Karnataka High Court
Narasinh S/O Ramanna vs Smt Sindhu W/O Srinivas on 25 November, 2024
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NC: 2024:KHC-D:17240
RSA No. 5634 of 2009
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 5634 OF 2009 (SP)
BETWEEN:
NARASINH
S/O. RAMANNA SHETTY,
AGE: 52 YEARS, OCC. BUSINESS,
R/O. LINGARAJ NAGAR,
HUBBALLI-580020.
... APPELLANT
(BY SRI. V.M. SHEELVANT, ADVOCATE)
AND:
1. SMT. SINDHU
Digitally
VISHAL
signed by
VISHAL
NINGAPPA
W/O. SRINIVAS PRABHU,
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.12.19
AGE: 56 YEARS, OCC. HOUSEWIFE,
10:29:33
+0530
2. SMT. SWATI
W/O. ASHOK PRABHU
AGE: 34 YEARS, OCC. HOUSEWIFE,
3. SURAJ
S/O. SRINIVAS PRABHU,
AGE: 29 YEARS,
ALL ARE R/O. H.NO.26,
VISHWESHWARNAGAR,
HUBBALLI-580020.
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NC: 2024:KHC-D:17240
RSA No. 5634 of 2009
4. JAYANTHILAL
S/O. LALCHAND BHANDARI,
AGE: 42 YEARS, OCC. BUSINESS,
R/O. PLOT NO.403, 1ST FLOOR,
SHINDE COMPLEX,
NEELIGIN ROAD,
HUBBALLI-580020.
... RESPONDENTS
(BY SRI. PRASHANT F. GOUDAR, ADVOCATE FOR R4;
R1 TO R3-SERVICE IS ACCEPTED THROUGH PAPER
PUBLICATION)
THIS RSA IS FILED U/S.100 OF CPC., 1908, PRAYING
TO CALL FOR THE RECORDS AND TO SET ASIDE THE
JUDGMENT AND DECREE DATED 16.10.2009 PASSED BY
THE LD.I ADDL.DIST. AND SESSIONS JUDGE, HUBBALLI
IN R.A.NO.64/2007 AND CONSEQUENTLY CONFIRM THE
JUDGMENT AND DECREE DATED 27.08.2007 PASSED BY
THE LD.PRL.CIVIL JUDGE (SR.DN.), HUBBALLI IN
O.S.NO.297/2005 IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR DICTATION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
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NC: 2024:KHC-D:17240
RSA No. 5634 of 2009
ORAL JUDGMENT
Assailing the judgment and decree in R.A. No.64/2007 dated 16.10.2009 on the file of the I Additional District & Sessions Judge, Hubli (hereinafter referred to as the 'First Appellate Court', for short) reversing the judgment and decree dated 27.08.2007 in O.S. No.297/2005 on the file of the Principal Civil Judge (Sr.Dn.), Hubli (hereinafter referred to as the 'trial Court', for short) the plaintiff is before this Court in this regular second appeal.
2. Parties are referred to as per their rank before the trial Court, for the sake of convenience.
3. Suit seeking specific performance of contract of the registered agreement of sale dated 11.02.2000 registered on 14.02.2000. Suit property is an agriculture land measuring 1 acre 20 guntas out of 5 acres 15 guntas towards the Northern side in R.S. No.162 situated at Pale village coming in Palegalli Gram Panchayat of Hubli taluk -4- NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 (hereinafter referred to as the 'suit property', for the sake of convenience).
4. The suit property is described with boundaries as under:
"To North: Sidappa Hanumanthappa Madhnur To Sourt: Nala To East: Road To West: Jeevangouda Madhnur"
5. Plaint averments :-
(i) The husband of defendant No.1 and father of defendant Nos.2 and 3 by name Basrur Shrinivas S/o. Apparaya Prabhu entered into a registered agreement of sale on 11.02.2000 which was registered on 14.02.2000 for a sale consideration of Rs.1,50,000/- out of which Rs.1,00,000/- was paid on the date of the registered agreement of sale.
(ii) That the agreement of sale was registered in 1st book volume No.1937 at No.6516/1999-2000.-5-
NC: 2024:KHC-D:17240 RSA No. 5634 of 2009
(iii) That the plaintiff is always ready and willing to perform his part of agreement and has kept the balance amount ready.
(iv) The plaintiff requested Basrur Shrinivas also called Srinivasa Prabhu (for short, 'Prabhu') to execute the sale deed, but the same was postponed for one or the other reason.
(v) That after the agreement, on legal advice, the plaintiff called open Prabhu to supply him copies of the sale deed evidencing the sale of the suit property in his favour, and on verification having noticed that Basanagouda S/o. Neelappagouda Shivangouda, the son of the vendor of Prabhu was a minor at the time of the sale deed, the plaintiff insisted and called upon Prabhu to get a consent deed of said Neelappagouda simultaneously with the execution of the sale deed and confirming about the legality of the sale deed in his favour which was agreed upon by Prabhu.
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(vi) Plaintiff was ready and willing to perform his part of contract during the life time of Prabhu and under a certificate of posting by several communications dated 23.02.2000, 16.06.2000, 04.01.2001, 16.06.2001, 05.01.2002, 06.03.2002, 04.06.2002, 10.01.2003, 28.02.2003, 18.06.2003, 09.02.2004 and 28.05.2005. The notice issued to Prabhu though was served, he did not deny about the agreement or about the execution of the sale deed but that the plaintiff was asked to wait for Basanagouda S/o. Neelappa Gouda Shivanagouda to execute the consent deed.
(vii) Under the registered agreement of sale dated 11.02.2000 registered on 14.02.2000 a notice to the world at large was indicated.
(viii) That Prabhu expired on 28.12.2004 and the plaintiff immediately approached defendant Nos.1 to 3 and called upon them to execute the sale deed in his favour with a deed of consent of Basanagouda S/o. -7-
NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 Neelappagouda Shivangouda and at that time, the plaintiff came to know that Prabhu during his lifetime had sold the suit property to defendant No.4 on 20.01.2001 and hence, the plaintiff issued a legal notice on 04.03.2005 calling upon the defendants to execute the sale deed.
6. Though notice was served on defendant No.1 she chose to remain absent and hence placed exparte, and defendant Nos.2 and 3 who appeared did not choose to file written statement.
7. Defendant No.4 the purchaser of the suit property from Prabhu under the sale deed dated 20.01.2001 filed written statement.
