being the case, the plaintiff had no capacity to purchase the properties from F.S.Hasaraddi, who was a big landlord and Village Panchayat Chairman and had sufficient income and had donated properties worth Rs.15 to 20 Lakhs to a School in 1982 and to a High School in 1995 and there was no necessity for him to raise the loan from the plaintiff. It was alleged that, the plaintiff by committing act of forgery, has created the agreement to sell dated 24.12.1996 to knock off the property, which is worth more than Rs.36 Lakhs. It was stated that, F.SHasaraddi had no need to raise loan from anybody else and that, the said items of properties being ancestral properties, the defendant No.1 has got right over it and the agreement to sell is not binding on him.
4. The material pleadings had given raise to the framing of following issues by the Trial Court:
1. Whether late Fakirappa had agreed to sell the suit lands to plaintiff for 5,OO,OOO/- and executed sale agreement on 24.12.1996 having acknowledged the receipt of 4,32,OOO/- from time to time?
2. Whether plaintiff was put in possession of suit lands two years prior to 24.12.1996 under "Undu Biduva Karar"?
3. Whether the sale of suit lands by Fakirappa was for family necessity?
4. Whether plaintiff is entitled for specific performance of sale agreement or in the alternative for refund of earnest money?
5. What order or decree?
5. Plaintiff has deposed as PW-1 and has examined two witnesses as PWs 2 & 3. Exs.P1 to P5 were marked. For defendants, the defendant No.1 has deposed as DW-1 and has examined a witness as DW-2. Exs.D1 to 6 D1O were marked. The Trial Court has answered issue Nos.1 & 3 in the affirmative, issue No.4 in the affirmative, i.e., for the alternative relief and issue No.2 in the negative. The Trial Court has dismissed the suit for the relief of specific performance but has decreed the suit for the alternate relief of refund of 4,32,OOO/- with court costs and interest at go,o p.a. from the date of suit till realization. Aggrieved, the defendants have filed this nd 2 appeal. The defendant / 2 appellant having died on st 1 st 1 22.08.2004, the defendant / appellant being her son and legal representative, has prosecuted this appeal.
6. The Trial Court has held that, Ex.P1 is not a deed of transfer and cannot be treated as an agreement to sell. However, it has held that, F.S.Hasaraddi had the necessity to raise the money and execution of Ex.P1 was for the legal necessity of F.S.Hasaraddi, to maintain himself and that, Ex.P1 is a consideration receipt issued by F.S.Hasaraddi in favour of the plaintiff acknowledging the receipt of 4,32,000/-. It has further held that, it is for the 7 defendants to clear off the debt of RS.Hasaraddi with pious obligation, to retain the suit properties.
7. Sri V.P.Kulkarni, learned counsel appearing for the appellants, firstly contended that, there being denial of execution of the agreement to sell and the receipt of the amount of 4,32,OOO/- by RSHasaraddi, there being no credible evidence placed on record of the suit by the plaintiff in proof of due execution of ExP1 and the payment of 4,32,OOO/- to F.S.Hasaraddi, the impugned Judgment / Decree is illegal. Secondly, the plaintiff had no financial capacity to pay the amount of 4,32,OOO/-, since he himself, had borrowed money from the Bank and others, as is evident from the record and in the absence of any proof of payment, the decree passed for the alternate relief is highly erroneous and illegal. Thirdly, Ex.P1 is a concocted document in the name of F.SHasaraddi, since the signature appearing therein, as at Ex.P1(a), is different from the admitted signatures of RS.Hasaraddi. Fourthly, the burden of proof of Ex.P1 being on the plaintiff, he 8 ought to have got the document referred to an expert for opinion. Learned counsel pointed out that, the Trial Court has not even exercised its power under Section 73 of the Evidence Act, to compare the admitted and disputed signatures of F.S.Hasaraddi and record its finding. Learned counsel contended that, in the absence of credible proof with regard to execution of ExP1 and the payment of 4,32,OOO/- by the plaintiff to F.S.Hasaraddi and also the fact that, plaintiff has come up with a false suit regarding the alleged "Undu Biduva Karar" and also the delivery of possession of the property under Ex.P1, the suit ought to have been dismissed with exemplary cost.
8. Sri R.P.Ugargol, learned counsel appearing for the respondent, by referring to Ex.P1 and the evidence of PWs 1 to 3, contended that, in view of the plea of forgery of the signature of F.S.Hasaraddi and the alleged concoction of ExP1, the onus of proof in that regard is upon the appellants, which they failed to discharge and since ExP1 shows the acknowledgement of 4,32,OOO/- 9 from the plaintiff by F.S.Hasaraddi, the Judgment and Decree passed by the Trial Court is justified.
9. We have perused the record. Keeping in view the rival contentions, the only point for consideration is:
Whether the Trial Court is justified in decreeing the suit for the alternate relief?
