Bangalore District Court
Sri. R.Mahadev vs Kashinath Sanyasi on 11 February, 2016
IN THE COURT OF THE XXV ADDL. CITY CIVIL & SESSIONS
JUDGE
AT BANGALORE CITY - CCH No.23.
Dated this the 11th DAY OF FEBRUARY, 2016
PRESIDING OFFICER
PRESENT: Sri. Sadananda M. Doddamani.,
B.A.,L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.No.861/1996
PLAINTIFF/S: 1. Sri. R.Mahadev,
Aged about 45 years,
S/o B.Rudrappa,
R/at Fortwayne,
INDIANA - U.S.A
Represented by his general
power of attorney holder
Sri. R.Parameshwara,
Aged about 51 years,
S/o B.Rudrappa,
R/at No.14, Ulsoor road,
Bangalore - 560 008.
Since dead by legal representative
Sri. R.Parameshwara,
Aged about 60 years,
S/o Late B.Rudrappa,
R/at No.167, 1st floor,
R.T.Nagar main road,
M.L.A. layout,
Bangalore - 560 032.
2 O.S.No.861/1996
(By Sr i.SVR, Advocate)
--Vs.---
DEFENDANT/S: 1. Kashinath Sanyasi,
Aged about 55 years,
S/o Late K.A.Sanyasi,
R/at No.35,
Langford road cross,
Bangalore - 560 025.
Since dead by legal representatives
D1(a) Smt. Suman Sanyasi,
W/o Late Kashinath Sanyasi,
Aged about 55 years,
D1(b) Smt.Sujata Sanyasi,
D/o Late Kashinath Sanyasi,
Aged about 33 years,
D1(c) Sri.Suresh Sanyasi,
S/o Late Kashinath Sanyasi,
Aged about 31 years,
All are residing at No.35,
Langford road cross,
Bangalore.
D1(d) Smt.Sunitha Sutarve,
W/o Sri.Hari Sutarve,
Aged about major,
R/at No.A 44, III block,
Manik complex, CHS Sector - 29,
Vashi, New Bombay - 400 703.
New Mumbai - 400 703.
2. Sri.K.Vijay,
Aged about 45 years,
3 O.S.No.861/1996
S/o Late K.K.Menon,
EMVEE Construction (P) Ltd.
R/at No.10/1, Queens road,
Bangalore.
(D1(a) & (c) By Sri.GNR, Advocate
D1(b) - Absent
D2 - Exparte)
Date of institution of suit: 02.02.1996
Nature of suit: Specific Performance
Date of commencement 12.06.2000
of recording of evidence:
Date on which the judgment
was pronounced: 11.02.2016
Duration of the suit: year/s month/s day/s
20 00 09
* * * * *
JUDGMENT
This is a suit filed by the plaintiff against the defendant seeking the relief of specific performance of contract and for such other reliefs.
4 O.S.No.861/1996
2. In brief the case of the plaintiff is as under:
That the defendant No.1 Kashinath Sanyasi is the full and absolute owner of the property bearing present municipal No.26, Sunkalpet main road, Bangalore - 560 002. It is further contended that the defendant No.1 offered to sell the suit schedule property to the plaintiff represented by his general power of attorney holder Sri.R.Parameshwara for a price of Rs.9,00,000/- (Rupees Nine Lakhs). The plaintiff accepted the offer made by the defendant No.1 and an agreement dated 11/6/1993 came to be executed between the defendant No.1 and the plaintiff's power of attorney R.Parameshwara. It is further contended that the terms and conditions agreed to between the parties were incorporated in the said agreement of sale. It is further contended that under the said agreement of sale a sum of Rs.5,00,000/- (Rupees Five Lakhs) was paid by him to the defendant No.1 by cheque bearing No.0272044 dated 11/6/1993 drawn on Vijaya Bank, Infantry road, Bangalore. The said amount was received by defendant No.1 as advance and part of the purchase money towards the sale transaction. The defendant No.1 has 5 O.S.No.861/1996 encashed the said cheque and realized the amount. It is further contended that subsequently defendant No.1 received a sum of Rs.1,00,000/- (Rupees One Lakh only) from the plaintiff by cheque bearing No.0272047 dated 12/8/1993 drawn on Vijaya Bank, Infantry road, Bangalore, drawn in favour of defendant No.1, who has executed a stamped receipt dated 12/8/1993 in favour of the plaintiff acknowledging the receipt of Rs.1,00,000/- (Rupees One Lakh only). It is further contended that the defendant No.1 has encashed the said cheque dated 12/8/1993 and has realized the amount. So the defendant No.1 has received in all a sum of Rs.6,00,000/-
(Rupees Six Lakhs only) as advance and part of the purchased money from the plaintiff. It is further contended that at the time of execution of the agreement dated 10/6/1993 the defendant No.1 assured the plaintiff that the defendant No.1 had valid and marketable title in the suit schedule property and the said agreement of sale has been attested by K.Vijay, the defendant No.2 herein.6 O.S.No.861/1996
3. It is further contended that at the time of execution of agreement of sale, defendant No.1 also executed the general power of attorney in favour of the defendant No.2 dated 11/6/1993 and the same has been duly notarized. It is further contended that it will be seen from the agreement of sale dated 11/6/1993 that if the defendant No.1 were to fail in executing and register the sale deed in respect of the suit schedule property in favour of plaintiff, the plaintiff would be entitled to get the sale deed registered through defendant No.2, the general power of attorney holder of defendant No.1. It is further contended that the plaintiff was always ready and willing to perform his part of contract. Subsequent to the agreement of sale, plaintiff approached defendant No.1 number of times and requested him to receive the balance sale consideration and complete the sale transaction, but the defendant No.1 started evading the plaintiff and did not complete the sale transaction on one or the other pretext. Thereafter the defendant No.1 acting as general power of attorney holder of the defendant No.1 executed the registered agreement of sale on 13/12/1993 in favour of the plaintiff 7 O.S.No.861/1996 agreeing to receive the balance consideration of Rs.3,00,000/- (Rupees Three Lakhs only) from the plaintiff and executed registered sale deed in favour of the plaintiff.
4. It is further contended that the defendant No.2 also undertook to deliver physical possession of the suit schedule property to the plaintiff at the time of execution and registration of the sale deed. On the same day defendant No.2 also delivered to the plaintiff the original GPA dated 11/6/1993 executed in his favour by the 1st defendant. It is further contended that the plaintiff was always ready and willing to perform his part of contract and also ready and willing to pay the balance amount of Rs.3,00,000/- (Rupees Three Lakhs only) and have the sale transaction completed by getting the sale deed executed and registered in his favour in terms of the agreement of sale. Inspite of the plaintiff's repeated requests and demands to comply with the terms of the sale agreement, the defendants have not done so and have been avoiding the plaintiffs on some pretext or the other. 8 O.S.No.861/1996
5. It is further contended that the plaintiff caused notice dated 21/4/1994 through his advocate to the defendants calling upon either of them to receive the balance sale price of Rs.3,00,000/- (Rupees Three Lakhs only) from him and also asking them to execute and registered the sale deed in favour of the plaintiff. It is further contended that under the said notice, the defendants were also called upon to deliver all documents of title and actual possession of the suit schedule property to the plaintiff. The defendant No.2 has not replied to the said notice. It is further contended that the defendant No.1 sent reply dated 28/6/1994 through his advocate putting forth false, frivolous, baseless and untenable contentions. The contention of the defendant No.1 that both the agreement of sale in favour of the plaintiff and the GPA executed in favour of the defendant No.2 are forged and concocted documents.
6. It is further contended that the defendant No.1 had taken a false contention in his reply notice that the defendant No.2 and the plaintiff in collusion with each other have taken 9 O.S.No.861/1996 his signature on blank paper and have concocted the document. It is further contended that subsequently the plaintiff again repeatedly requested and demanded the defendants to execute and register the sale deed in respect of the suit schedule property in his favour, but they have so far refused to do so. It is further contended that in the month of September 1995 the plaintiff met defendant No.1and requested him to complete the sale transaction. The plaintiff was then informed by defendant No.1 that defendant No.1 had to obtain clearance from the income tax authorities for the purpose of registration of the sale deed in favour of the plaintiff. It is further contended that at that time, defendant No.1 also requested the plaintiff to send a draft sale deed to him to enable him to complete the sale transaction easily.
7. It is further contended that upon further inaction on the part of defendant No.1, the plaintiff issued letter through his general power of attorney holder on 31/10/1995 to the defendant No.1 calling upon him to obtain income tax clearance certificate as soon as possible and finalize the sale 10 O.S.No.861/1996 transaction. It is further contended that along with the said letter, the plaintiff also enclosed draft sale deed in respect of the suit schedule property. Inspite of having received the said letter, the defendant No.1 has neither complied with the demand made by the plaintiff nor has sent any reply to him. So it is contended that the defendant No.1 is deemed to have refused to perform his part of contract under the agreement of sale dated 11/6/1993, 31/12/1993 and complete the sale transaction. It is further contended that having failed to reply to the notice issued by the plaintiff's advocate dated 21/4/1994, the defendant No.2 also deemed to have refused to perform his part of the contract and execute the sale deed in favour of the plaintiff.
8. It is further contended that the plaintiff is entitled to get the sale deed in respect of the suit schedule property executed by the defendants. The only intention of the defendants is to cause unlawful loss to the plaintiff and to make unlawful gain for themselves. The attitude displayed by the defendants clearly indicates their malafide intention of 11 O.S.No.861/1996 causing harassment, annoyance and intimidation to the plaintiff. The delay in completion of the sale transaction is not due to any fault by the plaintiff who has been always willing to do the same, but due to the unlawful, illegal and high-handed attitude adopted by the defendants. As per the agreement of sale dated 11/6/1993, 13/12/1993 the defendant No.1 is also bound to put the plaintiff in possession of the suit schedule property.
9. It is further contended that taking advantage of the fact of the sale transaction has not been completed, the defendant No.1 is making unduly hasty attempts to alienate and dispose of the property in favour of others. If the defendant No.1 were to succeeded in his illegal and high- handed acts and suit schedule property is sold in favour of somebody else, the plaintiff will be put to great injury and loss and it will result in multiplicity of proceedings. So the plaintiff sought for consequential relief of permanent injunction restraining the defendant No.1 from alienating or encumbering the suit schedule property in any manner.
12 O.S.No.861/1996
10. It is further contended that the original plaintiff Sri.R.Mahadev died on 16/7/2001. After receiving information about the earlier plaintiff's death in July 2001, the plaintiff informed the wife of the deceased plaintiff about the proceeding with the instant suit. However the plaintiff did not receive any response from her and neither did she give the plaintiff any instruction as to what steps have to be taken to proceed with the above case upon the death of the original plaintiff. Thereafter the advocate for the plaintiff in the present case contacted the plaintiff in the month of October 2004 and informed the plaintiff that the legal representatives of the 1st defendant had filed their objection to the LR application contending that the above suit had already abated upon the death of the original plaintiff in July 2001 itself. So immediately once again the plaintiff contacted the wife of the deceased plaintiff who then informed the plaintiff that the deceased plaintiff had executed a 'Will' dated 16/2/2001 bequeathing his right, title and interest in the suit schedule property in favour of the plaintiff and also sent the 'Will' to the 13 O.S.No.861/1996 plaintiff. Thereafter the plaintiff contacted his advocate and got himself impleaded in the suit as the legal representative. Now the plaintiff as the legal representative of the deceased plaintiff, as a sole legatee under 'Will' dated 16/2/2001 left behind by the original deceased plaintiff late R.Mahadev, wherein the right, title and interest arising out of the suit contract in whatsoever manner in respect of the suit schedule property has devolved upon the plaintiff and in law the plaintiff represents the right, title and interest of the deceased original plaintiff R.Mahadev, who is inter meddler. In the event of suit being allowed entitles the plaintiff to a decree in his favour, etc. In view of the above stated things, he has come up with the present suit and accordingly prays for to decree the suit.
