Karnataka High Court
Smt.Jayamma vs Smt.Lakshamamma on 14 March, 2023
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RSA No. 972 of 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 972 OF 2009 (SP)
BETWEEN:
SMT.JAYAMMA,
1. AGED ABOUT 55 YEARS,
W/O LATE SANNAPUTTEGOWDA,
2. SRI SHIVANNEGOWDA,
AGED ABOUT 35 YEARS,
S/O LATE SANNAPUTTEGOWDA,
BOTH ARE R/AT PENJAHALLI VILLAGE,
HANGODU HOBLI, HUNSUR TALUK,
MYSORE DIST. - 571 105.
...APPELLANTS
(BY SRI. B.S. NAGARAJ, ADVOCATE)
AND:
SMT.LAKSHAMAMMA,
1. AGED 50 YEARS,
W/O LATE SWAMYGOWDA,
Digitally signed by SRI JAYANNA,
GEETHAKUMARI 2. AGED ABOUT 30 YEARS,
PARLATTAYA S
S/O LATE SWAMYGOWDA,
Location: High Court
of Karnataka
SRI YOGANNA,
3. AGED ABOUT 30 YEARS,
S/O LATE SWAMYGOWDA,
ALL ARE R/AT DEVARAHALLY VILLAGE,
BILIKERE HOBLI, HUNSUR TALUK,
MYSORE DISTRICT - 571 105.
...RESPONDENTS
(BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE FOR R1 TO R3)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 06.02.2009 PASSED IN
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RSA No. 972 of 2009
R.A.NO.54/2000 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN) &
JMFC., HUNSUR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 30.08.2000, PASSED IN
O.S.NO.18/1996 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND
JMFC., HUNSUR.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS
DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
Challenging impugned judgment and decree dated 06.02.2009 passed by Addl. Civil Judge (Sr.Dn.) & JMFC., Hunsur, in R.A.no.54/2000 and judgment and decree dated 30.08.2000 passed by Civil Judge (Jr.Dn.), Hunsur in O.S.no.18/1996, this appeal is filed.
2. Appellants herein were defendants; while respondents herein were plaintiffs and will be referred to herein as such.
3. O.S.no.18/1996 was filed by plaintiff seeking for direction to defendants to execute regular sale deed in respect of suit schedule property by receiving Rs.1,378/-, failure to do so, through Court agency etc. In plaint, it was stated that on 01.04.1985, defendant no.1 had agreed to sell suit schedule properties in favour of late Sri.Swamegowda, husband of plaintiff no.1 and father of plaintiffs no.2 and 3 for total sale consideration of Rs.9,378/-. An agreement of sale was -3- RSA No. 972 of 2009 executed on same day after receiving advance of Rs.4,000/- and delivering possession of suit property in favour of purchaser. It was stated that defendants had agreed to receive balance amount of Rs.5,378/- at time of registration. Subsequently, when whereabouts of defendant no.1 were not known, defendant no.2 approached plaintiffs admitting earlier transaction with his mother and requesting plaintiffs for balance sale consideration which he needed to repay loan. Therefore, agreement of sale dated 28.06.1990 was executed by defendant no.2 after receiving further sale consideration of Rs.4,000/- and agreeing to sell suit property by receiving balance of Rs.1,378/-. Though, agreement holder demanded execution of sale deed, defendant no.2 postponed it on ground of tracing defendant no.1. In meanwhile, Sri. Swamegowda died leaving behind plaintiffs as his legal heirs. They filed suit stating that defendants failed to perform their part of contract when plaintiffs were ready and willing to perform their part of contract even after receipt of legal notice.
4. On service of suit summons, defendants entered appearance and filed written statement denying entire plaint averments including execution of agreement of sale on -4- RSA No. 972 of 2009 01.04.1985, receipt of Rs.4,000/- as advance and delivery of possession. Agreements of sale dated 01.04.1985 and 28.06.1990 were alleged to be concocted and that mutation of name of plaintiffs in respect of suit property was got set-aside in revenue appeal. Thus, there was no cause of action for filing suit. Even hardship was pleaded on ground that except suit properties, there were no other properties.
5. Based on pleadings, trial Court framed following issues:
"1. Whether the plaintiffs prove that 1st defendant on 01.04.1985 agreed to sell the suit properties in favour of Late Swamygowda for Rs.9,378/- and received Rs.4,000/- towards part consideration and executed the agreement of sale?
