Karnataka High Court
Smt. Sheetawwa vs Hemareddi on 26 September, 2003
Equivalent citations: ILR2004KAR2105
Author: B. Padmaraj
Bench: B. Padmaraj
JUDGMENT Padmaraj, J.
1. Heard the arguments of the learned Counsel for the appellant and carefully perused the relevant case papers including the impugned judgment passed by the Trial Court. The learned Counsel for the respondent being absent and there being no representation on his behalf, he could not be heard in the matter. Even in the absence of the learned Counsel for the respondent, the learned Counsel for the appellant took me in detail through the pleadings, the evidence and the impugned judgment of the Trial Court.
2. This appeal by the defendant Smt. Sheetawwa is directed against the judgment and decree of the Trial Court dated 24.1.2000 whereby and where under the Trial Court has decreed the suit of the respondent-plaintiff with costs directing the appellant-defendant to execute the registered sale deed after receiving the remaining sale consideration amount and that if, the defendant fails to execute the registered sale deed, the plaintiff is at liberty to get the sale deed executed through the process of the Court by appointment of a Commissioner. By the impugned judgment, the Trial Court found that the only question to be considered in the case is whether it is a sale agreement or it is a security for the loan and taking an overall view of the evidence, it has held that the transaction in question was a sale agreement and not a loan transaction as alleged by the appellant defendant. The Trial Court has further found that the respondent -plaintiff was ever ready and willing to perform his part of the contract, but, the appellant-defendant had tried to avoid the execution of the sale deed. Thus on the facts and in the circumstances of the case, the Trial Court found that the respondent-plaintiff has proved that the appellant-defendant had entered into a agreement of sale with him. Having arrived at such finding it has held that there is no reason to reject the decree for specific performance in favour of the respondent-plaintiff. In this view of the matter the Trial Court has decreed the suit of the respondent-plaintiff. It is this judgment and decree, which is now sought to be challenged by the defendant by filing this appeal.
3. The brief facts of the case as has been enumerated in the memorandum of appeal reads as under:-
R.S.No. 598/A2 measuring 2 acres 33 guntas and R.S.No. 598/B measuring 2 acres 28 guntas situated at Koliwad village, Hubli Taluk belong to the appellant. The respondent filed a suit in O.S No. 73/95 before the Trial Court for specific performance of an agreement to sell the suit lands under a document dated 14.06.1993 (Ex.P1) said to have been executed by the appellant. It was alleged in the plaint that the parties are close relatives and the appellant who was in need of money for the affairs of the family and she was unable to cultivate the lands from her village Shelavadi, she agreed to sell those lands for a consideration of Rs 1,01,100/- and executed an agreement of sale on 14.06.1993 by accepting an earnest money of Rs. 40,000/-. Further, it is stated that since the appellant failed to perform contract to executed the registration sale deed in spite of a notice, the respondent filed the suit for specific performance and for possession of the suit lands. The appellant resisted the claim of the respondent by filing her written statement wherein, she denied the allegations of the respondent and interalia contending that she never entered into an agreement of sale of the suit lands in favour of the respondent for a consideration of Rs. 1,01,100/- On the other hand, she had borrowed a loan of Rs. 40,000/- from the respondent to pay to her eldest son, who gave up his share in the family to purchase tractor at the time of taking his share in the family properties. But the respondent by taking undue advantage of his relationship and the ignorance of the illiterate women has fabricated this document as a contract for sale. In fact, she said that she never executed that document agreeing to sell her lands, but it was executed as a security to the loan advanced by the respondent. Hence, prayed for dismissal of the suit. On the basis of the pleadings of the parties, necessary issues were framed by the trial court. In the course of the trial, the respondent got himself examined as P.W.1 besides examining two other witnesses P.Ws.2 and 3 and the appellant also got herself examined as D.W, 1 besides examining one witness on her behalf as D.W.2. Apart from the oral evidence, the parties have also produced certain documentary evidence as per Exs.P1 to P10. At the conclusion of the trial, the Trial Court on consideration of the entire evidence placed on record and after hearing the submission on both sides has decreed the suit of the respondent-plaintiff by its impugned judgment and decree. Hence, this appeal, by the defendant.
