Karnataka High Court
B Poornachandra Tejasvi vs Smt Shanthamma on 27 December, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MRS. JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 2467 OF 2010 (SP)
BETWEEN:
B. POORNACHANDRA TEJASVI
S/O BASAVE GOWDA
AGED ABOUT 43 YEARS,
R/AT: GORAVANAHALLI, BANNUR HOBLI,
T-NARASIPURA TALUK,
MYSORE DISTRCT
... APPELLANT
(BY MR: G.L. VISHWANATH. SENIOR COUNSEL A/W
MR: V.C. RAJU, ADVOCATE)
AND:
1. SMT. SHANTHAMMA
W/O LATE Y.K. KEMPE GOWDA
AGED ABOUT 55 YEARS,
R/AT: MAYANNA KOPPAL VILLAGE,
(YELIYUR VILLAGE), KOTHATHI HOBLI,
MANDYA TALUK
2. B.R. LOKESH S/O RAMU
AGED ABOUT 41 YEARS,
R/AT: NO.350, 1ST CROSS,
9TH MAIN, HANUMANTHANAGAR,
BANGALORE - 04
... RESPONDENTS
(BY MR: HEMANTH KUMAR D., ADVOCATE FOR R1
R2 SERVED AND UNREPRESENTED)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED: 18.09.2010 PASSED IN R.A.NO.86/2007
ON THE FILE OF THE II-ADDL. DISTRICT AND SESSIONS JUDGE, MYSORE,
ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE
DATE: 27.07.2007 PASSED IN OS.NO.11/2006 ON THE FILE OF THE CIVIL
JUDGE, (SR. DN.), T.NARASIPURA.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON 23.09.2022 COMING ON FOR PRONOUNCEMENT OF ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Defendant No.2 preferred this second appeal being aggrieved by the impugned judgment and decree dated 18.09.2010 passed in R.A.No.86/2007 on the file of the learned II Additional District and Sessions Judge, Mysuru (hereinafter referred to as 'First Appellate Court' for brevity), allowing the appeal, setting aside the judgment and decree dated 27.07.2007 passed in O.S.No.11/2006 on the file of the learned Civil Judge (Sr.Dn.) at T.Narasipura (hereinafter referred to as 'the trial Court' for brevity) and decreeing the suit of the plaintiff for specific performance of the agreement for sale dated 01.08.2002 in favour of the plaintiff and directing defendant No.2 to join defendant No.1 in executing the sale deed.
2. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court.
3. Brief facts of the case are that the plaintiff filed the suit O.S.No.11/2006 before the trial Court against defendant Nos.1 and 2 seeking specific performance of the agreement for sale and direct the defendants to execute the 3 sale deed in her favour in respect of the schedule property. It is contended by the plaintiff that she entered into an agreement for sale dated 01.08.2002 with defendant No.1 whereunder, he had agreed to sell 04.11 acres of land in Sy.No.49 situated at Maragowdanahalli, Bannur Hobli, T-Narasipur Taluk, Mysuru District, which is described in the plaint schedule, for a total consideration amount of Rs.4,60,845/-. The plaintiff paid advance amount of Rs.50,000/- and the agreement for sale was entered into in the presence of the witnesses. It was agreed between the parties that the balance consideration amount is to be paid on or before 15.02.2003 at the time of getting the property registered in the name of the plaintiff.
4. It is contended that the plaintiff was ready and willing to perform her part of contract and she had insisted defendant No.1 to execute the sale deed by receiving the balance consideration amount. But defendant No.1 had not performed his part of the contract. Therefore, got issued the legal notice. Even though the legal notice was served on defendant No.1, the postal acknowledgment remained with the counsel who was engaged earlier by the plaintiff. 4 Therefore, a rejoinder dated 09.05.2003 as per Ex.P4 was issued. The said notice was returned as defendant No.1 refused to receive the same. However, the notice sent through certificate of posting was served on defendant No.1 but he had not replied for the same.
5. It is contended that defendant No.1 had approached the plaintiff seeking for some more time to comply with the terms of agreement and therefore, plaintiff waited honestly believing that defendant No.1 will keep up his words. In the meantime, the husband of the plaintiff seriously fell ill and was admitted to the hospital. Subsequently he died on 15.10.2005. At the same time, plaintiff came to know that defendant No.1 executed the sale deed dated 04.10.2004 in favour of defendant No.2 and sold the schedule property for a total consideration amount of Rs.1,37,000/-. The same was never brought to the notice of the plaintiff either by defendant No.1 or by defendant No.2. Defendant No.2 was fully aware of the agreement for sale entered into between the plaintiff and defendant No.1 and therefore, he is not a bonafide purchaser. The sale deed dated 04.10.2004 is null and void and inoperative. Hence, the same is to be set aside. 5 Therefore, the plaintiff prayed for specific performance of contract and to execute the sale deed in her favour as per the terms of the agreement, after receiving the balance consideration amount, by declaring that sale deed dated 04.10.2004 entered into between defendant No.1 and defendant No.2 is null and void and inoperative.