8. Avernments in the Written statement ;
(i) Without admitting that there is a sale agreement between plaintiff and deceased Prabhu the suit of the plaintiff is barred by limitation. -8-
NC: 2024:KHC-D:17240 RSA No. 5634 of 2009
(ii) That the cause of action arose when there was successive refusal by Prabhu.
(iii) On 20.01.2001 the defendant No.4 has purchased the suit property from Prabhu and he is the bonafide purchaser having made bonafide enquiry about the possession and title.
(iv) That the so called sale agreement made between the plaintiff and deceased Prabhu was cancelled and the said Prabhu had produced the cancellation deed.
(v) That the defendant No.4 in public notice in the daily newspaper on 15.12.2000 and on 18.12.2000 informed the public about the proposed sale.
(vi) The silence on part of the plaintiff amounts to an admission about the fact of cancellation of the sale agreement.
(vii) Suit property has been purchased by defendant No.4 for valuable sale consideration of Rs.1,35,000/-. -9-
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(viii) That subsequent to the sale deed an application was made to the Additional Civil Judge (Jr.Dn.) for permission to sell the interest of the minor in G & W case.
(ix) That the sale agreement was cancelled and the plaintiff never raised objection about the cancellation of sale agreement and that the plaintiff was aware about the execution of a registered sale deed in his favour.
(x) That the plaintiff was never ready and willing to perform the contract and he has kept quiet for nearly five years clearly indicates that there is no readiness and willingness on his part to perform the agreement.
9. The trial Court based on the pleadings framed the following issues:
"1.Whether the Plaintiff proves that late Srinivas Prabhus executed and registered an agreement of sale agreeing to sell the suit schedule
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 property for a sum of Rs.1,50,000/- and received Rs.1,00,000/- as part of sale consideration?
2. Is the Plaintiff ready and willing to perform his part of agreement and is entitled to get decree for specific performance against the legal representatives of late Srinivas Prabhu?
3. Do the 4th Defendant prove that the agreement made between the Plaintiff and Srinivas Prabhu had already been cancelled as contended in his Written Statement?
4. Is the suit barred by Law of Limitation?
5. Is the 4th Defendant bonafide purchaser for value with out notice?
6. Which party to this suit proceeding will be put more hardship in case the suit is not to be decreed?
7. To what order or decree parties are entitled?"
10. In order to substantiate their claim, plaintiff examined himself as PW1 and marked documents at Exs.P1 to P20. On the other hand defendant No.4
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 examined himself as DW1 and marked documents at Exs.D1 to D9.
11. The trial Court based on the pleadings, oral and documentary evidence decreed the suit of the plaintiff for specific performance and further by cancelling the sale deed executed in favour of defendant No.4 by Prabhu on 20.01.2001 and directed all the defendants to execute the registered sale deed in favour of the plaintiff subject to the plaintiff depositing the balance sale consideration of Rs.50,000/- with interest at the rate of 12% per annum from payable within 15 days from the date of the judgment.
12. Aggrieved, the defendant No.4 preferred appeal before the First Appellate Court. The First Appellate Court framed the following points for consideration:
"1) Whether the plaintiff has proved that late Shrinivas Prabhu had executed Ex.P-1 in his favour for sale of the suit property?
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009
2) Whether the plaintiff has proved that he was always ready and willing to perform his part of obligation under the agreement and it was late Shrinivas Prabhu who had committed its breach?
3) Whether the fourth defendant has proved that the suit is barred by limitation?
4) Whether the fourth defendant has proved that he is the bonafide purchaser of the suit property for value?
5) Whether the plaintiff is entitled to the relief of specific performance or alternatively to recover a sum of Rs.1,50,000/- from the defendants and with interest as prayed for?
6) Whether the finding of the trial Court on any of the issue/ issues needs interference?
7) What order?"
13. The First Appellate Court arrived at a conclusion that the registered agreement of sale at Ex.P1 is executed by Late Prabhu in favour of the plaintiff, however, while answering the other points for consideration held that defendant No.4 is a bonafide purchaser as he had issued public notice about his intending purchase of the suit
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 property in the local daily newpaper issued on 15.12.2000 which would manifest that Prabhu has repudiated the contract and by the judgment and decree the First Appellate court allowed the appeal of defendant No.4 and set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiff.
14. Aggrieved, the plaintiff is before this Court in this regular second appeal.
15. This Court while admitting the second appeal on 06.08.2013 framed the following substantial questions of law:
"(i) Whether in the facts and circumstances of the case the appellate Court was justified in holding that the appellant has not satisfied the requirement of Section 16(c) of the Specific Relief Act?
(ii) Whether in the facts and circumstances of the case the appellate Court was justified in holding that the suit is barred by limitation in view of Article 54 of the Limitation Act?
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009
(iii) Whether the appellate Court was justified in holding that the respondent No.4 is a bona fide purchaser?
(iv) Whether the appellate Court was justified in not considering the alternative prayer under Section 24(b) of the Specific Relief Act?"
16. In substantial question of law No.4 with the consent of both the counsel, Section 24(b) as indicated is corrected to 22(b).
17. Heard Sri. V.M.Sheelvant, learned counsel appearing for the appellant, Sri.Prashant F.Goudar, learned counsel appearing for the respondent No.4 on the substantial questions of law and perused the material on record.
18. Learned counsel for the appellant vehemently contends that:
(i) The plaintiff was always ready and willing to perform his part of contract which is evident from Ex.P9 to Ex.P20, the time was not the essence of contract under Ex.P1 and the material on record clearly
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 indicated that the plaintiff had established that he was ready and willing to perform his part of contract.
(ii) That the First Appellate Court while reversing the findings recorded by the trial Court failed to consider that the agreement of sale is a registered one and admittedly the vendor has not cancelled the registered agreement of sale by other cancellation deed, respondent No.4 though had stated that the registered agreement of sale was cancelled, no documents are produced to the said effect which aspect has been totally overlooked by the First Appellate Court.
(iii) That in the absence of any cancellation of earlier registered agreement of sale, the First Appellate Court ought not to have reversed the judgment and decree of the trial Court.
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(iv) That the original vendor had not issued notice to the appellant about the execution of the sale deed nor the public notice issued by defendant No.4 while purchasing the property indicated the boundaries or any identification that the suit property is being purchased by defendant No.4.