4. Learned Counsel for the appellant while assailing the impugned judgment and decree passed by the Trial Court, has contended before me as under:-
That the respondent herein is none other than the brother-in-law (sister's husband) of the appellant and she has been residing at Shelavadi village in Navalgund Taluk whereas, the suit property is situated at Koliwad village in Hubli Taluk. The said property originally belonged to the mother of the appellant. That the mother of the appellant had given one half of her property to the appellant and the other half or the remaining half of the property to the wife of the respondent, who is the sister of the appellant. That the stamp paper of the deed Ex.P1 dated 14.06.1993 had been purchased about two months prior to the date of the alleged agreement. The transaction in question was only a loan transaction and the LTM of the appellant who is an illiterate and rustic villager had been obtained by the respondent under a misrepresentation that it was a document for security of the loan advanced and the appellant was not made known about the real nature of the transaction incorporated under EX.P1. The possession of the property was not at all delivered to the plaintiff as could be seen from the entries in the record of right extracts as per Exs.P8 and P9, but inspite of this, certain recitals have been inserted in the agreement Ex.P1 so as to appear that the possession of the suit property had been delivered to the plaintiff under the document Ex.P1 pursuant to an agreement of sale. That an alteration has been made in the deed Ex.P1 after its execution which is of material in nature so as to vary the legal effect of the deed in its original state. The RTC extracts Exs. P8 and P9 would show that the possession of the lands is with the. appellant and the subsequent insertion has been made in Ex.P1 with intent to defeat the claim of the appellant. Thus, the conduct of the respondent is that it will not entitle him to an equitable relief of specific performance. Further, the respondent had made a false statement that he was a tenant in respect of the suit properties prior to the sale. That the document Ex.P1 is on the face of it appears to be a highly suspicious document. The appellant besides being illiterate and innocent villager was 75 years old at the time of the alleged execution of the deed Ex.P1. looking from any angle, the respondent is not entitled to the relief of specific performance. The appellant is prepared to refund the amount received by her from the respondent.
5. Later, the learned Counsel for the respondent appears and he has also been heard in the matter. The learned Counsel for the respondent while supporting the judgment and decree of the Trial Court has contended that the respondent-plaintiff was put in possession of the agricultural lands pursuant to the sale agreement Ex.P1 executed by the appellant in favour of the respondent in 14.06.1993 and since then the respondent has been in possession thereof and that further out of the total consideration of Rs. 1,01,100/- the respondent -plaintiff had paid a sum of Rs. 40,000/- as earnest money on the date of the agreement itself. He contended that the lands in question were situated very near to the village of the respondent-plaintiff and the appellant-defendant who had been residing at Shelavadi village situated at a distance of about 40 Kms from the place where the lands were situated, found it difficult to cultivate the lands. Further, he contended that the appellant-defendant was in need of money, as she was required to pay certain amount to her son who intended to purchase a tractor. Under the circumstances, he contended that the appellant-defendant had agreed to sell the lands to the plaintiff who is none other than her own brother-in-law. He contended that the document in question was written in the house of the appellant herself and out of the three attestors who have attested the document, the scribe and one of the attestors had been examined in Court and their evidence fully supports the claim of the respondent-plaintiff. He further reiterated his contention that the document in question namely Ex.P1 was written in the house of the appellant-defendant in the presence of her husband and children and the defendant put her LTM on the said document after knowing the contents thereof. He also contended that prior to the filing of this suit, the plaintiff had written two letters and also issued a legal notice calling upon the defendant to execute the sale deed. He contended that if the transaction in question was not an agreement of sale and if the same is by way of loan transaction, then what should have been the conduct of the appellant then she had received such letters and the. legal notice from the respondent-plaintiff. He contended that the immediate reaction of the appellant should have been that she had not executed such an agreement of sale, if really she had executed the document in question by way of security for the loan advanced by the respondent. He contended that when there was a duty to speak on the part of the appellant and if she does not speak and takes up a contention after a lapse of three years, such a contention on the part of the appellant would only be treated as an afterthought and a dishonest intention on the part of the appellant to avoid her obligation. He therefore contended that the contention of the appellant-defendant that it was a loan transaction and not an agreement of sale has not been established from the facts and circumstances of the case. On the other hand, the respondent-plaintiff has been able to prove that the defendant had put her LTM to Ex.P1 after knowing fully well the contents of Ex.P1 and that further the said transaction as admitted by the appellant herself took place in the presence of her husband and children. He further contended that there was a partition in the family of the defendant and Rs. 40,000/- was received by the appellant from the respondent under the agreement of sale Ex.P1 in order to pay the said amount to one of her sons towards the purchase of a tractor. He also contended that the document in question was written at the instructions of the husband and children of the defendant as has been deposed to by the scribe P.W.2. He further contended that if really, the appellant had taken this amount by way of a loan, she should have made attempts to repay the loan, but no such efforts were made and on the other hand, the plaintiff wrote letters and also issued a legal notice, which were not at all replied by the appellant. He contended that the said conduct on the part of the appellant would clearly indicate that the document in question could not be anything other than the agreement of sale. With regard to the purchase of the stamp papers prior to the execution of the agreement of sale Ex.P1, he contended that the discussions were going on between the parties, but only the price was to be agreed and for that purpose the plaintiff went to the house of the defendant where the price was fixed in the presence of the elders and the document as per Ex.P1 was executed in the presence of the husband and children of the defendant. He als6 contended that the evidence of D.W.1 cannot at all be believed and she has put forth a story, which is not capable of being accepted. He, therefore, contended that the Trial Court was right in decreeing the suit of the respondent-plaintiff, which needs no interference in the appeal by this Court. In support of his submission, the learned Counsel for the respondent has relied upon a decision of the Hon'ble Supreme Court in the case of PRAKASH CHANDRA v. ANGADLAL AND ORS., wherein it is observed as under:-
"The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief."