2. Whether the plaintiffs prove that 2nd defendant on 28.06.1990 agreed to sell the suit properties in favour of Late Swamygowda and received Rs.4,000/- towards part consideration and executed the agreement of sale?
3. Whether the plaintiffs prove that Late Swamygowda as in possession the suit schedule properties till his death and after his death they are in possession of the same?
4. Whether the plaintiffs prove that they are ready and willing to perform their part of the contract?
5. Whether the defendants prove that the suit is barred by limitation?-5- RSA No. 972 of 2009
6. Whether the plaintiffs are entitled to the relief of specific performance as prayed?
7. What order or decree?"
6. In discharge of burden cast under issues, plaintiffs examined four witnesses as PWs.1 to 4. Exhibits P.1 to P.5 were got marked. In rebuttal, defendant no.2 examined himself as DW.1 and got marked Exhibits D.1 to D.7.
7. On consideration, trial Court answered issues no.1 to 4 and 6 in affirmative, issue no.5 in negative and issue no.7 by decreeing suit directing defendants to execute registered sale deed in favour of plaintiffs within a period of two months by receiving sale consideration.
8. Aggrieved thereby, defendants preferred R.A.no.54/2000 by contending that judgment and decree passed by trial Court was opposed to law and perverse and it's reasoning that contradiction in deposition of plaintiffs' witnesses about Ex.P.2 - agreement as bonafide mistake was one sided. It erred in ignoring ratio of decision reported in AIR 1996 Cal. 605, and in absence of schedule describing suit properties, discretion exercised by trial Court was not judicial. -6- RSA No. 972 of 2009
9. Based on contentions urged, first appellate Court framed following points for consideration:
"1. Whether the appellants/defendants have made out valid grounds for permitting them to lead additional evidence by producing the documents at this stage?
2. Whether the impugned judgment and decree dated 30.08.2000, passed in O.S.No.18/1996 by the trial Court, in decreeing the suit in favour of the plaintiffs, is contrary to law, facts, evidence and probabilities of the case and as such, it is liable to be interfered with?
3. What order?"
10. After holding points no.1 and 2 in negative, it answered point no.3 by dismissing appeal.
11. Aggrieved by concurrent findings, defendants are in appeal.
12. Sri. B.S. Nagaraj, learned counsel for defendants submitted that appeal was admitted on 04.08.2010 to consider following substantial questions of law:
"1) Is the suit is not barred by limitation, when first agreement executed by the first defendant on 01.04.1985 and second agreement executed by 2nd defendant on 28.06.1990 and no notice was issued within three years from the date of agreement and suit was filed on 18.12.1985?
2) Whether the Courts below were justified in granting the reliefs of specific performance -7- RSA No. 972 of 2009 having regard to Section 20 of the Specific Relief Act and the principle laid down for grant of specific performance by this Court in the case reported in 2008 (6) AIR Kar. 319?"
13. It was submitted that both Courts erred in decreeing suit for specific performance ignoring material aspects that suit properties were not standing in names of defendants; that both defendants were illiterate/ignorant and entire suit properties belonging to Sri. Swamegowda - were included in concocted agreement of sale - Ex.P.1, it did not contain schedule of properties or any recital about legal necessity. It was further submitted that though agreements of sale were allegedly executed on 01.04.1985 and 28.06.1990, no legal notice calling for performance of contract was issued to defendants within three years from date of agreements. Therefore, suit filed after lapse of period of limitation under Art.54 of Limitation Act was time barred.
14. It was further submitted that lack of LTM of executant on page no.1 of Ex.P.1 and his affixture after just few words on page no.2 would substantiate contention of defendants that it was concocted. It was submitted that witness no.6 affixing his signature to Ex.P2 on 11.09.1995, after lapse -8- RSA No. 972 of 2009 of nearly five years without explanation would also substantiate concoction of agreement of sale. In support of his submissions, learned counsel relied upon following decisions:
"i) K. Narayana Reddy Vs. Ramakrishna Reddy, reported in ILR 2005 Kar. 2421, for proposition that even if time is not essence of contract it has to be performed within reasonable time based on conditions of contract and object of contract.