6. Defendant No.2 appeared before the trial Court and filed his written statement denying the contentions taken by the plaintiff. It is contended that there is no land in Sy.No.49 situated at Maragowdanahalli Village, Bannur Hobli, T-Narasipura Taluk as described in the schedule. It is contended that defendant No.1 was the owner of Sy.No.49/2 and 49/3 situated at Maragowdanahalli Village, Bannur Hobli, T-Narasipura Taluk. He sold the said property in favour of defendant No.2 to meet his family necessities under the registered sale deed dated 04.10.2004. On the same day, defendant No.2 was put in possession of the property. After purchase, defendant No.2 sunk a borewell in the schedule land. The khatha was transferred in his name and he is in possession and enjoyment of the said property. Plaintiff has never objected for change of khatha or for transfer of the 6 electric meter in favour of defendant No.2. It is contended that defendant No.2 is a bonafide purchaser of the property for value, without notice of the earlier agreement referred to by the plaintiff. It is stated that the suit of the plaintiff is not maintainable as the schedule property is not at all in existence and she has not complied with Section 16(c) of the Specific Relief Act, 1963 by expressing her intention with regard to the ready and willingness to perform her part of contract. Therefore, he prays for dismissal of the suit with costs.
7. Defendant No.1 filed the memo adopting the written statement field by defendant No.2.
8. On the basis of these pleadings, the Trial Court framed the following issues as under:
1. Whether the plaintiff proves that defendant No.1 has executed an agreement of sale dt.
1-8-2002 agreeing to sell the suit schedule property for consideration of Rs.4,60,845/- by receiving Rs.50,000/- part consideration amount?
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2. Whether the plaintiff proves that she is ever-ready and willing to perform her part of agreement?
3. Whether the defendant No.2 proves that he is a bonafide purchaser for value without notice?
4. Whether the suit is bad for non-joinder of necessary parties?
5. Whether the suit is barred by limitation?
6. Whether the plaintiff is entitled for decree of Specific Performance? Or in the alternative for refund of the earnest money of Rs.50,000/- with additional sum of Rs.50,000/- as damages?
7. What order or decree?"
9. Plaintiff examined herself as PW.1, examined PWs.2 to 4 and got marked Exs.P1 to P21 in support of her contention. Defendants examined DWs.1 and 2 and got marked Exs.D1 to D5 in support of their defence. The trial Court after taking into consideration all these materials on record, answered issue Nos.1 and 3 in the affirmative, issue Nos.2, 4 and 5 in the negative, issue No.6 partly in the affirmative and partly decreed the suit against defendant No.1 8 directing to repay an amount of Rs.50,000/- with interest at the rate of 18% per annum from the date of agreement till the date of filing of the suit and future interest at the rate of 12% per annum, while rejecting her claim for specific performance of the contract.
10. Being aggrieved by the same, the plaintiff preferred regular appeal R.A.No.86/2007. The First Appellate Court on re-appreciation of the materials on record, came to the conclusion that the plaintiff is entitled for specific performance of the contract and therefore, allowed the appeal and decreed the suit of the plaintiff for specific performance of the contract, directing defendant Nos.1 and 2 to execute the sale deed in favour of the plaintiff. Being aggrieved by the impugned judgment and decree passed by the First Appellate Court, defendant No.2 is before this Court.
11. Heard Sri. G.L.Vishwanath, learned Senior Advocate for Sri. V.C.Raju, learned counsel for the appellant and Smt. Pramila Nesargi, learned Senior Advocate for Sri. Hemanth Kumar D., learned counsel for respondent No.1. Respondent No.2 is served but remained unrepresented. 9
12. Learned Senior Advocate for the appellant contended that the agreement for sale relied on by the plaintiff is as per Ex.P1 and it is dated 01.08.2002. The plaintiff has to furnish necessary stamp papers and pay the balance consideration amount to defendant No.1 on or before 15.02.2003. Even according to the plaintiff, the legal notice was issued to defendant No.1 on 14.02.2003 as per Ex.P3. Ex.P2 does not bear any date nor there is any document to show that the said notice was served on defendant No.1. Ex.P4 is the rejoinder dated 09.05.2003, whereunder, typographical error was sought to be rectified. There is no prayer for specific performance of the contract. The suit was came to be filed before the trial Court on 15.02.2006. These dates and events disclose that the plaintiff was never ready and willing to perform her part of the contract as per the terms of Ex.P1. The notice as per Ex.P2 was never issued to defendant No.1 and it is a concocted document. Even Ex.P4 was never served on defendant No.1.