(v) That the First Appellate Court has fell in error in holding that the suit is barred by limitation without considering the fact that under Ex.P1 the time was not the essence of contract.
In support of his contentions, the learned counsel has placed reliance on the following decisions:
● R.K.MOHAMMED UBAIDULLAH AND OTHERS Vs. HAJEE C. ABDUL WAHAB AND OTHERS1 (R.K.MOHAMMED UBAIDULLAH) ● Sk. Golam Lalchand Vs. Nandu Lal Shaw and Others2 (Sk. Golam Lalchand) 1 (2000) 6 SCC 402
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19. Per contra, learned counsel appearing for defendant No.4/respondent No.4 vehemently contends that:
(i) The First Appellate Court being the last fact finding Court has rightly arrived at a conclusion that the suit was barred by limitation under Section 54 having filed in the year 2003 while the sale deed of defendant No.4 is executed on 20.01.2001 and the suit filed after more than three years from the date of execution of the sale deed in favour of defendant No.4 is barred by limitation.
(ii) That mere non-production of agreement of cancellation does not make the Court to arrive at a conclusion that the defendant No.4 is not the bonafide purchaser for valuable consideration.
(iii) That the First Appellate Court rightly arrived at a conclusion that the registered sale deed was 2 2024 SCC Online SC 2456
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 executed in favour of defendant No.4 on 20.01.2001, as per Section 3 of the Transfer of Property Act, 1882, the registration itself is a notice to him to the effect that performance is refused.
(iv) That the respondent No.4 is a bonafide purchaser for value after having made all reasonable and proper enquiries and the First Appellate Court has rightly held that he is the bonafide purchaser for value.
(v) That the readiness and willingness to perform the agreement is totally absent and the suit of the plaintiff has been rightly dismissed holding that from the date of agreement till the filing of the suit, the plaintiff has failed to prove his readiness and willingness to perform his part of agreement. In support of his contentions, learned counsel has placed reliance on the following decisions:
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NC: 2024:KHC-D:17240
RSA No. 5634 of 2009
● U.N.Krishnamurthy (Since deceased)
Through Legal Representatives Vs.
A.M.Krishnamurthi3 (U.N.Krishnamurthy) ● Desh Raj and Others Vs. Rohtash Singh4 (Desh Raj) ● P.Daivasigamani vs. Sambandan5 (P.Daivasigamani) ● Janardhanam vs. Ramdas6 (Janardhanam)
20. This Court has carefully considered the rival contentions urged by the learned counsel appearing for the parties and perused the material on record.
21. Regarding 1st Substantial question of law:-
The registered agreement is dated 11.02.2000 registered on 14.02.2000. Section 10 of the Specific Relief 3 2022 SCC Online SC 840 4 2023 Part 3 SC 714 5 2022 (14) SCC 793 6 2007 Part 15 SCC 174
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 Act, 1963 (for short, 'the Act') which came into effect on 01.10.2018 reads as under:
"10. Cases in which specific performance of contract enforceable.- Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the Court, be enforced-
(a) When there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done; or
(b) When the act agreed to be done is such that compensation in money for its non-
performance would not afford adequate relief."
22. The provisions of Section 10 of the Act as stood prior to the amendment/substitution needs to be considered as the present agreement is of the year 2000 and hence, the amended provisions are not applicable.
23. Section 16C of the Act as it stood prior to substitution is that "who fails to aver and prove that he
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than the terms the performance of which has been prevented or waived by the defendant". The averment and proof of readiness and willingness to perform an obligation to pay the amount is the criteria in a suit for specific performance of contract. Bearing in mind that the plaintiff has to discharge his duties to prove his readiness and as well as willingness to perform his part of contract by adducing cogent evidence the material on record are perused. The plaintiff at para Nos.4 and 5 of the plaint held as has under:
"4. The plaintiff made it clear that he being always ready and willing to perform his part of the agreement has kept the balance amount ready and insisted that Late Prabhu's family also join in the process of registration. Shri. Prabhu requested the plaintiff to wait for sometime so that he could connivance his family members as well to effect the sale deed as they were not agreeing for alienating on the ground that sale in part will not be beneficial. Late Prabhu wanted to achieve dual purpose firstly to sell the portion to get over the crisis and to retain
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 the balance for future planning. Being made it believe the submission, the plaintiff agreed to get the sale deed done on hearing from Mr. Prabhu taking into confidence all his family members. However after agreement on legal advice the plaintiff called upon late Shri. Prabhu to supply him the copies of the sale deed evidencing the sale of the suit property in his favour. On verification on the same, it was noticed that Shri Basanagouda S/o Neelappagouda Shivanagouda was a minor at the time of the sale deed. Thus the plaintiff on being advised by men in legal fraternity, called upon Late Prabhu to get a consent deed by said Neelappagouda simultaneously with the execution of the sale deed stating and confirming about the legality of the sale deed in favour of Shri. Prabhu. Late Prabhu promised to do so.
5. The plaintiff being always ready and willing to perform his part of agreement during lifetime of Shri. Prabhu, personally requested him to do the needful in the manner as stated above. Shri Prabhu assured the plaintiff that it will be done accordingly. Plaintiff placed the request in black and white on 23-02-2000, 16-06-2000, 04-01-2001, 16-06-2001, 05-01-2002, 06-03-2002, 04-06- 2002, 10-01- 2003, 28-02-2003, 18-06-2003, 09-02-2004, 28- 05-2005 Late Prabhu never denied to execute the sale deed, but requested the plaintiff to wait till he
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 arranges to bring Shri. Basanagouda S/o Neelappagouda Shivanagouda as well to execute the consent deed."
24. The plaintiff averred that he is always ready and willing to perform his part of contract and requested Prabhu to come forward for execution of the sale deed.
