Karnataka High Court
Ramalingam A @ Amarnathan R And Anr vs Siddiqui H on 1 March, 2012
IN THE HIGH COURT OF KARNATAKA AT BANGALQRE DATED THIS THE 01" DAY OF M A R C H 2012' BEFORE THE HON'BLE MR.JUSTICEI-I._..BEIIxLAP.4' A R.F.A.No.265/ 1é99*CB%_0 ' BETWEEN: 0 0 A 1. A.Ramalingam, alias . . R.Amarnathan, -_ a C/0.Nest1e Products P1*ivate;_'Ltd;.,.7' 5-A, Connaught Circus, " = 'New Delhi. i 2. R.Viswanathah,naliasj Bob Ramaling-and, 0 No.5, La1baghDRDadu,'?-: 0 - Bangalore -- 560' 0f,7«7."a DELETED' ' ' (By M / s.PQOvaiah. 8:' Co}, AS'ri.VB..0vL.Sanjeev, AdVs., and Ms.SuI1_d§afaHA.Murt}1y_V& Sundara Murthy, Advs.,) H.Sid'diC1i1i'0A "'AA..S/o.S.G.Siddiqui;_. 'B Present1y"r/ a*--. N (5.43, « «. ..0''Mi.s''s'i.0n Road', 3 _ _13arigaIore_--56O O01 ' ' V ..:Cau"se2' 'ti'flc5AA amended as per "C'O--uur_t_(>:rder dt. 14.7.2000 L/ LR, brought on record Smt.Zarina Siddiqui, Major, W/o.late H.Siddiqui, No.43, Mission Road, Bangalore -560027. " -A .. > (By Sri.Y.K.Narayana Shanna, Adv.) * * * * $31!: This R.F.A. is filed under Section against the Judgement and Decree dt.3'.~~l__1.9_8. O.S.NoA.3O/ 81 on the file of I Addl. City Civil'Ju'dge.,f'Bangal_ore'_V__city, decreeing the suit for specific perforrnanceg This R.F.A." judgment this day, the Court del.iverued_v -' '- . V _ Thisgjlappeal defendants is directed against the an.;dA..d--ezc1=ee, dated 3.11.1998, passed by the I Addl. City C:viia.Judigtéo;«.B:§Lr1lga1ore, in O.S.No.30/ 1981. Byr'the impugned judgment and decree, the Trial has:-'decreed the suit of the plaintiff and has directed ..fiVrs%t appellant to execute the sale-deed in favour of the V, plaintiff in respect of 1/3" share in the property hearing No.43, Mission Road, Bangalore-27. 3. Aggrieved by that, the appellants lialxig pp 'p filed this appeal. 4. The respondent is 1981.1'
The parties will be referredto witii --refer'e.nce to"the'ir rank in the original suit O.S.No.3019_8 11'.
5. if The in O.S.No.30/ 1981 for specifie __ the sale agreement dated 25.6.1979. case»pfittheijifespondentplaintiff was that the first defendant i..e.",' 'At.h'eDap:pellant No.1 herein is the absolute oWner"«of lvbx/'3'?-'.4vA.'undivided share in the premises bearing No.4f5~,. Bangalore. The second defendant i.e., the-V appe.lla.n':t.pl\lo:2 is the eldest brother and power--of-attorney .1 ofthewfirst defendant. The first defendant through his attorney holder entered into a sale agreement dated 1/ 25.6.1979 to sell his 1/3"' undivided share in the suit schedule premises for a sum of ?40,000/- advance amount of €5,000/--. As per tlae' agreement, the sale has to be cornplegted before A 30.12.1980 by paying the balance sale of ?.35,000/--. In the meanwhilegfiecessary to be' taken to obtain permission from" -the'u"co_mpet'e'nt"authority under the Urban Land Ceiling Act and the defendants agreed to: 'co-eopieratef
6. The sale consideration amount to the behalf of the 1st defendant by paying a sum i?.V5V,'O.O"Ol/--= ':oi3.44l5.5.l98O. The plaintiff was always and to: perform his part of the contract. to the sale agreement and after substantial amount, the plaintiff requested the defendant and also the first defendant to take by joining the plaintiff for making necessary "ap:plic_a.tion under Urban Land Ceiling and Regulation Act. l/ The plaintiff personally and through letters requested the defendants to co~operate with him and also sent noticeflated 5.3.1980. The final notice was sent on upon the defendants to complete thers-ale. with oblique motives have failed to 'sale They have sent reply dated sale' agreement and making false and""i'elc'l::lless allegations. The plaintiff has been in possession. ll plaintiff has prayed for specific perfOrn§ian:ce',«¢of.thefsalef'agreement dated 25.6. 1979 in resplelct property.
8. heeg, the first appellant has filed his written statement that he is the absolute owner of_{l1"/'Std und.iil7,1;ded share in the property bearing premises, No'.4;3._"1'\/Iission Road, Bangalore. The second brother of the first defendant and he VV'Hh.gl1ci;Vthe povgrerlgotfllattorney for limited purpose of looking after of the property of the first defendant. It is denied thelsecond defendant executed sale agreement dated l/ 25.6.1979. The second defendant has misused the power of attorney due to the ill-advice of the plaintiff. agreement is a fraudulent document. The first-,.':defenCI-ant'is not answerable to the plaintiff. 'l'<l1'e»---fiprsi"j.: 9 issued registered notice dated agreement and informing the Vfplaintiff tthat trying to snatch away the...vproperty',:';'llhe._&propertyyjis worth more than ?.3 lakhs. The received any consideration eithverLfromi."Athge the second defendant. the plaintiff and the the first defendant of his valuable"pr:operty:. . V.
