Karnataka High Court
T S Ratna W/O T Datta vs S Subramanyam S/O Late Seshadri on 19 April, 2010
Bench: D.V.Shylendra Kumar, N.Ananda
IN THE HIGH COURT OF KARNATAKA CIRCUIT BEN CH AT DHARWAD DATED THIS TI-IE 19H DAY or? APRIL 2:mT of . BEFORE 4C1II I THE HONBLE MR. JUSTICE D.V:;.._SH-YLENQRA"'KUM.AR.A ' AN::,._ THE HON'BLE MR. A1\zoAi\ IrpA,? R.F'.A. .452 Between: 1 Smt. T.S. Ratna W'/"o»».T].i--D9¢ta; Age: Major, Sinecu.re;A;fVC'A__~.'_ ' __ . Parnpashastri Ciom-pound,» I 7"! Ward, Ho'spet':._V'" " C' b Srnt. Veiena He I ' and I I A 1" _. _ Sr]? ISubraTnanyarn., SV/'0 1at.e'ASeshadri, No. 8. 2. S/o'VSesh2;t:1riA1'Now9, _'i._Bo'th. are I\/Iajfiozfs. Hindus, fo_5*--*.? 'cross',-' Swimming Pool Extention, Bangalore. Bhavani c/o defendant no. 2. Sobha c/o Defendant no. 2. 6a) 6b) B. Ramanna Setty, S / 0 Keshavappa Setty, B. Rajagopal s/o Keshavappa Setty, Since deceased by his LRS. B. Suguna W/O late B. Rajgopai Setity;» Housewife, c/0 B. Keshavappa Setty,' Venkatesh s /0 late B. Rajag§p.aJ, Aged about 7 years, being a rI1i,i1o.tj_ by i_ Guardian mother Sp.-g}1na,A..i""' = W/0 B. Rajagopal Se-tty. _ B. Raghavendra s/o VK-eeh:-a.vapp,a" B. Ravi s/Q B. Rao, B. Ke'sha.'vaPf.3ai " B 7/ 40, sirvlcey decvea.$edV'by"hi'S LRS. B. G1_1,m.1praaead ; ~ ' S / ,0_2.C1ate B. Lesh.ayap.pa Settu. 'Sufiémda Bai, _. W.'/ 0' Sriinyivasa Murthy, D /" o._1at'e 'E§es1;1avappa Setty. Srrif. SIi.a1ifa1nma, ' D/ 0 lateii-Keshavappa Setty. Blfialapathi, 7/40, -- Since deceased by his LRS. ' ' » . _ __i1 Shakuntalamma, W/0 late T. Chalapathi, 11b) T. Srinivasa Rao, s / o late '1'. Chalapathi, 11c) Smt. Lakshmi Rajyarn. T, d/0 late T. Chalapathi, 11d) Nirmala. T., d/o late T. Chalapathi, lle) Bhanurnathi. T, d / o late T. Chalapathi._,_A Ill) Savithri. T, V j d/o late T. Chalapathif' -- Ilg) Padma. T, 'V W (1/0 late T. Ch"al.ap'athi;"--e.'.':f. A' = r/o Parnpapasastry_Coii1pou11d, _ -- Chittawadigi Road, Hospet. " ' '- ' A' - Respondents
(by Sri J .S. Shetty, _Ad'v.oca_te~.for R1, Sri Jagadish Patil, Advocate for R3 85 R4, Slfi AnaI1»t.'..R. l'Hegde,"AdV_Ocate for R5a to RSC, I-?6A; -R68, 'R*7=to"R9 and R10a, Sri'A;NV."B,ad-iger.'«Advocate for R1013, R2, R_1VO.(:.) Rv.1'1~3, "tol'fR.I 1 g -- served and unrepresented) The-«.__aboVe..lA«appeal is filed 11/8 96 of cpc against the lfigxdgrnent a.ndg_ decree dated 08.01.2003 passed in O.S. No. ""24"/'93 on therfiie of the Civil judge (Sr. Dn.) 85 JMFC, Hospet, 'i._disn1i_ssing~A_the suit for specific performance of contract. Tlge above appeal coming on for orders, Shylendra V _ K'cs.rria.1';' J, delivered the following judgment. w Judgement
1. This appeal u/ S 96 of CPC is against the decree passed in o.s. No. 24/93 on the file oi*Ci1s)fi'lgIt1::C:i' Dn.] 8: JMFC, Hospet. Though the ::r1'at--ter for 1' orders regarding non--compliance of taken up the appeal for disposal"haxrjng regards "lirnitedf issues involved in the appeal',