ii) Lourdu Mari David & Ors. Vs. Louis Chinnaya, Arogiaswamy & Ors., reported in AIR 1996 SC 2814, for proposition that Court granting specific performance should not be arbitrary and should be based on sound principles of law capable of correction by appellate Court.
iii) Smt. Sheetavva Vs. Hemareddi reported in ILR 2004 Kar.2105, for proposition that specific performance need not be granted merely because it would be lawful to do so and there ahs to be an examination whether plaintiff gets an unfair advantage over defendant. Such discretion need not be exercised even where defendant had signed agreement without foreseeing undue hardship.
iv) Manjunath Anandappa urf Shivappa Hansi Vs. Tammanasa & ors., reported in AIR 2003 SC 1391, for proposition that when time was not fixed and was not essence of contract, plaintiff was required to approach Court within a reasonable time taking into account purpose of contract, nature of property and purpose for which agreement was entered into.
v) Chandrashekar G. Sullad & Ors. Vs. Tuheed Co-operative Housing Society (Regd.) & Ors., reported in 2008 (6) AIR Kar. R 319, got proposition that delay in -9- RSA No. 972 of 2009 approaching Court coupled with substantial rise in prices of property would make it inequitable to grant relief of specific performance and equities could be balanced by granting higher rate of interest."
15. Therefore, learned counsel sought for answering substantial questions of law in favour of appellants by allowing appeal.
16. Sri. G. Balakrishna Shastry, learned counsel for plaintiffs, at outset submitted that substantial questions of law framed would indicate that scope of second appeal would not involve question of validity of agreements of sale, but, about suit being barred by limitation and entitlement of plaintiffs for relief of specific performance.
17. In any case, he submitted that non-affixture of LTM of defendant no.1 in page no.1 of Ex.P.1 would not be material omission, as intention of parties regarding sale of suit property was established by producing agreements of sale and examining witnesses/attesters and scribe. PWs.2 to 4 duly supported plaintiffs' case and withstood cross-examination. It was submitted that denial of execution of agreement of sale
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RSA No. 972 of 2009without defendant no.1 stepping into witness box would invite adverse inference, justifying impugned decree.
18. Further lack of description of demised properties by schedule was due to fact that agreement of sale was in respect of undivided half share in joint family properties of Sri.Swamegowda - agreement holder and his brother, who was husband of defendant no.1. Deposition of DW.1 about partition between them was not supported by any material. Merely on ground that revenue records were exclusively in name of defendants would not establish partition.
19. It was submitted that when agreement of sale stood established by examining two attesters as PWs-2 and 3 and scribe as PW-4, in absence any suggestions to said witnesses about Exs.P1 and P2 being concocted, date of witness no.6 signing Ex.P2 would not be a material issue.
20. Insofar as substantial question of law no.1, it was submitted that Art.54 of Limitation Act provided two different points of limitation. Firstly, in case, agreement of sale containing specific time or duration for performance of obligations by parties, period of limitation would begin to run
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RSA No. 972 of 2009from day after expiry of such period. Secondly, in case of agreement without such stipulation, period of limitation would begin to run from date of refusal to perform obligations under contract. It was submitted that in instant case, there was no stipulation regarding period of time within which sale deed was to be executed. Therefore, suit filed on 19.12.1995, i.e. within three years of issuance of Ex.P3 - notice dated 02.05.1994 was served on 07.05.1994 to defendant no.2 would be within time.
21. Further, Ex.P2 - agreement of sale, referred to earlier agreement of sale dated 01.04.1985, and also about receipt of part sale consideration. In view of specific recital therein that sale deed would be executed as and when called upon by plaintiff would establish that time was not essence of contract. It was further submitted that, failure of defendants to reply Exs.P3 and P4 - notices got issued by plaintiffs would render denial of agreements of sale, academic.
22. Relying upon decision of Division Bench of this Court in case of E.S.Rajan v/s R.Mohan1, it was submitted that in absence of express condition regarding time within which 1 ILR 1995 Kar. 492
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RSA No. 972 of 2009parties were required to perform their part of contract, extension of time for performance could be deemed from conduct of parties, especially acceptance of further sale consideration.
23. It was also submitted that defendant, who denied execution of agreement of sale cannot thereafter be permitted to contend about agreement being barred by limitation.
