Karnataka High Court
Sri Ramachandra S/O Late Marigowda vs Sri Ramakrishnaiah S/O Late Motegowda on 6 January, 2025
Author: Ravi V. Hosmani
Bench: Ravi V. Hosmani
-1-
NC: 2025:KHC:154
RSA No. 702 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
REGULAR SECOND APPEAL NO.702 OF 2012 (SP)
BETWEEN:
SRI RAMACHANDRA,
S/O LATE MARIGOWDA, MAJOR,
KOLUR VILLAGE, MALUR HOBLI,
CHANNAPATNA TALUK,
RAMANAGARA DISTRICT.
...APPELLANT
[BY SRI K.N. NITESH, ADVOCATE FOR
SRI K.V. NARASIMHAN, ADVOCATE (PH)]
AND:
1. SRI RAMAKRISHNAIAH,
S/O LATE MOTEGOWDA,
SINCE DEAD BY HIS LEGAL
REPRESENTATIVE IE.,
RESPONDENT NO.2.
2. SMT KALAMMA,
W/O RAMAKRISHNAIAH,
MAJOR, R/AT KANNALI VILLAGE,
KASABA HOBLI, MANDYA TALUK,
MANDYA DISTRICT.
3. SMT. DEVEERAMMA,
W/O CHANNEGOWDA,
SINCE DEAD BY HER LRs IE.,
RESPONDENT NOs.4 TO 11
4. SRI YOGESH,
S/O LATE DEVIRAMMA, MAJOR,
R/AT KANNALI VILLAGE,
KASABA HOBLI, MANDYA TALUK,
MANDYA DISTRICT .
-2-
NC: 2025:KHC:154
RSA No. 702 of 2012
5. SANDEEPU,
S/O LATE KRISHNGOWDA, MAJOR,
R/A KANNALI VILLAGE,
KASABA HOBLI, MANDYA TALUK,
MANDYA DISTRICT.
6. DEELIPU,
S/O LATE KRISHNEGOWDA, MAJOR,
R/A KANNALI VILLAGE,
KASABA HOBLI, MANDYA TALUK,
MANDYA DISTRICT.
7. DIVYA,
D/O LATE KRISHNEGOWDA, MAJOR,
R/A KANNALI VILLAGE,
KASABA HOBLI, MANDYA TALUK,
MANDYA DISTRICT.
8. MAYAMMA,
W/O LATE HUCHAIAH, MAJOR,
R/A MUTTANAHALLY VILLAGE,
D.A. KERE POST, MADDUR TALUK,
MANDYA DISTRICT.
9. MANJULA,
W/O NINGEGOWDA, MAJOR,
R/A CHANNAPPANA DODDI VILLAGE,
BELUR POST, MANDYA TALUK,
MANDYA DISTRICT.
10. PUTTATHAYAMMA,
W/O SIDDALINGEGOWDA, MAJOR,
BORAPURA VILLAGE, MADDUR TALUK,
SADARAHALLI POST, MANDYA DISTRICT.
11. SUDHA,
W/O CHANNAPPA, MAJOR,
R/A KANNALI VILLAGE,
KASABA HOBLI, MANDYA TALUK,
MANDYA DISTRICT.
...RESPONDENTS
[BY V/O DATED 28.03.2017 R2 IS TREATED AS LRs OF DECEASED R1;
V/O DATED 21.02.2019, LRs OF R3 ARE BROUGHT ON RECORD AS
R4 TO R11 ARE SERVED; V/O DATED 07.06.2024; R4, R8, R9, R10
AND R11 ARE TREATED AS LRs OF DECEASED R2]
-3-
NC: 2025:KHC:154
RSA No. 702 of 2012
THIS RSA FILED U/S. 100 OF CPC AGAINST THE JUDGMENT &
DECREE DTD 05.01.2012 PASSED IN R.A.NO.27/2008 ON THE FILE
OF THE DISTRICT AND SESSIONS COURT AT RAMANAGAR,
DISMISSED THE APPEAL AND FILED AGAINST THE JUDGMENT AND
DECREE DATED 03.10.2007 PASSED IN O.S.NO.25/2003 ON THE
FILE OF THE PRINCIPAL CIVIL JUDGE (SR. DN.) AT RAMANAGARA.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 23.11.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THROUGH VC FROM DHARWAD BENCH, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CAV JUDGMENT
Challenging judgment and decree dated 05.01.2012 passed by District and Sessions Judge, Ramanagara, in R.A.no.27/2008 and judgment and decree dated 03.10.2007 passed by Principal Civil Judge (Sr. Dn.), Ramanagara, in OS.no.25/2003, this appeal is filed.