2. We have heard'.Smt.:.'v'een'aVHyegder. learned counsel for appellant, Sri Anlanltiigjiéiiegflggppllearnedlconlnsel appearing for respondentpflflr. and 10[a) and gone through the lower Court with records, documentaryéand and law on the point and we are 'th:a.t_.__rthis is an appeal which deserves disinissfal .o11._,the«vfo'il0Wing facts and the foregoing reasons. _ '1'h"e. suit' was for specific performance on the premise 1 ofthe defendants, particularly defendant no. 1 and '.'_h_a(lr.vVeXe--cuted an agreement dated 17.11.1992 to sell the "schedule property in favour of the plaintiff for a Consideration of Rs. 8.00.000/- and for which purpose under the suit agreement a sum of Rs. 25.000/-- had alreeidjvrbeen received, which amount of course was entitled togbel by the owners of the suit schedule property'.inl,.'4tl1'e' x plaintiff fails to perform her part of paying the baiance sale consideration olf7Rls. if
4. Defendant Nos. 1 and}; ha.d"'der:1ieda.t_he eiiecution of the suit agreement as per that it is a forged documentg, '«1fl"hadVconltended that they had borrowed a" :'--fron'1 the plaintiff and in that connection' the pretext of non availability of a prof'orn'1a_4.VdVernalnd " lbromissory note had obtained s.ig.nature5s and 2 on revenue stamps affixed aria which has been subsequently forged by to make it appear as an agreement Defendants 3 and 4 had questioned the rights of and 2 to enter into the alleged agreement in V' individual interest of defendants 3 and 4 in the suit at if tile property.
5. T he trial Court framed several issues which are not relevant for disposal of this appeal except issues nog"l"_an(iy4 which are as under:
Issue No. 1. Whether the plaintiff proves that --defendants 1 and 2 on their behalf anda-lso; o.n"behalf of.
defendant no. 3, and'-,4 ag1"e'ed'iit.o"se1l suit' 7;] schedule property in fax/our of the p1a*mafi*. for a sum of RS _8;0..O,QOO/~ tak;ing*,an. V advance of Rs.25;0to0/-- from the plaintiff by cheque dated l'7,_l..l:.*l.9Q.2 and" executed an agreernent__--'e-um-j?recei'pt on~_17.1 1.92 Confirming" the agreement A.oVf>sale as alleged in the plaiiifi?" 5 i Issue No. 4. 3' _W.§ie,the'i*' the:'.fe.1ain.tiff"»proVes that defendant .... ' No"; 3-1;and-»__4 were --under the care and custody 'l'of3defe°r1da:n'ts I and 2 and they agreed to sell ' the 'p:fopperty__and joined in the execution of V' " salede-ed infavour of the plaintiff as alleged V' _in.p1ain't'f'_ it \£fent'~.t_o trialmon the issues that had been framed by the far as this appeal is concerned, the Vsignificant cl'ocuI'nentary evidence is Ex.P.5 said to be an executed by defendants 1 and 2 to sell the suit "property not only on their behalf but also on behaif il.l"~___offidefendant 3 and 4 who are the children of deceased younger brother of second defendant. in favour of the plaintiff for sale consideration as indicated above.
6. The learned trial Judge on appreciation of the._'ey:id'e'n_ee on record has found that Ex.P.5 is not a and it is not an enforceable agreement' to 4. Accordingly answered issue So also answered issue no. 4 that defendant no. 3 and éjmyere on the date of the execution of the alleged they were not under the care ar1d--:(;§1;1sto§fly nos. 1 and 3. but on the ether majority as on the date of the so called agreemeln.t ldate.d717. 1 1.1992 marked as Ex.P.5. ~ir1 View of the aforestated findings the suit was idisrni ,S1~S€3(iil';._: ' V V Beingvvaggrieved by the dismissal of the suit, present ': . 'preferred.
we ......