9. _§A'lt is 'stavted&,: one D.Narendra had filed was later on numbered as partition of his 1/3rd share in the tproperty No.43, Mission Road, Bangalore. In the said .1 -.suitv,:s».thei«-plaintiff herein is defendant No.4 and has filed his V written statement on 27.2.1979 and at para 14, it reads as follows:
"14. The allegations in para 7 _ defendant sold his 1/3 A allegation that the plaintiff, the defenda11.t"
that these defendants /32"sh:are incorrect. The second agreement of sale suit schedule premises and received ?.5,0(_)O/_f asxan and has put these of his 1/ 3 share. of sale deed is only is leftyto be completed.
Thus; it: 'is. V these defendants are practically: ownersgof ll/3 share of the suit SChf3dvl1g1€ pro.perty are also entitled to the other 3'vi-sharleivwhich the plaintiff purported to 'haVet under the alleged sale deed dated "8.72p;-.1 "
10.' ~.ltti.svclear, the plaintiff had planned and schemed that he had already obtained an agreement from defendant to purchase 1/ 3rd share and paid advance 1/ of (5,000/--. Whereas the alleged sale agreement is-.__dated 25.6.1979. It is clear, the plaintiff has created the to snatch away the property from the first r1-W. collusion with the second defendant.-1' herefoije, ipiéhhhrf is 9 not entitled for any relief muchfflelssfl = perfonnance of the sale agreement.'
11. It is stated, more than ?.4 lakhs and no sane 'sell the property for ?.40,000/ premises as a tenant. He several persons and without paying__ the property. It is stated, the first defehdentieafht the plaintiff has sub--let the premises of ?.3,000/--. The plaintiff has not paid first defendant. It is denied that the plaintiff entire sale consideration ainount to the llfisecond and he has taken steps to obtain .1 -pe'1'rn*i.ssio~nAfrom the Urban Ceiling Authority. It is contended, agreement is a concocted document. The defendant 2/ No.1 is not a party to the sale agreement and he is not...bound by the terms and conditions of the sale agreements'-tg:'The plaintiff has no right to demand the first defendant the sale--deed. The defendant No.1 hvasmno yintentliuon» 't_ox:sell the T property much less to the plaintiff. that dated 5.3.1980 and notice dated 19.80-. It is stated, notice dated 25V.9,zl 98Qi"'lia:s:4 replied denying the sale plaintiff that the sale agreement It is stated, the plaintiff is not in of the sale agreement. Therefore, hasulplrayed for dismissal of the suit.
12,._§'fThe defendant has filed his written contenfd-ing that the first defendant is the absolute pg owner~.of-.];/ share in the property bearing No.43, v7l_l\/lission Bangalore. It was acquired through the Will .1-fexecutedahyll/Ramalingam. The second defendant was the dd'-4"_v-p_ové--er"'of attorney holder of the first defendant for a limited l/ 10 purpose of safeguarding the interest and to look after the property. It is denied that the sale agreementHp:'d:at,ed 25.6.1979 has been executed with the knowledge . of the first defendant. It is stated, the"secor_i.:d head i not consulted nor obtained the defendant to execute thersale algr.eie'm»ent'.V' Thev..s_a,lell"aéreement V has been obtained by the plaintiff"byl_: become the owner of the entire' fiavromising certain benefits. The defenclauat time, intended to dispose of 1 /3rd
13. is if one:"v-~D;l\larendra claiming to have purchased 123??' share: schedule property from one ljhyagarajpan vhad """ "suit in O.S.No.767/ 1978 later on asA«.O,:S'-..No.2762/1980 for partition and separate possession. suit, the plaintiff contended that he ll*,_is -holding'. agreement from Thyagarajan to purchase the .1-ipropertyi.'-..._Thyagarajan is the son of the second defendant. second defendant in good faith that his son would retain Z/ 11 his 1/ 3rd share and to save the property obliged the plaintiff to execute the sale agreement and not with an inte"ntfio_n:_to sell the property. It is stated, the plaintiff had he would not enforce the sale agreement.and_' itVisi"o111yvt.o;s'ee ' that the suit filed by D.Narendra is The defendant has executed the saleadagreemvent without receiving any advance exceptgiving receipts as if the second defendant has The said documents are make; to defeat the transaction of and the suit filed by D.Narendra.i_v" 'before the execution of the agreement "filed written statement on 27.2. 197931 as follows:
~._'"l'lie'a;llegations'Vinpara 7 that the 15' defendant
-«share is true. But the allegation the 2nd defendant and these defenda'nts«:"" have one third share each is "~».incorrecV_t. The second defendant has by his '~:T"agre'e_.ment of sale his l/3rd share in the suit schedule premises to these defendants and "received $5,000/-- as an earnest money and has L/ 12 put these defendants in possession of his 1/ 3rd share. Therefore, the execution of sale deed only formality and that is left to be complete--d;VV'.',l_:'V5 Thus it is found that these defendant's:_'::are~.. practically owners of the 2 / 3rd shvarep of A schedule property and are ei;'1titledc»._tVo~ other 1/ 3rd share which the plaintiff 3 to have purchased under tl'1eV."'a.1leged . dated 8.2.1978."