13. Learned Senior Advocate further submitted that defendant No.1 executed the registered sale deed in respect of the property mentioned in the written statement under the 10 sale deed dated 04.10.2004 as per Ex.D1. Much after execution of the sale deed and creation of the interest of defendant No.2, the present suit was came to be filed. Even the description of the property in Ex.P1 and in the plaint schedule do not tally with the description of the property sold in favour of defendant No.2. Therefore, the suit is filed in respect of non-existing property and plaintiff was not ready and willing to perform her part of contract. Learned counsel further submitted that defendant No.2 is the bonafide purchaser of the property without notice of earlier agreement. Once defendant No.2 proves that he had no knowledge of Ex.P1, the burden shifts on the plaintiff to prove her contention that defendant No.2 purchased the property knowing fully well about Ex.P1. The plaintiff has not led any rebuttal evidence and had not discharged her burden.
14. Learned Senior Advocate further submitted that defendant No.1 had not sold the property in favour of defendant No.2 in a hasty manner, conduct of the plaintiff and defendant No.1 assumes importance in deciding the matter. The plaintiff was never ready and willing to perform her part 11 of the contract. The suit was came to be filed about four years after the alleged agreement.
15. Learned Senior Advocate also contended that the plaintiff gave lame excuse for not issuing any notice and not filing the suit within a reasonable time. But the document produced by the plaintiff i.e., Ex.P18-the discharge card for the period from 16.12.2004 to 27.12.2004 is much after 15.02.2003, within which the plaintiff should have acted upon as per Ex.P1. Moreover, as on that date, even the sale deed- Ex.D1 was already executed. Exs.P19 to P21 relied on by the plaintiff also falsify the contention taken by the plaintiff for explaining the delay in approaching the Court. None of the documents relied on by the plaintiff would give a reasonable explanation, justifying the delay and latches on the part of the plaintiff.
16. Learned Senior Advocate further submitted that even though the amount of consideration is shown as 4,60,845/-, only a nominal sum of Rs.50,000/- was said to have paid as advance amount. Huge amount of about Rs.4,10,845/- was due from the plaintiff. No materials are 12 placed before the Court to show that the plaintiff was having the said money with her, at any point of time before 15.02.2003.
17. Learned Senior Advocate submitted that the trial Court properly appreciated the materials placed before it and directed defendant No.1 to return the advance amount with interest and the prayer for specific performance of the contract was rejected. The First Appellate Court committed an error in decreeing the suit of the plaintiff in respect of a non-existing property. The First Appellate Court has drawn adverse inference for not filing separate written statement by defendant No.1. But it failed to consider the fact that defendant No.1 is examined as DW.2. The finding of the First Appellate Court that since the Scribe is the same to Ex.P1 and Ex.D1, defendant No.2 was not a bonafide purchaser for value, is highly erroneous. Similarly, its comment that common witness Chandraswamy to both the documents is not examined by defendant No.2 was uncalled for, as it was for the plaintiff to examine such witness to prove her contention. The observation of the First Appellate Court that defendant No.2 must have known about the agreement for sale, is highly 13 erroneous. It failed to take into consideration Section 19(1)(b) of the Specific Relief Act. The First Appellate Court proceeded to decree the suit of the plaintiff only on the ground that the sale deed Ex.D1 was executed for only Rs.1,37,000/-, whereas Ex.P1 is for Rs.4,60,845/-.
18. He placed reliance on the decision of Allahabad High Court in the case of Gangadhar vs. Kanhai1, in support of his contention that the finding of the First Appellate Court that since the parties are residing in a small village, defendant No.2 was having the knowledge about Ex.P1 was erroneous.
19. He also placed reliance on the decision in the case of Munna Lal vs. Smt. Krishna Kumari and another2, to contend that defendant No.2 has proved that he is a bonafide purchaser for value without notice, by adducing cogent evidence. He further placed reliance on the decision in the case of P. Lakshmi Ammal vs. S. Lakshmi Ammal and others3, to contend that the onus of proof to prove that defendant No.2 had notice of Ex.P1 lies on the plaintiff, once defendant No.2 denied having notice of such an agreement. 1 AIR 1928 Allahabad 306 2 AIR 1983 Allahabad 5 3 AIR 1991 Madras 137 14
20. Placing reliance on these decisions, learned Senior Advocate contended that the finding recorded by the First Appellate Court is perverse and against the settled proposition of law referred to above. Therefore, the second appeal is liable to be allowed and the judgment and decree passed by the trial Court is to be restored in the interest of justice.