9. Submission of Smt. Veena Hegde. learned counsel for the appellant is that the defendant no. 1 and 2 having"
admitted their signatures on Ex.P.5, there further that was required to be proved on the In so far as EX.P.5 is concerned.
grossly erred in holding that the to that Ex.P.5 was a valid enforceable'agrehenzent eye of V law.
1.0. However, with. regard~--..to issue no. 4, regarding authority land 2 to execute an agreementf7on'-- behvaifjoi' no. 3 and 4 who had attained the age of as on the date of EX.P.5 the lea.1jned for app_e1l.ant is not joining issue before us by sabmittin.g----is a fact that defendants .3 and 4 had ff"i.___3.attained"'the majority as on the date of E.x.P.5 and the recorded lay the trial Court on this aspect is correct, 4:all"h.ut:lnexfe'r'i7he1ess defendant nos. 1 and 2 having acted on their . also, and having admitted they have also acted on Vfie.::'hel1aIf of defendant no. 3 and 4 the suit agreemeiit should g/, iiiii >4 9 have been held as binding on defendants 3 and 4, having regard to proximity of relationship between defenda.nt..:'iio:--vV2 and defendant 3 and 4 and that defendants acted bonafide to protect their tnterest.:al'so..g M l if if
11. Sri Anant Hegde, learned 5(a), 503}. 6(a), 6(b), 7. 8. 9 aubrrriitslj'thatfléarnedl"V trial Judge has Very correctlyg'he1}::i'lthatg llilevvnoflat all an agreement. in the eye of aided document. Even the other not joined the document, it cannot leons--t1*ued..aS"::an agreement for sale. and at the ljest. it -receipt executed by defendant no. 1 and 2 for4.lwhatetrer" i.tl'..'t'was worth. Sri Hegde further sv1:ibmitsV_»t'h.at__lAa reCeipt.c_a_1;1;1ot be construed as an agreement, that -fo1*v._,4conxre3*i_ng immovable property of the value of :'l"'..._"more tliar1lRa. and that the finding of the learned _.l_f--t.r.i4al.._.Ju dge 4' s 'correct. '._'_"12;§_°'Inl far as the issue no. 4 is concerned, the learned V. V-l:g'eQu'nse%l for defendants would submit that defendants 3 and 4 10 not being parties to Ex.P.5 the same can not be enforced against them and the finding recorded by the trial Court on this issue does not call for interference.
13. We have bestowed our attention to the subrr1i.ssi.on_S"-at the 'oar and looked into records, judgment rnemoran dum.
14. We have carefully SC1'LltiT]lZ€(f1 agreement on the basis of whiCh_fi"Ep€eifie.__ perforri;_ar1ee"' had"
been sought by plaintiff» Otir" seru--tiny§' clearly indicates all agreement. of sale in the eye oflaw. " if e l ' ' Ex.P.5 lwhieth document with several interpolatjoiis. reaCl"el1underl:':
.. . V V " ..... ..RECE:H)T V Subramanyarn and (2) Gopinath, Sonlsloi la;te_-_ Selshadri, Bangalore, this day, received sum of Rs.25.000/e (Rupees Twenty Five thotieands only] from Smt. T.S. Ratna, wife of Datta Pornpasastry Compound, I-iospet {OX-V8_I'§S the advance Sale consideration amount of Rs.8.00,000/-- (Rupees eight iakhs only}. We have agreed t.o sell our portion of the property situe_it.e_d.t<_:'i~.._ in Pompa Sastry Compound, Hospet, morefully described in the plan attached he'rew'ithx;' d bearing door No. Q [underlined-t p0rtior.?_' isH\§V"rit:teVnv..i'i. in handwriting and inserted su'bsejc1ue~11t}y)"~i_r1 Ward, Hospet, for a t,(7»ii-at sale 'L:t)nsi.der_a'tion amount of Rs.8,00,000/--. re(:eipt"As}s executed by us in our. 1:av():;i"'an:d 'eilsfio «favour of other sharers who our late brother. We will the Sale Deed after 'ibai-Llncte of sale by her, on or bei'ore*"I'7*"_":1':/IaréE'1* the amount of advance '-- .rb'e._Tj:iei-'feited (this portion is written inhandwritiiigphénxti inserted subsequently). We, hderebyd execute this Receipt on this '.i.V7'"=*.:V ;o.f:"'NoVen1be1'. 1992, at Hospet. The p§t$zn1enf--Afl.,1,,_Qfg"'RS.25,0O0/~ was 'made through cheque_"bearing No. MBF 32060 dated 17.11.1992 (this portion is written in handwriting and inserted A stib'5;.eq'uent1y] of Endian E32>snk, Hospet. Ex.P.5 bears signatures on f'ou1" revenue stamps ofthe_._ya1ue of 20 pause each. Signdtiures of this nature on stamps are normally found on at receipt axaraextefci demand promissory note. We I_"1a\-re r23:f1'e"1y"CtoA'n4;'e of this Itature being claimed as an immovable property.
