Karnataka High Court
S V Harish Babu vs R A Balaji on 16 March, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
M.F.A.No.18/2020 (CPC)
BETWEEN:
S.V.HARISH BABU
S/O S.R. VENKATARATHNAM,
AGED ABOUT 49 YEARS,
RESIDING AT MANGALAVAGADA VILLAGE,
PAVAGADA TALUK,
TUMKUR DISTRICT-572116. ...APPELLANT
(BY SRI. H.R.ANANTHAKRISHNAMURTHY, ADVOCATE)
AND:
1. R.A.BALAJI,
S/O LATE ANJINAPPA,
AGED ABOUT 41 YEARS,
RESIDING AT TEACHER'S COLONY,
KASABA HOBLI,
PAVAGADA TALUK,
TUMKUR DISTRICT-572116.
2. G. CHENDRASHEKARA,
S/O RAMACHENDRAPPA,
AGED ABOUT 38 YEARS,
RESIDING AT KUVEMPU NAGARA,
PAVAGAD TOWN,
KASABA HOBLI,
2
PAVAGADA TALUK,
TUMKUR DISTRICT-572116. ...RESPONDENTS
(BY SRI. ERAPPA REDDY. M, ADVOCATE)
THIS MFA IS FILED U/O 43 RULE 1(R) OF CPC, AGAINST
THE ORDER DATED 20.02.2019 PASSED ON IA NO.1 AND 3 IN
O.S. NO.38/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, PAVAGADA, REJECTING IA NO.1 FILED U/O 39
RULE 1 AND 2 OF CPC AND ALLOWING IA NO.3 FILED U/O 39
RULE 4 OF CPC.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appeal is directed against the order dated 20.02.2019, passed on I.A.Nos.I and III filed in O.S.No.38/2018, by Senior Civil Judge and JMFC, Pavagada, wherein, I.A.No.1 filed by the plaintiff under Order 39 Rules 1 and 2 of CPC, seeking temporary injunction came to be rejected and I.A.No.III filed by defendants under Order 39 Rule 4 of CPC came to be allowed and ex-parte order of temporary injunction granted in favour of the plaintiff was vacated. The plaintiff being aggrieved by the said order has come up in appeal. 3
2. In order to avoid confusion and overlapping, the parties are addressed in accordance with the rankings held by them before the trial Court.
3. The substance of the claim of the plaintiff is that plaintiff and defendants are stated to be the joint owners of the schedule properties bearing Sy.No.121/4 measuring 06 acres 15 guntas, 01 acre 10 guntas in Sy.No.124/3 and 01 acre in Sy.No.124/4 of Pavagada village, Kasaba Hobli, Pavagada Taluk and Tumkuru district.
4. The said properties were purchased by the plaintiff jointly under the three separate registered sale deeds i.e., two sale deeds are dated 14.09.2016 and one sale deed is dated 08.05.2017. It is further claimed that the said landed property consists of set of three properties which came to be converted into non-agricultural purpose as per the order passed by the learned Deputy Commissioner. Prior to which all the revenue records of the schedule properties in pursuance of the title deeds stood in the name of the plaintiff. 4 The object of the plaintiff and defendants has been to form a residential layout in the schedule properties and it is stated that about 150 sites are formed.
5. The defendants are stated to be the friends and business partners of the plaintiff. It is claimed that in order to defeat the vested rights of the plaintiff, the defendants brought up a false partition deed by obtaining signatures of the plaintiff purporting to the partition deed dated 11.06.2018, wherein, the defendants claim that the plaintiff had relinquished the right over his share in respect of the undivided title and interest of the schedule properties for consideration of Rs.7,00,000/- which is paid through two cheques of Rs.3,50,000/- each and cash of Rs.1,95,000/-, thereby the defendants' claim that the plaintiff has ceased to possess his right, title, interest or possession over the schedule properties by virtue of said partition and relinquishment.
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6. The plaintiff claims that he never intended to relinquish his right over the schedule properties and said two documents which were brought into existence by the plaintiff are the documents that were never intended to be brought in by the plaintiff. Thus, the plaintiff was put up in a nutshell and defendant Nos.1 and 2 have obtained the partition deeds from the plaintiff without consideration and there was no free and genuine consent as well.
7. On presentation of the suit by the plaintiff, he also filed an application under Order 39 Rules 1 and 2 of CPC, and the learned trial Judge was granted exparte injunction. However, upon the entry of defendants, they filed the objections to the application along with written statement and they also filed an application under Order 39 Rule 4 of CPC which is marked as I.A.No.III.
8. After hearing the statements of both the sides, the learned trial judge allowed I.A.No.III filed by the defendants by dismissing I.A.No.I filed by plaintiff and thus, vacated the 6 order of exparte temporary injunction granted earlier in favour of the plaintiff. Plaintiff being aggrieved by the same, has come in this appeal.