6. While placing reliance upon the above observations of the Hon'ble Supreme Court, the learned Counsel for the respondent has contended that the grant of specific performance is a rule and a refusal is an exception. He further contended that the conduct of the appellant does not entitle the refusal of the relief of specific performance sought for by the respondent-plaintiff. He also contended that the plea putforth by the appellant-defendant is dishonest and an afterthought.
7. By way of reply, the learned Counsel for the appellant has contended that the appellant had never denied the execution of such document, but her specific plea has been that it was obtained by way of security for the loan advanced and hence, the relief of specific performance sought for by the respondent could not have been granted by the Trial Court.
8. Having heard the submissions on both sides and having carefully perused the relevant materials placed on record in the light of the decision relied upon by the learned Counsel for the respondent, the short question for consideration in this appeal is:-
"Whether the Trial Court on the facts and in the circumstances of the case was right in granting the decree for specific performance of agreement of sale Ex.P1 in favour of the respondent?"
9. It is true that grant of decree of specific performance lies in the discretion of the Court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the Court in its discretion can impose any reasonable conditions including the payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Even, the conduct of the parties could be looked into while granting or refusing such relief by the Court. The grant of decree for specific performance is a matter of discretion under Section 20 of the Specific Relief Act. The Court is not bound to grant such relief merely because it is lawful to do so, but the discretion is not required to be exercised arbitrarily. It is to be exercised on sound and settled judicial principles.
10. In the instant case, it is not in dispute that the respondent is none other than the brother-in-law of the appellant. Thus, the appellant and the respondent are closely related to each other. The property in question had been given to the appellant by her mother. The family of the appellant is an agriculturist family having their own agricultural establishment at their village Shelavadi. The appellant was aged about 75 years at the relevant time of the execution of the deed Ex. P1. The body of the Deed Ex. P1 does not contain the date of execution of the document, but only at the end of the document, the date has been put as 14.06.1993. The way in which the date has been put on the document Ex. P1. would create some doubt whether it was really put on the date of its execution or subsequently more so, when the stamp paper on which the document has been written was found to have been purchased on 01.04.1993. The stamp papers seem to have been purchased about two and a half months prior to the execution of the document itself and that too in the name of the appellant by the respondent. No doubt, it was sought to be argued on behalf on the respondent that since the talks were going on, there is every likelihood that the stamp papers might have been purchased. But, such an explanation on the part of the respondent cannot be accepted. It is needless to point out that it is only after the talks are concluded that parties will go for purchasing the stamp papers. But, this is a case where the stamp papers have been purchased about two months prior to the execution of the document itself. That apart, even the LTM of the appellant which is found on Ex.P1 appears to have been put by leaving sufficient space after the body of the document, which also creates some suspicion whether the LTM was obtained after the document was written or at any time prior to the execution. This suspicion gets strengthened by the long gap between the purchase of stamp papers and the execution of the agreement Ex. P1. Further, the document Ex. P1 would show that the recitals regarding the delivery of possession has been subsequently inserted after the execution of the document. This suspicion will get strengthened by the entries found in the RTC extracts Exs. P8 and P9 produced by the respondent himself and they would clearly show that it is the appellant who has been in possession of the suit lands. The said entries which are entitled for presumption under law would manifest that in all probability the recitals regarding delivery of possession had been subsequently inserted after the execution of the document so as to appear to be more natural and probable. Even a cursory or a bare look at the document Ex. P1. would show that it is a subsequent insertion in the document after the same was written. The alteration or the insertion found to have been made in the agreement Ex. P1 by introducing the delivery of possession pursuant to an agreement of sale is in the nature of a material alteration of the document Ex. P1. The said insertion will have the effect of varying the rights of the parties. The effect of making such an alteration without the consent of the party bound by it, is exactly the same as that of cancelling the deed. An alteration made in a deed which varies the rights and