21. Per contra, learned Senior Advocate for respondent No.1 contended that no argument is addressed by the learned counsel for the appellant either on agreement to sell i.e., Ex.P1 or on the sale deed-Ex.D1. The finding recorded by the First Appellate Court on these documents is well founded and does not call for any interference. Similarly, no argument is addressed on the substantial questions of law and therefore, they are to be answered in favour of respondent No.1. Defendant No.1 admitted execution of Ex.P1 and he never contested the matter. The evidence of defendant No.1 disclose that the plaintiff was ever ready and willing to perform her part of the contract. It is only defendant No.2 who is stranger to the agreement for sale, is contesting the matter. Defendant No.2 has not shown due diligence while purchasing the schedule property. No enquiry was held by him 15 to discharge the burden to contend that he is bonafide purchaser without notice. The very fact that Ex.P1 was for a total consideration amount of Rs.4,60,845/- but Ex.D1 is the sale deed only for Rs.1,37,000/-, disclose that defendant No.2 is not a bonafide purchaser for value without notice. Subsequent to entering into Ex.P1, there was sub-division in Sy.No.49 and therefore, it cannot be contended that the schedule property does not exists. The Scribe and one of the witness Chandraswamy to Ex.P1 are the Scribe and the witness to Ex.D1. The said Chandraswamy is also not examined by defendant No.2. Under such circumstances, an adverse inference will have to be drawn against defendant No.2. He cannot contend that he was not having knowledge of Ex.P1. Payment of consideration amount of Ex.D1 is also not proved.
22. Learned instructing counsel for respondent No.1 filed the written submission reiterating the contentions raised by the learned Senior Advocate and also contended that the scope under Section 100 of CPC is very limited and it is not open for the appellant to re-agitate the facts of the case once again. There is no debatable issue on any question of law. It 16 is settled proposition of law that even if the finding of fact by the First Appellate Court was erroneous, the interference in the second appeal is not justified unless they are erroneous finding of facts and are against the settled proposition of law. Since the appeal is admitted and the substantial questions of law are already formulated by this Court, the controversy between the parties is to be confined to such substantial questions of law and not beyond that. When the First Appellate Court has not committed any error in appreciating Ex.P1, the second appeal is liable to be dismissed. It is further contended that the burden of proving the fact that the person is a bonafide purchaser for value without notice would lie on the person who asserts the same. There is absolutely no material to contend that defendant No.2 was diligent and had made necessary enquiry before purchasing the schedule property. Under such circumstances, heavy burden lies on defendant No.2 to bring his contentions within Section 19(b) of the Specific Relief Act.
23. Learned Senior Advocate for respondent No.1 placed the following decisions in support of her contention; 17
1. Ram Saran Vs. Kurimal reported in (1989) 1 Civil LJ 430
2. D.Kamalavathi vs P.Balasundaram (Deceased) decided on 31 January, 2011 in Second Appeal No.62/1997 by Hon'ble Madras High Court
3. M.M.S. Investments, Madurai & ors Vs. V.Veerappan & others (CDJ 2007 SC 435)
4. R.K.Mohammed Ubaidullah and ors Vs. Hajee C Abdul Wahab (D) by L.Rs, and ors reported in AIR 2001 SC 1658
5. Motilal Jain Vs. Ramdasi Devi and ors reported in (2000)6 SCC 420
6. Rajender Singh Vs. Nanga @ Nanak (deceased) thr his LRs and ors decided on 5.12.2017 in RSA No.988 of 2011 by Hon'ble Punjab & Haryana High Court
7. Govindaraju Vs. Mariamman reported in (2005) 2 SCC 500
8. Corporation of City of Bangalore Vs. Arigela Laxmi and anr reported in (2007) 8 SCC 155
9. Boodireddy Chandraiah & ors Vs. Arigela Laxmi and anr reported in (2007) 8 SCC 155 18
10. Koppisetty Venkat Ratnam Vs. Pamarti Venkayamma reported in (2009) 4 SCC 244
11. Ram Niwas (Dead) though LRs Vs. Bano and ors reported in (2000) 6 SCC 685
12. Mohideen Sahib Vs. A.Amena Bi and ors reported in AIR 2007 MADRAS 133 Placing reliance on these decisions, learned Senior Advocate sought for dismissal of the appeal with costs.
24. The appeal was admitted vide order 25.10.2010 to consider the following substantial questions of law:
"1) Whether the lower appellate court has made a correct construction of the suit document which is the foundation or basis of the right sought to be enforced in the suit?
2) Whether the process of reasoning by the lower appellate court is legally sound?"
