Karnataka High Court
Aravind S/O Vishwanthsa Kalburgi vs Vithabai Ghodke Since Deceased By Lrs on 8 May, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
R.F.A.No.100209/2015
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8TH DAY OF MAY, 2020
PRESENT:
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
REGULAR FIRST APPEAL NO.100209/2015 (SP)
BETWEEN:
ARAVIND
S/O. VISHWANATHSA KALBURGI
AGED ABOUT 53 YEARS
OCC: BUSINESS
R/AT MADHURA CHETANA COLONY
KUSUGUL ROAD
HUBBALLI- 23
DISTRICT DHARWAD ....APPELLANT
(BY SRI ANANTH HEGDE & SRI VISHWANATH HEGDE, ADVOCATES)
AND:
SMT.VITHABAI GHODKE
SINCE DEAD BY LRS.
1. SMT. NEELAGANGA
SINCE DEAD BY LRS.
1(a) SACHIN
S/O. ANANTHKUMAR POL
AGED ABOUT 25 YEARS
OCC: STUDENT
R/AT GHODKE ONI, HIREPETH
OLD HUBBALLI, HUBBALLI
DISTRICT DHARWAD- 580 020
R.F.A.No.100209/2015
2
1(b) SAI
S/O. ANANTHKUMAR POL
AGED ABOUT 23 YEARS
OCC: STUDENT
R/AT GHODKE ONI, HIREPETH
OLD HUBBALLI, HUBBALLI
DISTRICT DHARWAD- 580 020
1(c) AJAY
S/O. ANANTHKUMAR POL
AGED ABOUT 21 YEARS
OCC: STUDENT
R/AT GHODKE ONI, HIREPETH
OLD HUBBALLI, HUBBALLI
DISTRICT DHARWAD- 580 020
1(d) ANANTHKUMAR
S/O. TUKARAM POL
AGED ABOUT 54 YEARS
OCC: BUSINESS
R/AT GHODKE ONI, HIREPETH
OLD HUBBALLI, HUBBALLI
DISTRICT DHARWAD- 580 020
1(e) MALLIKARJUN
S/O. TUKARAM POL
AGED ABOUT 52 YEARS
OCC: BUSINESS
R/AT GHODKE ONI, HIREPETH
OLD HUBBALLI, HUBBALLI
DISTRICT DHARWAD- 580 020
1(f) NANDA
D/O. TUKARAM POL
AGED ABOUT 45 YEARS
OCC: HOUSEWIFE
GODKE BUILDING
J.C. NAGAR HUBBALLI
DISTRICT DHARWAD- 580 020 ...RESPONDENTS
(BY SRI VINAYKUMAR BHAT, ADVOCATE FOR R1(A-E)
SRI.SRIKANT T.PATIL, ADVOCATE FOR R1(F) (NOC OBTAINED)
SRI.SHIVASAI M.PATIL, ADVOCATE FOR R1(F)
R.F.A.No.100209/2015
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THIS RFA FILED UNDER SECTION 96 OF THE CODE OF CIVIL
PROCEDURE, 1908 PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE DATED 22.06.2015 PASSED BY THE III ADDITIONAL
SENIOR CIVIL JUDGE AT HUBBALLI IN O.S.NO.242/2010 FILED FOR
SPECIFIC PERFORMANCE OF THE CONTRACT.
THE RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 29.01.2020, THIS DAY, SURAJ GOVINDARAJ J.,
THROUGH VIDEO CONFERENCE DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the judgment and decree in O.S.No.242/2010 passed by the III Additional Senior Civil Judge, Hubballi rejecting the relief of specific performance, instead granting only the refund of earnest money, the plaintiff is before this Court in the above appeal.
2. The subject matter of the suit was property bearing CTS No.4601/B Ward No.1 of J.C.Nagar, Hubballi measuring 431 square yards with an old building thereon.