11. In response to the suit summons sent by this court, the defendant No.1 appeared before the court through his counsel. The notice sent by this court though duly served upon defendant No.2, but he remained absent. Consequently the defendant No.2 has been placed exparte.
14 O.S.No.861/1996
12. The defendant No.1 in his written statement contended that he is the full and absolute owner of the suit schedule property. It is further contended that at any point of time, the defendant No.1 has not executed any agreement of sale or any general power of attorney in favour of anybody in respect of the suit schedule property.
13. It is further contended that in view of the paper publication / advertisement in news paper pertaining to final assistance of collateral security of immovable properties, K.Vijay had approached him for final assistance. The said K.Vijay had introduced one R.Parameshwara stating that he is the financier and made arrangement for loan of Rs.5,00,000/- (Rupees Five Lakhs only) on monthly interest basis. Thus the defendant No.1 had obtained a loan of Rs.5,00,000/- from R.Parameshwara, who is now claimed to be general power of attorney holder of the plaintiff. Thereafter defendant No.1 had paid monthly interest regularly for above two months, afterwards defendant No.1 again sought for additional loan of 15 O.S.No.861/1996 Rs.1,00,000/- seeing the regularity in payment of interest, Sri.R.Parameshwara had paid Rs.1,00,000/- on interest as a loan. So it is contended that both the loans are extended on collateral security. The suit schedule property is the collateral security for the said loan. It is further contended that at the time of issuing loan R.Parameshwara and K.Vijay together have obtained the signature of defendant No.1 on sum blank stamp papers and other papers stating to be the security for the said loan. It is further contended that they have also taken certified copies of the documents relating to the suit schedule property from him. It is further contended that K.Vijay had taken Rs.30,000/- from defendant No.1 as commission for having arranged the aforesaid loan. It is further contended that the defendant No.1 has never executed any agreement of sale in favour of the plaintiff or any general power of attorney in favour of defendant No.2. The alleged GPA and the agreement of sale are all fabricated for the purpose of present suit. It is further contended that by making use of the signature of 1st defendant made on the blank papers, at the time of loan, being colluded with each 16 O.S.No.861/1996 other, the plaintiff and 2nd defendant might have created these documents in order to have wrongful gain and to snatch the valuable property belonging to defendant No.1.
14. It is further contended that the defendant No.1 never executed GPA with respect to suit schedule property in favour of 2nd defendant. The defendant No.1 after coming to know of the alleged GPA, immediately he has issued a legal notice to the 2nd defendant in this regard. Further he has issued a paper publication stating that he has never executed any GPA with respect to the suit schedule property in favour of any person, much less K.Vijay, who is none other than the 2nd defendant herein. It is further contended that it was also published in the news paper that even if such alleged GPA alleged to have been executed on 11/6/1993, the same is hereby cancelled. So it is contended that defendant No.1 had never executed any GPA or sale agreement in favour of 2nd defendant and plaintiff respectively. It is further contended that the defendant No.2 is in no way concerned with the suit 17 O.S.No.861/1996 schedule property, he has no right, title or interest in any manner over the suit schedule property.
15. It is further contended that the defendant No.2 has no right to execute agreement of sale in favour of the plaintiff. As such the alleged agreement of sale dated 13/12/1993 is fabricated by the plaintiff and the 2nd defendant being colluded with each other. It is further contended that when defendant No.1 had never executed any agreement of sale or GPA in favour of plaintiff or in favour of the 2nd defendant, the question of plaintiff to pay the balance sale consideration as contended by him does not arise at all. It is further contended that the question of complying the terms of sale agreement does not arise, as defendant No.1 had never entered into any sale transaction in respect of the suit schedule property with the plaintiff or with the 2nd defendant. It is further contended that defendant No.1 has sent suitable reply to the notice sent by the plaintiff on 28/6/1994.
18 O.S.No.861/1996
16. It is further contended that when defendant No.1 had not at all executed any kind of agreement to sale or GPA, the question of executing the registered sale deed by receiving the balance sale consideration amount does not arise at all. It is further contended that defendant No.1 has not at all told to the plaintiff that he has to obtain clearance from the income tax authorities for the purpose of registration of sale deed and the said aspect has been got created by the plaintiff just to knock off the suit schedule property. The defendant No.1 admitted with regard to the letter issued by the plaintiff through his general power of attorney holder on 31/10/1995 and also admits that he has not given reply to the said notice. It is further contended that when he had never executed any sale agreement or GPA with respect to anybody, much less the plaintiff and defendant No.2, the question of giving reply to such false notices does not arise.
17. It is further contended that when there is no transaction between the plaintiff and defendant No.1 with respect to the suit schedule property, the question of ready 19 O.S.No.861/1996 and willing to perform his part of the contract by plaintiff does not arise. It is further contended that the plaintiff has filed the present suit with a malafide intention to harass defendant No.1 and in order to snatch the valuable property of the defendant No.1. It is further contended that the suit of the plaintiff is not maintainable in view of the contention taken by him in the written statement. The plaintiff and the defendant No.2 being colluded with each other are making hasty attempts to have wrongful gain and to snatch the property of defendant No.1.
18. It is further contended that the value of the suit schedule property is more than Rs.1 crore. Under these circumstances, this itself clearly goes to show that the document now produced before the court are all fabricated by making use of the blank stamp papers on which the signature of defendant No.1 were obtained by plaintiff and defendant No.2 at the time of giving loan. So it is contended that viewed from any angle the plaintiff is not entitled for any relief much 20 O.S.No.861/1996 less the relief as sought by him, etc. On these grounds and among other grounds he sought for the dismissal of the suit.
19. The records shows that during the pendency of the present suit, the defendant No.1 was died and subsequently his legal representatives were brought on record. The legal representatives of the deceased defendant No.1 also filed their additional written statement wherein they contended that the suit of the plaintiff is not maintainable both in law or on facts, because of the death of plaintiff R.Mahadev, who died in July 2001. It is further contended that the present legal representative of plaintiff did not choose to bring the legal representatives of R.Mahadev. The deceased plaintiff R.Mahadev is also having wife and children and they are residing in Fortwayne, Indiana, U.S.A. The general power of attorney holder R.Parameshwara is suppressing the death of plaintiff and also suppressing the death of 2nd defendant K.Vijay who died in CBI custody.
21 O.S.No.861/1996
20. It is further contended that the legal representatives of 2nd defendant are also not brought on record inspite of present legal representatives of 1st defendant had taken contention and filed objections to the application filed by the present R.Parameshwara. The legal representatives of the plaintiff has not made other daughters of Kashinath Sanyasi, that is, Sunitha Sutrave, who is the first daughter of K.K.Sanyasi as a party to the suit. These legal representatives of 1st defendant contended that the general power of attorney is not in force after the death of R.Mahadev, as such the right to prosecute arises only to the legal representatives of R.Mahadev. It is further contended that the family of R.Mahadev are residing at U.S.A and R.Mahadev has not executed the 'Will' dated 16/2/2001 in favour of R.Parameshwara. It is further contended that the deceased R.Mahadev has also not appointed or nominated R.Parameshwara as executor of the 'Will' in respect of the suit schedule property. So it is contended that the suit itself is abated upon the death of the original plaintiff R.Mahadev who died on 16/7/2001. It is further contended that 22 O.S.No.861/1996 R.Parameshwara who is not the legal representative of R.Mahadev, as such he cannot prosecute the suit, as he is not the legal representative of deceased R.Mahadev. It is further contended that the alleged 'Will' dated 16/2/2001 is a created and concocted document for the purpose of present suit, etc. On these grounds and among other grounds they sought for the dismissal of the suit.
21. Heard the arguments.
22. The learned counsel for the plaintiff in support of his arguments has relied upon the following decisions:
(1) AIR 1989 SC page 1589.
(2) AIR 1959 SC page 443.
(3) ILR 2004 Kar page 440 (4) AIR 2013 SC 2088 (5) 2012 AIR SCW 2343 (6) ILR 2013 Kar page 4778
23. The learned counsel for the defendant filed a memo along with the copy of format of 'Will'.
23 O.S.No.861/1996
24. On the basis of the above rival pleadings of the parties, my learned Predecessor-in-office has framed the following issues which are as under:
(1) Whether the plaintiff proves that the defendants have executed suit agreement of sale dated 11/6/1993 agreeing to sell the suit schedule property for Rs.9,00,000/- by receiving advance of Rs.5,00,000/- on 11/6/1993 and Rs.1,00,000/- on 12/8/1993 ?
(2) Whether the plaintiff further proves that the defendant No.1 has executed general power of attorney in favour of defendant No.2 on 11/6/1993?
(3) Whether the plaintiff further proves that the defendant No.2 has executed registered agreement of sale dated 13/12/1993 agreeing to receive the balance sale consideration of Rs.3,00,000/- and executed the sale deed?24 O.S.No.861/1996
(4) Whether the plaintiff further proves that he has always been ready and willing to perform his part of contract?
(5) Whether the suit is barred by limitation?
(6) Whether the defendant No.1 proves that he borrowed loan of Rs.6,00,000/- on the security of the suit schedule property?
(7) What order or relief ?
Additional issue:
(1) Whether the present plaintiff proves that he is the legal representative of deceased plaintiff ?
25. The plaintiff in order to establish his case, the general power of attorney holder plaintiff himself got examined as PW1 and got marked as many as 12 documents from Ex.P1 to P12 and also got examined one witness as PW2 and closed his side evidence. The defendants in order to establish their case, the legal representative No.D1(c) himself got examined as 25 O.S.No.861/1996 DW1 and got marked as many as 11 documents from Ex.D1 to D11 and closed his side evidence.
26. My findings to the above issues are as under:
Issue No.1 : In the Affirmative
Additional Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Affirmative
Issue No.4 : In the Affirmative
Issue No.5 : In the Negative
Issue No.6 : In the Negative
Issue No.7 : As per the final order
for the following:
REASONS
27. Additional Issue No.1: Before considering other
issues, it would be just and appropriate to consider this additional issue first, as because the defendants contending that the plaintiff is not the legal representative of the deceased original plaintiff R.Mahadev.26 O.S.No.861/1996
28. The learned counsel for the plaintiff, during the course of his arguments contended that one Sri. R.Parameshwara is the general power of attorney holder of plaintiff R.Mahadev and right from the beginning the general power of attorney holder of the plaintiff filed the present suit and conducted the case. In order to prove the factum of R.Parameshwara conducting the case on behalf of the original plaintiff R.Mahadev, he placed his reliance upon Ex.P1, GPA executed by R.Mahadev in favour of R.Parameshwara.
29. He further contended that during the pendency of the suit, the original plaintiff R.Mahadev was died on 16/7/2001. In order to substantiate his contention, he placed his reliance upon Ex.P12, i.e., death certificate relating to R.Mahadev. He further contended that the original plaintiff R.Mahadev died leaving behind his wife and children and they are residing at U.S.A. He further contended that after the death of original plaintiff R.Mahadev, application filed to bring R.Parameshwara who is the general power of attorney holder as legal representative of deceased R.Mahadev and the said 27 O.S.No.861/1996 application was came to be allowed by this court and accordingly plaint was amended.