25. It is the specific contention of the plaintiff before the trial Court that she entered into the agreement for sale as per Ex.P1 with defendant No.1 on 01.08.2002, agreeing to purchase 04.11 acres of land in Sy.No.49 described in the plaint schedule for a total consideration amount of Rs.4,60,845/-. On the same day, an advance amount of Rs.50,000/- was paid to defendant No.1. It was agreed 19 between the parties that the balance amount is to be paid on or before 15.02.2003 by the plaintiff and should furnish necessary stamp papers for executing the registered sale deed by defendant No.1. The recitals in the agreement which are extracted in the plaint, disclose that if the plaintiff fails to perform her part of agreement on or before 15.02.2003, the defendant No.1 has right to forfeit the advance amount of Rs.50,000/- and the agreement stands cancelled from the very next day i.e., on 16.02.2003. A duty is cast on defendant No.1 to furnish the original documents of the schedule property to the plaintiff on or before 15.02.2003 and to get the sale deed registered in the name of the plaintiff and if in case defendant No.1 fails to perform his part of the contract, the plaintiff is entitled to receive advance amount of Rs.50,000/- and penalty of Rs.50,000/-. She is also entitled to enforce the agreement for sale in the court of law.
26. These contentions of the plaintiff were denied by defendant No.2 by filing the written statement and contending that there is no land bearing Sy.No.49 situated at Maragowdanahalli Village that was in existence at the time of Ex.P1. The execution of the agreement and receipt of the 20 advance amount were also denied. The contention of the plaintiff that she was ready and willing to perform her part of agreement was denied. It is also denied that she got issued the legal notice to defendant No.1 at any point of time. On the other hand, it is contended that defendant No.1 sold the schedule property in favour of defendant No.2 under the sale deed dated 04.10.2004 to meet his family necessities. Defendant No.2 was put in possession of the property in question and he in turn developed the same. The specific defence is raised that the plaintiff never expressed her readiness and willingness to perform her part of the contract even in the notice alleged to have issued and therefore, she is not entitled for specific performance of the contract. This written statement of defendant No.2 is adopted by defendant No.1.
27. Defendant No.1 examined himself as DW.2 and filed his affidavit in lieu of examination-in-chief, wherein he categorically admitted that he had entered into an agreement for sale with the plaintiff. He also admits receipt of Rs.50,000/- as advance. However, it is stated that the agreement for sale is dated 01.08.2002. It is stated that 21 defendant No.1 had approached the plaintiff several times but she was not having the required fund to pay the balance consideration amount and she even stated that defendant No.1 may sell the property in question to any other person as she is not having required fund with her. It is specifically contended that the plaintiff was not ready and willing to perform her part of the contract and therefore, he sold the property in favour of defendant No.2 for valuable consideration. During cross-examination, this witness admits that he has executed Ex.P1 and its contents. He denied the suggestion that the plaintiff had issued any notice on 13.02.2003 calling upon him to execute the sale deed and a rejoinder notice was sent on 09.05.2003. He denied that he had refused to receive the said rejoinder notice.
28. During cross-examination of PW.1, she categorically admitted that defendant No.2 is from a different village. PWs.2 to 4 are the witnesses examined on behalf of the plaintiff to speak about Ex.P1 and its contents. Ex.P2 said to be the legal notice sent to defendant No.1 by the plaintiff. It does not bear any date. However, in the said notice, it is stated that defendant No.1 has not performed his part of the 22 contract by getting the property surveyed and failed to execute the registered sale deed. It is stated that the plaintiff is ready with the balance consideration amount and willing to get the sale deed executed.
29. Ex.P3 is the letter dated 10.05.2003 written by the Manager, Speed Post Centre, Mysuru, to the effect that the speed post article referred to in the letter was delivered on 14.02.2003 to the recipient Ms.Narasamma on behalf of the addressee i.e., B.R.Lokesh. Ex.P4 is the rejoinder notice dated 09.05.2003 to correct the typographical error mentioned in the earlier notice and correcting it as the agreement dated 01.08.2002. Ex.P5 is the postal envelop, which was returned to the sender as the addressee refused.
30. It is pertinent to note that even though Ex.P3 refers to one Ms.Narasamma said to have received the speed post article referred to in it, during the entire cross- examination of DW.2 i.e., defendant No.1, nothing has been elicited from him as to who is this Narasamma who received the notice. Even though the agreement in respect of the immovable property, generally the time is not the essence of 23 the contract, it is specific contention of the plaintiff that she was ever ready and willing to get the sale deed registered in her favour and she had kept the money ready with her. No materials are placed before the Court to prove this contention taken by the plaintiff. It is to be noted that agreement for sale is dated 01.08.2002 and it was agreed that the balance sale consideration amount is to be paid on or before 15.02.2003 and plaintiff has to get the stamp papers for engrossing the sale deed and furnish the same to defendant No.1. It is not the contention of the plaintiff that she had ever purchased the stamp papers to furnish the same to defendant No.1.