3. The plaintiff's case in a nutshell is as follows:
The defendant is the absolute owner and in possession of the suit property. For her legal necessity, she agreed to sell the suit property to the plaintiff for a consideration of Rs.25,00,000/-. On 22.11.2007, receiving advance R.F.A.No.100209/2015 4 consideration of Rs.14,00,000/- under three cheques drawn on UTI Bank, Hubballi, she executed a registered agreement of sale. Her daughter and grandchildren were also signatories to the said document. As per the schedule of payment agreed under the said document a further sum of Rs.6,00,000/- was to be paid within two months and balance amount of Rs.5,00,000/- was to be paid at the time of execution of registered sale deed.
The defendant received a further sum of Rs.6,00,000/- by cheque. On 22.01.2009 receiving Rs.4,50,000/- the defendant executed further agreement. Thus the plaintiff has paid in all Rs.24,50,000/-. Thereafter, though the plaintiff was ready and willing to pay the balance amount, despite his request to receive the amount and execute the sale deed, the defendant went on dodging the matter. Ultimately, the plaintiff issued notice dated 14.10.2010 to the defendant demanding to perform her part of the contract. The defendant did not claim the notice. Therefore, he sought a decree for specific performance in the alternative for a refund of earnest money and damages etc. R.F.A.No.100209/2015 5
4. The defence of the defendant was as follows:
Ownership of the property was admitted. But, the execution of the agreements, receipt of the amount, request of the plaintiff and issuance of the notice were disputed. The market value of the property was worth crores of rupees. Her daughter, son-in-law and grandson are addicted to vices and alcohol. She is an aged, ailing, illiterate lady and belongs to backward class. Taking advantage of such a situation, some estate agent has taken her signatures representing that the agreement is a joint development agreement. Therefore, the agreement is the outcome of fraud, misrepresentation and undue influence. Thus, she sought for dismissal of the suit.
5. Pending the suit original defendant died on 04.06.2013. Her daughter was brought on record as defendant No.1(a). She filed an additional defence statement contending that she too had a share in the suit property; therefore, the mother was not competent to sell the property. She reiterated the grounds of fraud, misrepresentation and undue influence etc., and the case of joint development. She further contended that during her lifetime, the original defendant executed a R.F.A.No.100209/2015 6 registered will dated 22.12.2004 in favour of defendant No.1(a) and her children bequeathing the suit property and suit was bad for non-joinder of other legatees under the Will.
6. On the basis of such pleadings, the trial Court framed the following issues:
1. Whether the plaintiff proves that the defendant being the owner of suit schedule property agreed to sell the same on 22.11.2007 for Rs.25,00,000/- and received earnest money of Rs.14,00,000/- as agreed to receive the balance consideration amount of Rs.5,00,000/-
at the time of execution of sale deed and agreed to hand over the possession of the suit schedule property at the time of the execution and registration of regular sale deed?
2. Whether the plaintiff proves that after two months of registered agreement of sale the defendant had received Rs.6,00,000/- and again Rs.4,50,000/-?
3. Whether the plaintiff proves that he is always ready and willing to perform his part of contract?
4. Whether the plaintiff proves that the defendant is refusing to perform her part of contract?
5. What order or decree?
Additional Issue:
1. Whether the suit is bad for non-joinder of necessary parties?R.F.A.No.100209/2015
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7. The parties adduced evidence. On behalf of the plaintiff, his power of attorney holder was examined as PW.1 and one attestor as PW.2 and Ex.P1 to Ex.P7 were marked.
Defendant No.1(a) got examined herself as DW.1. During the cross-examination of PW.1 on behalf of the defendant, copy of the interim application filed in O.S.No.41/2010 on the file of the III Additional Senior Civil Judge, Hubballi was marked as EX.D1. Except that no other document was marked on behalf of the defendant.
8. The trial Court on hearing the parties, by the impugned judgment and decree partly decreed the suit namely, granting refund of the advance consideration and rejecting the prayer for specific performance on the following grounds:
(i) The execution of the agreements under Ex.P2 and Ex.P3 in favour of the plaintiff and receipt of the advance consideration of Rs.24,50,000/- was proved;
(ii) The defendant failed to prove the fraud, misrepresentation, undue influence alleged by her; R.F.A.No.100209/2015 8
(iii) The plaintiff proved his readiness and willingness to perform his part of the contract;
(iv) The Will set up by the defendant was not produced and proved. Consequently, the plea of non-joinder of necessary parties to the suit is untenable; &
(v) Having regard to the allegations of the defendant regarding the market value of the property, old age of the original defendant as well as defendant No.1(a), the defendants not holding any other property and overall facts of the case, the plaintiff is not entitled to specific performance of the agreement.