30. He further contended that the general power of attorney holder R.Parameshwara has got every right to continue the case as a legal representative of the deceased R.Mahadev by virtue of the 'Will' executed by deceased R.Mahadev in favour of R.Parameshwara on 16/2/2001. In order to substantiate his contention, he placed his reliance upon Ex.P11 original 'Will'. By placing his reliance upon Ex.P11, what he contended that by virtue of the suit property bequeathed in favour of R.Parameshwara he got every right to come on record as legal representative of deceased R.Mahadev.
31. In order to substantiate his contention he placed his reliance upon the definition of legal representative as stated in section 2(11) C.P.C. By placing his reliance upon the definition stated therein, he contended that "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who 28 O.S.No.861/1996 inter meddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued."
32. So by placing his reliance upon the definition of legal representative, what he contended that the very Ex.P11 'Will' shows that the deceased R.Mahadev bequeathed the suit property in favour of R.Parameshwara and as such he has got every right to come on record as a legal representative of deceased plaintiff R.Mahadev.
33. In order to substantiate his contention, he placed his reliance upon the decision rendered in AIR 1989 SC page 1589, Custodian of Branches of BANCO National Ultra Marino, appellant Vs. Nalini Bai Naique, respondents. By placing his reliance upon the said decision, he contended that R.Parameshwara is none other than the legal representative of deceased R.Mahadev.
29 O.S.No.861/1996
34. He further contended that deceased R.Mahadev bequeathed suit property through a 'Will' dated 16/2/2001 as per Ex.P1, as such R.Parameshwara has got every right to come on record as a legal representative of deceased R.Mahadev. He further contended that Ex.P11 'Will' has been satisfactorily proved before the court by examining one of the witness to the said 'Will' as PW2. The evidence given by PW2 shows that deceased R.Mahadev executed Ex.P11 'Will' in favour of R.Parameshwara, bequeathing his right, title and interest in respect of the suit schedule property in favour of R.Parameshwara. So he contended that Ex.P11 is proved as per section 63 and 68 of the Indian Evidence Act. He further contended that as such there is no prescribed form or format of the 'Will'. The only thing that is to be done to prove the 'Will' is that one of the witness to the 'Will' has to be examined. So he contended that in proof of execution of Ex.P11, the plaintiff brought the evidence of witness to Ex.P11 'Will' as PW2.
30 O.S.No.861/1996
35. In support of his contention he placed his reliance upon the following decisions:
(1) AIR 1959 SC page 443.
(2) ILR 2004 Kar page 440 (3) AIR 2013 SC 2088 (4) 2012 AIR SCW 2343 (5) ILR 2013 Kar page 4778
36. So by placing his reliance upon the above decision, what he contended that, if one of the attesting witness is examined and no infirmity found in his testimony, non- examination of the person who had typed the 'Will' or the advocate who was present at the time of preparation or registration of the 'Will', cannot be the ground to discard the 'Will'.
37. He further contended that by virtue of the 'Will' executed by deceased R.Mahadev in favour of R.Parameshwara and by virtue of the suit property obtained by R.Parameshwara under Ex.P11, R.Parameshwara has got every right to come on record as legal representative of the 31 O.S.No.861/1996 deceased R.Mahadev and section 2(11) of C.P.C. also says that legal representatives means and includes any person who inter meddles with the estate of the deceased. So what he contended that in the present case, R.Parameshwara by virtue of Ex.P11 'Will' inter meddles with the estate of deceased R.Mahadev. So in view of his above arguments, he urged to answer the additional issue No.1 in the Affirmative.
38. The learned counsel for the defendant, during the course of his arguments contended that the suit of the plaintiff has to be dismissed as stands abated, as because though the legally wedded wife of R.Mahadev and children are alive, but they were not brought on record well within the stipulated time. He further contended that R.Parameshwara is not a legal representative of the deceased R.Mahadev and when the wife and children of deceased R.Mahadev are alive, he cannot be permitted to come on record as legal representatives of the deceased. He further contended that the alleged 'Will' dated 16/2/2001 came into existence six months prior to the death of R.Mahadev and the said alleged 'Will' came to be produced 32 O.S.No.861/1996 at the later stage in this case. So what he contended that Ex.P11 alleged 'Will' is got created by R.Parameshwara just to knock off the suit schedule property.
39. He further contended that R.Parameshwara claiming to be legal representative of deceased R.Mahadev by virtue of alleged 'Will' dated 16/2/2001. He further contended that by looking with bare eyes, Ex.P11 alleged 'Will' it shows that it is a concocted document and also it is not in the usual format. In support of his contention he placed his reliance upon the copy of the format placed along with memo. So by placing his reliance upon the said copy of the format, what he contended that Ex.P11 alleged 'Will' is not in the prescribed format and the signature of the testator and witnesses are also not in order and according to the whims and fancies they have put their signatures to the alleged 'Will'. So what he contended that all these aspects clearly goes to show that it is just nothing but fabricated document, just to knock off the suit schedule property. He further contended that the plaintiff in order to prove Ex.P11, examined one witness who claims to 33 O.S.No.861/1996 be the witness to the Ex.P11. He further contended that upon perusal of the evidence of PW2 it shows that he does not know anything about the said 'Will' and he unable to say when deceased R.Mahadev came to India and who are the other witnesses signed to the said Ex.P11 alleged 'Will'. So what he contended that the evidence of the said witness is not helpful to the case of plaintiff to prove the alleged 'Will' dated 16/2/2001. He further contended that when R.Parameshwara is not a legal representative of deceased R.Mahadev, he has no right to come on record and continue the case. So also he contended that in view of the death of R.Mahadev, automatically the alleged GPA Ex.P1 executed by deceased R.Mahadev in favour of R.Parameshwara also goes. So what he contended that in view of the death of R.Mahadev, the general power of attorney holder who is representing the case during the life time of R.Mahadev has no locus standi to continue the case. He further contended that when the wife and children of R.Mahadev are alive, this R.Parameshwara cannot come on record as legal representative of deceased R.Mahadev and also he should not be termed as legal 34 O.S.No.861/1996 representative as per section 2(11) C.P.C. So in view of his above arguments, he urged to answer additional issue No.1 for consideration in the Negative.
40. In the light of the arguments canvassed by the respective counsels for the parties, I have gone through the records and also the decisions as relied upon by the learned counsel for the plaintiff. In the light of the arguments on going through the records it shows that one R.Parameshwara, who is the general power of attorney holder of original plaintiff R.Mahadev has filed the suit and conducting the case by virtue of Ex.P1 general power of attorney executed by R.Mahadev in favour of R.Parameshwara. So also the records shows that during the pendency of the present suit the original plaintiff R.Mahadev was died on 16/7/2001 and which is also very evident from Ex.P12 death certificate relating to R.Mahadev. After the death of R.Mahadev the records shows that I.A.No.8 to 10 filed to bring legal representatives of deceased R.Mahadev and to set aside abatement and for condonation of delay. The records shows 35 O.S.No.861/1996 that all the said applications were came to be allowed and accordingly amendment was made in the plaint. So it can be said that the said applications were allowed on merit and even the said orders on the I.A.No.8 to 10 till this date remains unchallenged.
41. It is the specific contention of the learned counsel for the defendant that Ex.P11 'Will' is a concocted and a fabricated document, got created by R.Parameshwara to knock off the suit schedule property. So also it is the contention of the learned counsel for the defendants that during the life time of the wife and children of deceased R.Mahadev, the general power of attorney holder, i.e., R.Parameshwara cannot be permitted to come on record as his legal representative and contended that he is not a legal representative in the eye of law. The contention of the learned counsel for the plaintiff in view of Ex.P11 'Will' R.Parameshwara has got every right to come on record as legal representatives and in view of section 2(11) C.P.C. R.Parameshwara is also considered as a legal representative of deceased R.Mahadev.
36 O.S.No.861/1996
42. In the light of the above rival contention, the plaintiff has mainly relied upon Ex.P11. Upon perusal of Ex.P11, it shows that it came into existence on 16/2/2001 and upon perusal of the said 'Will' it shows that R.Mahadev bequeathed suit schedule property in favour of R.Parameshwara, who is none other than the own brother of R.Mahadev. So far as this aspect is concerned, i.e., with regard to the relationship between R.Mahadev and R.Parameshwara is concerned, absolutely there is no dispute between the parties. The only contention of the learned counsel for the defendant is that Ex.P11 is a fabricated and concocted document and it is not in the format. So far as the said contention of the learned counsel for the defendant is concerned, it can be said that as such there is no prescribed format for the 'Will'. The only thing / requirement to prove the 'Will' is that one of the signatories to the 'Will' has to be examined before the court. The records shows that in proof of Ex.P11 'Will' the plaintiff examined PW2. Upon perusal of the evidence of PW2, he has spoken with regard to the execution 37 O.S.No.861/1996 of 'Will' by R.Mahadev in favour of R.Parameshwara. So it can be said that the plaintiff has proved the execution of 'Will' as per section 63 and 68 of the Indian Evidence Act.
43. In this regard it would be useful to refer the decision rendered in AIR 1959 SC page 443, between H.Venkatachala Iyengar, appellant Vs. B.N.Thimmajamma and others, respondents, wherein it was held by their lordships as under:
"Evidence Act (1872) section 67, 68, 45 and 47 - proof of 'Will' - onus of proof on propounder - nature - appreciation of evidence
- duty of court - (Succession Act 1925) Section 59 and 63 - Wills "The party propounding a 'Will' or otherwise making a claim under a 'Will' is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of document. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to 38 O.S.No.861/1996 be in his handwriting, and for proving such a handwriting under section 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwritings of the persons concerned are made relevant. Section 68 deals with the proof of the execution of document required by law to be attested; and it provides that such a document shall not be used as evidence, until one attesting witness atleast has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law.
Similarly section 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the 'Will' set up by the propounder is proved to be the last 'Will' of the testator has to be decided in the light of these provisions. It would prima facie be true to say that the 'Will' has to be proved like any other document except as to the Special requirements of attestation prescribed by section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of 'Wills' it would be idle to expect proof that 39 O.S.No.861/1996 mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
44. Looking into the dictum laid down by their lordships in the above decision it can be said that the same is aptly applicable to the present case in hand, as because in the present case also in proof of Ex.P11 'Will' the plaintiff got examined one of the signatories to the said 'Will' as PW2. As such the 'Will' Ex.P11 is proved as per section 68 of the Indian Evidence Act.
45. The learned counsel for the defendant further contended that the witness examined on behalf of plaintiff as PW2, who claims to be the witness to Ex.P11 'Will', but the evidence given by him before the court shows that he does not know anything about the 'Will', only at the instance of plaintiff he gave evidence before the court. What he contended that the very evidence given by PW2 shows that he unable to say when R.Mahadev came to India and who are the other 40 O.S.No.861/1996 witnesses put signature to Ex.P11, so he contended that the 'Will' is not proved in accordance with law.
46. So far as the said contention taken by the learned counsel for the defendant is concerned, it can be said that the dictum laid down by their lordship in the decision rendered in 2012 AIR SCW page 2347 is the answer.
In the said decision it was held by their lordship as under:
(A) Succession Act (39 of 1925) Section 63 -
'Will' - attestation - both attesting witnesses need not sign 'Will' simultaneously - fact that one of attesting witness stated that he did not know when other attesting witness came - not ground to hold that 'Will' was not duly attested when both witnesses have stated that testator had read out and signed 'Will' in their presence and thereafter they had appended their signatures".