14. It is clearthat has hatched a plan well in advance by defendant. The plaintiff has ~ owner has "never A consented for the second defendant has no right, title orlinterest to' of the property. In View of the friendship relationship the plaintiff has persvuaded defendant to act according to his plan and has'l'coni'1nui"tted.fraud. It is stated, the first defendant has terininatedpthe power of attorney and has directed the second 4: not to deal with the property. The sale agreement l/ isa 13 sham and void document. Therefore, the second defendant has prayed for dismissal of the suit. (1)
15. The Trial Court has framed the follovying V' 1 Whether the defendants prove' jthe ':agreen1e_lnt_.V sale dated 25.6.1979 was tal{'enVby the] practising fraud on the 2ri<i..gl'efendant' asV_p"erlt.h'é'WrittenlV statement of D1 and D2'?
Whether the plaintiff 11 of amount as alleged in the plaint?-"""'":t: " " "
Issues;
Whether' the 'sulitfi--s"'b_ad'"for non--joinder of necessary parties? A V 1 " tlxeagreernent dated 25.6.1979 is enforceable? Court has answered issue No.1 and _fl~..additiona1 islsdues 1 and 2 in the negative and issue No.2 in
5._'_'V'the"iidaffirrrxative and consequently has decreed the suit 1' l--'ip"di_rfectiii1g the first respondent to execute the sale-deed in 1/ 14 favour of the plaintiff in respect of l /3" share in the property bearing No.43, Mission Road, Bangalore.
17. Aggrieved by that, the appellants .. filed this appeal. Subsequently, deleted.
18. The learned V .-~czounse'l' it appellant--first defendant contended that and decree cannot be sustained. that the Trial Court has failedtof'ecoiilswideiit-hie' reyidence on record in proper . perspectiveviande. impugned order cannot be sustained law. submitted that the receipts produced' shoW°thatrm'ore. amount has been paid than what He_alsol"s'ubmitted that the sale agreement is executedl of attorney holder and original GPA not -been- produced. He also submitted that the contract for itsdvagueness. Further he submitted that the sale is dated 25.6.1979. In the written statement filed ~o.,..sfNo.2762/1980 on 27.2.1979 there is reference to the 1/ 15 sale agreement which clearly indicates that the sale agreement is a concocted document. He also submji'tt.:'ej«c1:'that the agreement is in respect of the entire property':--butg schedule shows 1/3rd share in the»AApropeifty'.fi hex' submitted that the agreement is Voidlfor_A by section 29 of the Contract urther he_s'1_,1b'mitted that the execution of the powve-rzgof ya,ttorn_:ey"h.as niot-been proved. He also submitted that w indicates that the agreement '--_~only"VV' and the first defendant had property. The reply of power that it 'Was to suit the convenience agreement has come into existence andutherefore, tilieaigreement cannot be enforced. reliance on the decision of the Hon'ble in AIR 2005 SC page 3110, the leaned cdouriselhfor the appellant -- first defendant submitted .1 sale" agreement is a clear case of fraud and therefore, .,yit'-cannot be enforced.
l/ 16
20. Placing reliance on the decision of the '.'P:l'"on'b1e Supreme Court reported in (1996) 11 SCC learned counsel for the appellant -- first defendarxtpy that the power of attorney holder':
therefore, the agreement cannotrbe enforced.
21. Further placingzvreliariceii'oriathel 'decision of the Hor1'ble Supreme Court repor_t_ed--' page 1457, the learned couns-eilf first defendant submitted to give secondary evidence aI1"d*~ is not admissible in evidence.
22,._§' Further' reliance on the decision of the reported in AIR 2000 SC page 1759, the for the appellant --first defendant submitted that the requirement of section 65 of the Evidence .1iéictlvpiehasiinotflbeen fulfilled and therefore, Ex.P.22 cannot be L, 17
23. Further placing reliance on the decisioniJ_of..the Hon'ble Supreme Court reported in (2010) 4 H the learned counsel for the appellant submitted that mere exhibiting a document doesA.'not'=a1-novunft to proof of its contents. The.a'd_ocurr1evnt havingnot produced as required under law be reliediupfon by the Court.
24. Furthe;'.r_}§V13'_cinifgA decision of the High Court of in AIR 1980 JAMMU '5f«'4f,"_'th'elv§learned counsel for the appellant --first that mere admission of signaturepwitholut contents cannot be said that the' adnfiitted execution.
Fu:rtheeri;.placing reliance on the decision of the this VF-:V(3ourt AIR 2002 Karnataka page 416, the of 'counsel for the appellant -- first defendant submitted theft decree for specific performance is a discretionaiy 1/ 18 relief and cannot be granted without considering the material on record.