9. Pending this appeal, defendant No.1(a) also died. Therefore, her legal representatives were brought on record as respondent Nos.1(a) to 1(f). Sri Vinaykumar Bhat, learned Counsel, appeared for respondent Nos.1(a) to 1(e). Initially, Sri Shivasai M. Patil, learned Counsel, appeared for respondent No.1(f) and later Sri Shrikant. T. Patil, learned Counsel, appeared for respondent No.1(f). R.F.A.No.100209/2015 9
10. On 10.01.2020 respondent Nos.1(a) to 1(e) filed a compromise petition under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 before this Court. In the said compromise petition, they admitted the execution of the agreement of sale dated 22.11.2007 and receipt of consideration of Rs.24,50,000/-. Under the compromise petition, they conceded for decreeing the suit of the plaintiff for specific performance and undertook to handover the possession of the property to the extent of their shares to the plaintiff at the time of registration of the sale deed or whenever he requests.
11. Respondent No.1(f) opposed the said compromise petition on the ground that the said compromise was entered to defeat her rights. She also contended that since her suit in O.S.No.380/2016 for partition is pending before the Senior Civil Judge, Hubballi and the subject matter of this appeal is also one of subject matter in O.S.No.380/2016; the compromise is not lawful.
12. The parties to the compromise petition appeared before this Court on 21.01.2020 and admitted the execution of R.F.A.No.100209/2015 10 the compromise petition. This Court reserved the orders on the said compromise petition with the observation that since respondent No.1(f) opposes the compromise, the appeal has to continue against her and if at all the appellant succeeds against respondent No.1(f), then the compromise has to be recorded.
13. Sri Ananth Hegde, learned Counsel for the appellant reiterating the grounds of appeal submits that the plaintiff had done substantial acts pursuant to the agreement. Relying on Section 20 of the Specific Relief Act, 1963 ('the Act' for short) and the judgment of the Supreme Court in Narinderjit Singh vs. North Star Estate Promoters Limited1 he submited that in rejecting the prayer for specific performance, the trial Court exercised the discretion arbitrarily and contrary to the judicial principles. He further submitted that since O.S.No.380/2016 is a subsequent frivolous suit, there is no bar to record the compromise. He submits that respondent Nos.1(a) to 1(e) conceding to the execution of the agreements strengthens the case of the appellant.
1 (2012) 5 SCC 712 R.F.A.No.100209/2015 11
14. Per contra, Sri Shrikant Patil, learned Counsel for respondent No.1(f) seeks to justify the impugned judgment and decree of the trial court contending that the Court is not bound to exercise the discretion in all cases in favour of the plaintiff. He further submits that the delay of three years on the part of the plaintiff in taking steps for enforcement of the contract casts doubt on the genuineness of agreements, plaintiff's readiness and willingness to perform the contract. He further submits that the trial Court has rightly considered the plea of the defendant regarding the market value of the property, social, economic background of the defendant, hardship to the defendant etc. He further contends that pending O.S.No.380/2016, the compromise cannot be recorded.
15. In support of his arguments, he relies upon the following judgments:
1. Parakunnan Veetill Joseph's Son Mathew vs. Nedumbara Kuruvila's Son and Ors.2
2. A.C.Arulappan vs. Ahalya Naik3 2 1987 (Supp) SCC 340, AIR 1987 SC 2328 3 AIR 2001 SC 2783 R.F.A.No.100209/2015 12
3. Nirmala Anand vs. Advent Corporation (P) Ltd. & Ors.4
4. Zarina Siddiqui vs. A.Ramalingam5
5. Jayakantham and Ors. vs. Abaykumar6
16. Having regard to the materials on record, the arguments of the Counsel, the points that arise for consideration of the Court are:
(i) In rejecting the relief for specific performance of the agreement of sale, whether the trial court acted contrary to Section 20 of the Act and the judicial principles?
(ii) Whether the compromise entered into between the appellant and respondent Nos.1(a) to 1(e) is admissible under the law?