47. Looking into the dictum laid down by their lordships it can be said that the same is directly applicable to the present case in hand and in view of the dictum laid down 41 O.S.No.861/1996 by their lordships in the above decision, it can be said that whatever contention taken by the learned counsel for the defendant cannot be accepted as because PW2 in the cross- examination says that after knowing the contents of Ex.P11 he put his signature to the said document.
48. The learned counsel for the defendant further contended that prior to the death of R.Mahadev, i.e., to say before six months of the death of R.Mahadev, the alleged 'Will' claims to be came into existence and after lapse of so many time the 'Will' placed before the court and the 'Will' is not in accordance with law. So he contended that the suspicious circumstances surrendering the 'Will' has not been satisfactorily explained / proved by the plaintiff, as such he contended that it is nothing but the fabricated, concocted document. So far as the said contention of the learned counsel for the defendant is concerned, it can be said that mere production of a 'Will' at a belated stage is not the ground to disbelieve the said document, when the said 'Will' is proved before the court in accordance with section 63 and 68 of the 42 O.S.No.861/1996 Indian Evidence Act. The evidence on record shows how 'Will' came into existence and how R.Parameshwara proved the said 'Will' in accordance with law. When that would be the case, it can be said that if according to the defendant counsel if there would be any suspicious circumstances surrendering the 'Will', that has been satisfactorily shattered by the plaintiff by placing acceptable oral and documentary evidence. In this regard it would be useful to refer a decision rendered in :
AIR 2013 SC page 2088, between M.B.Ramesh (D) by LRs Vs. K.M.Veeraje Urs (D) by LRs and others, wherein it was held by their lordships at (B) as under:
"Succession Act (39/1925), section 63, 64 and 'Will' - Execution - Suspicious circumstances - production of 'Will' years after its execution - not suspicious circumstances, 'Will' is to be acted upon only after the death of testator - 'Will' in instant case was produced immediately when occasion to protect property bequeathed arose."
49. Further it was held by their lordship at (D) & (E) as under:
43 O.S.No.861/1996
(D) Succession Act (39/1925) Section 63 -
Evidence Act (1 of 1872), section 90, 68 - 'Will' - presumption as to due execution of documents 30 years old - does not apply to 'Will', 'Will' has to be proved in terms of section 63(3) of the Succession Act read with section 68 of the Evidence Act."
(E) Succession Act (39/1925), section 63 -
Evidence Act (1/1872), section 71, 68 - 'Will' - execution - proof - section 71 of evidence Act enabling party to produce other evidence to prove 'Will' - does not absolve party of its obligation to examine atleast one of the attesters and satisfaction of requirement under section 63 of the Succession Act."
50. Looking into the dictum laid down by their lordships in the above decision, it can be said that the same is squarely applicable to the present case in hand. As because in the present case also Ex.P11 is proved by the plaintiff by examining one of the signatories to the said document, as such complied section 63 and 68 of the Indian Evidence Act, merely on the ground of the 'Will' produced at a belated stage on the said score, the contention taken by the defendant 44 O.S.No.861/1996 counsel cannot be accepted, as because 'Will' is to be acted upon only after the death of testator. So by considering all these aspects, it can be said that there is much force in the submission made by the learned counsel for the defendant. The learned counsel for the defendant further contended that in the 'Will' in the beginning it was mentioned as R.Mahadev and at 2nd page where signature was put the name mentioned as Mahadev Rudrappa. So he contended that, that aspect itself shows that the 'Will' is a concocted and fabricated document and created by R.Parameshwara for the purpose of this case in order to knock off the suit schedule property. Though the learned counsel repeatedly contending that Ex.P11 'Will' is a concocted and fabricated document, but in order to substantiate his contention, no acceptable and clinching evidence has been placed before the court. On the basis of the mere bald contention, such submission made by the learned counsel for the defendant cannot be accepted.
51. Per contra the plaintiff in order to prove R.Mahadev and Mahadev Rudrappa are belongs to one and the same 45 O.S.No.861/1996 person he has produced death certificate at Ex.P12. Upon perusal of the said document it shows that R.Mahadev is none other than the Mahadev Rudrappa. When that would be the case, it is needless to say that there is no substance in the submission made by the learned counsel for the defendant.
52. As it is already stated above, the main grievance of the learned counsel for the defendant is that R.Parameshwara is not the legal representative of deceased R.Mahadev. So also it is his contention that when the legally wedded wife and children of deceased R.Mahadev are alive he cannot be called as a legal representative of deceased R.Mahadev. So far as the said contention of the learned counsel for the defendant is concerned, it can be said that there is no much weight in his submission in the light of the definition of legal representative as per section 2(11) C.P.C. At this juncture it would be relevant to quote the definition of legal representatives which is as under:
Section 2(11) "legal representative" means a person who in law represents the estate of the 46 O.S.No.861/1996 deceased person, and includes any person who inter meddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.
53. Looking into the above definition, it can be said that whatever the contention taken by the learned counsel for the defendant cannot be accepted as because by virtue of the 'Will' executed by deceased R.Mahadev in favour of R.Parameshwara, he got right over the property and also came on record as legal representatives of the deceased R.Mahadev as because he inter meddles with the estate of the deceased. So by analyzing the overall facts and circumstances of the case, this court is of the opinion that the present plaintiff has succeeded to prove that he is the legal representative of the deceased original plaintiff R.Mahadev. When such would be the case, this court is left with no option except to answer additional issue No.1 for consideration in the Affirmative. 47 O.S.No.861/1996 Accordingly additional issue No.1 is answered in the Affirmative.
54. Issue No.1 to 3 and Issue No.6: All these issues are interconnected, therefore they have been taken together for common consideration and discussions in order to avoid repetition of facts and also for the sake of convenience.
55. The plaintiff in order to establish his case, the general power of attorney holder / legal representatives of deceased R.Mahadev himself got examined as PW1 and wherein he reiterated all the averments made in the plaint and further on oath stated before the court that the deceased defendant No.1 is the absolute owner of the suit schedule property and he offered to sell the suit property to the deceased plaintiff R.Mahadev for total price of Rs.9,00,000/-. Accordingly the offer made by defendant No.1 was accepted and an agreement dated 11/6/1993 came to be executed between defendant No.1 and R.Mahadev represented by him as a general power of attorney holder.
48 O.S.No.861/1996
56. He further contended that the terms and conditions agreed between the parties were incorporated in the said agreement of sale. He further stated that under the agreement dated 11/6/1993, a sum of Rs.5,00,000/- was paid by him to the defendant No.1 through a cheque and the said amount was received by defendant No.1 as advance and as a part money towards the sale transaction and also defendant No.1 has encashed the said amount. He further stated that subsequently defendant No.1 received a sum of Rs.1,00,000/- from him through cheque on 12/8/1993 and for that defendant No.1 executed a stamp receipt dated 12/8/1993 in his favour acknowledging the receipt of Rs.1,00,000/-. He further stated that even the said amount was also realized by defendant No.1 and thus he has received in all a sum of Rs.6,00,000/- as advance and part of the purchase money from him. He further stated that at the time of agreement dated 10/6/1993, defendant No.1 assured him that he has valid and marketable title in the suit schedule property and 49 O.S.No.861/1996 further the said agreement of sale has been also attested by defendant No.1.
57. He further stated that at the time of execution of agreement of sale, defendant No.1 also executed the GPA in favour of defendant No.2, i.e., on 11/6/1993 and the same has been duly notarized. He further stated that in the said agreement of sale it was stated that if the defendant No.1 were to fail in executing and registering the sale deed in respect of the schedule property in his favour, he would be entitled to get the sale deed registered through defendant No.2, as the general power of attorney holder of defendant No.1.
58. He further stated that he was / is always ready and willing to perform his part of contract. He further stated that subsequent to the agreement of sale he approached defendant No.1 many times to execute the registered sale deed by receiving the balance sale consideration amount, but the defendant No.1 started evading him and failed to complete the sale transaction on one or the other pretext. He further stated 50 O.S.No.861/1996 that then defendant No.2, acting as general power of attorney holder of defendant No.1 executed a registered agreement of sale on 13/12/1993 in his favour agreeing to receive balance sale of Rs.3,00,000/- from him and to execute the sale deed in his favour.
59. He further stated that defendant No.2 also undertook to deliver physical possession of the suit schedule property to him at the time of execution and registration of the sale deed. He further stated that on the same day, defendant No.2 also delivered him the original general power of attorney dated 11/6/1993 executed in his favour by defendant No.1. He further stated that when the defendants failed to execute the registered sale deed by receiving the balance consideration amount he caused notice dated 21/4/1994 through his counsel calling upon the defendants to receive the balance sale price of Rs.3,00,000/- from him and to execute the registered sale deed in his favour and they were also called upon to deliver of documents of title and actual possession of suit schedule property to him. He further stated that for the 51 O.S.No.861/1996 said notice, defendant No.1 gave his reply but defendant No.2 not replied to the said notice. He further stated that the defendant No.1 in his reply notice has taken a false and frivolous contention just in order to avoid the completion of sale transaction and also falsely contended that he himself and defendant No.2 by colluding with each other got created the alleged agreement of sale and general power of attorney.
60. He further stated that in the month of September 1995, he met defendant No.1 and requested him to complete the sale transaction and at that time he was informed by defendant No.1 that he had to obtain clearance from the income tax authorities for the purpose of registration of sale deed in his favour and also he requested him to send a draft sale deed to defendant No.1 to enable him to complete the sale transaction easily. He further stated that on 31/10/1995 he issued a letter to defendant No.1 calling upon him to obtain income tax clearance certificate as soon as possible and finalize the sale transaction and along with the said letter he also enclosed draft sale deed in respect of the suit schedule 52 O.S.No.861/1996 property. He further stated that inspite of having received the said letter, defendant No.1 has neither complied with the demand made by him in the notice nor has sent any reply to him. So the very act of the defendant No.1 shows that he has deemed to have refused to perform his part of the contract under the agreement of sale dated 11/6/1993 and 31/12/1993 and to complete the sale transaction. So also he stated that defendant No.2 having failed to give reply to the notice dated 21/4/1994, he also refused to perform his part of contract and execute the sale deed in his favour. He further stated that the defendant No.1 instead of performing his part of contract in completing the sale transaction was attempting to alienate the suit schedule property in favour of third person. He further stated that when the defendants have failed to perform their part of contract inspite of repeated requests and demands and inspite of issuance of legal notice, he has come up with the present suit seeking the relief of specific performance of contract and such other reliefs. 53 O.S.No.861/1996
61. In support of his case he got marked as many as 12 documents. Ex.P1 is the general power of attorney executed by R.Mahadev in favour of R.Parameshwara. Ex.P2 is the agreement of sale dated 11/6/1993. Ex.P3 is the receipt. Ex.P4 is the power of attorney. Ex.P5 is another agreement of sale. Ex.P6 is the copy of notice. Ex.P7 is the reply notice of 1st defendant. Ex.P8 is the office copy of the letter. Ex.P9 is the copy of draft sale deed. Ex.P10 is the certificate of posting. Ex.P11 is the original 'Will'. Ex.P12 is the death certificate relating to R.Mahadev. So in view of his above evidence and documents he prays for to decree the suit.