31. It is the contention of the plaintiff that defendant No.1 was not ready and willing to perform his part of contract. The only obligation to be performed by defendant No.1 under the agreement-Ex.P1 is to get the stamp papers from the plaintiff and execute the registered sale deed by accepting the balance consideration amount. Under such circumstances, unless the plaintiff probabilise that she was having the required cash, to be paid to defendant No.1 and she was ready with the stamp papers to engross the sale deed, there 24 is no obligation on the part of defendant No.1 to be discharged. Therefore, the contention of the plaintiff that defendant No.1 was not ready and willing to perform his part of the contract cannot be accepted.
32. It is also pertinent to note that the total sale consideration amount as per Ex.P1 is Rs.4,60,845/- and only an amount of Rs.50,000/- was paid as advance. Therefore, the balance consideration amount of Rs.4,10,845/- was due to be paid by the plaintiff and that too during the year 2002-03. The plaintiff has not placed any material in support of her contention that she was having required amount or was able to arrange for the same, except contending that she was ready and willing to perform her part of contract.
33. Even if issuance of notice as per Ex.P2 and delivery of the same on 14.02.2003 is to be accepted, the suit before the trial Court for specific performance of the contract was filed only on 15.02.2006 i.e., on the last day of limitation for filing the suit. The plaintiff assigned specific reasons for the delay in filing the suit in the plaint. It is the contention of the plaintiff that after issuance of notice as per Exs.P2 and P4, 25 her husband was seriously ill, he was hospitalized and subsequently he died on 15.10.2005. The plaintiff produced Exs.P17 to P21 in support of her contention. As per these documents, one Y.K.Kempegowda was admitted to the District Hospital at Mandya on 16.12.2004 and he died on 15.10.2005. When it is the contention of the plaintiff that she issued Ex.P2 on 14.02.2003, and Ex.P4 on 09.05.2003, it is not explained as to why she has not taken any steps till 16.12.2004, when her husband was admitted to the hospital. Even though the said Y.K.Kempegowda died on 15.10.2005, the suit was came to filed only on 15.02.2006. There is no reasonable explanation for the delay. Such delay assumes importance when huge amount of Rs.4,10,845/- was due to be paid by the plaintiff to defendant No.1 and she was required to purchase the stamp papers for the purpose of executing the sale deed. When the plaintiff has failed to prove that she was in a position to arrange such huge amount of more than Rs.4,00,000/- and even purchased the stamp papers as required under Ex.P1, it cannot be held that the plaintiff was successful in proving her ready and willingness to perform the contract.
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34. It is also pertinent to note that plaintiff came to know about sale of the property in favour of defendant No.2 under the sale deed dated 04.10.2004. The date on which the plaintiff came to know about the sale deed is not forthcoming. During cross-examination, the plaintiff admits that Sy.No.49 is sub-divided and defendant No.2 had dug the borewell in the said property. Witness categorically states that she has not objected the transfer of electric meter in the name of defendant No.2 and she has also not objected for mutation of his name in the revenue records. This sale deed was admittedly executed more than a year before filing of the suit by the plaintiff. If the contention of the plaintiff that she was ready and willing to perform her part of the contract, issued notices as per Exs.P2 and P4 calling upon defendant No.1 to execute the sale deed and that she used to visit the property very frequently, she would know execution of the registered sale deed by defendant No.1 in favour of defendant No.2 and the subsequent developments. When the reasons assigned by the plaintiff said to have prevented her from approaching the Court immediately, are not satisfactory, the only conclusion that could be arrived at, is that the plaintiff 27 was not ready and willing to perform her part of contract and she approached the trial Court at the 11th hour.
35. It is the specific contention of defendant No.2 that he is the bonafide purchaser of the property in question, for value, without notice. On the other hand, it is the contention of the plaintiff that defendant No.2 is not a bonafide purchaser as he was knowing about Ex.P1. Even though defendant No.2 is cross-examined at length, nothing has been elicited form him to believe the contention of the plaintiff. Simply because, one of the attesting witness and Scribe are common to the agreement for sale and also to the sale deed, it cannot be concluded that defendant No.2 was having knowledge of such agreement for sale. The Scribe to Ex.P1 is examined by the plaintiff as PW.4. But the witness never states that he is the Scribe who had written Ex.D1 or that he informed defendant No.2 about the agreement for sale-Ex.P1. When the initial burden of proof to show that defendant No.2 was not having knowledge about Ex.P1, even though a negative burden, is discharged by defendant No.2 by his pleadings and also deposing in the witness box, the burden shifts on the plaintiff to probabilise the contention about the knowledge of Ex.P1 to 28 defendant No.2. The said burden is not discharged by the plaintiff. Under such circumstances, it has to be held that defendant No.2 is a bonafide purchaser for value without notice.