9. Sri H.R. Ananthakrishnamurthy, learned counsel for the appellant would submit that the partition deed which is purported to be one registered wherein, the defendants claim that plaintiff has relinquished his right, title, interest and possession over his share in respect of the suit schedule properties are false documents and they were never intended by the plaintiff. Morefully, they were without consideration and hence, plaintiff is not bound by the same. He would further submit that the entire land being confronted for non- agricultural purpose and sites are formed at Pavagada Taluk, the defendants have definite agenda of defeating the rights of the plaintiff over the schedule properties. He would further submit that the consent was not free and genuine and it was also submitted that the said documents/instruments are bad in law by virtue of Section 25 of the Indian Contract Act, 1872. 7
10. Sri M. Erappa Reddy, learned counsel for defendants would submit that the partition between plaintiff and defendants are not the one which is oral or un-registered documents, but there are registered documents to prove the same, wherein, the plaintiff has relinquished his undivided right, title, interest and possession in respect of his share over the schedule properties in favour of the defendants to constitute them as the joint owners of the schedule properties.
11. Considering the materials available on record and the submission of both the counsels, the following points are amply clear that; at a given point of time, the schedule properties consist of three items which were purchased under three separate registered sale deeds by the plaintiff and the defendants, thereby they became a joint owners of the schedule properties. The said lands were got converted from agricultural purpose to non-agricultural purpose (residential) and by the orders of the Competent Authority, layout was formed and about 150 sites were formed.
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12. It is the claim of the plaintiff that he was in dire need of money and requested the defendants to sale a cluster of sites to a third party so that the plaintiff would get his share in the proceeds. It is on that occasion and subsequent to one, the plaintiff claims that the defendants have misused the circumstances and secured the partition deed.
13. Admitted facts are that the plaintiff and defendants are the joint owners of the schedule properties. Insofar as partition is concerned, it is the bone of contention between the parties and it is necessary to remember that it is not like any other family partition, but on the other hand, this partition claimed and denied are that of the joint ownership over the suit schedule three items of properties. The sale deed under which the plaintiff and defendants had purchased the properties were registered as stated above and the partition deed questioned by the plaintiff, and on the other hand opposed by the defendants, is dated 11.06.2018 and under the said partition, the plaintiff is stated to have received Rs.1,95,000/- in cash, as consideration for his relinquishment 9 and a sum of Rs.7,00,000/- through two cheques for a sum of Rs.3,50,000/- each.
14. The plaintiff claims that he has not received any consideration from the defendants, much less the amount stated under the partition deed in the form of cash of Rs.1,95,000/-, nor cheque amount of Rs.3,50,000/- each.
15. Per contra, learned counsel for defendants would submit that they never admitted for a while regarding non- payment of consideration of Rs.1,95,000/- and insofar not giving cheques for a sum Rs.7,00,000/- through two cheques of Rs.3,50,000/- each to the plaintiff. Learned counsel for defendants would further submit that plaintiff has not presented the cheques sofar. As such, the blame cannot be made on the defendants.
16. Insofar as the main attack on the validity and the sanctity of documents that the plaintiff has not received the consideration and the agreement is bad for lack of consideration and destitute legal effect, learned counsel for 10 defendants in this connection relies on Section 25 of the Indian Contract Act, which reads as under:
"25. Agreement without consideration, void, unless it is in writing and registered or is a promise to compensate for something done or is a promise to pay a debt barred by limitation law.--An agreement made without consideration is void, unless--
(1) it is expressed in writing and registered under the law for the time being in force for the registration of documents, and is made on account of natural love and affection between parties standing in a near relation to each other; or unless (2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do; or unless (3) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for 11 the limitation of suits. In any of these cases, such an agreement is a contract."
17. Insofar as 'consideration' is concerned, it is defined under Section 2(d) of the Indian Contract Act, which reads as under:
"2(d) When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise;"
18. Even to take a example of chapter of sale in Transfer of Property Act, Section 55(4)(b) of Transfer of Property Act provides that:-
"(b) where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer, any transferee without consideration or any transferee with notice of the non-payment, for the amount of the purchase-
money, or any part thereof remaining unpaid, and 12 for interest on such amount or part from the date on which possession has been delivered."
19. Thus, where the ownership of the property has been passed on to the buyer and being whole or part of the purchase money is not paid, the seller shall have charge over the property. As per Section 100 of the Transfer of Property Act, the 'charge' is defined as under:
"100. Where immovable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge. Nothing in this section applies to the charge of a trustee on the trust-property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge. "13
20. Having charge over the property is different from claiming injunction. More particularly, the relief claimed under the I.A.No.I by the plaintiff is not to alienate the properties. In this connection, Sri H.R. Ananthakrishnamurthy, learned counsel for the appellant submits that Section 55(4) of the Transfer of Property Act, is applicable only in sale, not in partition.
21. I agree with the same. The partition does not fit into grew of Section 55 of the Transfer of Property Act, to call it as a transfer. However, the structure of principle regarding the right of seller in respect of un-paid purchase money after the confidence of transfer of ownership could be considered to some extent.
22. However, in the circumstances, the existence of the registered partition deed is not disputed. Now, the question is regarding consideration. No other flaws like in the capacity of consent or object. In the whole consideration of the case, the application for temporary injunction filed under 14 Order 39 Rules 1 and 2 may not have grounds in favour of the plaintiff in the light of partition deed dated 11.06.2018. I find neither there appears to be prima facie case, balance of convenience nor question of hardship. Thus, I find dismissal of the application I.A.No.I filed by the plaintiff does not call for interference. Hence, the appeal is dismissed.
Sd/-
JUDGE HJ