62. The defendants in order to establish their case, the legal representative of deceased defendant No.1, i.e., legal representative D1(c) himself got examined as DW1 and filed his detailed affidavit by way of examination-in-chief, wherein he reiterated all the averments made in the written statement and further on oath stated before the court that the suit schedule property is the ancestral property and not exclusively belonged to deceased defendant Sri.K.K.Sanyasi, who was not 54 O.S.No.861/1996 a exclusive owner of plaint schedule property. He further stated that the deceased Sri.K.K.Sanyasi got the plaint schedule property through partition suit in O.S. old No.334/1976 and re-numbered as O.S.No.1154/1980, which was filed by Sri.Sajjan K.Sanyasi against Sri.Eshwar Sanyasi and others for partition in respect of joint family properties which includes the plaint schedule property. The said suit came to be decreed by filing compromise petition between the parties to the suit in O.S.No.1154/1980 on 26/7/1986. He further stated that in the said suit at para 4 of the compromise petition the deceased K.K.Sanyasi agreed to take over immovable schedule properties which includes plaint schedule property and pay gold and cash to the other plaintiffs No.2 to 4 and 6.
63. He further stated that the plaintiffs No.2 to 4 and 6 relinquished all their right, title and interest and surrendered all their right, title and interest in respect of suit schedule immovable properties in favour of deceased 1st defendant, i.e., late K.K.Sanyasi. He further stated that the plaintiffs No.2 to 55 O.S.No.861/1996 4 and 6 of O.S.No.1154/1980 concede that Sri.K.K.Sanyasi is the absolute owner and is in possession and enjoyment of the suit schedule properties. So he stated that Sri.K.K.Sanyasi got the plaint schedule property by way of partition in the suit filed by the children of Sri.K.K.Sanyasi. So he contended that the plaint schedule property is not a self acquired property of defendant No.1, as such Sri.K.K.Sanyasi has no exclusive and independent right to enter into the alleged agreement of sale with Sri.R.Mahadev on 11/6/1993 and 13/12/1993 without the consent of wife and children. He further stated that there are no recital also in the alleged agreement of sale to the effect that deceased K.K.Sanyasi entered into agreement to sell the plaint schedule property for the benefit of his children. So he stated that the alleged agreement as claimed by the plaintiff is not binding on the legal representatives of defendant No.1. He further stated that the very averments made in Ex.P5 shows that the suit schedule property is the ancestral property.
64. He further stated that his father, i.e., deceased defendant No.1, at no point of time had executed the alleged 56 O.S.No.861/1996 agreement of sale or any general power of attorney in favour of anybody with respect to the suit schedule property. He further stated that in view of paper publication / advertisement in news paper pertaining to financial assistance of collateral security of immovable properties made by Sri.K.Vijay had approached for financial assistance. The said Sri.K.Vijay had introduced Sri.R.Parameshwara stating that he is a financier and make arrangement for loan of Rs.5,00,000/- on monthly interest basis.
65. He further stated that defendant No.1 had obtained loan of Rs.5,00,000/- from Sri.R.Parameshwara who is now claiming to be general power of attorney holder of plaintiff. He further stated that his father had paid interest for about two months and his father also sought for additional loan of Rs.1,00,000/-. Seeing the regular payment of interest Sri.R.Parameshwara had paid additional loan of Rs.1,00,000/- on interest. The suit schedule property is collateral security for both the loans for a sum of Rs.6,00,000/- which was lent by Sri.R.Parameshwara. He further stated that at the time of 57 O.S.No.861/1996 issuing the loan Sri.R.Parameshwara and Sri.K.Vijay together have obtained the signatures of his father on blank papers and other papers stating to be the security for the said loan. He further stated that they have also taken certified copy of the suit schedule property from his father. He further stated that defendant No.2 had taken Rs.30,000/- from his father as commission for having arranged the aforesaid loan of Rs.6,00,000/-.
66. He further stated that his father never executed any agreement of sale in favour of plaintiff or general power of attorney holder in favour of 2nd defendant. The alleged agreement of sale and general power of attorney are fabricated by using the signatures of his father which was obtained on blank paper at the time of lending money. He further stated that the said documents are created in order to have a wrongful gain to enrich at the cost of his father.
67. He further stated that his father after coming to know of the alleged GPA and alleged agreement of sale has 58 O.S.No.861/1996 issued a legal notice to the defendant No.2 and also his father had taken paper publication stating that he never executed any GPA dated 11/6/93 with respect to suit schedule property in favour of any person much less in favour of defendant No.2. He further stated that it was also published in the news paper that the alleged GPA alleged to be executed is hereby cancelled. He further stated that the 2nd defendant is in no way concerned with the suit schedule property and he has no right to execute agreement of sale in favour of plaintiff, as such the alleged agreement of sale dated 31/12/1993 is got created by the plaintiff and the 2nd defendant being colluded with each other, in order to knock off the suit schedule property, which is valued more than Rs.1 crore and above in the year 2001 itself.
68. He further stated that the present value of the suit property is more than Rs.3 crores. He further stated that his father late K.K.Sanyasi has not executed any such agreement of sale or GPA. When such would be the case, the question of plaintiff to pay balance of sale consideration to the defendant 59 O.S.No.861/1996 does not arise at all and question of complying the terms of sale agreement does not arise, as his father never entered into any such transaction with respect to the suit schedule property with plaintiff or with 2nd defendant. He further stated that his father has given suitable reply to the notice sent by the plaintiff on 28/6/1994. He further stated that the plaintiff never met his father in the month of September 1995 and never requested his father to complete the sale transaction and his father never informed the plaintiff that he has to obtain clearance from the income tax authorities.
69. He further stated that his father never requested the plaintiff to send a draft sale deed to enable him to complete the sale transaction. So he stated that when such would be the case, the question of reply to false notice dated 31/10/1995 is an unwarranted, since his father never executed alleged agreement to sale, i.e., suit documents. In support of his case he got marked as may as 11 documents, Ex.D1 is the certified copy of plaint in O.S.No.1154/1980, Ex.D3 is the office copy of reply notice dated 30/5/1994, 60 O.S.No.861/1996 Ex.D5 is the office copy of legal notice to the general power of attorney holder of deceased plaintiff, Ex.D6 is the office copy of legal notice dated 29/6/1994 to D2, Ex.D7 is the postal acknowledgment relating to Ex.D3, Ex.D8 is the COP receipt relating to Ex.D4 and D6, Ex.D9 is the COP receipt relating to Ex.D5, EX.D10 is the certified copy of judgment in O.S.No.596/2000 and 3059/2002, Ex.D11 is the certified copy of decree. So in view of his above evidence and document, he prays for to dismiss the suit.
70. The learned counsel for the plaintiff during the course of his arguments contended that the defendant No.1 offered to sell the suit schedule property to the plaintiff for a total price of Rs.9,00,000/- and the plaintiff is represented by his general power of attorney holder, has accepted the offer made by the defendant No.1. He further stated that accordingly the agreement of sale dated 11/6/1993 as per Ex.P2 came to be executed by defendant No.1 in favour of plaintiff represented by his power of attorney holder. He further stated that as on the date of Ex.P2 agreement of sale 61 O.S.No.861/1996 Rs.5,00,000/- was paid to the defendant through a cheque drawn on Vijaya Bank and the said amount was received by the defendant No.1 as a part of sale consideration amount and also encashed the said amount. He further contended that the very document produced by the plaintiff at Ex.P2 and Ex.P2(a) clearly goes to show with regard to the factum of execution of agreement of sale and receipt of Rs.5,00,000/-. He further contended that subsequently the defendant No.1 also received a sum of Rs.1,00,000/- through a cheque on 12/8/1993 drawn on Vijaya Bank and the said amount was also encashed by him. With regard to the said aspect, the defendant No.1 issued receipt as per Ex.P3. So he contended that in all defendant No.1 received a sum of Rs.6,00,000/- towards part of sale consideration amount.
71. He further contended that on the date of execution of Ex.P2 agreement of sale, defendant No.1 also executed GPA in favour of defendant No.2, i.e., on 11/6/1993. He further contended that the very Ex.P4 agreement of sale executed by defendant No.1 in favour of defendant No.2 clearly shows that 62 O.S.No.861/1996 if the defendant No.2 were to fail in executing and register the sale deed in respect of the suit property in favour of the plaintiff, the plaintiff would be entitled to get the sale deed registered through defendant No.2, as the general power of attorney holder of defendant No.1. He further contended that after receipt of total amount of Rs.6,00,000/- by defendant from plaintiff, he started evading him and did not complete the sale transaction on one or the other pretext. He further contended that there afterwards defendant No.2 coming as general power of attorney holder of defendant No.1 executed registered agreement of sale on 13/12/1993 as per Ex.P5 agreeing to receive the balance sale price of Rs.3,00,000/- from him and to execute and register the sale deed in favour of the plaintiff. He further contended that the very said document shows that the defendant No.2 also undertook to deliver physical possession of the suit schedule property to him.
72. He further contended that when the defendants failed to perform their part of contract by receiving the balance 63 O.S.No.861/1996 sale consideration amount, the plaintiff caused legal notice on 21/4/1994, through his counsel as per Ex.P6, calling upon them to execute the registered sale deed by receiving the balance sale consideration amount and to hand over all documents of title relating to the suit property and to hand over the possession of the suit schedule property. He further contended that defendant No.1 has given evasive reply to the said notice as per Ex.P7 by taking false contention, but defendant No.2 though received the said notice failed to give any reply.
73. He further contended that subsequently the plaintiff met defendant No.1 and asked him to execute the sale deed, for that the defendant No.1 told the plaintiff that he has to get clearance form the income tax department for the purpose of registration of sale deed in his favour and also requested him to send draft sale deed. What he contended that as per the request made by defendant No.1 in the month of September 1995, he issued a letter dated 31/10/1995 to the defendant calling upon him to obtain income tax clearance certificate as 64 O.S.No.861/1996 soon as possible and to finalize the transaction and he also enclosed draft sale deed. In order to substantiate his contention, he placed his reliance upon Ex.P8 letter sent to the defendant No.1 and copy of the draft sale deed at Ex.P9. He further contended that inspite of the plaintiff sent the draft sale deed as per request made by defendant No.1 and inspite of receipt of Ex.P8 letter, the defendant has failed to perform his part of contract in order to complete the transaction. So the plaintiff has filed the present suit seeking the relief of specific performance of contract and for other reliefs.
74. He further contended that though the defendant has denied the execution of Ex.P2 agreement of sale and receipt of sale consideration amount in the written statement, but the very evidence given by the legal representative of deceased defendant No.1 shows that and also the written statement filed by defendant No.1 shows that he has admitted his signature found in Ex.P2 and P2(a) and Ex.P3. So what he contended that the very admission by defendant No.1 with regard to his signature in Ex.P2, P2(a) and Ex.P3 clearly goes 65 O.S.No.861/1996 to show that he has executed agreement of sale for total sale consideration of Rs.9,00,000/- and in relation to the said transaction he received Rs.6,00,000/- towards the sale transaction out of the total sale consideration amount of Rs.9,00,000/-. He further contended that it is the specific stand of the defendant No.1 that for collateral security for having obtained loan from plaintiff through his power of attorney holder, he has executed Ex.P2 agreement of sale, if that would be the case, it is for the defendant No.1 to prove the said aspect, but he has not proved the same by placing acceptable evidence.
75. He further contended that from the oral and documentary evidence placed before the court by the plaintiff clearly shows that he has discharged his initial burden. When such would be the case, the next burden shift upon defendant No.1 to prove the stand taken by him. But admittedly he has failed to prove his contention with acceptable evidence. 66 O.S.No.861/1996
76. He further contended that during the course of cross examination of PW1, the counsel representing the defendant No.1 put certain questions to PW1. The very questions put by him clearly shows that he has made some positive suggestions, that aspect itself shows that the defendant No.1, with an intention to sell the suit schedule property for total sale consideration of Rs.9,00,000/-, has executed Ex.P2 agreement of sale. He further contended that in Ex.P2 at page No.2 the cheque number is written in handwriting, wherein the defendant No.1 put his counter signature. So what he contended that so far as the receipt of amount and execution of Ex.P2 agreement of sale is concerned, the plaintiff has produced acceptable evidence before the court. What he contended that the defendant No.1 has not at all denied his signature found in Ex.P2, P2(a), P3. So that aspect itself clearly shows that the plaintiff has proved the execution of suit documents by the defendant in his favour with an intention to sell the suit schedule property for a total sale consideration of Rs.9,00,000/-.