obligations of the parties will certainly effect the validity of the deed more so, when it is the specific contention of the appellant that the said document was obtained by way of security for the loan advanced to her by the respondent. In my view it is a material alteration which very the legal effect of the deed in its original state. Such alteration has been made to make it more onerous or at any rate to make it appear that it was in its letter and spirit an agreement of sale. It was in the nature of interpolation with the document by the person who had custody of such document. In order to prove this document Ex. P1, the respondent besides examining himself as P.W.1 had also examined P.Ws. 2 and 3. Of the two witnesses examined by the plaintiff, P.W.2 is the scribe and P.W. 3 is an attestor. P.W.2 has stated that he had written the deed Ex.P.1 to which the appellant had affixed her LTM at Ex.P1A. The respondent paid Rs. 40,000/- as earnest money and the balance was agreed to be paid at the time of the registration. Under the cross-examination he admits that he is from the same village as that of the respondent. The plaintiff had bought the stamp papers for Ex.P.1. The appellant is more than 75 years old and she is weak by constitution. He has further stated that she is illiterate and she cannot read and write. According to him, the plaintiff, the husband of the defendant and children had asked him to write the document Ex.P.1. It is pertinent to note that there is nothing in the evidence of P.W.2 to show that the document after it was written was read over to the appellant and the appellant after accepting the correctness thereof had put her LTM. Now coming to the evidence of the attestor P.W.3, he has stated that before he could go over to the house of the appellant, the entire transaction and talks were over and he was only asked to sign the document and accordingly, he subscribed his signature to the document Ex.P.1 as per Ex.P1C. He did not know as to who wrote the document Ex.P.1. No amount was paid in his presence. He did not know what was the nature of the document. Thus, the evidence of P.W.3 is quite contrary to the evidence of P.W.2. It has to be mentioned that P.W. 3 had not been treated as Hostile and the plaintiff seeks to rely upon the evidence of P.W.3 also. His evidence if accepted, will create serious doubt about the real nature of the transaction. Though, P.W.2 has stated that the husband and children of the defendant and the plaintiff had asked him to write the document Ex.P.1, the plaintiff who gave evidence before the Court as P.W.1 has stated that it is he who gave instructions to write the document Ex.P.1. P.W. 1 would go to the extent of saying that prior to the document Ex.P.1, he was cultivating the land as a tenant on lavani basis and was paying Rs. 3,000/- per year by way of lavani to the appellant. But the recitals of the document Ex.P.1 as has been interpolated would show that he was put into the possession on the same day. There is nothing on record to show that the respondent was earlier cultivating the land on lavani basis. Under the circumstances of the case, the plea of the appellant that the document in question had been obtained by way of security for the loan advanced to her by the respondent cannot be lightly ignored. In fact, she gave evidence before the Court to the effect that she had executed such document by way of security for the loan borrowed by her from the respondent. She had also examined her son as D.W.2 who has clearly supported the version of D.W.1 in Court. The husband of the appellant having been dead, he could not be examined in Court. Therefore, in so far as the appellant is concerned, besides examining herself, she had also examined her son who was present at the time of the alleged transaction. Both D.W.1 and D.W.2 have consistently spoken to about the transaction in question being a loan transaction. On the other hand, the evidence adduced on behalf of the respondent was highly inconsistent. If P.W.3 is to be believed, then P.W.2 cannot be believed. In such nature of evidence adduced on behalf of the respondent, the plea taken by the appellant which has been substantiated by the evidence on record cannot be lightly ignored. Furthermore, having regard to the conduct of the respondent in deposing falsely before the Court that he was earlier cultivating the lands as a tenant and the interpolation to the document Ex. P1, so as to appear as though the possession was delivered to the respondent on the same day pursuant to an agreement of sale Ex. P1 will clearly disentitle him to the discretionary relief of specific performance. As I have already stated the jurisdiction to decree specific relief is discretionary and the Court can consider various circumstances to decide whether such a relief is to be granted. Merely because it is lawful to grant specific performance, the Court need not grant the decree for specific performance, but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act as to under what circumstances that Court shall exercise such discretion. If under the terms of the contract, the plaintiff gets an unfair advantage over the defendant, the Court may not exercise its discretion in favour of the plaintiff. So also specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of the agreement. If it is inequitable to grant specific relief, then also the Court would desists from granting a decree to the plaintiff. Section 20 of the Specific Relief Act preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all the facts and circumstances of the case before granting decree for specific performance. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter in the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. In the connection a reference may be made to the decisions of the Hon'ble Supreme Court , and 2001 AIR SCW 3046. That apart, it has to be mentioned that the party who seeks to avail the jurisdiction of a Court and specific performance being equitable relief must come to the Court with clean hands. The party who makes false allegations and interpolations to the document does not come with clean hands and he is not entitled to the equitable relief. The grant of decree for specific performance of contract is not automatic as sought to be contended by the learned Counsel for the respondent and is one of the discretions of the Court and the Court has to consider whether it would be fair, just and equitable. The Court is guided by the principles of justice, equity and good conscience. In the instant case, it would appear that the respondent-plaintiff had been trying to take an unfair advantage over the appellant and that in the circumstances of the case, the appellant would not have intended to sell the property to the respondent. That apart, the circumstances in the case also point out that the respondent had not come to the Court with clean hands: Merely because the appellant did not reply the letters and notice issued by the appellant, no inference can be drawn that the plea that was taken by her in the written statement was false and untenable. The entries in the RTC extracts would show that the appellant has been in possession, but the recitals of the document Ex. P1 would show that the appellant had delivered possession and these recitals as I have already stated, appears to be an interpolation to the document Ex.P1. Granting of specific performance is an equitable relief though the same is now governed by the statutory provisions of the Specific Relief Act. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance these salutary guidelines shall be in the forefront of the mind of the Court. Having carefully perused the judgment of the Trial Court, I find that the Trial Court did not keep the salutary guidelines in the forefront of its mind while granting the decree for specific performance. The Trial Court did not consider the question whether it would be fair, just and equitable to grant the decree for specific, performance in the facts and circumstances of the case. Therefore, having given my anxious consideration to the entire matter in issue, I find that the impugned judgment and decree of the Trial Court cannot be sustained in law, in so far as it relates to the relief of specific performance and it is liable to be set aside.
11. In the instant case, it is not in dispute that the respondent-plaintiff had paid a sum of Rs. 40,000/- to the appellant-defendant at the time of the execution of the document Ex.P1. I am of the opinion that the interest of justice would be squarely met if I direct the appellant-defendant to pay a sum of Rs. 40,000/- to the respondent-plaintiff together with interest thereon at 14% per annum from the date of the agreement of sale i.e., 14.06.1993 till realisation. Thus, the respondent-plaintiff will be entitled to recover a sum of Rs. 40,000/-together with interest thereon at 14% per annum from the date of the agreement of sale i.e., 14.06.1993 to the date of realisation of that amount. There shall be a charge for this amount on the plaint schedule property and the respondent-plaintiff would be at liberty to enforce the decree against the appellant and her property, in case the appellant fails to repay the said sum of Rs. 40,000/- with interest at 14% per annum from the date of the agreement. Accordingly, I modify the impugned judgment and decree of the Trial Court to the extent as indicated above.
12. In the result, therefore, this appeal filed by the appellant-defendant is allowed by modifying the judgment and decree of the Trial Court in the manner and to the extent as indicated above. The suit of the respondent-plaintiff is decreed for a sum of Rs. 40,000/-together with interest thereon at 14% per annum from the date of the agreement Ex.P1 i.e., 14.06.1993 till the date of payment in lieu of specific performance. There shall be a charge for this amount on the plaint schedule property as has been indicated above. The appeal stands disposed of with the aforesaid modifications and directions. But, in the circumstances of the case there shall be no order as to costs.
13. At this stage, the learned Counsel for the respondent-plaintiff submits to the Court that he had deposited a sum of Rs. 61,000/- beforc the Trial Court which may be ordered to be refunded. The said submission made by the learned Counsel for the respondent is placed on record and the Trial Court is hereby directed that if, the respondent - plaintiff had deposited such amount on 12.01.1996, the same may be ordered to be refunded to the respondent-plaintiff.