36. The trial Court considered all these aspects of the matter and arrived at a conclusion that the plaintiff has not proved her ready and willingness to perform her part of the contract and that defendant No.2 is a bonafide purchaser of the property, for value, without notice and answered issue No.2 in the negative and issue No.3 in the affirmative. I do not find any illegality or perversity in the said findings.
37. The First Appellate Court on re-appreciation of the materials on record, reversed the findings of the trial Court and decreed the suit of the plaintiff as prayed for. The reasons assigned by the First Appellate Court for reversing the finding of the trial Court are that defendant No.1 has not filed his separate written statement. But it has not taken note of the fact that defendant No.1 is examined as DW.2 and that he has specifically stated in his evidence that he has not brought Ex.P1 to the notice of defendant No.2. The First Appellate 29 Court came to the conclusion that since the property is already sold by defendant No.1 in favour of defendant No.2, the burden on the plaintiff to prove the ready and willingness loses its importance, which is erroneous. The readiness and willingness on the part of the plaintiff is sine-qua-non to seek the relief of specific performance. The finding of the First Appellate Court that defendant No.2 has failed to prove that he was not aware of the execution of Ex.P1 is also erroneous as defendant No.2 probabilised his defence that he is a bonafide purchaser without notice. Then the burden shifts on the plaintiff to prove her positive assertion regarding the knowledge of Ex.P1 to defendant No.2.
38. The First Appellate Court placed reliance on the decision in the case of M.M.S. INVESTMENTS, MADURAI AND OTHERS vs. V.VEERAPPAN AND OTHERS4. The facts and circumstances in the case before the Hon'ble Apex Court is that a suit for specific performance of the contract was decreed by the trial Court and after passing such decree, the defendants through their power of attorney holder sold large extent of properties including the subject-matter of the suit in 4 (2007) 9 SCC 660 30 favour of a third party who are the appellants before the Hon'ble Apex Court. The appellants being the subsequent purchasers after passing of the decree, filed application before the High Court seeking to implead themselves as appellants in the appeal that was preferred by the original defendants. The High Court on considering rival submissions held that there is no bar for the appellants to raise any issue on merits of the appeal for consideration except the defence of readiness and willingness as provided under Section 16(c) of the Specific Relief Act, 1963. Accordingly, the CMP filed by the subsequent purchasers was dismissed. The same was challenged before the Hon'ble Apex Court. Under such circumstances, Hon'ble Apex Court held in Paragraph No.6 as under:
"6. Questioning the plea of readiness and willingness is a concept relatable to an agreement. After conveyance the question of readiness and willingness is really not relevant. Therefore, the provision of the Specific Relief Act, 1963 (in short "the Act") is not applicable. It is to be noted that the decision in Ram Awadh case relates to a case where there was only an agreement. After the conveyance, the only question to be adjudicated is whether the purchaser was a bona fide purchaser for value without notice. In the present case the only issue that can be adjudicated is whether the appellants were bona fide 31 purchasers for value without notice. The question whether the appellants were ready and willing is really of no consequence. In Ram Awadh case the question of the effect of a completed sale was not there. Therefore, that decision cannot have any application so far as the present case is concerned. Once there is a conveyance the concept would be different and the primary relief could be only cancellation".
39. Learned Senior Advocate for respondent No.1 placed reliance on the decision in the case of Ram Saran and another vs. Kuriamal and others5, wherein the Hon'ble Apex Court considered the facts that the plaintiff contended that he is the holder of the agreement dated 17.09.1973, which was registered on 01.01.1974. Defendant Nos.2 and 3 set up an agreement in their favour said to have been executed by defendant No.1 on 16.09.1973 and also contended that a registered sale deed was executed in their favour on 15.07.1974. The plaintiff filed the suit for specific performance of the contract dated 17.09.1973 against the owner as well as the subsequent purchasers. The owner has neither contested the matter nor appeared as witness on either side. The trial Court held that defendant No.1 had in 5 1988 SCC OnLine All 691 32 fact executed the agreement in question in favour of the plaintiffs by obtaining the advance amount and also recorded a finding that defendant Nos.2 and 3 have not proved the agreement executed in their favour on 16.09.1973. This finding of the trial Court was challenged by the defendants. In the light of rival contentions, the Hon'ble Apex Court held in Paragraph No.17 as under:
"17. The first and foremost condition which ought to be established by a subsequent transferee is that he had acted in good faith. The phrase 'good faith' has not been defined in the Specific Relief Act. In Words and Phrases, permanent Edition, Volume 18-A, 'good faith' is described as 'an honest intention to abstain from taking any conscientious advantage of another'. It includes not only the personal upright mental attitude and clear conscience but also the intention to observe legal duties. In fact the phrase 'good faith' generally imports that in any given case, the transaction involved was honestly conceived and consummated without collusion, fraud or knowledge pi fraud and without intent to assist in fraudulent or otherwise unlawful design. It also involves an honest effort to ascertain the facts before one would act on the basis thereof. To put it in a nutshell good faith is something which is free from design to defraud, dishonestly, without collusion, fraud or deceit and with lawful intent. However, under S. 3(22) of the General Clauses Act, 'good faith' has been defined as under: 33
"A thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not."