26. Further placing reliance on of the Gujarat High Court reported in AIR the learned counsel for the V.ap_pella'nt"'--V submitted that the witness can aridilcjuestioned as regards xerox copy of the do_c:ument;_ record and the same will not amount to admission--ofrgthe' document.
27. Fthe decision of the Hon'ble Supreinea. 1996 SC page 2814, the appellant --first defendant submitted _thatl"t~he' part3}1\X?ho seeks equitable relief must coh1e_'to clean hands.
He, therefore', :'V'[_S'11bi§;).(1Vix;[t€d that the impugned judgment and decree cannotbe' sustained in law.
against this, the learned counsel for the submitted that the impugned judgment and V 19 decree does not call for interference. He also submitted that the Trial Court on proper consideration of the record has rightly decreed the suit and :t_l1e*. impugned judgment and decree does:not.ycAal;l: fohrlliiityerference. ' He also submitted that the sale agreement document and it is proved andV»th::ere>foreV', was justified in decreeing the vsugit. submittted that the original power of and they should have produczed it. Vy1"v1_v.'C">v'T£j'Iw3yvFoduced it, xerox copy has beeng'm'a_1:kTe(j'I"_V_a.:s it is admitted by the appellant he submitted that the letters lEx.P.2O show that the first defendant wasliéawafléitOfAAt.he""transaction. He also submitted is--a.reference"to"general power of attorney in Ex.P.1 and tvadmitted his signature on Ex.P.22 and vg,.,,1_¢¢ther€f<5i'€yf th.a."e.Xistence of power of attorney cannot be z -Fauflher he submitted that the plaintiff has l /3" share from Swaminathan on 22.10.1973 for and 1/3rd share of Thyagarajan has been 1/ 20 purchased by Narendra on 18.2.1978 for a sum of ?.3Q_,_OOO/-- and the sale consideration shown in Ex.P.l is ?.40,QO-Q/«{g"a,nd therefore, it cannot be said that the sale corlsiderafion.'_'"is"v inadequate. Further he submitted that full haste ' been paid as per exhibits P.8(a) to done by the plaintiff and therefore, the "I-'rial was justified in decreeing the suit. ia_l'so*s.ubmitt'ed"'tEhat 1/ 3rd share has been agreed to been proved and therefore, the decree does not call for interfereiijtcefb :l1eV:"v.:>:submitted that merely because excess, Ex.P.l cannot be invalidated, He: that the defendants have not pleaded no evidence has been adduced. Fuiiherv-fichle the action is not beyond the scope of even if it is so, the first defendant can afctuion second defendant and that is not a to ,d'eny the relief of specific performance. He, submitted that the impugned judgment and decree call for interference.
V , 21
29. He also submitted that there was oral agreernent prior to EX.P.l and it has been reflected in_;'ti1e'vju_7_iI*Vi1:.t5e11 statement filed in O.S.No.2762/1980 and it fault with.
30. The learned counsel-flforppthev. "placingif reliance on the decision _of the &Sfu'p1"en:1e Court reported in AIR 1968 SC that the party who is in possessiponljof.best 'produce it. If it is not produced, be drawn.
31. on the decision of this Court reportedp:i11v('20_1"0:) page 4218, the learned counsel the respondent submitted that when payment of entiresale consideration has been made and the plaintiff is readj} vvifilliiiigftolvittake the sale--deed, the Trial Court was justified zdecreeing the suit.
Placing reliance on the decision of the Hon'ble 'sppreriie Court reported in 2007 AIR scw page 1333, the [X 22 learned counsel for the respondent submitted that specific performance cannot be denied on the ground that the of the property is on the rise.
33. Further placing reliance] onimthfeu'deC,isi.on7"o_f Court reported in 1998 (4) K1431 14'.w°';"v'd' counsel for the respondent submitted .that"ad\l/erseféinference has to be drawn against vajsrpower of attorney has not been produced. V
34. etheV""--dec'ision of the Hon'ble Supreme jiiifijejii{2ob2)":1o soc page 32, the learned counsel submitted that the signature on docurneiitlhtas been admitted and therefore, can be. treatedeeas secondaiy evidence. reliance on the decision of the Hfirrble Court reported in (2003) 8 SCC page 745,' .1 --.A.theV.:learned counsel for the respondent submitted that where 1/ 23 documents are admitted and marked as exhibits, no further proof is required.
He, therefore, submitted that the impugned...judgrnen.t decree does not call for interference.
36. I have carefully considered sjmade' by the learned counsel for the parties_}'-
37. The points that are,
1. 'jiudgrnent and decree __ 1__ plaintiff is entitled for specy'iC Vperformd:-ifCef."t}'ie sale agreement dated 25.6,1979'2 _ ' " "
r and 2.
It is'ire1evaf1jit¢.e:;to note, the suit is for specific performance saleiagreement dated 25.6.1979. The case of the
- plaintiff is that the first defendant through his V' V-f["po'\}v'erV'j:)f attorney holder, the second defendant executed sale [/ 24 agreement dated 25.6.1979 agreeing to sell his 1 /31"" share in the property bearing No.43, Mission road, Banga.lor.ef--.forA a sum of ?.40,000/- and a sum of 15,000/-- advance. As per the terms of agreement,' "l1las4.l_to'i'bel' completed by 30.12.1980. The plaii1tiff_Apaidl'th'e--.le11ti're«s'aleV consideration amount and the lde_lfe.ndan"ts__refi1sed~--.to"e>kecute' the sale--deed.