15. Above all, one essent_t:gti:«-_>an etgreement is.
that it should be signed ..'o:n£:'--':ézgreeing to sell something and the same for considerationfm acknowledged only by defcx"1(iantS " '
16. H<)\veve1' SrI1~t.{ Hegde. learned Counsel for a_.ppetlza.1':'tj'§;vJo.nldi 2-n;.ie1'1tion to Ex.P.5, and the last Eine w'it}:j*sig:r:1'ature beiow the date 17.1 I. 1992. Bt:.t.Q thvis"s§gi'1at.ure is n<;:it,her marked nor tendered in
-4.T,j'_;'§v.ig1e'rz<':e a's.___Athe%' signature of the plaintiff and therefore is .-no agreement much less for sale of an ble property.
18. "l'l"1e suit is for specific: performance based on l_3;;.P.5. But plaintiff failed to prove Ex.P.5 in the manner law. While the signatures of defendant no. I very diligently marked as E2x.P.5(a] and toll' be the signatures of the t3X€CLtl'.E1IllLS and Gopinath, the so called ofthe. pl.aijntliifis"all left"
to itselfconspicuously stands outbyil"gTettinlg'r;;iai"l{ed.
19. On a careful scrutiny the so called signatures of pla_iri.tifi%ar_e tpl Qertiflyllletirreotions by way of inse1't1'ons--,'to' the of the receipt EIx.P.5.
20. ()th~e'rw_ise also do not find an reason as to wh the V . Y W Y §)1ain'ti,l7f_sho.uld affix her signziijtzres to the corrections made to theli;on~teMnts:o.l_ receipt EX.P.5 which is signed by the l".:-jdlefenclaritls and 2 as executants of the document. If at all _;C'ori*geC'Lion should have been Certified or atflcnowledged it have been under signatures of defendants and not H ' the signatures of the }')l2==iint.il'f. t»/
21. Be that as it may, signatures of plaintiff it is appearing on the receipl Ex.P.5._ it is 1:01. subscribed by a contracting party to thAe>s0 '' On C()nside1'ati0n of the cor1te1'1ts of ei.>.\§?'c~. lacks even the essential reqt1ii'e:<f1e-nts an agreement.
22. Further to compound ffof,~t.h'e.',I'I2ALi;intiIfiappellant We riotice that thei~s():««£e_;a11ec:%A._ [EX.P.5] is said to have been tthetpvroperty described in the plan that an oid plan of blmgaiow of course is; attached to the receipt angi ..m.ari{ed:Vhas' The said plan had come into to Aclaie of Ex.P.5 and it does not bear the defendant no. 1 and 2 or of the u}:31'ai'r1t;tff and it 'czaifinot be eonstzmed as any part. of agreement Ashouid always bear the signatures of contracting V'."_'-.pa1ftie$§w.ahd that being the ba.=sie ingredient ()1?-tr: agreement in The oral evidence of piaintiff and her P.W.2 and P.W.3 to say the least is as discrepant as that of contents of Ex.P;'5}" A_ if V t it It has come out in the c>\.»'idVe11ce»lof is a Post Graduate in Arts.
Accountant, so also her a The plaintiff has taken Krishna, a practicing Advooatelitoeih is said to be present when finalised between plai11t.ift'an<:,;ilV _ The pllai:itiffV"'that when Ex.P.5 was typed. propert.y 1iurtibei* not liitientionecl, so also the cheque fzloltvmeiitiioned. The plaintiff admits in Ex.F'i;*-F3. 'e_ntiref"--sie:ftei'ice reading as under a subsequent V "ir1e_ei'tio:i':-.
