Karnataka High Court
Sri D Mohanraj vs Sri Thoyajakshan on 17 February, 2020
Author: P.B.Bajanthri
Bench: P.B. Bajanthri
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17th DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
RFA NO.2033/2016 (SP)
BETWEEN:
SRI. D. MOHANRAJ,
S/O. LATE. DASAPPA,
AGED ABOUT 40 YEARS,
R/AT. # 10/8, 4TH CROSS,
GORGUNTEPALYA,
YESHWANTHAPURA POST,
BANGALORE - 560 022, ... APPELLANT
(BY SRI. NATARAJA .H.T., ADVOCATE)
AND:
1. SRI. THOYAJAKSHAN,
S/O. SHAMANNA,
AGED ABOUT 55 YEARS,
R/AT. #5, SIDDAPURA EXTENSION,
TUMKUR.
2. SMT. ADAMMA,
W/O. LATE SIDDAPPA
AGED ABOUT 70 YEARS.
3. SRI. B. S. SATHYANARAYANA,
S/O. LATE. SIDDAPPA,
AGED ABOUT 50 YEARS.
4. SRI. B. VENUGOPAL,
S/O. LATE. SIDDAPPA,
AGED ABOUT 48 YEARS,
5. SMT. B.S. LAKSHMIDEVI,
D/O. LATE. SIDDAPPA,
AGED ABOUT 46 YEARS.
RESPONDENTS 2 TO 5
2
ARE RESIDING AT
# 149, GOPAL BUILDING,
SESHADHRIPURAM,
BANGALORE - 560 020.
6. SMT. S. VATSALA,
W/O. SRI. ANANTHARAM,
AGED ABOUT 56 YEARS.
R/AT. # 17/1, 1ST MAIN ROAD,
MARUTHI TEMPLE STREET,
GORGUNTEPALYA, BANGALORE
SRI. T. NAGARAJ,
S/O. THIMMAIAH
SINCE DEAD BY HIS L/RS.
7(a) SMT. RATNAMMA,
W/O. LATE. T. NAGARAJ.
AGED ABOUT 49 YEARS.
7(b) SRI. MANOJ,
S/O. LATE. T. NAGARAJ,
AGED ABOUT 24 YEARS.
7(c) LAKSHMI,
D/O. LATE. T. NAGARAJ,
AGED ABOUT 22 YEARS.
RESPONDENTS 7(a) TO (c)
ARE R/AT. # 15, 5TH CROSS,
GORUGUNTEPALYA,
BENGALURU - 560 022.
8. SMT. M.G.S. LAKSHMI,
W/O. K.B. SHASHIDHARA,
AGED ABOUT 42 YEARS,
R/AT. KYASHAVARA VILLAGE &
POST., KORATAGERE TALUK,
TUMKUR DISTRICT. ... RESPONDENTS
(BY SRI. T. SESHAGIRI RAO, ADVOCATE FOR C/R1.
SRI. HARISH V.R., ADVOCATE FOR R8 (CP NO. 1321/2016)
R6 SERVED BUT UNREPRESENTED
R7(B) SERVED BUT UNREPRESENTED V/O. DTD.15/12/17,
R2 - R5 & R7 (A&C) - NOTICE HELD SUFFICIENT)
THIS APPEAL IS FILED UNDER SEC. 96(1) OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 09.11.2016
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PASSED IN OS NO. 239/1995 ON THE FILE OF THE XI ADDL.
CITY CIVIL JUDGE, BENGALURU CITY, DECREEING THE SUIT
FOR SPECIFIC PERFORMANCE AND ETC.,
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
07/01/2020 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
The present appeal is by defendant No.8 - Sri.D.Mohanraj in the suit challenging the Judgment and Decree dated 09th November 2016 passed by the XI Additional City Civil Judge, Bengaluru City, in O.S. No.239/1995.
2. For the sake of brevity, the parties are referred to by their ranking before the trial court r/w their names.
3. Plaintiff - Sri Thoyajakshan filed suit in O.S. No.239/1995 against defendant No.1 - Smt. Adamma, defendant No.2 - Sri B.S.Sathyanarayana, Defendant No.3 - Sri B.Venugopal, Defendant No.4 - Smt. B.S.Lakshmidevi, defendant No.5 - Smt. S. Vatsala, defendant No.6 -Sri T. Nagaraj, defendant No.7 & defendant-8 (Appellant herein).
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4. During pendency of O.S. No.239/1995, further transaction relating to subject sites was transacted. Consequently, legal heirs of defendant No.6
- T. Nagaraj were ranked as 6 (a), (b) and (c) i.e. Smt.Ratnamma, Sri Manoj and Smt. Lakshmi respectively and so also defendant No.7 - Smt. M.G.S. Lakshmi. In the suit, plaintiff has sought for the following reliefs:
a. Specific performance of the agreement of sale dated 26.07.1993 against the defendants directing them to execute the sale deed and get it registered the same.
b. Cancellation of the sale deed dated 24.11.1994 executed by defendants No.1 to 4 in favour of defendant No.6.
c. In case if the Court finds plaintiff is not in the possession of the suit property then direct the defendants to put the plaintiff in possession of the property.
5. Suit schedule property i.e. site No.9 formed in Sy.No.7 of Jarakabandekaval, Gorguntepalya, Yelahanka Hobli, Bengaluru North Taluk measuring 5 East to West 36 Feet and North to South 40 Feet and surrounded by the boundaries as under:
East by: road West by : Site No.10 North by : Site No.8 South by: Road.
6. Suit property originally stood in the name of the husband of defendant No.1- Smt. Adamma W/o. late Sri. Siddappa. Deceased Siddappa had purchased suit property under the sale deed dated 17.12.1964 which is marked as Ex.P5/original sale deed and Ex.D2- Certified Copy of sale deed dated 17.12.1964. Siddappa died prior to 1984 while leaving behind defendant No.1 - Smt. Adamma, Defendant No.2 - Sri. B.S. Sathyanarayana, defendant No.3 - Sri B. Venugopal and defendant No.4 - Smt. B.S. Lakshmidevi.