67 O.S.No.861/1996
77. He further contended that on the date of execution of Ex.P2 agreement of sale, defendant No.1 also executed general power of attorney in favour of defendant No.2 and wherein the power was given to him to execute sale deed in favour of plaintiff if defendant No.1 has failed to execute the registered sale deed by receiving the balance sale consideration of Rs.3,00,000/-. He further contended that though the defendant No.1 contended that he has not at all executed agreement of sale as per Ex.P2 and GPA in favour of defendant No.2 as per Ex.P4 but in order to prove the said aspect no acceptable material has been placed before the court. He further contended that the defendant No.1 contended that after noticing the alleged contention of the plaintiff with regard to the execution of Ex.P2 agreement of sale and Ex.P4 general power of attorney, he taken a public notice saying that he has not at all executed either agreement of sale in favour of plaintiff or GPA in favour of defendant No.2 and also contended that if there would be such agreement it would stand cancelled. What he contended that the very said contention taken by the defendant No.1 clearly shows that 68 O.S.No.861/1996 with malafide contention, he had taken such contention and if according to the defendant No.1, he has not at all executed any kind of agreement or GPA the question of cancellation of the same does not arise at all.
78. He further contended that in pursuance of Ex.P4, GPA executed by defendant No.1 in favour of defendant No.2, he executed registered agreement of sale as per Ex.P5. He further contended that from Ex.P5 registered agreement of sale shows that the defendant No.2 has agreed to execute the registered sale deed by receiving the balance sale consideration amount of Rs.3,00,000/- and also agreed to hand over the title deeds relating to the suit property and also agreed to hand over the possession of the same. Inspite of that both defendants have not come forward to perform their remaining part of the contract. So the plaintiff when met defendant No.1 he was told by him that he is going to execute the registered sale deed after getting clearance from the income tax. But even then also he has not performed his part of contract inspite of receipt of Ex.P8 letter along with the draft 69 O.S.No.861/1996 sale deed as per Ex.P8 and P9. So what he contended that the very oral and documentary evidence placed before the court clearly goes to show that the plaintiff has given acceptable evidence to prove his case.
79. The learned counsel for the plaintiff during the course of his arguments contended that the suit schedule property is the absolute property of defendant No.1, as such he offered to sell the same in favour of plaintiff. He further contended that in fact the defendant No.1 in his written statement admitted that the suit schedule property is his absolute property. When such would be the case, defendant No.1 has got every right and power to do any act in respect of his absolute property. He further contended that the legal representative of deceased defendant No.1 and also the defendant further contended that the suit property is not the absolute property of defendant No.1 and it is the ancestral property, as such he has no right to deal with the ancestral property. So far as the said contention taken by the defendant No.1 counsel, what he contended that the very averments 70 O.S.No.861/1996 made in the written statement of defendant No.1 shows that he has admitted that the suit schedule property is the absolute property. Even the judgment and certified copy of the compromise petition in O.S.No.1154/1980 produced by the defendant at Ex.D2 also shows that the suit schedule property is not the ancestral property of the defendants as claimed by them. So he contended that the defendants in order to overcome from their duty, i.e., to say in completing the sale transaction they have taken the false contention that the suit schedule property is the ancestral property.
80. He further contended that the legal representatives of the defendant contended that the value of the suit schedule property was Rs.1 crore and more in the year 2001 itself. So on that contention they contended that the Ex.P2 agreement of sale and other document which the plaintiff claims to be executed by defendant No.1 are concocted and fabricated document in order to knock off the suit schedule property. So far as the said contention of the defendants what he contended that insufficient sale consideration is not a criteria 71 O.S.No.861/1996 to refuse the specific performance of the contract. What he contended that though the defendants have contended like so, that in the year 2001 itself the value of the suit schedule property is more than Rs.1 crore, but in order to substantiate the said aspect no material has been placed before the court. So what he contended that the defendants have taken all possible false contention just to overcome from their liability, that is to say to perform their remaining part of contract by accepting the remaining sale consideration amount. So in view of his above arguments, he urged to answer issue No.1 to 3 in the Affirmative and issue No.6 in the Negative.
81. The learned counsel for the defendant during the course of his arguments mainly contended that the general power of attorney holder of plaintiff, i.e., Sri.R.Parameshwara has no locus standi to file the present suit and also contended that the alleged Ex.P1 general power of attorney cannot be believed and the same is not at all executed by original plaintiff Sri.R.Mahadev in favour of Sri.R.Parameshwara. He further contended that Ex.P1 general power of attorney cannot 72 O.S.No.861/1996 be believed as because it does not disclose the signature of the person who has executed, is identified by an advocate. So on this sole ground, he contended that the suit of the plaintiff has to be dismissed. He further contended that even Ex.P1 does not disclose counter sign of the person who has executed the same, where ever the correction is made and also it does not disclose the date in first page of the said document. So he contended that it is a created document by the general power of attorney holder for the best reasons known to him.
82. He further contended that the plaintiff mainly contended that the defendant No.1 offered to sell the suit schedule property for a total sale consideration of Rs.9,00,000/- and accordingly he executed Ex.P2 alleged agreement of sale on 11/6/1993. So far as the said aspect is concerned, what he contended that first of all the defendant No.1 has absolutely no exclusive right to deal with the suit schedule property, as because, it is the ancestral property of defendant No.1. In order to substantiate his contention, he placed his reliance upon Ex.D1 and D2, i.e., certified copy of 73 O.S.No.861/1996 the plaint and compromise petition in O.S.No.1154/1980. So he contended that the very said two documents clearly goes to show that the suit schedule property is the ancestral property of defendant No.1 and he has no exclusive right to deal with the property.
83. He further contended that Ex.P2 agreement of sale and Ex.P4 GPA alleged to be executed by defendant No.1 in favour of defendant No.2 are all concocted and fabricated document in order to knock off the suit schedule property. What he contended that on the same day both documents came into existence, i.e., on 11/6/1993. What he contended that if according to the plaintiff defendant No.1 executed Ex.P2 alleged agreement of sale, there was no need for him to execute general power of attorney in favour of defendant No.2 on the same day. So on this score he contended that both documents are concocted and created documents in order to knock off the suit schedule property. He further in order to fortify his contention, i.e., to say both documents are fabricated and concocted what he contended that both 74 O.S.No.861/1996 documents shows that one Muni Narasappa is a witness to the said document, but he has not been examined before the court to prove the execution of the said two documents. Even the general power of attorney holder is also a witness to the Ex.P2 document. So all these aspects clearly goes to show that all these documents are created documents in order to knock off the suit schedule property. He further contended that the general power of attorney holder of the original plaintiff, i.e., R.Parameshwara in collusion with defendant No.2 got created Ex.P4 general power of attorney and also got created Ex.P5 alleged registered agreement of sale for the best reasons known to them. If according to the plaintiff defendant No.1 executed Ex.P2 agreement of sale, there was no need for him to execute Ex.P4 general power of attorney and in turn Ex.P5 alleged registered agreement of sale alleged to be executed by defendant No.2 in favour of general power of attorney holder of plaintiff. So he contended that looking into all these aspects one can easily say that all these documents are got created with malafide intention to knock off the valuable suit property. 75 O.S.No.861/1996
84. Though the plaintiff has absolutely no right or locus standi to issue legal notice as per Ex.P6 with a malafide intention he has issued the said notice and for the said notice defendant No.1 has given suitable reply as per Ex.P7 denying all the contention taken by the plaintiff. He further contended that the plaintiff claims that in the year 1995 he met defendant No.1 and he was told by him that after getting clearance form the income tax department he would going to execute the sale deed and for the said purpose he required draft sale deed. So far as the said contention of the plaintiff what he contended that though they contended like so but in proof of the receipt of draft sale deed by defendant No.1 no acceptable material has been placed before the court. So he contended that it is at another cock and bull story by the plaintiff to knock off the suit property. So he contended that absolutely there is no acceptable material to show that the defendant No.1 offered to sell the suit property and he has executed the alleged suit documents as relied upon by the plaintiff.
76 O.S.No.861/1996
85. He further contended that in view of the paper publication in news paper pertaining to financial assistance on collateral security of immovable properties made by one K.Vijay, who is none other than the defendant No.2 in this case, the defendant No.1 approached him for financial assistance and the said person in turn had introduced Sri.R.Parameshwara, who is none other than the general power of attorney holder of the original plaintiff stating that he is a financier and he would make arrangement for loan of Rs.5,00,000/- on monthly interest. Accordingly defendant No.1 obtained loan of Rs.5,00,000/- from R.Parameshwara and the defendant No.1 had paid interest for about two months and also he obtained additional loan of Rs.1,00,000/- on interest. So he contended that the defendant No.1 in all had taken loan of Rs.6,00,000/- from R.Parameshwara on interest. He further contended that at the time of obtaining the said loan both R.Parameshwara and K.Vijay have obtained the signature of defendant No.1 on some blank papers and other papers on the ground that they are required for the security of loan and they have also obtained certified copy of 77 O.S.No.861/1996 the documents relating to the suit schedule property. He further contended that in fact defendant No.2 had taken Rs.30,000/- as commission for having arranged loan of Rs.6,00,000/-. So he contended that taking advantage of signature of defendant No.1 obtained on some blank stamp papers and other papers, the general power of attorney holder of plaintiff in collusion with defendant No.2 got created the suit documents in order to knock off the valuable suit schedule property.
86. He further contended that defendant No.1 after coming to know about the alleged GPA and alleged agreement of sale, caused legal notice to defendant No.2 and also he had taken paper publication stating that he never executed any GPA on 11/6/1993 in favour of 2nd defendant and also taken publication that the alleged GPA alleged to be executed by him is cancelled. So he contended that when that would be the case, the question of 2nd defendant executing registered agreement of sale as per Ex.P5 in favour of general power of attorney holder of plaintiff does not arise at all and apart form 78 O.S.No.861/1996 that the 2nd defendant has absolutely no right to execute any kind of agreement in respect of the suit schedule property in favour of any third persons, much less in favour of the general power of attorney holder of the plaintiff. He further contended that when the defendant No.1 has not at all executed alleged suit documents, there is no need for him to give any reply to the alleged letter which the plaintiff claims to be sent in the year 1995. So he very firmly contended that all the suit documents are created and fabricated documents and the same are created by general power of attorney holder of plaintiff in collusion with defendant No.2 by taking advantage of signature of defendant No.2 obtained on some blank stamp papers and other papers. On the other hand, the very evidence given by DW1 and the very contention taken by defendant No.1 in his written statement clearly shows that he has obtained loan of Rs.6,00,000/- and for that reason he put his signature to Ex.P2 and receipt at Ex.P2(a) and Ex.P3, but not in connection with sale transaction. So in view of his above arguments, he urged to answer issue No.1 to 3 in the Negative and issue No.6 in the Affirmative.