10. The respondent while deposing as PW-1 has stated that, he paid 4,32,000/- on different occasions to Fakirappa, who executed Ex.P1. He has deposed that, Ex.P1 was got typed by Fakirappa and the signature on Ex.P1 i.e.,Ex.P1(a) is that of Fakirappa. In the cross- 1
st examination, he has admitted that, defendent was not living with Fakirappa at the time of the execution of the agreement/Ex.P1, which was executed in the house of Pujar of Halyal Village and that, four witnesses who have signed Ex.P1 were present. He has admitted that, his 2 n d mother and the defendant are sisters and that, Fakirappa owned 30 -- 35 acres of land and was a Chairman of Halyal village for 5 years and that, there is no
--A 10 agreement with regard to "Undu Biduva Karar". He has further admitted that, Fakirappa has not issued any receipts for the payments received. He has admitted that, he had no bank account in the year 1993-94, and that, from the Grameena Bank, Halyal, he obtained ioan of t60,000/- in his name and ?60,000/- in the name of his brother, Ninganagowda. He has specifically admitted that, he does not have any particulars of the payment of ?4,32,000/- made to Fakirappa.
11. PW-2 / Chandrashekharappa Pujar, has deposed that he knew Fakirappa personally, who availed the loan from the plaintiff from time to time and executed the document dated 24.12.1996, acknowledging the receipt of Z4,32,000/- towards sale of the suit properties. In the cross-examination he has admitted that the plaintiff is a Chairman of Haiyal Village and he is the Vice-Chairman and that they are related to each other. He has admitted that, he is not aware as to who purchased the stamp paper for Ex.P1 and where the document was got typed and that, 0 11 it may be on a stamp paper of 1OO/-. He has admitted that, Fakirappa was Ex-Chairman of the Village and he is his brother-in-law. He has stated that, he signed Ex.P1 with a ball pen and that, Fakirappa also signed with the same ball pen. He has admitted that, Virupakshappa Pujar is his brother and Gurusiddappa Pujar is his senior uncle's son
12. PW-3 I Hanamappa Shettemmanavar, in his affidavit evidence has testified to the effect that, Fakirappa.S.Hasaraddi placed the plaintiff in actual possession of the suit properties in the year 1994 on "Undu Biduva Karar" and since then the plaintiff is in actual possession and enjoyment of the suit properties. He has further testified that, Fakirappa was in need of money and availed loan from the plaintiff from time to time and entered into an agreement of sale to sell the suit property in favor of the plaintiff for 5,OO,OOO/- and executed the document on 24.12.1996 acknowledging the receipt of 4,32,OOO/-. He has testified about Fakirappa affixing his 12 signature on the stamp paper in his presence and thereafter himself and other witnesses affixing their signatures on Ex.P1. In the cross-examination, he has admitted that, he was a teacher and retired in 1995 and that, himself and the plaintiff are friends. He has further admitted that, he did not accompany for purchase of stamp paper and he is unaware as to who purchased the stamp paper and where Ex.P1 was got typed. According to him, Ex.P1 was written as "Undu Biduva Karar". He has admitted that, Fakirappa was a Panchayat Chairman, had interest in education and has gifted property to the High School and to the gift deed, he has affixed his signature. He has also admitted that, to establish a Kannada school, Fakirappa offered help. He has categorically admitted that, he is not aware of the particulars of the dates of the payment made to Fakirappa. He is also unaware of the value of stamp paper on which "Undu Biduva Karar" was executed Ii
13. Defendant No.1 / DW-1, in his affidavit evidence has testified that the plaintiff is from a very poor family, used to take financial help from his father since he always used to be in need of money due to poverty. He has stated that, his family owns 40 acres of land and has sufficient income, and his father was dealing in cattle business and was earning money and that his father was also a Chairman of Haliyal Village and gave 1.30 guntas of valuable land for the construction of High School building. He has further stated that, the plaintiff is now the Chairman of Haliyal Village and he is acquainted with the signatures of his father because of the relationship and also Gram Panchayat records being easily available to him. He has stated that, the land in question has fertile black cotton soil, in which, crops like chilly and cotton were grown regularly and it is worth more than Rs.30 to 36 Lakhs. He has further stated that, his father was never in need of money at any point of time and there was no occasion for him to sell the suit property and the signature on Ex.P1 is not that of his father and that, the document is 14 not an agreement of sale and his father's signature has been deliberately forged. He has stated that, in view of the strained relationship between himself and his father, he had got published a notice in 'Samyukta Karnataka Daily Newspaper' (Ex.D3) on 19.6.85 cautioning the public, not to deal with the family properties of his father and the plaintiff, who was aware of the said fact, in order to engulf the entire property, has created Ex.P1. He has further stated that, plaintiff was never in possession of the property and "Undu Biduva Karar" is a creation of the plaintiff. In the cross-examination, he has admitted that, his father resided in Hubli house, separately for about 25 years, and that, PWs 2 and 3 are his relatives and there is no enmity with them. He has denied the suggestion that, his father agreed to sell the suit property for sale consideration of 5,OO,OOO/- and executed Ex.P1 and that, the suit property was never in possession of the plaintiff. Ex.D1 is a pass book of deceased H.S. Fakirappa. Ex.D8 is the Judgment and Decree dated 8.11.02 passed in 15 O.S.231/98 by the III AddI. Civil Judge (Jr. Dn.), Hubli, against the plaintiff.