7. Defendant No.1 - Smt. Adamma had executed an agreement of sale in favour of defendant No.5 - Smt. S. Vatsala in respect of schedule property 6 wherein she has agreed to sell the schedule property for a sum of Rs.32,600/-. She had received a sum of Rs.5,000/- towards advance and had agreed to receive the balance sale consideration of Rs.27,600/- at the time of registration of sale deed. Vide Ex.P2- a sum of Rs.5,000/- was paid by defendant No.5- Smt.S. Vatsala, defendant No.1 Smt. Adamma on 15.10.1984. Further on 29.1.1985, a sum of Rs.10,000/- was paid. To that extent, two sharas are reflected in Ex.P2. This transaction was incompleted.
8. On 27.3.1985, defendant No.1- Adamma had executed a power of attorney in favour of defendant No.5 - Smt. S.Vatsala authorizing her to sell the property vide Ex.P3 and further defendant No.1- Smt. Adamma sworn to affidavit under which she has in receipt of entire sale consideration of Rs.32,600/- and also there is a recital for having delivered the possession of the property to defendant No.5 - Smt. S. Vatsala vide Ex.P4. Pursuant to Ex.P2 - agreement dated 30.8.1984 read with power of attorney dated: 27.03.1985 7 defendant No.5 - Smt. S. Vatsala proceeded to enter into a sale agreement in favour of plaintiff for a total sale consideration of a sum of Rs.48,500/-. Plaintiff had paid a sum of Rs.40,000/- to defendant No.5- Smt.S. Vatsala vide Ex.P1 dated: 26.07.1993.
9. When things stood thus, defendant Nos.1 to 4 i.e. Smt. Adamma, Sri B.S. Sathyanarayana, Sri.B.Venugopal and Smt. B.S. Lakshmidevi respectively have sold the schedule property in favour of defendant No.6 - T. Nagaraj for a sum of Rs.1,95,000/- vide Ex.P6 dated: 24.11.1994. Consequently, plaintiff Sri Thoyajakshan issued a legal notice to defendant Nos.1 to 5 through his counsel under postal acknowledgement and receipt vide Exs.P7, P8 and P9 respectively. Defendant No.2- Sri B.S. Sathyanarayana had filed O.S. No.5442/1993 on 06.09.1993 against the husband of defendant No.5-Smt.S.Vatsala and it was dismissed on 03.06.1994. During pendency of the O.S No 239/1995, Defendant No.6(a) Smt. Ratnamma - widow of defendant No.6- T. Nagaraj proceeded to sold 8 schedule property on 15.05.2002 in favour of defendant No.7-Smt. M.G.S Lakshmi vide Ex.D4. Further, defendant No.7 sold the schedule property by executing a sale deed on 18.02.2006 in favour of defendant No.8 - D. Mohan Raj who is appellant herein for a sum of Rs.13,38,000/-. Plaintiff - Sri Thoyajakshan filed O.S. No.239/1995 seeking for a specific performance of the agreement of sale dated 26.07.1993 for cancellation of sale deed dated 24.11.1994 executed by defendant Nos. 1 to 4 in favour of defendant No.6 and if the Court finds the plaintiff has not in possession of the suit property then put the plaintiff in possession of the property.
10. The plaintiff in O.S. No.239/1995 in support of his case examined himself Sri Thoyajakshan as PW.1 and C.M. Murthy as PW.2 and exhibited the following documents:
Ex.P.1: Agreement of sale dated 26.7.1993 Executed by the defendant No.5 in favour of plaintiff.
Ex.P.2: Agreement of sale dated 30.8.1984 executed 1st defendant in favour of 5th defendant.9
Ex.P3: G.P.A. dated 27.3.1985 executed by defendant No.1 to 4 in favour of defendant No.5.
Ex.P4: Affidavit dated 27.3.1985 executed by defendant No.1 to 4 in favour of 5th defendant Ex.P5: Original sale deed dated 17.2.1964 executed by Sonnappa in favour of husband of 1st defendant Ex.P6: Certified copy of sale deed dated 24.11.1994 executed by 1st and 2nd defendant in favour of 6th defendant Ex.P7: Legal notice dated 26.11.1994 sent by P.W.1 through advocate to defendant No.1 to 4 Ex.P8: Postal acknowledgment Ex.P9 to 12: Unserved postal covers Ex.P13: Certified copy of order sheet in O.S. No.5442/1993.
Ex.P14: Certified copy of plaint in O.S. No.5442/1993 Ex.P15: Certified copy of interim application No.1 in same case.
Ex.P16: Certified copy of affidavit in same case. Ex.P17: Certified copy of memo in same case. Ex.P18: Certified copy of order sheet in O.S. No.2287/1994 Ex.P19: Certified copy of plaint in O.S. 10 No.2287/1994.
Ex.P20: Certified copy of interim application in same case.
Ex.P21: Certified copy of affidavit in same case. Ex.P22: Certified copy of memo in same case. Ex.P23 and 24: Two photos in respect of suit schedule property.