2. Appeal was by plaintiff in OS no.25/2003 for specific performance of agreement of sale dated 25.10.2002 directing defendants to execute registered sale deed in respect of garden land bearing Sy.no.69/2, measuring 0.18 ¾ guntas (along with bore-well and pump-set installed in it) situated at Kolur village, Malur Hobli, Channapatna Taluk ('Suit Property' for short); direct defendant no.3 to join defendants in execution -4- NC: 2025:KHC:154 RSA No. 702 of 2012 of sale deed and in case of failure, to have sale deed executed by Court in favour of plaintiff, get it registered as per law etc.
3. In plaint, it was stated suit property was ancestral property of defendant no.1. And defendant no.2 was his wife. Further, defendant no.1 had mortgaged suit property with plaintiff on 02.02.2002 by receiving Rs.15,000/- and delivering possession. From said date, plaintiff was in possession as mortgagee. Thereafter on 25.10.2002, an agreement of sale was executed by defendants no.1 and 2, agreeing to sell suit property to plaintiff for total sale consideration of Rs.1,35,050/- by receiving Rs.1,20,050/- as balance sale consideration after deducting mortgage amount of Rs.15,000/-. It was stated agreement was witnessed by Suresh and Chikkaydegowda of Kolur village and defendantsno.1 and 2 agreed to execute sale deed within three months. Thus time as essence of contract. But, when plaintiff approached defendants in December, 2002, demanding execution of sale deed, they postponed it on one or other pretext. Therefore on 28.12.2002, plaintiff got issued legal notice calling upon them to execute sale deed. Despite receipt, defendants did not respond. Hence, suit was filed. -5-
NC: 2025:KHC:154 RSA No. 702 of 2012
4. In response, defendants no.1 and 2 filed written statement denying plaint averments. They stated suit property was ancestral property of defendant no.1. As he was spendthrift, it was transferred to defendant no.2 under Registered Power of Attorney ('PoA' for short) on 29.11.1988. Thereafter, defendant no.2 was in possession of suit property. Therefore, subsequent mortgage by defendant no.1 was without consent or permission of defendant no.2. It was alleged, plaintiff had taken undue advantage of defendant no.1 during his intoxication and that both Mortgage deed as well as Agreement of Sale in favour of plaintiff, were created.
5. It was stated, suit property was sold to Deviramma on 18.10.2002, with recital that purchaser agreed to redeem mortgage. After knowing same, plaintiff got created alleged agreement of sale. Since sale transaction was completed and there was no need for execution of agreement of sale. Therefore, sought dismissal of suit.
6. Defendant no.3 filed separate written statement denying plaint averments and claiming to be bonafide purchaser of suit property, on 18.10.2002. It was stated, -6- NC: 2025:KHC:154 RSA No. 702 of 2012 alleged agreement of sale was concocted and from date of purchase, she was in possession. Hence, sought dismissal of suit.
7. Based on pleadings, trial Court framed following issues:
1. Does the plaintiff prove that the defendants 1 and 2 agreed to sell the suit property to him as alleged?
2. Does the plaintiff prove his readiness and willingness in performance of his part of the contract?
3. Whether the plaintiff is entitled for the relief of specific performance as prayed?
4. What order or decree?
8. To establish his case, plaintiff examined himself and three others as PWs 1 to 4 and got marked Exs.P1 to 7. Defendants did not lead evidence.