Reg. Execution of the agreements, readiness and willingness to perform the contract and non-joinder of parties:
17. The agreements of sale relied upon by the plaintiff were produced at Ex.P2 and Ex.P3. Out of them, Ex.P2 the agreement dated 22.11.2007 was a registered agreement. Ex.P3 dated 22.01.2009 was a further/supplemental 4 AIR 2002 SC 3396 5 AIR 2015 SC 580 6 2017 (121) ALR 285 R.F.A.No.100209/2015 13 agreement. Neither the original defendant nor defendant No.1(a) disputed their signatures on those documents. Their only contention was that the signatures were obtained misrepresenting that they were joint development agreements.
18. Defendants pleaded that the agreements were the outcome of fraud, misrepresentation and undue influence. The particulars of those fraud, misrepresentation and undue influence were not pleaded as required under Order VI Rule 4 of the Code of Civil Procedure, 1908. Except the self-serving testimony of defendant No.1(a) which was challenged, no evidence was adduced to prove such fraud, misrepresentation and undue influence.
19. Except contending that the agreement was executed in the belief of it being a joint development agreement, the readiness and willingness on the part of the plaintiff to perform his part of the contract were not specifically challenged. The plaintiff had performed substantial acts on his part in the contract by paying Rs.24,50,000/- out of Rs.25,00,000/-.
R.F.A.No.100209/201514
20. The Will set up by defendant No.1(a) was not even produced. At one breath, defendant No.1(a) contended that she had a share in the suit property; therefore, the defendant was not competent to sell the said property. At another breath, she claimed that the original defendant bequeathed the property in favour of herself and her children which was mutually inconsistent. Further, defendant No.1(a) in para-6 of her affidavit filed in lieu of chief examination unequivocally admitted that her mother, the original defendant was the absolute owner of the property.
21. Considering all the aforesaid aspects, on a sound appreciation of evidence, the trial Court held that the execution of the agreements of sale, readiness and willingness on the part of the plaintiff to perform the contract was proved and rejected the contentions of the defendant regarding her share in the property, fraud, misrepresentation and undue R.F.A.No.100209/2015 15 influence and the maintainability of the suit for non-joinder of necessary parties.
22. The respondents have not challenged those findings by filing cross-appeal or cross-objections. Thereby those findings have attained finality, it is not now open to the respondents to challenge those issues before this Court. The fact of respondent Nos.1(a) to 1(e) conceding the case of the plaintiff on those issues further strengthens the findings of the trial Court on those issues. Therefore, the further consideration of the legality of those issues is not required. Reg. Legality of rejection of specific performance:
23. Section 20 of the Act governs the jurisdiction of the Court for specific performance and how the discretion of the Court in such cases shall be exercised. Section 20 of the Act reads as follows:
"20. Discretion as to decreeing specific performance.-- (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. R.F.A.No.100209/2015 16 (2) The following are cases in which the court may properly exercise discretion not to decree specific performance:--
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
Explanation 1.--Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).
Explanation 2.-- The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.
(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(4) ......................................................................"
... Emphasis Supplied
24. The reading of the above provision no doubt indicates that the jurisdiction is discretionary, yet it also R.F.A.No.100209/2015 17 provides the guidelines for the exercise of such jurisdiction. The discretion of the Court is not to be exercised arbitrarily, but sound and reasonable and to be 'guided by judicial principles'. Section 20(2) of the Act stipulates the cases where the Court may exercise its discretion, not to decree specific performance.
25. The three circumstances stipulated therein are (i) If such decree gives an unfair advantage over the defendant
(ii) Causes hardship to the defendant (iii) If such decree is inequitable to the defendant. Explanation-1 to Section 20(2) of the Act states that mere inadequacy of consideration or is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Moreover, Explanation 2 requires that the issue as to the performance of contract involves hardship to the defendant has to be determined with reference to the circumstances existing at the time of the contract, except where the hardship has been caused from an act of the plaintiff, subsequent to the contract.