25. The specific plea of the plaintiff was that Prabhu had purchased the suit property and it was noticed that the vendor of Prabhu namely Neelappagouda had a son by name Basanagouda and he was minor at the time of sale deed and the plaintiff called upon the Prabhu to get a consent deed by said Neelappagouda simultaneously for the execution of the sale deed in his favor and consequently, issued notice to certificate of posting and the plaintiff advised defendant to bring the Basanagouda S/o. Neelappagouda Shivanagouda to get his consent deed. To indicate that Basanagouda vendor's son was a minor and there was a consent deed required, necessary permission was obtained from the competent authority,
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 Ex.D.4 is the G&WC filed by Girijawwa W/o. Neelappagouda stated that they are the owners of RS No.162 measuring 5 acres 7 guntas and they intended to sell RS No.162 to an extent of 1 acre 20 guntas to one Prabhu and executed a sale deed on 22.04.1995. As the son of the vendor was a minor, the present G&WC came to be filed seeking permission for the said transaction of sale deed in favor of Prabhu. Though the said G&WC came to be dismissed for want of maintainability, one thing is made clear that the son of the vendor of Prabhu namely Basanagouda was a minor and with an intention to get a consent deed from the minor's father Neelappagouda in favor of Prabhu, efforts were made by the vendor and in the application it is clearly mentioned for the selling the property in favor of Prabhu permission for sale is sort.
26. The grant of specific relief of specific performance is a discretionary and an equitable relief. The material questions which are required to be considered for grant of relief of specific performance are;
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i) Whether there exists a valid and concluded contract between the parties for sale or for purchase of the suit property?
ii) Whether the plaintiff was ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract?
iii) Whether the plaintiff has performed his part of contract and if so, and to what extent and in what manner he has performed and whether such performance was in a confirmative terms of contract?
iv) Whether it would be equitable to grant a relief of specific performance to grant the relief of specific performance against the defendant in relation to the suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner an extent in such relief is eventually granted to the plaintiff?
v) Whether the plaintiff is entitled for grant of any alternative relief namely refund of earnest money etc., if so, on what grounds?
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27. Section 20 of the Specific Relief Act the amendment confers discretion to the Court to exercise a jurisdiction to a decree of specific relief of performance and clearly states that this exercise should not be arbitrary but guided by sound and reasonable judicial principles. The expression of readiness and willingness used in Section 16(C) of the Act are not one and the same, but 2 separate elements. Readiness means the capacity of the plaintiff to perform the contract, which would include the financial position to pay the purchase price. Willingness refers to the intention of the payment as a purchaser to perform his part of the contract. Willingness is involved by scrutinizing by conduct of the plaintiff-purchaser including the attending circumstances as held by the Apex Court in the case of Ganesh Dasji Vs. Sitaram Tappar7 (Ganesh Dasji).
28. Under the registered agreement dated 14.02.2000, the total sale consideration agreed is 7 1996(4) SCC 526
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 Rs.1,50,000/- out of which, the plaintiff has paid Rs.1,00,000/- through cheque as an earnest money, the balance sale consideration was Rs.50,000/- to indicate his readiness that the capacity of plaintiff to perform the contract and his financial position to purchase the property he has produced the passbook which is marked at Ex.P.7 and before the trial Court at the time of filing the suit, the plaintiff has deposited the remaining sale consideration amount with interest. The readiness on part of the plaintiff is established from the material on record. The next question comes as to the willingness which would be proved by the conduct of the plaintiff, the attending circumstances are that, Prabhu who executed the registered agreement in favor of the plaintiff who in turn had purchased the property from Neelappagouda who had a minor son Basanagouda. After the execution of the agreement, the plaintiff called upon Prabhu to get a consent deed of Basanagouda the son of Neelappagouda who was minor at the time of execution of the sale deed in favor of Prabhu and as stated supra there was a G&WC
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 filed as a guardian of Basanagouda in G&WC No.15/2002 (Ex.P.4) dated 21.12.2000, this fortifies the contention of the plaintiff that the vendor's son by name Basanagouda was a minor and to see that there is an execution of sale deed confirming the legality of the sale deed in his favor consent deed would be obtained from the said Neelappagouda.
29. The defendant No.4 in his written statement categorically stated regarding the consent deed to be executed by Neelapgouda at para No.4 which reads as under;
"4. It is further stated that before the property was purchased by late Srinivas Prabhu from Smt. Ningawwa W/o Hemanagouda Shivanagouda and her son i.e., Basangouda Neelappagouda Shivangoudar was a minor. Subsequent to the sale deed application was made to the Additional Civil Judge (Sr.Dn.) for permission to sell the interest of the minor. This matter G & W was enquired into by the court. Notice of the application to sell the interest of the minor in the suit property was duly published in the daily news paper by order of the court. If the plaijtiff
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 had any subsisting rights to purchase the suit property he could have very well objected to the same in. respense to the public notice by the court. Because the sale agreement was cancelled, the plaintiff never raised any objection. Further the land has been sub-divided (pot hissas) and when the proceedings were going on also the plaintiff never raised any claim under the so called agreement because he was aware that it was cancelled by mutual consent of the parties. Subsequently upon the minor attaining majority he has executed a registered deed giving his consent for the sale deed already executed. He has ratified the same on 19/10/2004. This registered as per transfer of Property Act also operates as a notice. The plaintiff never raised any objection or claimed any right. Thus the registered sale deeds and a registered consent deed operate as acquiescence and estoppel. The plaintiff afar the lapse of 5 years is now trying to claim the rights under the so called agreement which was been cancelled by the parties. The plaintiff with a view to make wrongful gain and harass the defendants in order to extract money has filed this false and frivolous case. The part of the property has been also sold to Government of India by deed dated 14/12/2004."
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30. The next aspect is that, after the execution of the registered agreement of sale in his favor on 14.02.2000, the plaintiff called upon Prabhu to come forward to execute the sale deed under the certificate of posting which is evidenced by Ex.P.9 to P.20. The Prabhu having not come forward for execution of the sale deed and having not denied the execution of the agreement, the plaintiff having come to know that the Prabhu died and when called upon the defendant Nos.1 to 3 to execute the sale deed with the consent of Basanagouda, it was revealed that Prabhu had executed a sale deed in favor of defendant No.4 on 20.01.2001. The plaintiff issued a legal notice calling upon the defendants as per Ex.P.3. The notice clearly indicates as under;
"That my client after execution of the agreement on several occasions called upon Shri Basrur Shrinivas S/o Apparaya Prabhu to execute the sale deed in favour of my client. But same came to postponed on one pretext or the other with an intention to cheat my client. That thereafter my client came to the knowledge that said Shri Basrur Shrinivas S/o Apparaya Prabhu
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 breathed his last on 28-12-2004 leaving behind serial No 1, 2 and 3 as his legal heirs. That my client thereafter approached and called upon you at serial No 1, 2 and 3 to comply with the terms of the agreement and also stated that he is ready and willing to perform his part of contract and also stated that he has kept the balance sale consideration ready but after much insistence you at serial No 1, 2 and 3 disclosed to my client that Shri Basrur Shrinivas S/o Apparaya Prabhu during his lifetime has already sold the property in question to you at serial No 4. That my thereafter rushed on 10-01-2005 to verify the same from the concerned property record on and accordingly was shocked and surprised to find that deceased Basrur Shrinivas S/o Apparaya Prabhu by colluding with you at serial No.4 have made an false and bogus transfer only to defraud and defeat the claim of my client."