9. On consideration, trial Court, answered issue no.1 in affirmative, issues no.2 and 3 in negative and issue no.4 by dismissing suit. Aggrieved, plaintiff filed RA no.27/2008 on various grounds. Based on same, first appellate Court framed following points:
-7-
NC: 2025:KHC:154 RSA No. 702 of 2012
1. Whether the affirmative finding of the trial court on issue no.1 that the plaintiff has successfully proved the fact that defendants 1 and 2 agreed to sell the suit property is illegal and perverse, which warrants the interference of this court?
2. Whether the negative finding of the trial Court that the plaintiff failed to prove readiness and willingness to perform his part of contract is illegal and perverse, which warrant the interference of this Court?
3. Whether the judgment and decree of the trial Court are illegal and perverse, which warrant the interference of this Court?
4. What order or decree?
10. On consideration, it answered points no.1 to 3 in negative and point no.4 by dismissing appeal. Aggrieved thereby, this appeal was filed.
11. Sri KN Nithish, learned counsel appearing for Sri KV Narasimhan, learned counsel for plaintiff submitted, appeal was against concurrent errors. It was submitted, on 25.10.2002, defendant no.1 executed Ex.P7 - agreement of sale after receiving entire sale consideration and agreeing to execute sale deed within three months. But on 28.12.2002, when plaintiff got issued Ex.P.3 - notice calling upon defendants -8- NC: 2025:KHC:154 RSA No. 702 of 2012 no.1 and 2 to execute sale deed, there was no response. Hence, on 03.02.2003, suit was filed.
12. It was submitted, in their written statement, defendants no.1 and 2, denied agreement of sale, but admitted execution of mortgage deed on 02.02.2002. It was submitted, defendants no.1 and 2 had sold suit property to defendant no.3, by suppressing earlier agreement of sale in favour of plaintiff. It was submitted, attesting witnesses to Ex.P7 deposed about due execution of Ex.P7 and payment of consideration. In cross examination, nothing material was elicited from them. On other hand, defendants no.1 and 2 failed to enter witness box. It was submitted, while answering issue no.1, trial Court held agreement of sale as proved, but denied relief on ground of failure to establish readiness and willingness, referring to Section 16 (c) of Specific Relief Act ('SR Act' for short).
13. It was submitted, in view of amendment to Section 16 (c) of SR Act, grant of specific performance was no more discretionary and once agreement of sale was held proved, Courts ought to grant specific performance of agreement. It -9- NC: 2025:KHC:154 RSA No. 702 of 2012 was submitted, though defendants no.1 and 2 asserted execution of sale deed to defendant no.3, sale deed was not produced. These aspects were not appreciated by both Courts. It was alternatively submitted, when both Courts held agreement of sale was proved, they erred in not granting refund of sale consideration. In support of contentions, learned counsel relied on following decisions:
1. T. Krishna Murthy v. Gangadharaiah, reported in 2010 SCC OnLine Kar 5208.
2. P. Ramasubbamma v. V. Vijayalakshmi and Ors., reported in AIR 2022 SC 1793.
3. Sughar Singh v. Hari Singh (Dead) through LRs and Ors., reported in 2021 (17) SCC 705.
4. Siddamsetty Infra Projects (P) Ltd. v.
Katta Sujatha Reddy, reported in 2024 SCC OnLine SC 3214.