11. On behalf of defendants Smt. S.P. Rathnamma examined as DW.1, Sri D. Mohanraj examined as DW.2, Sri Ramesh examined as DW.3 and Sri Kumar B.N. examined as DW.4 and exhibited the following documents:
Ex.D.1: Certified copy of sale deed dated 24.11.1994 Ex.D.2: Certified copy of sale deed dated 17.12.1964 Ex.D.3: Original sale deed dated 24.11.1994 Ex.D.4: Original sale deed dated 15.5.2002 Ex.D.5: Original sale deed dated 18.2.2006 Ex.D.6: Original Indemnity bond dated 16.2.2006 Ex.D.7: Certificate issued by corporation dated 1.3.1983 in the name of Sathyanarayana 11 Ex.D.8: Original notice issued by corporation dated 9.2.1995 Ex.D.9: Endorsement/Uttarapatra dated 25.7.1988 Ex.D.10: Katha Certificate issued by corporation dated 19.11.2001 Ex.D.11: Uttara Patha dated: Nil Ex.D.12: Katha extract dated 18.7.2002 Ex.D.13: Certificate issued by corporation dated 18.7.2002 Ex.D.14: Katha certificate dated 10.1.2006 Ex.D.15: Uttara Patra issued by ARO dated 29.11.2006 Ex.D.16: Original tax paid receipt for the year 1992-1993 issued on 17.6.1992 Ex.D.17 to 29: Thirteen tax paid receipts Ex.D.30 to 31 and 31(a): Encumbrance certificates dated 17.8.2001, 8.7.2003 and 8.4.2009 Ex.D.32 to 34: Three nil encumbrance certificates Ex.D.35: Electricity sanctioned letter dated 17.4.2008 along with estimation of sanction of power Ex.D.36: Receipt issued by BWSSB dated 28.6.2008 12 Ex.D.37: Katha extract dated 22.2.2008 Ex.D.38: Agreement of sale dated 15.6.2005 Ex.D.39 to 42: Colour photos and CD Ex.D.43 & 44: Certified copies of judgment and decree in O.S. No.1881/2009
12. Arising out of the above factual aspects, the trial Court proceeded to frame the following issues:
1. Whether the plaintiff proves that the defendants 1 to 4 have executed the General power of attorney in favour of 5th defendant during the year 1985 in respect of the suit schedule property?
2. Whether the plaintiff proves that the 5th defendant had executed an agreement dated 26.7.1993 to sell in favour of the plaintiff agreeing to sell the suit schedule property for a valuable consideration?
3. Whether the plaintiff proves that the 5th defendant had received the consideration amount and put the plaintiff in possession of the suit schedule property by delivering all the original documents of the suit schedule property?
4. Whether the plaintiff proves that defendants 1 to 4 have executed registered sale deed dated 24.11.1994 fraudulently?13
5. Whether the plaintiff proves that he has been always ready and willing to perform his part of contract?
6. Whether the plaintiff proves that the sale deed dated 24.11.1994 executed in favour of the 5th defendant is liable to be cancelled?
7. Whether the plaintiff proves that he is in possession of the suit schedule property?
8. Whether the plaintiff proves that he is entitled for the decree of specific performance?
9. What decree or what order?
ADDITIONAL ISSUES
1. Whether the defendants No.6(a), (b) and (c) proves that the 6th defendant was a bonafide purchaser of the suit schedule property for valuable consideration without notice of earlier transaction?
2. Whether the defendant No.8 proves that he is a bonafide purchaser of the suit schedule property without notice of earlier transaction?
3. Whether the suit is barred by time?
13. The trial Court proceeded to consider the issues and suit was decreed with cost while directing 14 defendant No.5 - Smt. S. Vatsala to execute the sale deed pertaining to suit schedule property in favour of plaintiff by receiving balance sale consideration of Rs.8,500/- from plaintiff - Sri. Thoyajakshan within two months from the date of decree and further defendant No.8 - D. Mohan Raj was directed to join defendant No.5 and thereby jointly execute the sale deed in favour of the plaintiff, failing which, plaintiff is at liberty to get the sale deed executed in respect of suit schedule property through this Court. It was further ordered that Ex.P1 being unregistered sale agreement, office is directed to calculate duty and penalty on Ex.P1 and plaintiff in turn deposit the same. On such payment of duty and penalty deposited by the plaintiff of Ex.P1, office to draw decree.
14. Learned counsel for defendant No.8 - D. Mohan Raj contended that the trial Court has committed an error while deciding the issue No.1 to the extent of as if defendant Nos.1 to 4 jointly executed the sale agreement dated 30.08.1984 in favour of 15 defendant No.5 - S. Vatsala, GPA dated 27.03.1985 Ex.P3 was executed by defendant Nos.1 to 4 in favour of defendant No.5 - Smt. S. Vatsala and further Ex.P4 - affidavit has been filed. These three documents do not reveal that execution of sale agreement, GPA and affidavit is only by defendant No.1 and not on behalf of defendant Nos.1 to 4. Whereas, trial Court proceeded to decide issue No.1 as if defendant Nos.2 to 4 have also executed the sale agreement, GPA and affidavit. Even though defendant Nos.2 to 4 have signed the aforesaid documents, merely signing documents are not sufficient, contents of the document is required to be taken note of. After the death of Siddappa, schedule property is vested with defendant Nos.1 to 4 through defendant No.1 alone cannot sell the schedule property since contents of the aforesaid documents reveals that defendant Nos.2 to 4 have not executed the sale agreement, GPA and affidavit. Thus, the trial Court has committed an error.
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15. On the other hand, learned counsel for the plaintiff - Sri Thoyajakshan submitted that there is no error committed by the trial Court having regard to the sale agreement dated 30.8.1984 and 26.7.1993 - Ex.P2 and P1 GPA, Ex.P3 dated 27.3.1985 and affidavit - Ex.P4 dated Nil which contains signature of defendant Nos.1 to 4 which suffice to hold that defendant Nos.1 to 4 have executed the aforesaid documents. Thus, the contention of defendant No.8 is liable to be rejected.
16. Learned counsel for defendant No.8 - appellant submitted that cross examination of PW.1 supports the case of defendant No.8. It was further contended that trial Court has not considered citations furnished along with dated 23.09.2016.