39. The firstgcdefendant he is not a party to the agreement is collusive ariivdllthe second defendant and it is -T The written statement filed in O.S.No.l276:2l,/ indicates that the sale agreeme.1_§1tis.a fraiildiilenti document. The first defendant has not viaiiyreonsideration and the value of the property is ~. Therefore, the sale agreement cannot 'enforced against the first defendant. The second defendant has contended that he was power of attorney holder of the first defendant to look l/ 25 after the property of the first defendant and the sale agreement dated 25.6.1979 has been executedj"yyi--thoAut consulting or obtaining the permission of the 4' The sale agreement has been obtained.' playing fraud to achieve his object of the entire property. It is oflilly'-._to help' O.S.No.2762/ 1980 the saleygagreemerit beenexc-'cjuted and not to sell the property. The' > is a sham document and cannotvbe ' V
41. The as PW.l and exhibits P. to beeh...1_narked.
42. _ 'Thei"fi.rs"t deifendaht has examined himself as DW.1 PVl.7.;'_v»l._ the plaintiff has deposed that the first defendant isiithheélilowner of 1/3" undivided share in the house 4: Mission road, Bangalore. The second is the Power of Attorney Holder of the first 1/ 26 defendant. The first and second defendants agreed'___to sell 1/3rd undivided share in the suit schedule house foifa of Rs,40,000/--. The agreement was executed a Registrar office. It is Ex.P1. He has-_paic1"s'a.IAeuf consideration amount within time. that sent registered notice calling deferidantsflto'eiecute sale deed as per Ex.P2. Thereaften:another notice was sent as per Ex.P5. He has receiyed' and P7.
44. In his stated that the contents of 1: rfvyritten statement in O.S.No.276m2/ 3 He has produced the sale agreement referred to of the written statement. He does not _;;re'n1em'tu)e"r-Axyho €!i(€Cut€d the agreement. He has not No.1 regarding payment he has made to defendah1y,«iNo::2v;-- total amount paid by him is €65,000/-. He' hashe has not paid any amount directly to .1 but he has paid it to the Power of Attorney it Ex.P1 his name and his wife's name have been 1/ 27 shown. After the death of his wife, her name has been deleted. Ex.Pl was in favour of both of them. His«j'wi"fe_:'d,i'ed on 21.06.1983. Before that he scored of his Ex.Pl. He has not intimated this factvto the Hex' 2 has denied the suggestion that entireff"tran,sactionf"is fraudulent and Ex.Pl is a false '
45. DW.1 i.e., the that the plaintiff is a tenant in resvpect In 1978, the first He had executed power of lbrother i.e., the second defendant He had discussed with the plaintiff conditions were not finalized. They had;jpp'discusse'dsale consideration at ?.3,00,000/-. The to render account for the rent and taxes .paidz" not aware of the sale agreement in favour of4"p1ainti'f'f. He has not received any sale consideration. .1 met the plaintiff and told him that he has other offer. He has 1/3"' interest in the suit schedule 1/ 28 property. He came to know about payment of 365,500/-- when he saw the document in the Court. The plai'ntiff'wgas not in possession under agreement of sale. his brother i.e., the second defendant»'h.as the T j plaintiff.
46. In his cross eXaminatio'ri;'DW1 that the signature in Ex.P1 is the brother." In March or June 1980, he came to brother has signed Exs.P8(a)?l that he had authorised Ramalingam to sell his share theproperty has been denied. He has stated, copy of the GPA executed in favour his The signature in Ex.P22 is his not having original of Ex.P22.
the sale agreement dated 25.6.1979
-._.'.1'j,betweAen thewfirst defendant represented by his P.A.Holder ""vV'R;\:/'isW'an'.athan and Mrs . N oorunissa Siddiqui and ..EiI»iddiqui, the respondent. The sale consideration agreed l/ 29 is $40,000/--. It is stated, a sum of €5,000/-- has been paid as advance. The balance has to be paid on .«or-ffbiefore 30.12.1980.
48. Ex.P2 is the legal notice t to the first defendant. It is; stated,_r'the executed sale agreement dated 1 represented by his power of attorney 1/3rd" undivided share in premises bearing 1.pthe occupation of the plaintiff. The first defendant to make TExs.P3 and P4 are the Postal receipts, of "
49. B_3x.P.b"is 'legal ddftiee dated 25.9.1980 issued to the fi'rst._'defejri~dant on behalf of Mr. and Mrs.H. Siddiqui. It is state_(i';' the first defendant entered into sale to sell 1/3rd undivided share in the ..f.tct'_;pr.eni.ises "bearing No.43, Mission Road, Shanthinagar, The price agreed was ?.40,000/-- and earnest 'ixrnoneyiof ?.5,000/- was paid on the date of sale agreement. 1/ 30 The first defendant was represented by his elder brother and power of attorney holder Sri R.Viswanathan.._'"~@'~._l'Bob Ramalingarn. The plaintiff and his wife have called first defendant to take steps to execu.te~the
50. Ex.P--6 is the reply dated 2l7U}lOctobei' Vthvjei"; notice dated 25.9.1980 i.e., Ex.P"-all '_l'he 99 2"€iu:ld'efevr1dant has stated that he has not any"~-agreement in favour of Mr. and Mrs. Siddiqui anditythel-.".has come into existence on to sell the property butt" exercised by Mr. Siddiqui in O.S. No.767/ 1978.