24. Insofar as substantial question of law no.2, it was submitted that there was no specific challenge/denial about plaintiffs' readiness and willingness. No suggestions were made to plaintiffs witnesses or DW-1 deposed about same. It was submitted that age of DW-1 as on 23.07.1999 i.e. date of his examination-in-chief, was 30 years. Therefore, as on date of Ex.P1, he would be a minor; but, by time of execution of Ex.P2, he would have attained age of majority. It was submitted that plaintiffs established about payment of substantial consideration of Rs.4,000/- under Ex.P1 and further sum of Rs.4,000/- under Ex.P2, leaving small amount of Rs.1,378/- only as balance.
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RSA No. 972 of 2009
25. In support of his submissions, learned counsel relied upon following decisions:
"i) Vidhyadhar Vs. Manikrao reported in AIR 1999 SC 1441, for proposition that if defendant does not appear and depose about his contentions raised in written statements, presumption would arise that such defence is not correct.
And also for proposition that concurrent findings cannot be upset by High Court under Section 100 of CPC unless findings were perverse i.e. based on no evidence, or that on evidence on record, no reasonable person could come to that conclusion.
ii) Devendra Basappa Doddannavar Vs. Ponubai, reported in AIR 1971 Kar. 217, for proposition that in view of Section 55 of Contract Act, in case of immovable properties, presumption is that time is not essence of contract where object of purchase was not a commercial undertaking.
iii) Panchanan Dhara Vs. Monmatha Nath Maity (dead) by LRs reported in 2006 (5) SCC 340, for proposition that period of three years prescribed under Art.54 would run from date fixed for performance and if no such date is fixed, when plaintiff has notice of refusal of performance.
iv) S. Brahamanand & Ors. Vs. K.R. Muthugopal (D) & Ors. reported in AIR 2006 SC 40, for proposition that even where original agreement fixed date for performance, vendor's request for postponement accepted by plaintiff by not insisting for specific performance forthwith, even though not reduced into writing could be proved by oral evidence about extention of time for performance by conduct.
v) P D'Souza Vs. Shondrilo Naidu, reported in 2004 (6) SCC 649 for proposition that vendor accepting part payment from plaintiff would establish readiness and willingness and vendee cannot be denied specific relief on ground of escalation of prices.
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RSA No. 972 of 2009
vi) Gobind Ram Vs. Gian Chand reported in 2000 (7) SCC 548, for proposition that escalation of real estate prices would not be ground to deny specific relief."
26. On above grounds, learned counsel sought for answering substantial questions of law against appellant and to dismiss appeal.
27. Heard learned counsel, perused impugned judgment and decree and record.
28. From above submission, there is no dispute about defendants being owners of suit properties. Plaintiff claims to be holder of agreements of sale - Exs.P1 and P2, in respect of suit properties executed by defendants no.1 and 2 respectively after receiving substantial portion of sale consideration and defendants refusing to perform their part of contract after demand by plaintiffs, justifying claim for specific performance. While defendants on one hand totally deny execution of agreements of sale alleging them as concocted, while on other hand, contending that suit is barred by limitation and questioning readiness and willingness on part of plaintiffs.
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RSA No. 972 of 2009
29. But, substantial questions of law framed for consideration are only in respect of latter grounds.
30. However, as measure of abundant caution and to satisfy my conscience, even former contentions are examined to find out, whether any substantial question of law would arise in that regard.
31. As noted by both Courts, plaintiffs established agreements of sale not only by examining witnesses/attesters, but also scribe. It is observed that no suggestions were put to any of plaintiff's witnesses about agreements being concocted. Further no requirement of law was pointed out which would mandate affixture of signature/thumb impression on each page of agreement of sale. When signature in second page i.e., at end of agreement of sale is established by cogent evidence, omission would be minor and inconsequential. What is material is intention of parties i.e., one to sell and other to purchase property on agreed terms.
32. Further there is no evidence placed on record by defendants to establish their absolute title over suit schedule properties. Admittedly, original agreement holder and husband
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RSA No. 972 of 2009of defendant no.1 were brothers. When it was established that suit properties were ancestral joint family properties, without proof of partition, there would be presumption about they being joint family properties. Therefore, mention of intention to sell half share in suit properties under agreements of sale would be justified. Therefore, lack of description of suit properties by giving schedule to each of them would not be fatal.