17. It was submitted that no right is created in favour of defendant No.5 - Smt. S. Vatsala with reference to GPA dated 27.3.1985. defendant No.5 - Smt. S. Vatsala remained absent, which amounts to collusion suit. It was further contended that defendant No.5 could not have entered into agreement with the 17 plaintiff, in the absence of ownership of schedule property. Consequently, contract entered among defendant No.5 and plaintiff, if any, would be contrary to Sections 9 and 11 of Specific Relief Act, 1963. In support of the said contention, learned counsel for the defendant No.8 relied on decision in the case of Mayawanthi Vs. Kaushalya Devi reported in (1990) 3 SCC page No.1 (para No.8).
18. Learned counsel for defendant No.8 - Sri D. Mohan Raj disputed relating to possession of suit property by plaintiff- Sri Thoyajakshan since plaintiff admitted that defendant No.8 -D. Mohan Raj is in possession of the schedule property. Defendant No.8/Appellant herein filed suit bearing O.S. No.1881/2009 against husband of defendant No.5 which was decreed on 26.5.2010 whereas trial Court has not appreciated documentary evidence. Defendant No.8 had purchased schedule property from defendant No.7 - Sri. M.G.S. Lakshmi on 18.2.2006. Further, khatha was made in favour of defendant No.8 - Sri D. 18 Mohan Raj on 24.11.2006. Issue No.4 whether execution of sale deed dated 24.11.1994 among the defendant Nos.1 to 4 in favour of defendant No.6- Sri. T. Nagaraj is fraudulently or not is concerned, defendant No.5 - Smt. S. Vatsala is in possession and it is to be taken into consideration. Defendant No.5 - Smt. S. Vatsala has not produced any material information so as to establish she is in possession of the schedule property from the date of sale agreements, GPA and the date of affidavit. Thus, trial Court has committed error.
19. Issue No.5 decided by the trial Court cannot be taken note of for the reasons that it is a collusive among defendant No.5 - Smt. S. Vatsala and plaintiff - Sri Thoyajakshan.
20. Issue No.7 who is stated to be in possession in the absence of any material information, plaintiff - Sri Thoyajakshan has not produced any material information, in the absence of material information trial Court has committed an error.
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21. Issue No.6 - whether sale deed dated 24.11.1994 executed in favour of defendant No.6 is liable to be canceled or not? The reasoning assigned by the trial Court are contrary to the material information. Therefore, trial Court has not apprised issue No.6 appropriately.
22. On additional issues, learned counsel for defendant No.8 - Sri D. Mohan Raj submitted that cross examination of PW.1 and the fact that there is an admission relating to that he was not aware as is evident from cross examination:
I do not know as to when Siddappa has died. I do not know as to whether Siddappa executed Will in respect of the suit schedule property. The suit property was to be devolved upon the wife and children of late Siddappa. Siddappa had two sons and a daughter. Sathyanarayana (D-2) and Venugopal (D-3) are the sons and 4th defendant is the daughter of late Siddappa. The defendants 1 to 4 have not executed any document in my favour in respect of the suit property.20
I was not having any financial transactions with defendants 1 to 4. The 1st defendant is alive. But, I do not know where she is residing. I do not know as to whether Defendant 2 to 4 are alive and also about their residence. Witness voluntarily says that he does not know as to whether 1st defendant is alive or not.
I personally know about the transaction taken between the 1st defendant and 5th defendant in respect of the suit property. The sale agreement was entered into between the 1st and 5th defendants on 30-08-1984. At that time, I was 23 or 24 years old and I was studying in Science College at Bangalore. The agreement of sale at Ex.P.2 was prepared in the premises of Taluk Office, Bangalore. Earlier to that the talks were held in the house of the 5th Defendant. But, I cannot say as to how many days prior to the agreement of sale the talks were taken. I do not know personally about the talks which were taken between the 1st and 5th defendants.
I saw the 1st defendant, for the first time, in the house of 5th defendant. But, I cannot say the date, month and the year. I 21 have seen the 1st defendant for two times. So also, I have seen the defendants 2 to 4 for two times. I saw defendants 2 to 4 along with the 1st defendant, for the first time, in the house of 5th defendant. I saw them for the second time in the Taluk Office, Bangalore.
On that day, the sale agreement was prepared. I do not know who had purchased the Stamp Paper of Ex.P.2. I do not know who has scribed it. I do not personally know about the contents of Ex.P.2. I am not a witness to Ex.P.2.
23. On the other hand, learned counsel for the plaintiff i.e. respondent No.1 (Sri Thoyajakshan) herein submitted that on 17.12.1964, Sri Siddappa purchased schedule property from one Sonnappa. After his death, Smt. Adamma and her children i.e. defendant Nos.2 to 4 were owners of the schedule property. Defendant No.1 - Smt. Adamma executed GPA in favour of defendant No.5
- Smt. S. Vatsala for which defendant Nos.2 to 4 have given their consent. In terms of Section 115 of the Indian Evidence Act, 1872, defendant Nos.1 to 4 were estopped. Ex.P.2 was the undertaken given by 22 defendant Nos.2 to 4. Once the aforesaid document is signed by defendant Nos.2 to 4 which suffice that they have given consent in favour of defendant No.1 for execution of Ex.P2. Defendant No.2 filed O.S. No.2287/1994 against A. Ananthram and it was filed on 20.4.1994. In para No.4 of the plaint, Defendant No.2 has averred as if his mother - Adamma died, thus a false submission has been made by Sri Satyanarayana- defendant No.2. Consequently, execution of sale deed in favour of defendant No 6 - Sri Nagaraj T. dated 24.11.1994 - Ex.D3 is incorrect. It was further contended that sale deed dated 17.12.1964 is not available with defendant No.6 - Sri Nagaraj. In the absence of original sale deed, it was executed in favour of Sri Nagaraj - defendant No.6 is impermissible in terms of Section 55 of Transfer of property Act, 1882. Further, question for consideration is 'whether DW.1 the evidence is believable or not? Agreement of sale, affidavit and GPA Exs.P2, 3 and 4 supports the evidence of DW.1- Smt. S.P. Rathnamma. It is to be noted that defendant Nos.1 to 4 have not contested the matter and 23 they have not filed their written statement, in such an event, order 8 and Rule 5(2) of Code of Civil Procedure, 1908 provides for admission. During pendency of lis, legal representatives of defendant No.6 sells the schedule property in favour of defendant No.7 - Smt. M.G.S. Lakshmi on 15.5.2002. Further, defendant No.7
- Smt. M.G.S. Lakshmi sells the schedule property in favour of defendant No.8 - Sri D. Mohan Raj - appellant herein on 18.2.2006. The subsequent purchasers have taken an indemnity bond as per Ex.D6. It was also contended that before purchase of schedule property by defendant Nos.7 and 8 they did not enquired into. Thus, it is mandatory requirement to enquire under Section 55 of Transfer of Property Act, 1882. Ex.P1 dated 26.7.1993, in the first page, 13th line relates to delivery of possession of schedule property. Even assuming that plaintiff is not in possession of the schedule property, Section 22 of the Specific Relief Act,1963 - power to grant relief for possession has been discussed in the Supreme Court's decision in the case of Babu Lal Vs. M/s. Hazari Lal Kishori Lal and 24 others reported in AIR 1982 SC 818 (para Nos.11 and 12).