31. The defendant Nos.1 to 3 did not reply to the said notice. The defendant No.4 - the purchaser of the suit property replied stating that the sale agreement executed in favor of the plaintiff was cancelled and the said cancellation deed was shown by Prabhu to the defendant
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4. The defendant No.4 contended that he is the bonafide purchaser for valuable consideration. The readiness and willingness which is a condition precedent for grant of specific relief. In the case of U.N.Krishnamurthy stated supra, the Apex Court addressed the typical issue of plaintiff obligation to demonstrate the readiness and willingness to perform the essential terms of contract as outlined in Section 16(C) of the Act. The Court found that the respondent-plaintiff failed to meet the requirements which are essential for the specific performance of the contract. The Court emphasized that the plaintiff must not only assert the readiness and willingness but also provide the evidence to substantiate his claim.
32. In the said case, the respondents deposited the balance sale consideration in the Court after the significant delay, under those circumstances the Apex Court held that he did not adequately perform his part of contract within the stipulated time. Noting that the plaintiff's failure to demonstrate the availability of funds or arrangement to
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 secure the necessary funds and accordingly, dismissed the suit of the plaintiff seeking specific relief.
33. In the instant case, the plaintiff has established that he has deposited the balance sale consideration in the Court without any delay and he adequately established his readiness as per Ex.P.7 and willingness to perform his part of contract within the stipulated period by issuing the notice to Prabhu. The decision of U.N.Krishnamurthy, the legal propositions are well settled but, the facts in the said decision is distinguishable and not applicable to the present case.
34. In the case of Desh Raj, a case where agreement to sell and refund of earnest money, the Apex Court emphasized that unless the plaintiff specifically seeks for refund of earnest money at the time of filing of suit, such relief cannot be granted and the prayer clause is essential for the grant of decree and for the refund of earnest money. The Apex Court held that the relief of specific performance cannot be granted if there is an
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 undue delay in instituting the suit and in that case, the plaintiff has to failed to take timely action to execute the sale deed which was a critical factor in denying the relief sought and in the agreement there was a clear indication that time was the essence of contract and failure to execute the sale deed by the stipulated date and necessity of timely action is a contractual obligation in that agreement. In the instant case, the time was not the essence of contract, there was certain obligations on the part of the vendor Prabhu to perform his part of contract and the plaintiff has taken action to execute the sale and a critical factor that there is a delay in filing the suit cannot be attributed factor and the decision is not applicable to the present case.
35. In the case of P.Daivasigamani the Apex Court has clearly laid down at para Nos.21, 22 and 25 as under;
"21. Readiness and willingness are not one, but two separate elements. Readiness means the capacity of the plaintiff to perform the
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 contract, which would include the financial position to pay the purchase price. Willingness refers to the intention of the plaintiff as a purchaser to perform his part of the contract. Willingness is inferred by scrutinising the conduct of the plaintiff purchaser, including attending circumstances. Continuous readiness and willingness on the part of the plaintiff purchaser from the date the balance sale consideration was payable in terms of the agreement to sell, till the decision of the suit, is a condition precedent for grant of relief of specific performance.
22. The expression "readiness and willingness"
used in Section 16(c) of the said Act, has been interpreted in a catena of decisions by this Court, in the light of facts and circumstances of the cases under consideration for the purpose of granting or refusing to grant the relief of specific performance of a contract. The said expression cannot be interpreted in a straitjacket formula. In a very apt decision of this Court in Syed Dastagir v. T.R. Gopalakrishna Setty, a three-Judge Bench of this Court, construing a plea of "readiness and willingness to perform" in view of the requirement of Section 16(c) and its
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 Explanation, observed as under: (SCC p. 341, para 9) "9. So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded."
25. Section 20 of the Specific Relief Act (pre- amendment), which confers discretion on the court to exercise jurisdiction to decree of
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 specific performance, states that this exercise should not be arbitrary, but guided by sound and reasonable judicial principles. Interpreting and elucidating on Section 20 of the Specific Relief Act (pre- amendment) and factors to be considered, this Court in Kamal Kumar v. Premlata Joshi has also referred to Sections 16(c), 22, 23 and 24 of the Specific Relief Act and Forms 47/48 of Appendix A to C of the Civil Procedure Code, 1908, to summarise :
(SCC pp. 705-706, paras 7-8) "7. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance are:
7.1. First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property.
7.2. Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract.
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 7.3. Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract.
7.4. Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff.
7.5. Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money, etc. and, if so, on what grounds.
8. In our opinion, the aforementioned questions are part of the statutory requirements [see Sections 16(c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and Forms 47/48 of Appendix A to C of the Code of Civil Procedure]. These requirements have to be properly pleaded by the parties in
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts."
36. The proposition of law is well settled regarding the specific performance of contract, the Apex Court clarified the distinction between the limitation and delay in the context of specific performance. The Apex Court emphasized that while a suit for specific performance should be filed within the limitation prescribed by law, the delay in filing the suit does not automatically bar the relief if the suit is within the limitation period. The respondent's suit was deemed timely as it was filed within three years from the date when the performance was refused, as per the Article 54 of the Limitation Act. The Apex Court held that for the plaintiff to be entitled for specific performance they must demonstrate both readiness and willingness to perform their part of contract. The Apex Court further held that the jurisdiction to decree the specific
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 performance is discretionary and should be exercised based on sound judicial principles. Factors such as the conduct of the parties and circumstances surrounding the contract are relevant, when determining whether to grant specific performance. The Apex Court observed that if the suit for specific performance is filed within the statutory time, mere delay cannot be a ground for refusing the relief. The Apex Court further held that the plaintiff is not required to deposit the balance sale consideration at the time of filing of the suit, they must fulfill the requirements as to prove their readiness and willingness to perform the contract and includes demonstrating the financial capacity to pay the sale consideration. The material on record in the instant case clearly indicates that the plaintiff has proved his readiness and willingness to perform his part of contract.