40. The Hon'ble Apex Court in the case of R.K.Mohammed Ubaidullah and ors Vs. Hajee C Abdul Wahab (D) by L.Rs, and ors6, considered the facts that in a suit for specific performance of the contract by the plaintiff, the subsequent purchaser came up with a defence that he is the bonafide purchaser in good faith for value without notice of contract. From the facts, it was emerged that they were aware of the fact that the plaintiff was in possession of the suit property occupying it as a tenant for the last several years. But in spite of that, the defendants have not made any enquiry as to whether the plaintiff had any further interest over the suit property while getting the property registered in their favour. Under such circumstances, the Hon'ble Apex Court held that the defendants were not bonafide purchasers for value without prior notice of the original contract and that they were required to make enquiry as to the nature of the possession or further interest, if any of the plaintiff over the suit property at the time when they entered in to sale 6 AIR 2001 SC 1658 34 transaction notwithstanding they were already aware that the plaintiff was in possession of the property as a tenant.
41. The Hon'ble Apex Court in the case of RAM AWADH (DEAD) BY LRS. AND OTHERS vs. ACHHAIBAR DUBEY AND ANOTHER7, considered a situation where the question had arisen as to whether a subsequent purchaser of the property can raise the defence that the plaintiff was not ready and willing to perform his part of the contract as required under Section 16 of the Specific Relief Act. Even though the defendants being the subsequent purchasers, have raised the defence that the plaintiff was not ready and willing to perform his part of the contract before the trial Court, the First Appellate Court declined to permit the subsequent purchasers to plead and contend that the plaintiffs were never prepared to perform their part of the contract basing on the decision of the Hon'ble Apex Court in the case of Jugraj Singh, (1995) 2 SCC 31. The said view was affirmed by the High Court in the second appeal. The Hon'ble Apex Court while allowing the appeal, held in Paragraph No.6 as under:
"6. The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff 7 (2000) 2 SCC 428 35 who has not met the requirements of clauses (a), (b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in Jugraj Singh case is erroneous."
(emphasis supplied) Thus, from the discussions held above, it is clear that the defence regarding readiness and willingness of the plaintiff could be raised not only by the owner of the property but also by subsequent purchaser/s while contesting the suit.
42. It is to be noticed that in the present case, the plaintiff was aware of the execution of the registered sale deed by defendant No.1 in favour of defendant No.2 much prior to filing of the suit. Even a declaration is sought in the plaint that the sale deed 04.10.2004 entered into between defendant Nos.1 and 2 is null and void, inoperative and the 36 same is to be quashed. However, it is to be noticed that no court fee is paid for seeking declaration that the sale deed is not binding on the plaintiff. Since the plaintiff is not a party to the sale deed, she need not have to seek cancellation of the sale deed as the same is null and void. But it is imperative to seek declaration that the same is not binding on her. Mere asking a prayer in the plaint that it is to be declared that the sale deed is null and void will not entitle the plaintiff for any such relief unless the required court fee is paid to seek such relief. Unless the registered sale deed Ex.D1 is set aside, the specific performance of the contract in respect of the schedule property cannot be granted.
43. In view of the discussions held above, I am of the opinion that the substantial questions of law formulated by this Court are to be answered in favour of the appellant and against respondent No.1. The First Appellate Court committed an error by ignoring the settled proposition of law and the evidence on record to set aside the judgment and decree passed by the trial Court and in decreeing the suit of the plaintiff as prayed for. Therefore, I am of the opinion that the impugned judgment and decree passed by the First Appellate 37 Court is liable to be set aside. In the result, I proceed to pass the following:
ORDER
(i) The appeal is allowed with costs.
(ii) The judgment and decree dated 18.09.2010 in R.A.No.86/2007 on the file of the learned II Additional District and Sessions Judge, Mysuru, is hereby set aside.
(iii) The judgment and decree dated 27.07.2007 passed in O.S.No.11/2006 on the file of the learned Civil Judge (Sr.Dn.) at T.Narasipura, is restored.
(iv) In the result, the suit of the plaintiff is decreed in part. The relief for specific performance of the contract is rejected.
(v) Registry is directed to send back the trial
Court records along with copy of this
judgment.
Sd/-
JUDGE
SMJ