5. Vidhyadhar v. Manikrao and Ors., reported in 1999 (3) SCC 573.
14. On above grounds, learned counsel sought for answering substantial question of law in favour of appellant.
15. Respondents/defendants though served have chosen to remain unrepresented.
- 10 -
NC: 2025:KHC:154 RSA No. 702 of 2012
16. Heard learned counsel for plaintiff, perused impugned judgment and decree and record.
17. This appeal is by unsuccessful plaintiff in suit for specific performance. As per plaintiff, suit property belonged to defendant no.1, who had initially mortgaged it vide Ex.P1 on 02.02.2002, with plaintiff for Rs.15,000/- by handing over possession also. Thereafter, joined by his wife - defendant no.2, agreement of sale was executed on 25.10.2002 vide Ex.P7, in favour of plaintiff agreeing to sell suit property for total sale consideration of Rs.1,35,050/- by receiving Rs.1,20,050/- and adjusting mortgage amount of Rs.15,000/- towards balance sale consideration. And though plaintiff demanded execution of sale deed within stipulated period of three months vide Legal Notice at Ex.P3 dated 28.12.2002, defendants failed to respond. Plaintiff further claims as suit property was in possession of plaintiff under mortgage, sale in favour of defendant no.3 was without possession and therefore plaintiff was entitled for specific performance.
18. It is seen, trial Court noted that plaintiff produced agreement of sale as Ex.P7 and deposing as PW.1 in terms of
- 11 -
NC: 2025:KHC:154 RSA No. 702 of 2012 plaint averments. He also examined its attestors as PWs.2 and 3 and scribe as PW.3, whose deposition withstood cross- examination. It also noted failure of defendants to lead evidence, to answer issue no.1 in affirmative. But, on ground that there was no specific pleading about readiness and willingness in plaint, it answered issue no.2 in negative and dismissed suit. First appellate Court, on re-appreciation concurred with findings on issue no.1.
19. While concurring with finding on issue no.2, first appellate Court noted that defendants had specifically pleaded about execution of registered sale deed in favour of defendant no.3 on 18.10.2002. It observed, in cross-examination, PW.1 merely stated to be ignorant of sale deed dated 18.10.2002 by defendants no.1 and 2 in favour of defendant no.3 and about mortgage of suit property being part of sale. It noted date of execution of Ex.P7 - agreement of sale was 25.10.2002 which was subsequent to sale in favour of defendant no.3. It therefore held relief of specific performance of agreement of sale could not be granted. It also held lack of pleading about readiness and willingness was fatal and consequently dismisses appeal.
- 12 -
NC: 2025:KHC:154 RSA No. 702 of 2012
20. It is seen, this appeal was admitted on 22.06.2024 to consider following substantial questions of law:
1. Whether both Courts were justified in declining the decree of specific performance after holding that suit agreement at Ex.P7 stands proved and consideration as is mentioned in the agreement has been paid?
2. Whether both Courts further justified in denying the specific performance on the ground that defendants no.1 and 2 being the husband and wife, taking a plea that they have sold the property in favour of defendant no.3 who is the mother of defendant no.2 and in the absence of any sale deed being produced before the Court?
21. In instant case, as per plaintiff entire sale consideration is paid and sale consideration agreed under Ex.P7 was paid. As held in His Holiness Acharya Swamy Ganesh Dassji v. Seetharam Thapar, reported in 1996 (4) SCC 526, readiness and willingness connote different requirements. 'Readiness' would refer to financial capacity, while 'willingness' to intention to perform obligations under agreement.
22. Admittedly, there are no specific averments in plaint as prescribed in Form-47 in Appendix-A of CPC. Though, it is settled principle of law that in absence of compliance with Section 16 (c) of SR Act, there would be no other alternative
- 13 -
NC: 2025:KHC:154 RSA No. 702 of 2012 than to dismiss suit for specific performance, said technical requirement would not be absolute. In Sukhbir Singh v. Brij Pal Singh, reported in 1997 (2) SCC 200, it is held as procedure is handmade to substantive rights of parties, if averments in plaint are in substance in conformity with Form - 47 and 48 in Appendix-A of CPC, same would meet requirement. It was noted therein that pleading 'about plaintiff having attended Office of Sub-Registrar to have sale deed executed and waited for petitioners', was held sufficient compliance of pleading about readiness and willingness.
23. In Umabai v. Nilkanth Dhondiba Chavan, reported in 2005 (6) SCC 243, it is held:
"30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the respondent- plaintiffs were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the respondent-plaintiffs must be judged having regard to the entirety of the pleadings as also the evidence brought on record."