79 O.S.No.861/1996
87. While giving my anxious thoughts and considerations to the submissions made by the learned counsels for the parties at the bar, I have gone through the records. Admittedly this is a suit filed by the plaintiff seeking the relief of specific performance of contract and for such other reliefs. The records shows that the plaintiff is represented by his general power of attorney holder Sri.R.Parameshwara, who is none other than the own brother of the original plaintiff. It is the specific case of the plaintiff that the defendant No.1 offered to sell the suit schedule property for a total sale consideration of Rs.9,00,000/-. Accordingly on 11/6/1993 the defendant No.1 executed agreement of sale in favour of general power of attorney holder of plaintiff and received Rs.5,00,000/- and subsequently received another Rs.1,00,000/- and for that he has given receipt. It is the further case of the plaintiff that on the date of execution of Ex.P2, defendant No.1 also executed GPA in favour of defendant No.2 and the said documents shows that if defendant No.1 failed to execute the registered sale deed, the 80 O.S.No.861/1996 plaintiff can get registered sale deed through defendant No.2 by paying the remaining balance consideration amount of Rs.3,00,000/-. It is the further contention of the plaintiff that subsequently defendant No.2 executed registered agreement of sale as per Ex.P5 agreeing to execute the registered sale deed by receiving balance consideration amount of Rs.3,00,000/- and also agreed to hand over the documents relating to the suit schedule property and also agreeing to hand over the possession of the suit schedule property. But subsequently the defendants failed to perform their part of contract, inspite of repeated requests, demands and issuance of legal notice. So he has come up with the present suit.
88. Per contra it is the specific stand of the defendant that at any point of time defendant No.1 never executed alleged suit documents as claimed by the plaintiff. It is their specific stand that the defendant No.1 had taken loan of Rs.6,00,000/- on collateral security of the suit schedule property and at that time the general power of attorney holder of plaintiff and defendant No.1 obtained his signature in some 81 O.S.No.861/1996 blank stamp papers and other papers and taking advantage of the same, both by colluding with each other, got created the suit documents, in order to knock off the suit schedule property. It is their further contention that the suit schedule property is the ancestral property of defendant No.1, as such he has no exclusive right to deal with the property.
89. In the light of the above rival stand on going through the records it shows that the first contention of the learned counsel for the defendant is that Ex.P1 GPA alleged to be executed by original plaintiff Sri.R.Mahadev in favour of Sri.R.Parameshwara is a cooked up document. Though the learned counsel for the defendant during the course of his arguments much contended about the said document, but upon perusal of the written statement filed by the original defendant and the additional written statement filed by the legal representatives of the deceased defendant, it shows that no where in their written statement they whispered that it is a cooked up document. When that would be the case without the specific pleading, merely on the basis of bald contention 82 O.S.No.861/1996 for the first time taken by them, during the course of his arguments, cannot be accepted. It is an well established principles of law, any amount of evidence or any amount of submission without specific pleading would not suffice the case of the parties.
90. Now coming to the contention taken by the learned counsel for the defendant No.1 that defendant No.1 at any point of time never executed the suit document Ex.P2 alleged agreement of sale, Ex.P4 alleged GPA alleged to be executed by defendant No.1 in favour of defendant No.2 and Ex.P5 alleged registered agreement of sale alleged to be executed by defendant No.2 in favour of general power of attorney holder of plaintiff are all created and fabricated document and the same are created by general power of attorney holder of plaintiff in collusion with defendant No.2 in order to knock off the suit schedule property by taking advantage of the signature of defendant No.1 obtained in blank stamp papers and other papers. When the defendant No.1 has come up with the said specific stand, the burden lies upon his shoulder to prove the 83 O.S.No.861/1996 said aspect with acceptable evidence. But upon perusal of the entire oral and documentary evidence on record, it shows that no acceptable material has been placed with regard to the said aspect. On the other hand, upon perusal of Ex.P2 agreement of sale, Ex.P2(a) receipt for having received Rs.5,00,000/-, Ex.P3 receipt for having received Rs.1,00,000/-, there is no mention with regard to the alleged factum that Ex.P2 was executed for having obtained the loan and he issued Ex.2(a) and Ex.P3 receipt for having received the loan amount. The defendant contended that he has taken Rs.6,00,000/- loan on interest and even he had paid two months interest to the plaintiff. But in order to prove the said aspect, that is to say atleast to show that he paid the interest on the loan amount, no acceptable materials has been placed before the court. When the defendant has taken specific contention that taking advantage of his signature obtained in blank stamp papers and other papers, the general power of attorney holder of plaintiff and defendant No.2 by colluding each other got created the suit documents, it is for him to take appropriate legal action including filing of complaint to the police, but the 84 O.S.No.861/1996 same has not been done by defendant. Even the said fact has been admitted by DW1 during the course of his cross examination at page 13, 3rd para in the middle portion which reads as under:
"I am not aware as to whether my father had registered any FIR in respect of his contention of obtaining his signature to the blank papers."
91. So the very above answer given by DW1 goes to create a doubt in the mind of the court to accept the stand taken by them in the present case.
92. It is the specific stand of the defendant that for having obtained loan for security purpose, they given the suit property. When that would be the case, it is for them to prove the said aspect by producing acceptable, either oral or documentary evidence before the court, but the over all evidence on record does not disclose to accept the said contention taken by the defendant. Even the said aspect has been admitted by DW1 during the course of his cross examination at page 16, 1st two lines which reads as under: 85 O.S.No.861/1996
"gÀÆ.6 ®PÀë ¸Á® ¥ÀqÉzÀ ªÉÃ¼É zÁªÁ D¹ÛAiÀÄ£ÀÄß MvÉÛ EqÀ¯ÁVzÉ JAzÀÄ vÉÆÃj¸À®Ä £À£Àß §½ AiÀiÁªÀÅzÀÉà zÁR¯É E®è. £À£Àß vÀAzÉ ¨ÉÃgÉAiÀĪÀgÉÆA¢UÉ ªÀiÁvÁqÀÄwÛzÀÝ ªÉÃ¼É zÁªÁ D¹ÛAiÀÄ£ÀÄß ¸Á®zÀ ªÀåªÀºÁgÀPÉÌ ¨ÀszÀævÉ JAzÀÄ PÉÆnÖgÀ§ºÀÄzÉAzÀÄ £Á£ÀÄ H»¹zÉÝãÉ."
93. The above evidence given by DW1 also goes to show that under any stretch of imagination, whatever the bald contention taken by them cannot be accepted. The defendant claims that after coming to know the alleged suit documents, he caused notice to defendant No.2 and also had taken paper publication by saying that he has not at all executed any kind of power of attorney in favour of defendant No.2 and if there would be any agreement of sale, it is cancelled. Though defendant No.1 contended like so, in proof of having taken publication, he has not produced any paper publication copy before the court, even the said aspect has been admitted by DW1 during the course of his cross examination at page No.12 which reads as under:
86 O.S.No.861/1996
"It is true to suggest that 'Deccan Herald' news paper referred in Ex.D5 is not produced in this case."
94. Further in page No.11, last three lines, he admitted as under:
"I am not aware that my father had not cancelled power of attorney executed in favour of defendant No.2".
95. The above evidence given by DW1 clearly goes to falsify the stand taken by the defendant. So it can be said that in the absence of acceptable documentary evidence in support of their oral evidence whatever bald say of the defendants cannot be accepted.
96. The records shows that during the pendency of the suit, defendant No.1 was died and his legal representatives were brought on record and legal representative D1(c) examined as DW1 before the court. So it can be said that though he has given evidence before the court, but the oral and documentary evidence placed before the court by him it shows that he does not know the transaction that was made 87 O.S.No.861/1996 by his father, i.e., defendant No.1 with plaintiff represented by his general power of attorney holder. Even the said fact has been admitted by DW1 during the course of his cross examination at page No.14 last four lines which reads as under:
"It is true to suggest that I personally did not take part at any time in the suit transaction and so I am not aware as to who were all present at the time of execution of Ex.P2."
97. The very above evidence given by DW1 goes to collapse the entire case set up by the defendant No.1. The very above evidence clearly shows that Ex.P2 is executed by defendant No.1 in favour of plaintiff represented by his general power of attorney holder in connection with the sale transaction, but not in connection with loan transaction as claimed by defendant No.1.
98. The plaintiff contended that he met defendant in the year 1995 and at that time, he was told by defendant No.1 that after getting clearance from the income tax department he 88 O.S.No.861/1996 is going to execute the registered sale deed and for that he required draft sale deed. The plaintiff contended that as per the say of defendant No.1, he sent letter along with draft sale deed in the year 1995 as per Ex.P8. The learned counsel for the defendant and the LRs of the defendant contended that they have not received any such kind of letter from the plaintiff. So far as the said contention of the legal representative of the defendant cannot be accepted as because the defendant No.1 in his written statement at page No.6 para 11 admitted with regard to the receipt of letter by the general power of attorney holder of plaintiff on 31/10/1995. So it can be said that though the defendant is very well aware that he has executed Ex.P2 agreement of sale in connection with the sale transaction relating to the suit schedule property inspite of that some what they are trying to suppress the truth of the matter. From the above conduct of the defendant No.1 and his legal representatives, inference can be drawn that Ex.P2 was executed by defendant No.1 in favour of general power of attorney holder of the plaintiff in connection with the sale 89 O.S.No.861/1996 transaction but not in connection with loan transaction as claimed by the defendants.
99. It is the specific contention of the learned counsel representing the defendant that the suit schedule property is the ancestral property of defendant No.1 and he has no exclusive right to deal with the suit property. So whatever the transaction alleged to be made by defendant No.1, in respect of the suit schedule property would not bind the rights of the other joint family members in the suit schedule property. The learned counsel for the defendant, in order to substantiate his contention, he placed his reliance upon Ex.D1 certified copy of the plaint and Ex.P2 certified copy of the compromise petition in O.S.No.1154/1980. So far as the said submission made by the learned counsel representing the defendant No.1, it can be said that the said submission cannot be accepted as because upon perusal of contents of para 2 of the written statement filed by defendant No.1, wherein in unequivocal terms, he has stated that he is the full and absolute owner of the suit schedule property. So also upon perusal of Ex.D2, i.e., the 90 O.S.No.861/1996 certified copy of the compromise petition in O.S.No.1154/1980 at page No.2, third para wherein it is stated as under:
"The plaintiffs No.2 to 4 and 6 and 2nd defendant have concurred that it is advisable and most convenient that only one person should be the owner of immovable properties for betterment and improvement of the properties. The plaintiffs No.2 to 4 and 6 have concurred and have agreed that the 2nd defendant Sri.K.K.Sanyasi taking properties should pay cash and gold to the other persons in lieu of their rights."
100. The above contents of the compromise petition clearly goes to show that the suit property is exclusively given to defendant No.1 herein. Apart from that upon perusal of the evidence given by DW1 during the course of his cross examination at page No.17 last portion wherein he has admitted as under:
" zÁªÁ D¹ÛAiÀÄ°è £À£Àß vÀAzÉUÉ ¤RgÀªÁzÀ MAzÀÄ ¥Á®Ä EvÀÄÛ J£ÀÄߪÀÅzÀÄ ¤d."91 O.S.No.861/1996
101. So looking into the contents of written statement, contents of Ex.D2 compromise petition and the evidence of DW1 as stated above, it clearly goes to show that the defendant No.1 and his legal representatives have taken a false contention in order to overcome from their contractual liability, that is to say, in order to avoid performing their remaining part of contract. So in one word, it can be said that whatever the contention taken by the defendants that the suit schedule property is not an exclusive property of the defendant No.1 and it is his ancestral property cannot be accepted.