24. Learned counsel for the plaintiff pointed out that if there is any transaction during pendency of lis, subsequent purchasers are in possession, in such an event, Supreme Court in the case of Guruswamy Nadar Vs. P.Lakshmi Ammal (dead) through Lrs. And others reported in 2008 (5) SCC 796 held as under:
13. Normally, as a public policy once a suit has been filed pertaining to any subject-matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject-matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end.25
25. He has also cited decision relating to bonafide purchaser in not enquiry amounts to taking risk vide in the case of R.K. Mohammed Ubaidullah and others Vs Hajee C. Abdul Wahab (D) by Lrs. And others reported in (2000) 6 SCC 402 - para No.15).
26. At this juncture, learned counsel for defendant No.8 - D. Mohan Raj submitted that sale agreement Ex.P1 dated 26.7.1993 provides for execution of sale agreement within a period of twenty months. In this regard, notice was issued on 26.11.1994 - Ex.P7 but there was no reply from defendant Nos.1 to 5. It was further contended that plaintiff's argument is silent on the issue relating to execution of first sale agreement dated 30.08.1984 Ex. P2. In order to over come the delay in execution of the aforesaid agreement defendant No.5 entered into one more sale agreement dated 26.7.1993. Defendant No.5 is not the owner of the schedule property so as to execute any sale agreement with the plaintiff. Unless and until schedule property stands in the name of 26 defendant No.5, question of entering into agreement with the plaintiff and seeking suit for specific performance for execution of sale agreement dated 30.8.1984 and 26.7.1993 is impracticable. The trial Court committed serious error in deciding first issue as if defendant Nos.1 to 4 have authorized defendant No.1 entered into sale agreement. There is not even a single document to establish that of defendant Nos.1 to 4 have executed any sale agreement/GPA in favour of defendant No.5. Thus, any transaction among defendant No.1 with defendant No.5 and further defendant No.5 in favour of plaintiff are farce.
27. Heard the arguments of the learned counsel for the appellants - defendant No.8 and plaintiff - Respondent.
28. In view of the facts narrated r/w the documentary/oral evidence question for consideration is 'whether trial Court has committed error in decreeing the suit or not?
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29. Root of the matter is whether Ex.P2 dated 30.08.1984 and Ex.P1 dated 26.7.1993 - sale agreement stated to have been executed by defendant No.1- Smt.Adamma in favour of defendant No.5 - Smt. S. Vatsala r/w GPA Ex.P3 dated 27.3.1985 and affidavit Ex.P4 dated NIL is executed by defendant No.1 - Smt.Adamma in favour of defendant No.5 - Smt. S.Vatsala on behalf of defendant Nos.2 to 4 or not?
30. Perusal of Exs.P2, P1 and P3, it is evident that such transaction was among defendant Nos.1 and
5. No doubt defendant Nos.2 to 4 are signatories to Exs.P2, P1 and P3. However, reading of the aforesaid documents i.e. sale of agreement, GPA and affidavit do not reveal that defendant Nos.2 to 4 have empowered defendant No.1 - Smt. Adamma to undertake sale of agreement and consequential documents to be executed in favour of defendant No.5 - Smt. S. Vatsala. Trial Court has committed an error in concluding that as if sale agreement dated 26.7.1993 is stated to be executed on behalf of defendant Nos.1 to 4 in favour of defendant 28 No.5 - Smt. S.Vatsala. Thus, there is non application of mind in analyzing the aforesaid Exs.P2, P1, P3 and P4 respectively.
31. Defendant No.8/Sri. D.Mohan Raj - appellant herein submitted that cross examination of PW.1 supports the case of defendant No.8 - Sri. D.Mohan Raj and list of citations furnished along with the memo has not been considered by the trial Court. These two contentions have not been countered by the plaintiff - Sri. Thoyajakshan.
32. Learned counsel for defendant No.8 submitted that it was a collusion suit as is evident from the conduct of defendant No.5 - Smt. S. Vatsala who remained absent. It was contended that defendant No.5
- Smt. S. Vatsala entered into agreement with the plaintiff is in the absence of ownership of schedule property and it is contrary to Sections 9 and 11 of Specific Relief Act, 1963. Learned counsel for the plaintiff submitted that before completion of transaction pursuant to sale agreement dated 26.7.1993 - Ex.P1, 29 defendant Nos.1 to 4 have executed sale in favour of defendant No.6-Sri T. Nagaraj. Therefore, the sale agreement dated 26.07.1993 could not be completed. It is to be noted that right of defendant No.5- Smt.S.Vatsala over the schedule property would be completed as and when sale agreement dated 30.08.1984 or 26.07.1993 is executed in completion like execution of sale deed and its registration. Thus, defendant No.5 has not stepped into the shoe of ownership of the schedule property so as to proceed for sale agreement with the plaintiff-Sri. Thoyajakshan.