R.F.A.No.100209/201518
26. This position was reiterated by the Hon'ble Supreme Court in para 8 of Jayakantham's case referred to supra relied upon by respondent No.1(f) herself. In the said case, the Hon'ble Supreme Court referring to its earlier judgments in Parakunnan Veetill Joseph's Son Mathew's case, A.C.Arulappan's case, Nirmala Anand's case which were also relied upon for respondent No.1(f), reversed the decree of the High Court and the trial Court and granted specific performance.
27. In Narinderjit Singh's case referred to supra, the trial court had rejected the specific performance on the ground that the price of the land had considerably increased and that results in unfairness to the defendant if directed to execute the sale deed at the agreed rate. In that case also, the defendant had not challenged the findings of the trial Court recorded in favour of the plaintiff regarding the execution of the agreement and readiness and willingness on the part of the plaintiff to perform the contract. Under such circumstances, in para 24 of the judgment, it was held as follows:
R.F.A.No.100209/201519
"24. It is significant to note that the appellant and his father had set up the case of total denial. They repeatedly pleaded that the agreement for sale was a fictitious document and the respondent had fabricated the same in connivance with Col. Harjit Singh and Vijay Bhardwaj. However, no evidence was adduced by the appellant so substantiate his assertion. That apart, he did not challenge the finding recorded by the trial Court on the issue of readiness and willingness of the respondent to perform its part of the agreement. Therefore, we do not find any valid ground much less justification for exercise of power by this Court under Article 136 of the Constitution of India to interfere with the judgment of the lower appellate court which was approved by the High Court."
... (emphasis supplied)
28. In the light of Section 20 of the Act and the above said judgments, the sustainability of the judgment and decree of the trial Court in rejecting the prayer for specific performance has to be examined. The reasons for rejection of specific performance of agreement are found only in paras 21 and 22 of the judgment. The said reasons are that the plaintiff's inaction from 2007 to 2010 in seeking enforcement of the agreement, the defendant's contention regarding the market value of the property, existence of the property in the posh locality and overall facts and circumstances.
29. The trial Court itself on rejecting the contentions of the defendant regarding market value of the property, old R.F.A.No.100209/2015 20 age, fraud, misrepresentation and undue influence for impeaching Ex.P2 and Ex.P3 upheld those documents. The trial Court even held that the plaintiff has proved that he was ready and willing to perform his part of the contract, but still rejected the relief of specific performance again on the same grounds. Such an approach of the trial Court is nothing but self-contradiction and glaring inconsistencies in its findings on the relevant issues. Therefore, on facts also, the exercise of the discretion in rejecting the prayer for specific performance was arbitrary.
30. Even as per Section 20 of the Act and the ratio of the judgments of the Supreme Court in Narinderjit Singh's case and Jayakantham's case, mere inadequacy of consideration was not a ground to reject specific performance. Apart from that, no evidence was adduced to show that the value of the property agreed in the agreement was lesser than the market value prevailing at the time of the payment much less unconscionably on the lower side.
R.F.A.No.100209/201521
31. It is well-settled law that to claim the benefit of Section 20(2) of the Act; the defendant has to plead and prove the grounds of unfairness, hardship or inequity contemplated under the said provision. In this case, neither they were pleaded nor proved. The Hon'ble Supreme Court in Zarina Siddiqui's case relied upon by the Counsel for respondent No.1(f) herself, held that mere escalation of the price pending in the proceedings is not a ground to reject the prayer for specific performance.
32. In Parakunnan Veetill Joseph's Son Mathew's case, A.C.Arulappan's case, Nirmala Anand's case and Zarina Siddiqui's case, it was held that in considering the entitlement of the plaintiff for specific performance with reference to Section 20(2) of the Act, the conduct of the parties has to be seen. In this case, neither any unfair conduct was imputed to the plaintiff in the pleadings, nor the same was proved. Under the circumstances, the judgments relied upon by the Counsel for respondent No.1(f) in no way advance her case.
33. In view of the decisions referred to hereinabove, it is clear that the grant of relief of specific performance lies in R.F.A.No.100209/2015 22 the exercise of judicial discretion by the Court. The said discretion is to be exercised on sound and reasonable judicial principles so as to give effect to the fundamental axiom of law "justice must not only be done, but, seen to be done". The exercise of judicial discretion is required to be ascertained from the judgment itself and capable of being corrected by a Court of appeal, if and so required. It would necessarily mean that exercise of discretion has to be supported by reasons recorded in writing in the judgment, in the absence thereof, it would not be possible for a Court of appeal to assess the same in order to either confirm or correct the exercise of discretion. In the present case, there are no reasons whatsoever recorded in the impugned judgment.