37. In the case of Janardhanam Prasad the Apex Court emphasized that the suit seeking specific performance to be valid it must be filed within the
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 prescribed period of limitation which is three years if the time for performance is fixed. However, if no time is specified, the Court must determine when the plaintiff has noticed the performance was refused. In those circumstances, held that the plaintiff had not acted promptly after being aware of the refusal to execute the sale deed and dismissed the suit. In the instant case, there was no refusal by Prabhu, whereas it is only by defendant No.4 when the legal notice was replied stating that there is already a sale deed in his favor and he is a bonafide purchaser. The decisions placed reliance by the learned counsel for the respondent is not applicable to the instant case for the reasons stated supra, with the reasons indicated above the substantial question of law No.1 is answered holding that the appellate Court was not justified in arriving at a conclusion that the appellant-plaintiff has not satisfied the requirement of Section 16(C) of the Specific Relief Act.
38. Regarding 2nd Substantial question of law:-
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 Article 54 of the Limitation Act, 1963 prescribes as under;
Article 54: The expression "date" used in Art. 54 definitely is suggestive of a specified date in the calendar: Ahmmadsahab Abdul Mullav. Bibijan A.I.R. 2009 S.C. 2193.
Where a specific date for execution of the sale deed was provided in the agreement, it was held that even though time may not be the essence of the contract, limitation would start running from the date provided in the agreement for performance of the contract:
T.L Muddukrishna v. Lalitha Ramchandra Rao A.I.R. 1997 S.C. 772. However, where permission of the Ceiling Authority was required and the sale deed was to be executed only after intimation to the plaintiff of the grant of permission but the defendant gave no such intimation but for the first time in the notice in question served upon the plaintiff gave out that the contract had frustrated on account of refusal to grant permission by the Ceiling Authority, held, the limitation would start running from service of the notice: Raghuvir Singh Bhatty v. Ram Chandra Waman Subhedar A.I.R. 2002 All. 13."
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009
39. In the instant case, admittedly the time was not the essence of the contract. The law is well settled that the suit for specific performance is to be filed within the statutory time limit; however the delay cannot be a ground for refusing the relief. The First Appellate Court arrives at a conclusion that the plaintiff has not taken action within three years from 15.12.2000 and that he has filed a suit only in the year 24.10.2004, and it is barred by limitation, without considering that time was not the essence of contract and second part to Article 54 of the limitation Act, is applicable as the First Appellate Court failed to consider that there was no refusal on part of Prabhu. Further the reasoning of the First Appellate Court that the suit ought to have filed within 3 years from the date of execution of the sale deed in favor of defendant No.2 on 20.01.2001 is without considering that the settled proposition of law that limitation in a suit for specific performance does not depend upon any subsequent sale
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 deed but, any time limit stipulation would be from the date of agreement of sale.
40. The second part to Article 54 clearly envisages that if no time is specified, when the plaintiff has notice that performance is refused. There is no refusal on part of Prabhu or his legal heir, the suit cannot be held to be barred by limitation, the finding arrived by the First Appellate Court holding suit is barred by limitation warrants interference and accordingly, the substantial question of law is answered in favor of the plaintiff.
41. Regarding 3rd Substantial question of law:-
The defendant No.4 claims to be a bonafide purchaser. Under the provisions of the Specific Relief Act, 1963, a buyer seeking specific performance must demonstrate that they are ready and willing to fulfill their obligation under the contract. The plaintiff has established that he was ready and willing to fulfill his obligation and the contract is enforceable, in the instant case, the Prabhu
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 has sold the property to defendant No.4. According to the defendant No.4, the vendor Prabhu had informed that the registered agreement of sale in favor of the plaintiff has been cancelled and that after making bonafide enquiries, he purchased the property and is a bonafide purchaser for valuable consideration. Section 19(b) of the Specific Relief Act allows the specific performance against the subsequent purchaser, if the subsequent purchaser is a bonafide purchaser for value without notice of the original contract.
42. The subsequent purchaser for value is protected if they have acted into faith and they have paid the sale consideration of the property and they had no notice (actual or constructive) of the original contract and if the subsequent purchaser knew of the original contract have failed to make reasonable enquiries, they lose the protection of their property being purchased and in such case, the original buyer can impose the specific performance against the subsequent purchaser. The burden lies on the subsequent purchaser to prove that
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 they are the bonafide purchasers for value without notice. The Courts have consistently held that the specific performance binds the subsequent purchaser unless he being the bonafide purchaser criteria.
43. In the instant case, the defendant No.4 in his written statement averred at para No.3 which reads as under;
"3. The truth of the matter is that this defendant by a registered sale deed dated 20.1.2001 has purchased the suit property from Basaruru s/o Apparaya Frabhu, the husband of defendant no.1 and father of the defendant no.2 and 3. Before this defendant purchased the suit property he made bonafide enquiries about possession and title. The so called sale agreement made between plaintiff and the late Basaruru shreenivas s/o Apparaya Prabhu had been cancelled and the said person produced the cancellation deed. Not only this to be more assured about the title this defendant gave a public notice in the daily news paper dated 15.12.2000 and published on 18.12.2000 informing the public about the proposed sale. There was no response from anybody. The
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 plaintiff if at all the agreement was still subsisting could very well have filed his objections. His silence amounts to admission about the fact of cancellation of the sale agreement. This defendant paid valuable consideration of Rs. 1,35,000/- besides stamp duty and registration charges. From 15.12.2000 the plaintiff has never at any time claimed right as per sale agreement. As per registered deed this defendant was put in physical and actual possession of the suit property. Before making the sale deed the defendant verified from the ad joining owners about the actual possession and after being fully convinced that the vendor was in possession purchased the suit property."