33. Dispute relating to possession of the suit property to the extent whether is it with the plaintiff - Sri. Thoyajakshan or defendant No.8 - Sri D. Mohan Raj. Even though sale agreement dated 26.7.1993 appears to be with possession in favour of defendant No.5-Smt. S. Vatsala, however, there is no material to show that defendant No.5 - Smt.S.Vatsala was in possession of the suit schedule property and further she had handed over to the plaintiff - Sri. Thoyajakshan. 30 On this issue, there was a dispute to the extent that defendant No.8 is stated to have filed O.S. No.1881/2009 against the husband of defendant No.5 - Smt. S.Vatsala which was decreed on 26.5.2010, whereas the trial Court has not appreciated the documentary evidence. During pendency of the suit, defendant Nos.1 to 4 have executed the sale of the suit property in favour of defendant No.6 dated 24.11.1994. Further, defendant No.6(a),(b) and (c) have executed sale transaction with defendant No.7 dated: 15.5.2002. Consequently, defendant No.7 executed sale deed in favour of defendant No.8 - appellant herein on 18.2.2006. Defendant No.8 is in possession of the suit schedule property. Neither the defendant No.5 nor the plaintiff have established that they are in possession of the suit schedule property. The contention of the plaintiff that defendant Nos.1 to 4 have executed the sale deed in favour of defendant No.6 on 24.11.1994 fraudulently cannot be accepted merely that defendant Nos.1 to 4 have executed the sale agreement dated 30.8.1984 and 26.7.1993. That apart, defendant Nos.2 31 to 4 have not executed any GPA in favour of defendant No.1 - Smt. Adamma so as to enter into any sale agreement with defendant No.5 - Smt. S. Vatsala. In other words, document Exs.P2, P3 and P4 have no value in the absence of defendant Nos.2 to 4 entrusting GPA in favour of defendant No.1 - Smt. Adamma to deal with suit schedule property with defendant No.5- Smt.S.Vatsala. Thus, there is no material information so as to draw inference that defendant No.5 - Smt. S. Vatsala and plaintiff - Sri. Thoyajakshan were in possession of suit schedule property. Cancellation of sale deed dated 24.11.1994 executed by defendant Nos.1 to 4 in favour of defendant No.6 is in order or not. It is to be noted that even though defendant No.2 had filed a suit against one A.Anantharaman in O.S. No.2287/1994 on 20.4.1994 wherein he has averred in the plaint that his mother - Smt. Adamma- defendant No.1 is stated to have died, even though defendant No.2 had withdrawn the said suit. Still having regard to the conduct of defendant No.2 - Sri B.S.Sathyanarayana sale deed executed in favour of defendant No.6 - T. 32 Nagaraj is not fraud. Unless sale agreement entered between defendant Nos.1 to 4 in favour of defendant No.5 - Smt. S. Vatsala and consequently defendant No.5 - Smt. S. Vatsala entered into agreement with the plaintiff is in vogue, since Exs.P2, P1 and P3 and P4 are evident there is no G.P.A. on behalf of defendant Nos.2 to 4 in favour of defendant No.1 so as to execute any sale agreement with defendant No.5 - Smt. S. Vatsala, since schedule property was owned by deceased Siddappa, after his death property was required to be shared among defendant Nos.1 to 4. Merely defendant No.1 executed sale agreement, GPA, affidavit in favour of defendant No.5 - Smt. S. Vatsala and the fact that defendant Nos.2 to 4 have signed document that does not suffice unless and until there is expression on behalf of defendant Nos.2 to 4 that they are empowering defendant No.1 to execute sale agreement etc., in favour of defendant No.5. Sale agreement, GPA and affidavit are not executable, hence, there is no infirmity in respect of execution of sale deed in favour of defendant No.6 - Sri T. Nagaraj dated 24.11.2014. This issue has 33 not been considered by the trial Court and committed an error.
34. The contention of the plaintiff that defendant Nos.2 to 4 have given their consent to petitioner No.1 for execution of sale agreement, GPA and affidavit in favour of defendant No.5, in view of their signatures on the sale agreement and GPA which suffice in terms of Section 115 of The Indian Evidence Act, 1872 and defendant Nos. 1 to 4 were estopped. It was also contended that Ex.P2 was undertaken given by defendant Nos.2 to 4. It was further contended that defendant Nos.2 had misled in O.S. No.2287/1994 against A. Anantharam. These factual aspects would not be in favour of plaintiff Sri Toyajakshan and strengthen the documents like Exs.P2, P1, P3 and P4.