and he wanted to settle with Naijendra was convenient to Mr.Siddiqui. It is 'stated; ~s.a1e"'~«.agreement has been created so that Mr. the case and settle the matter with D;Narenldr.a';V.aTh'e agreement dated 25.6.1979 has not come irficc. exlistenlce with an intention to sell the property. It is stated, the second defendant has not obtained consent from 1/ 31 his brother Sri Amarnath Ramalingarn. It is only with the intention of helping Mr.Siddiqui the document has ::ornf'e,i'i1to existence. It is stated, Siddiqui also requerstedu..fo:tl'le"l defendant not to file the written staternentj: the 9 matter. Consequently, no written was if
51. Ex.P~7 is the reply the lllsff to the notice dated 25.9.1980 defendant has stated that he has not agr.ee:. share in the premises bearingflp Bangalore--27 for ?.40,000/- earnest money of €5,000/--. that the property is worth more than plaintiff is trying to make unethical ggcvlaim to . away the property. The sale 25.6.1979 is a concocted document and not bindin~gf.--otn is stated, the first defendant never v7j_prornised44"or"assured anything about the alleged transaction .1 'liwyasnot aware of it. The first defendant never 1/ 32 intended to sell the property. The plaintiff can take steps against the power of attorney holder.
52. Ex.P--8(a) is the provisional sale ._dated. 14/3/1979. It is stated, the second[:defend:an.t la 7 sum of ?.5,000/- from Mr.H.SiddiquAi"._as" pov.'ei* holder of A. Ramalingam.
53. Ex.P.8(b) is the'reeeiptidategivi.9:13' May 1979. It is stated, a sum of beenjarevceived by the second defendant from; amount.
54. the dated 4.6.1979. It is stated, further of 7 has been received by R.Visway1f_{athean tovva._rds advance. _',.is the receipt dated 25.6.1979. It is '7*....stated',t sum of €5,000/-- has been received by ~XVR.Vi-swanathan. It is also stated, a sum of Rs.5,000/- has 4:"--V.xbeen.upaid}' Totally 150,000/-. 1/ 33
56. Ex.P8(e) is the receipt dated 30.11.1979." It is stated, a sum of €1,500/-- has been received by the.::'s.eoond defendant. Totalling to ?.51,500/--.
57. Ex.P8(i) is the receipt it stated, a sum of ?.3,500/-- has beenfliieceivedogbyf defendant, the RA. holder of the defend-a_VntV':tov:vards 1/3rd share in No.43, Mission' It is also stated, the balance of ?.5A,.OOO/--wil.l._ beV-.paid'.f'\§ith.iri" a week or ten days.
58. Z"'EX.'P;§:,(g)fV':isVthe.receipt"dated 15th May 1980. It is stated, a surnof been received by the second defendant in ftill and ".final settlement. » to R15 are the correspondence between V the first defendant. In EX.P14, it is stated that the "defendant has authorised Mr. Bob Ramalingam elder brother to negotiate sale of his 1/ 3"' share in 'V""___'Miss.§on Road, Bangalore. It is stated, if the plaintiff is 1/ 34 interested he can make an offer in writing to him with a copy to him. It is also stated, his brother would be_.'the.i'_r.ight person to clarify whether it is 42 or 43, Mission '' it is stated, if the plaintiff has an offeif he.4_'y§1ot1_Vld ' T suggest, making it at the earliest.
60. In Ex.P.l5, it is the has authorised his brother it/isx.izai1.atVh'an to negotiate sale of his property at Mission..i.r.o.ad, his behalf and receive advanQef_ _pe,rK the terms agreement to be concluded. V: ~
61. are the unserved postal covers with acl:nowle'dg_n1e.nt. E')E.P.l8 is the legal notice dated postal receipt.
is the letter dated 5"' July, 1980 addressed "vtohvthe plaintiff. It is stated, in the absence of «Tv"specific«.._details the first defendant is unable to take any ___aetion. "He would expect to see his brother in Madras on 10""
2/ 35 or 1 11" July and shall have discussion with him. Further it is stated, the plaintiff could send a statement of theve.aV_rn.4o'e1nts paid to him to enable the first defendant to proceeed' A note is made saying "left for_.Ma_dras'"omn"night' . 1 and met Mr. Amamath on 10"' Julyh-&19:8U~.°' that he would complete the saleihiy-V..$ept'eIri_beru
63. Ex.P.21 is thethe sa1eHdeed dated 8.2.1978 executed__by V.'_.Thya,c§arajafi.v"iriQ_favour of one D. Narendra. The e1*ationTis_V / -.