34. The trial court, instead of granting specific performance, has awarded compensation of Rs.1,00,000/- with interest @ 12% p.a. Even this is not supported by any reason/s. The award of compensation is to be made in terms of Section 21 of Specific Relief Act, 1963, more so, in terms of Section 21(4) thereof, which requires an enquiry to be conducted by the trial Court in determining the damages to be R.F.A.No.100209/2015 23 awarded in lieu of specific performance. In the present case, there is also no determination as regards the market value of the property as on the date of refusal of the relief of specific performance and/or the loss the plaintiff may incur in order to purchase a property similar to that covered under the agreement of sale viz., Ex.P2 as on the date of refusal of grant of specific performance viz., the judgment. It is on both these grounds, the judgment being cryptic and there being no reasons assigned is not sustainable.
35. The plaintiff parted with a substantial amount under the contract between 2007 and 2009, yet he has been driven to long drawn litigation on vexatious grounds. Section 20(3) of the Act states that it is proper for the Court to exercise discretion to the decree of specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. Since the plaintiff has paid Rs.24,50,000/- out of Rs.25,00,000/- which amounts to 98% of the agreed consideration, he was covered under Section 20(3) of the Act. In the light of the above discussions, the R.F.A.No.100209/2015 24 rejection of the relief of specific performance by the trial Court was arbitrary, against judicial principles and Section 20 of the Act, therefore unsustainable in law.
Reg. Compromise:
36. As already pointed out, respondent Nos.1(a) to 1(e) have filed a compromise petition conceding the case of the plaintiff-appellant and to grant a decree of specific performance in his favour. Respondent No.1(f) opposes the said compromise on the ground that along with the other properties in respect of the very same property her suit for partition in O.S.No.380/2016 is pending.
37. This Court has already held that the original defendant Vithabai was the absolute owner of the suit property. On her death, her daughter Neelaganga was brought on record as defendant No.1(a) and contested the suit. Her contention that she had a share in the suit property is already negatived. Respondent Nos.1(a) to 1(f) have come on record as the legal representatives of said Neelaganga. Therefore, R.F.A.No.100209/2015 25 they cannot have any defence which is inconsistent with the defence of the original defendant.
38. Mother of respondent Nos.1(a) to 1(f) though suffered a finding to the effect that Vithabai was the absolute owner of the property did not challenge the same. Even respondent No.1(f) also has not challenged the same. Moreover, the suit in O.S.No.380/2016 is a subsequent suit. Therefore, the pendency of the said suit in no way bars this Court in recording the compromise entered into by respondent Nos.1(a) to 1(e). At the most, respondent No.1(f) may claim her share in the balance consideration of Rs.50,000/- which the appellant has to deposit.
39. For the aforesaid reasons, the appeal is allowed. The compromise entered into by the appellant and respondent Nos.1(a) to 1(e) is held admissible in law and recorded.
The impugned judgment and decree of the trial Court is hereby modified as follows:
R.F.A.No.100209/201526
Suit of the plaintiff for specific performance of the contract is hereby decreed against respondent No.1(f) and in terms of the compromise entered into between the appellant and respondent Nos.1(a) to 1(e).
The appellant shall deposit the balance consideration of Rs.50,000/- before the trial Court within 30 days from the date of receipt of the certified copy of this order. Within 60 days from the daid of such deposit, the respondents shall execute a registered sale deed in favour of the plaintiff- appellant in respect of the suit property.
If the defendants/respondents fail to execute the sale deed, the plaintiff is entitled to get the decree executed in accordance with law.
On such execution of the Sale Deed the deposited amount will be transferred by the trail court to the account of O.S.No.380/2016 pending on the file of Principal Senior Judge, Hubballi, which shall be disbursed as per the directions of that court.R.F.A.No.100209/2015
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Respondent No.1(f) shall bear the costs of the proceedings through out.
Sd/-
JUDGE Sd/-
JUDGE KSR