35. It was further contended that in the absence of original sale deed, sale agreement executed in favour of defendant No.6 by defendant Nos.1 to 4 is impermissible in terms of Section 55 of the Transfer of Property Act, 1882. It was also contended that 34 defendant Nos.1 to 4 have not contested the matter and they have not filed their written statement. In such an event, Order 8 Rule 5(2) of Code of Civil Procedure, 1908 would operate relating to admission. It was also contended that during pendency of lis, legal representatives of defendant No.6 sold the suit property in favour of defendant No.7 on 15.5.2002 and further defendant No.7 in favour of defendant No.8 on 18.2.2006, in such transaction parties have obtained indemnity bond in terms of Ex.D6. The contention of the plaintiff that once Exs.P2, P1, P3 and P4 were made known to defendant Nos.2 to 4 and they were party to those documents which amounts to given consent in favour of defendant No.1 for execution of the aforesaid documents. Such a contention of the plaintiff cannot be accepted for the reasons that nowhere defendant Nos.2 to 4 have executed power in favour of defendant No.1. That apart, sale agreement dated 30.8.1984 was incomplete for which no reasons are forthcoming from Defendant No.5 or Plaintiff. Ex.P1 dated 26.7.1993 got by the plaintiff in order to overcome Ex.P2 dated 35 30.8.1984. Even the aforesaid documents are incomplete for want of ingredients, therefore, one cannot presume that defendant Nos.2 to 4 have executed the sale agreement in favour of defendant No.5
- Smt. S. Vatsala on the score of merely their signatures are reflected in the documents, unless and until specific expression is averred in the sale agreement authorising defendant No.1 by defendant Nos.2 to 4 the contention of plaintiff is liable to be rejected. Section 55 of the Transfer of Property Act,1882 would not spring into action since the very root of the matter relates to sale agreement among defendant Nos.1 to 5 is incomplete, so also order 8 and Rule 5(2) of Code of Civil Procedure,1908 to the extent that defendant Nos.1 to 4 have not contested the matter and they have not filed their written statement. It is to be noted that defendant Nos.1 to 4 have no interest in the suit schedule property since they have washed their hands while executing sale of the suit property in favour of defendant No.6 and thereafter suit schedule property has been sold to defendant No.7 in turn defendant No.7 sold to 36 defendant No.8, obtaining indemnity bond by the subsequent purchaser vide Ex.D6 is only to protect their interest. Merely obtaining indemnity bond by defendant Nos.7 and 8 that would not be a hurdle in deciding the matter. Plaintiff has also contended that even though he has not in a possession of the suit schedule property Section 22 of Specific Relief Act,1963 would assist his contention. The aforesaid contention would come into picture only as and when Exs.P2, P1, P3 and P4 are held to be valid and authenticated documents. The cited decision on behalf of plaintiff - Sri Thoyajakshan do not assist his case in view of the fact that there is no proper execution of sale agreement among defendant Nos.1 to 4 in favour of defendant No.5. That apart, sale agreement among defendant Nos.1 to 4 and defendant No.5 was incomplete in the year 1984, in order to overcome the sale agreement in the year 1984 one more sale agreement was entered into in the year 1993. Unless sale agreement takes shape of sale deed and its registration in favour of defendant No.5-Smt. S. Vatsala, defendant No.5 has no right to 37 step into the shoe of ownership of the suit schedule property. Thus, plaintiff has not made out a case. The trial Court has not appreciated the source of documents Ex.P2, P1, P3 and P4. Unless and until they were authenticated and completion of ingredients of sale agreement, GPA by the shareholders of the suit property like defendant Nos.1 to 4, merely signing of sale agreement entered among defendant Nos.1 to 5 does not empower to defendant No.1 - Smt. Adamma to sell the property infavor of defendant No.5- Smt. S. Vatsala. Consequently the cited decisions on behalf of Plaintiff - Sri. Thoyajakshan do not assist his case.
36. Plaintiff claimed to be the owner and in possession of the property in question relying upon the agreement to sell entered into between defendant Nos.1 to 4 with an erstwhile owner of the property. In the case of Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana reported in (2012) 1 SCC 656, wherein it was held an agreement to sell which is not registered deed on conveyance would not meet the requirements. 38 Sections 54 and 55 of the Transfer of Property Act, 1882 held the necessary foundation of the case of the plaintiff i.e. agreement to sell would identify and the said document did not transfer any right, title or interest of the property. Thus, the plaintiff had no right, title or interest in the suit property.
37. A power of transfer is not an instrument in regard to any right, title or interest in an immovable property. Property can be lawfully transferred through registered sale deed.
Four ingredients are necessary to make an agreement to sell are -
(i) particulars of consideration;
(ii) certainty as to party i.e. vendor and vendee;
(iii) certainty as to the property to be sold;
(iv) certainty as to other terms relating to probate cost of conveyance to be borne by the parties, time etc;
If these ingredients are lacking in the agreement, the obligations contemplated under Section 16 of the 39 Specific Performance Act,1963 for immovable property would not arise.
38. In the privy council decision namely Pandurang Krishnaji v. M. Tukaram and Otherrs reported in AIR 1922 P.C. 20 it was held that the attestation by a witness does not work as an estoppel against him at the best he can always deny its contents but may not be able to deny its execution. The view of the privy council reads as under:
There remains the matter when, so far as can be gathered from the judgments in the Court from which this appeal has proceeded, has been the real controversy, and that is that whatever be the true effect of the transaction Pandurang is estopped from setting it up against the Respondent. The first estoppel that is put forward, which was undoubtedly the estoppel upon which the real issue was taken, was said to arise by virtue of the fact that Pandurang had himself attested the first deed which had been executed on the 2nd February 1914, conveying the 40 property to Damle. The issue is framed in these words:
"Is Defendant No.1 (i.e. Pandurang) estopped from questioning the right, title and interest of defendants Nos. 9 and 10 (i.e. Vishwanath and Kanhoba) in the property transferred under the sale deed dated the 2nd February 1914, on account of the fact that he attested that deed."
And then further issue is raised as to whether he attested with knowledge and consented to the transfer. Before their Lordships consider the circumstances in which that attestation took place, they think it is desirable to emphasize once more that attestation of a deed by itself estops a man from denying nothing whatever excepting that he has witnessed the execution of the deed. It conveys, neither directly nor by implication any knowledge of the contents of the document, and it ought not to be put forward alone for the purpose of establishing that a man consented to the transaction which the document effects. It is of course, possible, as was pointed 41 out by their Lordships in the case of Banga Chandra Dhur Biswas v. Jagal Kishore Acharya Choudhuri (L.R.43 I. A. 249: S.C. I.L.R. 44 Cal. 186; 21 C. W. N. 225 (1916)) that an attestation may take place in circumstances which would show that the witness did in fact know of the contents of the document but no such knowledge ought to be inferred from the mere fact of the attestation. Their Lordships think that a mistake has arisen in this case, not for the first time, from assuming that attestation carries some greater weight. In the present instance the learned District Judge says in his judgment at page 47:-
"My impression is that Pandurang did not understand the nature of the consequences that may accrue from his conduct and what interpretation would be put upon the fact of his signing the deed as an attesting witness. I therefore hold that the defendant Pandurang is not estopped from raising the question that he was not bound by his mere signature to show that he 42 consented to the result that he was not entitled to them."