64. of power of attorney. In his crosseVexamir1atio'n,hV ,has stated the signature on Ex.P.22i_s hissignatu~rei.'*V_ ' is the certified copy of the written staterne11tVVf'i'1e'd._iri.'C3.S. No.2762/1980 on 27.2.1979. AA 66." v.._.F'rom the evidence on record, it is clear, the No.2 i.e., the 2nd defendant has executed Ex.P-1 agreement dated 25.6.1979 in favour of the respondent-- 1/ 36 plaintiff and his wife Noorunissa Siddiqui. The appellant--first defendant contend that he had authorised his brot.her'=2nd defendant to manage the property and not_IV--to' property. The agreement Ex.P.l The original power of attorney has not xerox copy of the power of attorr1:_ey,_has.beenp1foduc'ed.": It is' V shown to the 1st defendantin The 1st defendant has admitted the power of attorney. The powczriof mérked as Ex.P.22. D.W.1 in his he has executed power of the second defendant for managing: property. In his written statement _D.W'."l has ',-.state'd"uthat he had executed power of :_'j$axtt0rne';"Ij:._favour of vhisbfrother i.e., the second defendant for a looking after and managing the property. Vi"~'The defendant: in his written statement has stated that defendant had executed power of attorney for a limited-..p:urpose of looking after the property. Ex.P--22 is the copy of the power of attorney. In the present case, l/ 37 though Ex.P.22 has not been proved as requiredunder Secs.65 and 66 of the evidence Act, it could be seen"~f_rfom~t.the admission in the pleadings and evidence, the Znfi' a power of attorney holder. He manage and look after the property. '
67. The question is, 'agreement can be enforced in law.' the first defendant has not e_xecuted.,t_he Ex.P.1. The sale agreement by the power of attorney The first defendant contend that document. It has come into existencedtie to between the plaintiff and the second_defendant'L 'A has been executed by the second 'defendant of the plaintiff and his wife Noorunissa Siddiqlui, Iéginotiee dated 5.3.1980, it is stated that the first defendant has executed sale agreement dated 25.6.1979 felpresentedll by his power of attorney holder second In Ex.P.5 notice dated 25.9.1980 issued on [/ 38 behalf of the plaintiff and his wife Noorunissa, it is stated that the sale agreement dated 25.6.1979 has been execu.ted:'ft)l_13>"-tphe first defendant represented by his power of the second defendant. Ex.P.5 .ind.jcates.H'tlh'at" s'aleu'; agreement was executed in favour of 'Mr.7Si'c'l1diq'ui'anvd_hi$=wif€, Both of them have called upon»th'e..V'first.'execute' V the sale deed. Suit has beeitrflfiled'-~r,'l2)y 1 plaintiff on 17.1.1981. It is stated first defendant through his power~fof:~Vexecuted the sale agreement ':'f;g:t&'o'ur of the plaintiff. Nowhere the sale agreement was executed and his wife Noorunissa.
No explanationllisV_offered*.as"to why the plaintiff has excluded Perusal of'VEx".P.V1 shows the name of plaintiffs wife has In his cross-examination, the plaintiff :**has stated .in__d'Ex.P.1 his name and his wife's name were the death of his wife, her name has been deleted-. .f5Ex.P.1 was in favour of himself and his wife. His on 21.6.1983. Before striking off his wife's name in 1/ 39 Ex.P.l he did not inform the first defendant. It is clear, the plaintiff has altered the agreement without inforrnin.g~.th_e*fi_rst defendant and has filed suit as if the sale executed only in his favour. Furthermthée first defendant contend that the act of the plaintiff and the secon'dV_defen.dant}"~.: Vplaintiffdl and his wife have issued Ext;P.u5p_".c'al;yling luponvl the first defendant to execute the v"de'fendants l and 2 have sent their reply'. vthzclsecond defendant i.e., Ex. P. 6 reads ., "(;fp"'y'oul"\_>V'riol has issued the noticelon & Mrs. Siddiqui has been»prioper-lyllrepliepd4 by the second of your with regard"to the bonafides of Mr & Mrs. V-i...Sicldiqui, have exercised undue ' and tried to defraud my client by away a property for a song.
V'---Th.e laverinent in the said notice issued by the A1' 15' of your on behalf of Mr & Mrs l"Siddiqui is not correct, as my client has not executed any agreement in favour of Mr & Mrs Siddiqui and the document that has lg 40 come into existence on 25.6.78 is not with intention to sell the property, but due to pressure and influence exercised by Siddiqui to safeguard his interest in suit in o.s No.767/1978 o_n~~th_eA fi.l'e"of"'ptlie.V"
Principal Civil Judge, Banga41oreieclty'pe.as-. Mr; Siddiqui was contesting the cas_e"--agajnst plaintiff and he wanted ltogilhave a"'s_ettlefme"nt and to convince the plaintiffSri»_NaIendraw-tjo part with his :to""--p:u:r'chase his share for a__price,lwlthichlturns"fcovriiiézenient to Mr. Sidd;iqu'i;g,g:p1"'Tli=e has been deal with the... case' settle' tniat.tcjVr by purchasing the I In this context, the said' into existence and not the real" intention to sell the a"rid..._...tli1e deed dated 25.6.1978 _Vwhic}.i--.iis"~-,e_xecuted is only the name of Mr. in the name of Mrs. Siddiqui.