14. DW-2 is a stamp vendor and has stated that, the stamp used for preparation of Ex.P1 has been sold by him on 24.12.96. He has stated that, he is not acquainted with the person who purchased the said stamp paper and the register contains a signature in English as Hasareddi Fakirappa. He has stated that, there is difference in the signature found in the Register -- Ex.D7 and the signature appearing on the document available in the Court, which is in Kannada and according to him, the signatures are different. In the cross-examination, he has stated that, he is not aware as to how H.S.Fakirappa makes his signature.
15. In the plaint, it was averred that, H.S. Fakirappa being in necessity of money, availed the same from the plaintiff from time to time and on 24.12.96, entered into an agreement of sale for sale of the suit property and executed a document on the very date making reference to the facts and acknowledged the 16 receipt of 4,32,OOO/-, paid from time to time by the plaintiff, towards sale of the suit property. It is significant to notice that, Ex.P1 has been held to be not an agreement of sale by the Trial Court. Plaintiff while deposing as PW-1 has stated that, he made payment of 4,32,OOO/- from time to time. However, neither in the plaint nor in the deposition of PW-1, the details of the payment of 4,32,OOO/- has been stated. PWs 2 and 3 have not seen the payment of 4,32,OOO/- by the plaintiff to the defendant. The payment of 4,32,OOO/- admittedly having not been made on the date Ex.P1 was allegedly executed and having been allegedly made from time to time, it was for the plaintiff to have pleaded the payment particulars and deposed. There is neither any pleading nor any proof forthcoming in that regard. Ex.P1 has been held by the Trial Court as a consideration receipt acknowledging the receipt of 4,32,OOO/-. It is the case of the plaintiff that late H.S. Fakirappa got the said document typed, brought it to the pujar's house and executed it in the presence of the witnesses. In the ordinary course of events, such a 17 version cannot be believed, in as much as, if there were to be any sale transaction, it is for the purchaser to get the sale agreement drafted with the particulars of the payments made. It is unbelievable that the vendor purchased stamp paper and got the document typed and brought it for being executed in the presence of the witnesses. The signature alleged to be of H.S. Fakirappa on Ex.P1 is not clear. The manner in which the attestors have signed below the alleged signature of H.S. Fakirappa also creates doubt in our minds with regard to H.S. Fakirappa signing the document and being attested by the four witnesses. The purchaser's signature is not forthcoming on Ex.P1.
16. The plaintiff has not produced any account with regard to the payment of 4,32,OOO/-. The source for the plaintiff to make the payment of 4,32,OOO/- is also not forthcoming. Indisputably, he raised loan of 6O,OOO/- from the Bank and his brother also borrowed a similar amount from the Bank. The case of the plaintiff is full of 4. 18 falsehood. He pleaded "Undu Biduva Karar" which was neither produced nor proved. The claim made by the plaintiff that he was put in possession of the property which he continued to hold and enjoy has not been proved and has to be held as false in view of the decree for permanent injunction passed against the respondent as per Ex.D8. There is no pleading or evidence of whatsoever nature with regard to delivery of possession by H.S. Fakirappa and the plaintiff being in possession and enjoyment of the suit property. Learned counsel for the respondent / plaintiff fairly conceded that, there is no material of whatsoever nature placed on record with regard to the payment particulars of 4,32,OOO/- by the plaintiff to late HS. Fakirappa and also the delivery of possession of the suit property by H.S. Fakirappa to the plaintiff. Without noticing these material aspects, the Trial Court though held that Ex.P1 is not an agreement of sale, has directed the defendants to refund the amount on the ground of pious obligation to retain the suit property. Since the plaintiff has failed to prove the payment of 19 4,32,OOO/- to late H.S. Fakirappa and Ex.P1 has been held to be not an agreement of sale, the decree for alternate relief passed by the Trial Court is erroneous and illegal. The testimony of PW-2 is unreliable. Ex.P.1 is on stamp paper of 2O/- and not 1OO/- as deposed by him. The pen used for by PW-2 and allegedly by F.S. Hasaraddi are different and in different ink. The evidence of PW-3 is also full of discrepancies. There appears to be a scribbling of the name of F.S.Hasaraddi on Ex.P.1. There is absolutely no evidence much less any corroboration to the interested testimony of PW-1 with regard to the alleged payment of 4,32,OOO/- by him on different dates to late F. S. H a sara d di.
17. Having re-examined the record, we are of the opinion that, the respondent / plaintiff has failed to prove payment of 4,32,OOO/- to late H.S. Fakirappa and hence, there cannot be a decree directing the payment of the amount by the legal representatives of late H.S. Fakirappa. The Trial Court by misdirecting itself has passed the 20 impugned decree, which in the facts and circumstances of the case is unsustainable.
In the result, the appeal is allowed and the impugned decree is hereby set aside. The suit filed by the respondent in the Trial Court shall stand dismissed with costs.
Sd/ JUDGE Sd/ JUDGE sac*