33. Though, there is no recital about legal necessity for sale of suit properties mentioned in Ex.P.1, Ex.P.2 - agreement of sale, executed in continuation of Ex.P.1 by referring to it, there was requirement by defendant no.2 to repay his loan. Further, Ex.P.1 was executed by defendant no.1 after death of her husband and after execution, she left village, which fact would itself be a sort of explanation. Therefore, no substantial question of law would arise.
34. Contention of properties not standing in name of executants as on date of agreements of sale is only to be stated to be rejected, when defendants admitted that husband of defendant no.1, who was father of defendant no.2 was infact brother of husband of plaintiff no.1 and suit properties were joint family properties.
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RSA No. 972 of 2009In re substantial questions of law:
35. Admittedly, there is no stipulation of time for performance mentioned in Exs.P.1 & P2. Though there are two agreements of sale as per Ex.P2, there is evidence of acceptance of further sale consideration by defendant no.2. Same would amount to deemed extention, as per S Brahmanand's case (supra). Therefore, for purpose of consideration of substantial questions of law framed, date of execution of Ex.P2 is to be considered.
36. As per plaintiff, prior to filing of suit on 19.12.1995, he got issued Ex.P3 - notice dated 02.05.1994. Same was served on defendant no.2 on 07.05.1994. Indeed, no reply was issued. It is contended by plaintiffs, relying upon ratio in Panchanan Dhara's case (supra) that limitation would begin to run from date when plaintiff has notice of refusal of performance and suit is filed within three years from date of Ex.P.3.
37. But, in instant case, later agreement of sale - Ex.P2 was executed on 28.06.1990 and Ex.P3 - legal notice raising demand for performance got issued only on 02.05.1994 i.e. nearly four years after agreement of sale. Except Ex.P3, there
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RSA No. 972 of 2009is no other acceptable evidence to establish that any such demand was made within three years of agreement of sale. Merely by issuing legal notice after lapse of period of limitation, there cannot be extension, especially when Section 46 of Indian Contract Act, would mandate that promisee has to invoke promise within a reasonable period, even where no time is fixed. A division bench of this Court in Padmini Raghavan v. H.A. Sonnappa2, has held that conduct of plaintiff in keeping quite for considerable amount of time and filing suit just before lapse of period of limitation would debar him from seeking specific performance. In instant case, notice demanding specific performance itself was issued after lapse of three years from date of agreement of sale. Such conduct would if not bar relief under second part of limitation prescribed in Art.54 of Limitation Act would disentitle plaintiff from relief of specific performance under Section 16 read with Section 20 of Specific Relief Act. It is settled law that specific performance need not be granted only because it was lawful to do so.
38. In view of above circumstances, ratio in P D'Souza's case (supra) that conduct of vendor accepting further sale 2 ILR 2014 Kar. 233
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RSA No. 972 of 2009consideration would establish readiness and willingness on part of purchaser; agreement holder cannot be denied specific relief on ground of escalation of prices in Gobind Ram's case (supra), would not come to aid of plaintiffs.
39. Indeed, it is also settled legal position that concurrent findings cannot be upset by High Court under Section 100 of C.P.C. Hon'ble Supreme Court in case of Lourdu Mari David's case (supra) has held that exercise of discretion under Section 20 of Specific Relief Act, has to be on sound principles of law capable of correction in appeal. In instant case, appellate Court though took note of Ex.P3 before filing of suit, it's observation that no prudent man would keep quite after receiving legal notice when no agreement of sale were executed led to observe that denial of agreement of sale was an afterthought.
40. Insofar as readiness and willingness, it held that bare denial by defendants as against specific pleading in plaint would not be sufficient. It also brushed aside contention regarding limitation by holding that suit is filed within three years from date of refusal by defendants computed by it from date of receipt of legal notice, which for reasons aforesaid
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RSA No. 972 of 2009would be contrary to law, thereby giving rise to substantial question of law. Hence, both substantial questions of law framed are required to be answered in favour of defendants and against plaintiffs. Consequently, following:
ORDER i. Appeal is allowed.
ii. Impugned judgment and decree dated 06.02.2009 passed by Additional Civil Judge (Sr.Dn.) & JMFC., Hunsur, in R.A.no.54/2000 and judgment and decree dated 30.08.2000 passed by Civil Judge (Jr.Dn.) and JMFC., Hunsur in O.S.no.18/1996 are set aside and suit in O.S.no.18/1996 is dismissed.
Sd/-
JUDGE Psg*