44. The defendant No.4 specifically averred that the agreement between the plaintiff and deceased Prabhu had been cancelled and the said Prabhu had produced the cancellation deed. The cross-examination of DW.1 categorically deposed that he has seen the cancellation deed. The relevant portion of the cross-examination of DW.1 is culled out as under;
"£Á£ÀÄ D¹ÛAiÀÄ£ÀÄß Rjâ¹gÀĪÀ §UÉÎ, 2£ÉÃAiÀÄzÀÄ ¸ÀPÁðgÀzÀªÀgÀÄ gÀ¸ÉÛ ªÀiÁqÀĪÀ ¸À®ÄªÁV Rjâ¹zÀ §UÉÎ ªÀÄvÀÄÛ 3£ÉÃAiÀÄzÀÄ
- 49 -
NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 C¥Áæ¥ÀÛ ªÀAiÀĸÀÌ ªÀÄPÀ̼ÀÄ PÀæAiÀÄ ¥ÀvÀæ ªÀiÁrgÀĪÀÅzÀ£ÀÄß CAVÃPÀj¹ ªÀiÁrgÀĪÀ ¥ÀvÀæªÁVzÉ. ¥Àæ¨sÀÄgÀªÀgÀÄ D¹ÛAiÀÄ£ÀÄß £À£ÀUÉ PÀæAiÀÄPÉÌ PÉÆqÀĪÀ ªÉÆzÀ®Ä £À£ÉÆßA¢UÉ AiÀiÁªÀÅzÉà PÀæAiÀÄzÀ PÀgÁgÀ£ÀÄß ªÀiÁrPÉÆArgÀ°¯Áè. ªÀÄvÀÄÛ CzÉà jÃw gÉÊvÀgÀÄUÀ¼ÀÄ ºÁUÀÆ ¥Àæ§ÄgÀªÀgÀÄ ¸ÀºÀ AiÀiÁªÀÅzÉà PÀæAiÀÄzÀ PÀgÁgÀÄUÀ¼À£ÀÄß ªÀiÁrPÉÆArgÀĪÀÅ¢¯Áè, £Á£ÀÄ §mÉÖ ªÁå¥ÁgÀ ªÀiÁqÀĪÀ ªÀÈwÛ ªÀiÁqÀÄvÉÛãÉ. PÉƦàÃPÀgÀ gÀ¸ÉÛAiÀÄ°è £Á£ÀÄ §mÉÖ ªÁå¥ÁgÀ ªÀiÁqÀĪÀ ªÀÈwÛ ªÀiÁqÀÄvÉÛãÉ. PÉƦàÃPÀgÀ gÀ¸ÉÛAiÀÄ°è £Á£ÀÄ 2300ZÀzÀgÀ CrUÀ¼À¥ÀÄà zÉÆqÀØzÁzÀ CAUÀr ºÉÆA¢zÉÝãÉ. PÀȶ ¨sÀÆ«Ä Rjâ¸À®Ä PÁ£ÀÆ£ÀÄ ¥ÀæPÁgÀ £À£ÀUÉ CºÀðvÉ EzÉ JA§ §UÉÎ vÉÆÃj¸À®Ä £À£Àß §½ zÁR¯ÁwUÀ¼ÀÄ EªÉ. £Á£ÀÄ £À£Àß ªÀgÀªÀiÁ£ÀzÀ «Äw EµÉÖ JAzÀÄ vÉÆÃj¸À®Ä ªÀÄvÀÄÛ ¸ÀzÀj ªÀgÀªÀiÁ£ÀzÀ «ÄwAiÀÄ°è £Á£ÀÄ ªÀåªÀ¸ÁAiÀÄzÀ d«ÄãÀ£ÄÀ ß Rjâ¸À®Ä C¢üPÁgÀ ºÉÆA¢zÉÝÃ£É JA§ÄzÁV vÉÆÃj¸À®Ä AiÀiÁªÀÅzÉà zÁR¯Áw ºÁdgÀÄ ¥Àr¹®è. ¥Àæ¨sÀÄgÀªÀgÀÄ D¹ÛAiÀÄ£ÀÄß ¥ÀqÉzÀ §UÉÎ EgÀĪÀ ªÀÄÆ® PÀæAiÀÄ ¥ÀvÀæªÀÅ £À£Àß §½ E®è. ªÁ¢AiÀÄ ¥ÀgÀ DVgÀĪÀ D¹ÛAiÀÄ Rjâ PÀgÁgÀÄ ¥ÀvÀæªÀÅ £ÉÆÃAzÁ¬ÄvÀªÁVzÉ C£ÀÄߪÀzÀÄ ¸Àj £Á£ÀÄ AiÀiÁªÀÅzÉà ¸ÁªÀðd¤PÀ PÀZÉÃjUÀ¼À°è °TvÀ ºÉýPÉ ¸À°è¸ÀĪÀ ªÉÆzÀ®Ä ºÁUÀÆ ¸ÁPÀëöå ¤ÃqÀ®Ä ºÁUÀÆ ªÁ¢ ¸À°è¹gÀĪÀ zÁR¯ÁwUÀ¼À §UÉÎ «ZÁj¸À®Ä ºÉÆÃV®è. £Á£ÀÄ D¹Û Rjù¢ªÁUÀ ¥Àæ¨sÀÄgÀªÀgÀÄ £À£ÀUÉ ªÁ¢ ¥ÀgÀªÁV ªÀiÁrPÉÆnÖzÀÝ PÀæAiÀÄzÀ PÀgÁgÀ£ÀÄß gÀzÀÄÝ ¥Àr¹gÀĪÀ §UÉÎ zÁR¯ÁwAiÀÄ£ÀÄß £À£ÀUÉ vÉÆÃj¹zÀÝgÀÄ. DzÀgÉ, CzÀÄ £ÉÆÃAzÁ¬ÄvÀªÁVzÉ E®èªÉÇà JAzÀÄ £À£ÀUÉ UÉÆwÛ®è. CzÀÄ §ºÀıÀB £ÉÆAzÁ¬ÄvÀªÁV®è. £Á£ÀÄ D¹ÛAiÀÄ£ÀÄß Rjâ¸ÀĪÁUÀ ¸ÀzÀj D¹ÛAiÀÄ §UÉÎ EgÀĪÀ
- 50 -
NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 ªÀÄÆ® zÁR¯ÁvÀÄUÀ¼À£ÀÄß RjâUÉ PÉÆqÀĪÀŪÀªÀjAzÀ £ÉÆÃr®è JAzÀgÉ ¸ÀjAiÀįÁè. ªÉÆzÀ®Ä £À£ÀUÉ w½¢®è. £Á£ÀÄ zÁªÁ D¹Û Rjâ¸ÀĪÀ ªÉÆzÀ®Ä G¥À-£ÉÆÃAzÀuÁ¢PÁj¬ÄAzÀ ¥ÀÄgÀ£ÀgÁ»vÀå zÀÈrPÀÈvÀ zÁSÁ¯Áw ¥ÀqÉzÀÄPÉÆArzÉÝãÉ. CzÀgÀ°è ªÁ¢AiÀÄ ºÉ¸ÀgÀÄ £ÀªÀÄÆzÀÄ DVvÀÄÛ JAzÀÄ ¸ÀºÀ £Á£ÀÄ w½¢zÉÝãÉ. £ÀAvÀgÀ ¸ÀºÀ £Á£ÀÄ ªÀÄvÉÆÛªÉÄä CzÉà zÁR¯ÁwAiÀÄ£ÀÄß CzÉà PÀZÉÃj¬ÄAzÀ ¥ÀqÉPÀÄPÉÆArzÉÝãÉ. £Á£ÀÄ ªÁ¢AiÀÄ ºÉ¸ÀgÀ£ÀÄß ¥ÀÄ£ÀgÁ»vÀå ¥ÀvÀæzÀ°è £ÀªÀÄÆzÀÄ EzÀÝgÀÄ, £Á£ÀÄ DvÀ¤UÉ D¹Û Rjâ¸ÀĪÀ ¥ÀƪÀð £ÉÆÃn¸À£ÀÄß £Á£ÀÄ ¤Ãr®è. £Á£ÀÄ PÀæAiÀÄ¥ÀvÀæ DUÀĪÀ ¸ÀªÀÄAiÀÄzÀ¯ÁèUÀ°Ã CxÀªÁ F zÁªÁ ¸À°è¸ÀĪÀ ªÉÆzÀ¯ÁUÀ°Ã, CªÀgÀ ªÁgÀ¸ÀÄìzÁgÀgÁUÀ°Ã EzÀÝ §UÉÎ, CzsÀªÁ ¥Àæ§ÄªÀgÀªÀgÀÄ ºÁUÀÆ ªÁ¢ £ÀqÀÄªÉ DzÀ M¥ÀàAzÀzÀ PÀgÁgÀÄ ¥ÀvÀæ gÀzÁÝzÀ §UÉÎ ¥ÀvÀæzÀ £ÀPÀ®Ä zÁR¯ÁwAiÀÄ£ÀÄß £À£ÀUÉ PÉÆqÀ¨ÉÃPÀÄ CAvÁ £Á£ÀÄ CªÀgÀ£ÀÄß §gÀªÀuÉUÉAiÀÄ°è PÉýzÉÝãÉ. ¸ÀzÀj D¹ÛAiÀÄ£ÀÄß Rjâ¸ÀĪÀ ºÁUÀÆ £ÉÆÃAzÁªÀuÉ DUÀĪÀ ªÉÆzÀ®Ä F jÃw ªÉÆzÀ®Ä £Á£ÀÄ PÉýzÉÝãÉ. ¸ÁQëzÁgÀgÀÄ, FUÀ vÁªÀÅ ¨Á¬Ä ªÀiÁw£À°è CªÀgÀ£ÀÄß PÉýzÁÝV ºÉüÀÄvÁÛgÉ. PÀæAiÀÄzÀ PÀgÁgÀ£ÀÄß gÀzÀÄÝ ¥Àr¹gÀĪÀÅzÁV zÁR¯Áw EzÉÀ JA§ÄzÁV £Á£ÀÄ ¸ÀȶֹPÉÆAqÀÄ ¸ÀļÀÄî ºÉüÀÄvÁÛ EzÉÝÃ£É JA§ ¸À®ºÉAiÀÄ£ÀÄß £Á£ÀÄ M¥ÀàÀªÀ¢¯Áè, £Á£ÀÄ ªÁ¢AiÉÆA¢UÉ ªÉÆzÀ¯Éà PÀæAiÀÄzÀ M¥ÀàAzÀzÀ PÀgÁgÀÄ ªÀiÁrPÉÆArzÀÝ PÁgÀt £Á£ÀÄ D¹ÛAiÀÄ£ÀÄß Rjâ¸À®Ä ªÀÄÄAzÉ DzÉ C£ÀÄߪÀzÀÄ ¸Àj. ¸ÁQëzÁgÀgÀAiÀÄ ¸ÀzÀj PÀgÁgÀÄ gÀzÁÝVzÉ JA§ÄzÁV, £À£ÀUÉ D¹Û Rjâ PÉÆqÀĪÀ.