A».._The.-~p_ri1ce shown in the said document is onljrfito bring down Sri D. Narendra to agree if "for the price, so that he can part with the share and Mr Siddiqui can acquire the property. Except the said intention, there i L// 41 was no intention on the part of my client to . sell the property for the consideration7'.._u'a_ mentioned in the agreement.
2. It is also true that my clien_t.Vh'as?Tnot" = obtained the consent fromiahis-abrothier Amarnath Ramalingarnr, _t_hou«gh_he has the power of attorneywito. look ._'arté~:
property. As intention to sell is only with the said intentihon of'1yi_r. '&Siddiq--Lii who is friendlymy:=.client in suit filed, the in.:to...being. Hence the imsaidy; cannot. "jbe enforced nor Mr. ._ a right to sell execution' s'a1:e"deed on the basis of the said agreement, which is only a nominal ._'f¥document' notmeant to be acted upon as per 2 the'«oraI~-agreement and assurances given by Hence, you may please advise yo_ur_¢.lient not to make use of the said document which has been created for the it 'V.,_purposes of the above suit to help Mr. V' ":Siddiqui, in which Amarnath Ramalingam also is one of the defendants. In addition, l/ p42 Mr. Siddiqui has also requested my client in 3 the capacity as power of attorney holder of Amarnath Ramalingam not to file the ~ statement or the contest the suit as settling the matter with the ..pl.aintiffHolnilthe" _ basis of the said agreementl=dateAdLf2o;te6': ti Consequently, no written statement even till today."
68. It is clear, the has explained the circumstance under Valgreement Ex.P.l has come into existe1_icle'."'l3l'--.._ statement filed by the plaintiff / follows at para 14;
ll in para-7 that the 1st dlefendant4ls.old:_ll.~'his 1/ 3rd share is true. _i¢lBut the ctaiiegaugn that the plaintiff, the 2nd andwthese defendants have l/3rd V' V. is incorrect. The second has by his agreement and sold his V 1/l'l'3fd.'share in the suit schedule premises to ts these defendants and received ?.5,000/- as Elan earnest money and has put these defendants in possession of his 1/ 3"! share. l/ 43 Therefore, the execution of sale deed is only H a formality and that is left to be executed'. V Thus it is found that these defendantspV...af'elp':'gl.4'»p.. practically owners of the 2/ 3rd share suit schedule property and__are__also _ to the other 1/ 3rd share if purported to have unde;¥.l.
alleged sale deed dated if
69. The written stee....entie.ie The sale agreement is dagt-e_d sale agreement has come into;'eV>n;s-terlce mentioned about the sale agreerrie'rit.: is mentioned that prior to Ex.P.1 thefe The sale agreement is dated 25_.6.l9t79.V_" dated 14.3.1979. It is stated, a .5e,w:0OQ/-- yVas""paid as advance. Ex.P8(b) is dated 9'."5t_, a sum of ?.10,000/-- was paid towards 'Vadvance for~sa31--e#consideration. Ex.P.8(c) is dated 4.6.1979. Visggstatedria sum of ?. 10,000/-'was paid. Ex.P.8(d) is dated A It is stated, a sum of ?.25,000/- was paid. Totally ':'as...o1}1 25.6.1979 a sum of ?.50,000/- has been paid. It is not V 44 reflected in Ex.P.1. The payments made through E>g.P.8(a), Ex.P.8(b), Ex.P.8(c) and Ex.P.8(d) are prior to Ex.P. l'.'~._lIjf.»_feaJly the amount was paid, it would have been reflected' On the other hand Ex.P.l shows was ' .
paid as advance. The sale consideration 1'agi"eed_ $40,000/--. The sale agreernpent rnentions-.1thé"*balanced amount has to be paid onppor plaintiff has stated that, in all, he 65,000/~. When the sale consideration -. why '\'.65,000/-- was explained. The first thVe"'afgreement is collusive act between second defendant. The second defendant inda"hi_s "statement has stated that the Q'agree1ne'nta.j"has._conie'"into existence to help the plaintiff in by one Narendra and Ex.P.1 and the T '"vreceipt--s__ are concocted documents and not genuine. It is has come into existence to help the plaintiff in 4O:.ASA._"No.:A2762/80. P.W.1 has deposed that he has not paid .:@v.~-amount to D.W.1. D.W.1 has stated that he has not l/ 45 received any amount. It is clear the first defendant has not received any amount from the plaintiff or th'e._j:'-second defendant. The property is now worth several defendant who is the owner has not ._rece.ived"'any"an1ou_nt'. from the plaintiff or the second defendant has stated that have come into existence to help their-pxéi_31'Ciff,. Thferc-fore, the Trial Court was not justified in"4'decre'eiti1Vgv The Trial Court has failed to consider "record in proper perspective. judgment and decree cannot be ~ 'sustained Ki?-71' 1 avg'
70. defendant has been deleted and his L.Rs 'are notlorought oiirecord. There is no claim for refund. The Tfirstjdefenvdaritfihas not received any amount. Therefore, the suit is liable befdismissed.
pp vvficcordingly, the appeal is allowed and the judgment and decree passed by the Trial Court in (/ 46 O.S.N0.30/ 81 is hereby set aside and the suit of the plaintiff is hereby dismissed.
In the Circumstances of the case, no ordereis tot:
Bss.VV.Lr/- A