102. Now coming to the contention taken by the legal representatives of the deceased defendant No.1 that the value of the suit schedule property in the year 2001 itself it was more than Rs.1 crore. Though they contended like so, in proof of the same, no acceptable material has been placed before the court. When that would be the case, the mere bald contention would not suffice their case. Apart from that insufficient sale consideration is not a ground to deny or refuse the transaction 92 O.S.No.861/1996 relating to specific performance of contract. So by analyzing the over all facts and circumstances of the case and also by appreciating the oral and documentary evidence placed before the court, it can be said that the plaintiff has succeeded to prove issue No.1 to 3 and the defendant No.1 has failed to prove issue No.6. Accordingly issue No.1 to 3 are answered in the Affirmative and issue No.6 is answered in the Negative.
103. Issue No.4: It is the contention of the learned counsel for the plaintiff that after execution of Ex.P2 agreement of sale and another registered agreement of sale executed by defendant No.2 in favour of the plaintiff on 13/12/1993, defendant No.1 and defendant No.2 have not come forward to execute the registered sale deed by receiving the remaining balance sale consideration of Rs.3,00,000/-. It is the further contention of the learned counsel for the plaintiff that inspite of repeated demands, requests and causing of legal notice, the defendants have not turned up to perform their remaining part of contract. He further contended that the plaintiff was ever ready and willing to perform his part of 93 O.S.No.861/1996 contract and in the plaint he has specifically pleaded that he is / was ever ready and willing to perform his part of contract, but the defendants for the best reasons known to them, have not turned up to perform the remaining part of the contract. He further contended that the oral and documentary evidence on record clearly shows that the plaintiff is / was ever ready and willing to perform his part of contract. So in view of his above arguments, he urged to answer issue No.4 in the Affirmative.
104. The learned counsel for the defendant No.1, during the course of his arguments contended that the alleged suit documents are the got up and created documents by the general power of attorney holder of the plaintiff in collusion with defendant No.2 by taking advantage of the signature of defendant No.1 obtained in blank stamp papers and other papers. He further contended that at any point of time, defendant No.1 never executed suit documents in favour of the plaintiff. When such would be the case, the question of readiness and willingness on the part of the plaintiff does not 94 O.S.No.861/1996 arise at all. He further contended that the evidence on record shows absolutely there is no transaction in between the plaintiff and the defendant No.1 in respect of the suit schedule property. So in view of his above arguments, he urged to answer issue No.4 for consideration in the Negative.
105. In the light of the arguments canvassed by the respective counsels for the parties, I have gone through the records. So far as the sale transaction in between the plaintiff and defendant No.1 in respect of the suit schedule property is concerned, a detailed discussion has been made in the above issues and this court holds that the defendant No.1 has executed suit documents in connection with the sale transaction in respect of the suit schedule property. Now the question before the court whether the plaintiff is / was ever ready and willing to perform his part of contract or not ? Upon perusal of the plaint averments particularly at para No.7 and 8, wherein the plaintiff has specifically pleaded that he is always ready and willing to perform his part of contract and so many times he requested the defendants to come and execute 95 O.S.No.861/1996 the registered sale deed by receiving the remaining balance sale consideration amount but the defendants failed to do their part of contract. Upon perusal of the written statement filed by the defendant No.1 and the additional written statement filed by the legal representatives of the deceased defendant No.1, it shows that no where specifically they denied that the plaintiff is not ready and willing to perform his part of contract. So also upon perusal of the legal notice sent by the plaintiff as per Ex.P6, wherein also he has stated about his readiness and willingness. Inspite of that, the defendant No.1 in his reply notice as per Ex.P7 has not denied the factum of the readiness and willingness of the plaintiff to perform his remaining part of the contract. When that would be the case and in the absence of contra evidence on the part of the defendants, it is needless to say that the plaintiff has succeeded to prove that he is ever ready and willing to perform his part of contract. For the foregoing reasons and discussions issue No.4 is answered in the Affirmative. 96 O.S.No.861/1996
106. Issue No.5: The defendant No.1 contended that the suit of the plaintiff is barred by limitation. The learned counsel for the plaintiff during the course of his arguments contended that the plaintiff contended that the alleged agreement to sale was executed on 11/6/1993, whereas the present suit is filed in the year 1996, so he contended that the present suit is filed after a lapse of stipulated time, as such the suit of the plaintiff is liable to be dismissed as barred by limitation,
107. On the contrary, the learned counsel for the plaintiff during the course of his arguments contended that after the execution of agreement to sale dated 11/6/1993 as per Ex.P2 and another registered agreement of sale on 13/12/1993 as per Ex.P5, the plaintiff so many times made request, demand and caused legal notice to the defendants to come and execute the registered sale deed by receiving balance sale consideration amount, but inspite of that the defendants failed to perform their remaining part of the contract. He further contended that the plaintiff caused notice to the defendants on 97 O.S.No.861/1996 21/4/1994 as per Ex.P6 and the 1st defendant gave evasive reply on 28/6/1994 as per Ex.P7, but the 2nd defendant failed to give any reply to the said notice. He further contended that in the month of September 1995, when the plaintiff met defendant No.1, he was told by him that after getting clearance certificate from the income tax department, he is going to execute a registered sale deed and for that purpose he need draft sale deed. He further contended that by considering the request made by the defendant No.1, the plaintiff sent a letter along with the draft sale deed in the year 1995 as per Ex.P8, inspite of receipt of the said letter, the defendants have not come forward to perform their remaining part of the contract. So what he contended that the very silence on the part of the defendants in the year 1994 and 1995 clearly shows that they have refused to perform their part of contract. So immediately the plaintiff in the year 1996 filed the present suit. So he contended that when things stood like so, the suit of the plaintiff is not at all barred by law of limitation and it is well within the limitation. So in view of his above arguments, he urged to answer issue No.5 for consideration in the Negative. 98 O.S.No.861/1996
108. In the light of the arguments canvassed by the respective counsels for the parties, I have gone through the records. It is the contention of the learned counsel for the defendant that the alleged suit document executed on 11/6/1993, whereas the present suit is filed after a lapse of stipulated period, as such, the suit is barred by limitation. In the light of the said submission made by the learned counsel for the defendant, on going through the records, it shows that admittedly Ex.P2 agreement of sale shows that it was executed on 11/6/1993 and another registered agreement to sale as per Ex.P5, it shows that it was executed on 13/12/1993. So also upon perusal of Ex.P6 legal notice caused by the plaintiff to the defendants shows that it was issued on 21/4/1994 and the defendant No.1 gave reply to the said notice on 28/6/1994 as per Ex.P7. So also upon perusal of Ex.P8 letter sent by the plaintiff to the defendants, it shows that it was sent in the year 1995, so the cause of action accrues to the plaintiff in the aforesaid years. The present suit is filed in the year 1996, when that would be the case, it can be said that the suit of the 99 O.S.No.861/1996 plaintiff is not barred by time. Even taking into account the date of execution of Ex.P2 agreement to sale, that is on 11/6/1993 and taking into consideration the date of filing of the present suit, that is on 2/2/1996, it shows that the plaintiff has filed the present suit well within the stipulated time as prescribed under law. When that would be the case, it is needless to say that whatever the contention taken by the learned counsel for defendant No.1 that the suit of the plaintiff is barred by law of limitation cannot be accepted. Accordingly issue No.5 is answered in the Negative.
109. Point No.7: In this case the plaintiff sought for the relief of permanent injunction against the defendants on the ground that he learnt that the defendants are trying to dispose off the suit schedule property. On going through the records, it shows that though the plaintiff has averred in the plaint with regard to the said aspect, but in proof of the same, absolutely no acceptable evidence has been placed before the court. When that would be case, and in the absence of acceptable material, the plaintiff is not entitled for the relief of 100 O.S.No.861/1996 permanent injunction. Apart from that when the main relief sought by the plaintiff is already given to him as discussed in the above issues, the question of granting the relief of permanent injunction does not arise at all. In view of the same, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby decreed in part with cost.
The defendants are hereby directed to execute the registered sale deed in respect of the suit schedule property to the plaintiff in terms of agreement dated 11/6/1993 and 13/12/1993 within two months, by receiving the remaining balance sale consideration amount of Rs.3,00,000/-
failing which the plaintiff is at liberty to get execute the sale deed through court. The defendants are directed to handover the possession of the suit schedule property to the plaintiff.101 O.S.No.861/1996
So far as the relief of permanent injunction as sought by the plaintiff is hereby rejected.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in open Court on this the 11th day of February 2016).
(Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE:
Witnesses examined for the plaintiff:
P.W.1 - R.Parameshwara P.W.2 - J.Pramod Witnesses examined for the defendant: D.W.1 - Suresh Sanyasi Documents marked for the plaintiff: Ex.P1 : General power of attorney Ex.P2 : Agreement Ex.P2(a) : Signature of D1 Ex.P2(b) : Signature of PW1
Ex.P2(c)&(d): Signature of Muninarasappa & 2nd defendant Ex.P2(e) : Receipt Ex.P2(f) : Signature of first defendant 102 O.S.No.861/1996 Ex.P2(g) & (h) : Signature of Muninarasappa & 2nd defendant Ex.P3 : Receipt Ex.P3(a) : Signature of 1st defendant Ex.P3(b) & (c) : Signature of Muninarasappa & 2nd defendant Ex.P4 : Power of attorney Ex.P5 : Another agreement of sale Ex.P5(a) : Signature of 2nd defendant Ex.P5(b) : Signature of PW1 Ex.P5(c) : Signature of Ramaiah Ex.P6 : Copy of notice Ex.P7 : Reply of 1st defendant Ex.P8 : Office copy of letter Ex.P9 : Copy of draft sale deed Ex.P10 : Certificate of posting in Ex.P8 Ex.P11 : Original 'Will' Ex.P12 : Death Certificate Documents marked for the defendant:
Ex.D1 : Certified copy of plaint in O.S.No.1154/1980 Ex.D2 : Compromise petition in O.S.No.1154/1980 Ex.D3 : Office copy of Reply notice dated 30/5/1994 to D2 Ex.D4 : Office copy of legal notice dated 30/5/1994 Ex.D5 : Office copy of legal notice to general power of attorney holder of deceased plaintiff 103 O.S.No.861/1996 Ex.D6 : Office copy of legal notice dated 29/6/1994 to D2 Ex.D7 : Postal acknowledgment relating to Ex.D3 Ex.D8 : COP receipt relating to Ex.D4 & Ex.D6 Ex.D9 : COP receipt relating to Ex.D5 Ex.D10 : Certified copy of judgment in O.S.No. 596/00 & 3059/02 Ex.D11 : Certified copy of Decree (Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.104 O.S.No.861/1996
Judgment pronounced in open court (vide separate detailed judgment) with the following operative portion:-
ORDER The suit of the plaintiff is hereby decreed in part with cost.
The defendants are hereby directed to execute the registered sale deed in respect of the suit schedule property to the plaintiff in terms of agreement dated 11/6/1993 and 13/12/1993 within two months, by receiving the remaining balance sale consideration amount of Rs.3,00,000/- failing which the plaintiff is at liberty to get execute the sale deed through court. The defendants are directed to handover the possession of the suit schedule property to the plaintiff.
So far as the relief of permanent injunction as sought by the plaintiff is hereby rejected.
XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.105 O.S.No.861/1996
. Point No.2: In view of my findings on the above, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby decreed.
The defendants are hereby directed to execute the registered sale deed and deliver possession of the suit schedule property to the plaintiff in terms of agreement dated 11/6/1993 and 13/12/1993 within two months, failing which the plaintiff is at liberty to take steps as per law.
Further the defendants are hereby restrained by way of permanent injunction from disposing and alienating the suit schedule property in any manner.
No order as to cost.106 O.S.No.861/1996