'i on before 17*" l\/larch 93; otherwise the of advance paid will be forfeited."
E6 The plaintiff has admitted that E?X.P.5 was not att:est.ed by any of the witnesses to the transaction nor does it an endorsement that it was prepared by P.W.3 relevant time was a praeti(:mg Advocate standing at the bar. it 9 V P.W.3~S. Krishna has c.ieVpos"edv<«t'h:at he Ex.P.5 as per the instructions' angd msecond d€W;1'_1darlE. He has ehange..d_"'::.1.13§sJ_i: that he prepared the draft. of given by plaiiniff and aHQt}i6I':::.--g(i;1'it1:CII}€£;;1ii wi:'1ov{&;as""not known to him. P.W.3 _pi'ee,ent and he had not seen the executiohryof 'bjf--d'{'>'i7:3i1de11':ts 1 and 2. P.W.3 has admitted that he.' does' 'not"k1'.iow wliat transpired between the draft. of Elx.P.5. P.W.3 has pleaded ig1i(ii'*:»-ineeabeagt .v.i'i1'1Se1'tions made in Ex.P.5. P.W.3 has iiiidveposecidthat.he not aware if defendant nos. 3 and 4 had e;¢:e<.s,:.ae:1__ power of attorriey in favour of defendants no. I 'execute EX.P.5 on their behalf. P.W.3 has deposed V had advised the p1aim.ii'f that an agreemerat of sale of @/ immovable property must be recited on the stampqpaper, however the plain1:iff told him that E;><.P.5 wouldms'ti:fi'icec..Vh.er purpose.
23. Thus from the oral €Vid(':'E1C€ of iplaihtiff was a Post Graduate. both Chartered Accountants ancl clefendants no. 1 and 2 are neither nor guardians appointed by the Conrt__ in geasgmgpt persons of defendants no.5 allege to have entered 1 and 2 had authority to~--.t1*acns'fei"time s1,iit:._h's'chedule property not only on their own behallféhhtlvt "::>"ei'ialf of defendants 4 and 5. family of plaintiff if the plaintiff andhx 2 had gone through the suit 'V'.--Ktransacti'o--r1 as sholilnght to be made out by 'the plaintiff, one e>.;pectV"that, plaintiff would enquire about the authority 1 and 2 to extrczite the agreement on behalf of ' »._'Vde§-entiants 3 and 4, more so ii' she had taken the assistance On the other hand. Contention of defendants that the second defendant had boiiowed a sum of Rs. 25,000/-- plaintiff and in that connection the plaintiff signatures of defendants 1 and 2 on revenueu 11 on a blank paper appears to be probable.;_-AAT.}5iis'elis 'also"eVti_dent from the contents of Ex. 13.5 which 'c.ontai11s'interpo1at.ions3 and,:* material alterations regarding theft"-des.criptio~n_ivof property, payment. of consideration. 'l"hese"alte1fat'ions'were not attested or acknowledged by_'defe11dan'tsf':l V ..fl':%ie1'efore we hold that the to prove issue no. 1.
The appreciation of evidence has arisxrigzfeigl '1'fo.fV"lvfagainst the plainltiffs and said ffifdirag: lntltjlhlctglzll rference. 26, clcfeizdants 1 and 2 trarislksrred the suit V'gt.lschedule'~pro.p{:ri:f§7 in 'f'z1vou1- of defendants 5 to 9, the plaintiffs 1'44"_'\?§ri'thVpp."th«:t~cassistance of her husband has concocted Ex.P.5 to V"«.:de_le_at._t'he*"lri.g,{l1ts of defexidants' 5 to 9 under Sale Deed dated Thus we mid that the conduct of the plaintiff is s/1 xmfair on the fiaxce of it ;mc..i it would disentitie pl;-;zi11t:iff for the relief 01" spec.ii"ic perform:n'1ee. Therefore we do r10t_.v§Ii1fici_r a.r1y grounds to interfere with the impugne<:iy:.. j
1.; griaeiié.' Accordingly the appeai is dismissed c_osts}W"
d/, 1 'V V' 'FUDGEE bvv