(emphasis supplied)
- 14 -
NC: 2025:KHC:154 RSA No. 702 of 2012
24. Attendant circumstances in instant case are admittedly no further sale consideration to be paid. Therefore, readiness would not be in issue. Insofar as willingness, plaintiff has pleaded that he had called upon defendants no.1 and 2 to execute sale deed and also got issued Ex.P3 - Legal Notice on 28.12.2002. Moreover, defendants did not raise contention about lack of pleading about readiness and willingness. Even no issue was framed. It is also seen, suit was filed without any undue delay within three months of issuing Ex.P3 - legal notice and timeliness on part of plaintiff would substantiate readiness and willingness. Hon'ble Supreme Court in Aniglase Yohannan v. Ramlatha, reported in 2005 (7) SCC 534, has held blemishless conduct of plaintiff would entitle him for relief of specific performance. Therefore, denial of relief of specific performance merely on ground of lack of pleadings as prescribed in Form - 47 of Appendix-A of CPC, would not be justified.
25. However, first appellate Court has noted, even prior to execution of Ex.P7 - agreement of sale on 25.10.2002, defendants no.1 and 2 had sold suit property to defendant no.3 under registered sale deed on 18.10.2002. On perusal of
- 15 -
NC: 2025:KHC:154 RSA No. 702 of 2012 written statement averments and admissions extracted in cross-examination of plaintiff (PW.1), it held sale was admitted. Though, learned counsel for plaintiff sought to contend that burden to establish that defendant no.3 was a bonafide purchaser would be on said party and failure to enter witness- box would entail drawing of adverse inference that there was no such sale, said contention would not find support from records especially contents of affidavit filed in support of I.A.no.III filed for amendment of plaint and for impleading defendant no.3. It is also seen that plaintiff filed I.A.no.I under Order VII Rule 14 (3) of CPC, before first appellate Court producing certified copy of registered sale deed dated 18.10.2002. Therefore, finding of first appellate Court that relief of specific performance cannot be granted, would be in accordance with law.
26. Insofar as propriety of denial of refund of earnest money paid under agreement of sale, Hon'ble Supreme Court in case of Desh Raj v. Rohtash Singh, reported in 2023 (3) SCC 714, held:
"36. Applying these principles to the facts of the case in hand, we find that the respondent has neither prayed for the relief
- 16 -
NC: 2025:KHC:154 RSA No. 702 of 2012 of refund of earnest money in the original plaint nor he sought any amendment at a subsequent stage. In the absence of such a prayer, it is difficult to accept that the courts would suo motu grant the refund of earnest money irrespective of the fact as to whether Section 22(2) of the SRA Act is to be construed directory or mandatory in nature."
27. Admittedly, there is no specific prayer seeking for refund of earnest money.
28. Decisions in T. Krishnamurthy's case (supra), for proposition that Courts should enforce promise made in agreement except in exceptional circumstances, if made out by defendant in not acting according to his promise made in agreement; P. Ramasubbama's case (supra), for proposition that once execution of agreement to sell and payment of sale consideration was admitted, nothing further was required to be proved by plaintiff to be entitled for specific performance of agreement of sale; Sughar Singh's case (supra), for proposition that observation of trial Court that even after proof of agreement of sale and readiness and willingness, relief of specific performance was discretionary, was contrary to law; Siddamsetty's case (supra), for proposition that about effect
- 17 -
NC: 2025:KHC:154 RSA No. 702 of 2012 of amendment to Section 16 of SR Act and Vidhyadhar's case (supra), for proposition that where a party to suit does not step into witness-box and state his case on oath and offer to be cross-examined, presumption that case setup by him is not correct, would require to be drawn, though indisputable, would not come into play in facts and circumstances of this case.
29. Hence, neither of two substantial questions of law arise for consideration. Consequently, following:
ORDER Appeal is dismissed.
Sd/-
(RAVI V. HOSMANI) JUDGE psg/AV/GRD List No.: 19 Sl No.: 1