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009
45. The defendant No.4 categorical stated about the cancellation of the registered agreement of sale which was executed in favor of the plaintiff. No documents have been produced by defendant No.4 to indicate that there was a cancellation of the registered agreement of sale. The defendant No.4 having knowledge about the original contract between the plaintiff and the Prabhu, the sale in favor of defendant No.4, he cannot be held to be a bonafide purchaser for valuable consideration. The First Appellate Court has totally fell in error holding that defendant No.4 is a bonafide purchaser for valuable consideration.
46. Learned counsel for the respondent submits that the defendant No.4 had issued Public notice about the intending purchase, that defendant No.4 had taken due care while purchasing the suit property. The public notice was issued by the defendant, the notice did not indicate the location and indication of the fact that the very property was to be sold by the Prabhu in favor of
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NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 defendant No.4. Even on that aspect, defendant No.4 has failed to prove that he is a bonafide purchaser for valuable consideration. The Apex Court in the case of R.K.Mohammed Ubaidullah and Others Vs. Hajee C.Abdul Wahab8 (R.K.Mohammed Ubaidullah) held that in the circumstances where the subsequent purchaser had sufficient reason to enquire about the plaintiff's interest in the property and having not done so, the subsequent purchaser cannot be held to be a bonafide purchaser.
47. Defendant No.4 failed to make necessary enquiries and having come to know that there was a registered sale agreement, there being no cancellation of the registered sale agreement and despite being aware of the right of the plaintiff, the defendant No.4 having purchased the property cannot be held to be a bonafide purchaser.
48. The First appellate Court has totally fell in error in dismissing the suit for specific performance, the 8 (2000) 6 SCC 402
- 53 -
NC: 2024:KHC-D:17240 RSA No. 5634 of 2009 judgment of the First Appellate Court suffers from perversity and illegality warranting interference of this Court. Accordingly, this Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby allowed.
(ii) The judgment and decree of the First Appellate Court is set aside and the suit of the plaintiff is decreed for specific performance by confirming the judgment and decree of the trial Court.
SD/-
(JUSTICE K.S.HEMALEKHA) RH -start to para 22;
PJ - from para 23;
CT:PA/ LIST NO.: 2 SL NO.: 21