That is the wrong way of approaching the question. Pandurang is not estopped by his mere signature unless it can be established by independent evidence that to the signature was attached the express condition that it was intended to convey something more than a mere witnessing of the execution, and was meant as involving consent to the transation. The statements made by the learned Judicial Commissioner at page 61 of the record are even more startling and they appear to show that the error as to the effect of attestation must be very wide-spread. They state there: "The mere attestation of a sale deed does not work an estoppel unless it is pleaded and proved that such attestation has induced a belief followed by action." Estoppel does not arise from any such circumstance. As already stated attestation itself does not effect it, nor does the belief of other parties as to the meaning of attestation affect the man who has placed his 43 signature as a witness, unless it can be established that he knew that that belief would arise, and signed with that intent. A similar statement is to be found later on in the judgment, where the learned Judges say:-
"We think that attestation by a person who has or claims any interest in the property covered by the document must be treated, in the absence of any evidence to show that he was tricked into making the signature, prima facie as a representation by him that the title recited in the document is true and will not be disputed by him as against the oblige under the document."
Their Lordships are bound to point out that that is an entire misapprehension of the law of estoppel, and that if that misapprehension be not corrected, much mischief may be done in the administration of justice in India. They think it well to recall the precise words in which estoppel is defined in the Indian Evidence Act of 1872, sec, 115, which is in these terms:-
44
"When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true, and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."
If the clear rule there laid down had been observed, the difficulties which have embarrassed this case would not have arise. It is then said that attestation in this particular case had greater weight because of the circumstance associated with the execution of the deed. Those circumstances, when they are carefully examined, amount to this: That it is alleged that Pandurang knew of the deed's contents; that he was warned against signing it; that he said he did not mind signing it because he had no objection and that there were circumstances from which it is possible to infer that he in fact consented to the sale. No one of these suggestions was 45 put to Pandurang himself and their Lordships are unable to draw that inference from the other evidence. There can be no doubt that in 1910 Pandurang had obtained a formal acknowledgement of the fact that the condition under which his title to these two shares arose had in fact taken place. He must be assumed to have known that his right was then established, subject to whatever argument might be raised as to the question of registration, which obviously was not in the mind of either of the parties. He thought that the property was worth some Rs.4,000, it was to be sold for Rs.9,100, and the whole of the right and interest that arose to him by virtue of the fact that Rs.533 that were owing to him had not been paid was to disappear; he was to get nothing whatever out of it, and he was to relinquish the right to which the non- payment of the monies had given rise. It seems to their Lordships impossible to think that in such circumstances a man could have attested a deed for the purpose of relinquishing for no consideration whatever a right which, 46 upon the face of the document would have been one of great value. Their Lordships do not think that the evidence that Pandurang knew of the contents of this deed and attested for the purpose of evidencing his consent can be accepted, and the burden of establishing that contention lay upon the plaintiff. If in fact there be a practice, as is suggested from the evidence, that when the consent of parties to transactions is required, it can be obtained by inducing them by one means or another, to attest a signature of the executing parties, the sooner that practice is discontinued the better it will be for the straightforward dealing essential in all business matters.
Their Lordships therefore think that this estoppel has not been made out, and for the reasons already given they think that this appeal ought to be allowed. The judgment of the Court of the Judicial Commissioner should be reversed and the suit dismissed with costs, the Appellant to have his costs of this appeal and in the Courts below; and they will humbly advice His Majesty to this effect.
Appeal allowed.
47Solicitors for Appellant: Messrs Barrow, Rogers and Nevill.
Solicitor for Respondents: Mr. Edward Dalgado.
39. In the present case, defendant Nos.2 to 4 have attested the sale agreement dated 30.08.1984. Merely by sale agreement deed, defendant Nos.2 to 4 cannot be held that they are bound by the contents of the sale agreement. Similar view has been taken in the case of Ram Gopal V. L. Mohan Lal and others reported in AIR 1960 PB 226 that mere attestation of a deed does not by itself impute to the attesting witness any knowledge of its contents so as to make out a case of etoppel against said attesting witnesses. In the privy counsel decision cited supra held that attestation does not work estoppel under Section 115 of the Evidence Act,1872 attestation of a deed by itself estops a man from denying nothing whatever excepting that he has witnessed the execution of the deed. It conveys, neither directly nor by implication, any knowledge of the contents of the document, and it ought not to be put 48 forward alone for the purpose of establishing that a man consented to the transaction which the document effects.
40. In the case of Chandrakantaben J. Modi and Narendra Jayantilal Modi Vs. Vadilal Bapalal Modi and others reported in AIR 1989 SC 1269 their Lordships of the Supreme Court have held that an attesting witnesses of a document is not presume to be aware of its contents. The observations of their lordship in this regard reads as under:
Reliance has been placed on the attestation of Bapalal, the father of the executants. Two days earlier, i.e., on 22.10.1954, he had executed a release deed, Ext. 222 giving up his right in the family properties for a sum of money named therein. He was already staying in Vrindavan for sometime past and proposed to spend the rest of his life there. The release deed, however, did not contain any list of properties and the document, therefore, is not of any help to either side. So far the agreement Ext. 167 is concerned, it has not been stated by anybody that Bapalal went through its 49 contents or that somebody read the same to him before he attested it.
41. In view of the matter, I pass the following:
ORDER
(i) Appeal is allowed.
(ii) The impugned judgment and decree dated 09.11.2016 passed by the XI Additional City Civil Judge, Bangaluru City in O.S. No.239/1995 is set aside.
In view of disposal of main appeal, I.A.1/2016 filed for Stay do not survive for consideration and stands disposed of.
Sd/-
JUDGE BS