Karnataka High Court
Yallappa S/O Babu Mali vs Hussainsab S/O Mahammadsab @ Mammusab ... on 25 January, 2025
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NC: 2025:KHC-D:1488-DB
RFA No. 100577 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO. 100577 OF 2019 (SP)
BETWEEN:
YALLAPPA S/O BABU MALI
(WRONGLY MENTINED AS YALLAPPA
S/O BABU @ SHIVARAY MALI),
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O: KADAKOL ROAD, JAMKHANDI-587301,
DIST: BAGALKOTE.
...APPELLANT
(BY SRI. RAVI S BALIKAI, ADV)
AND:
HUSSAINSAB S/O MAHAMMADSAB
@ MAMMUSAB KUDACHI
AGE: 78 YEARS, OCC: AGRICULTURE,
R/O: SARAWAD-5863201,
Digitally signed TQ & DIST: VIJAYAPURA.
by
MOHANKUMAR
B SHELAR ...RESPONDENT
Location: High (BY SRI. GIRISH A YADAWAD, ADV)
Court of
Karnataka, RFA FILED UNDER SEC. 96 OF CPC., 1908, AGAINST THE
Dharwad Bench
JUDGMENT AND DECREE DTD:30.10.2019 PASSED IN
O.S.NO.148/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE, JAMKHANDI, DECREEING THE SUIT FILED FOR SPECIFIC
PERFORMANCE OF CONTRACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RFA No. 100577 of 2019
CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This regular first appeal is filed by the appellant, challenging the judgment and decree dated 30.10.2019 passed in O.S.No.148/2015 by the learned Additional Senior Civil Judge, Jamkhandi.
2. For convenience, the parties are referred to, based on their ranking before the trial court. The appellant was the defendant, and the respondent was the plaintiff.
3. Brief facts, leading rise to the filing of this appeal are as follows:-
The plaintiff filed a suit against the defendant for a specific performance of the contract. It is the case of the plaintiff that the defendant is the absolute owner of the suit schedule property. He agreed to sell the same for valuable consideration of Rs.40 lakhs, and executed a registered sale agreement dated 05.10.2013 by receiving -3- NC: 2025:KHC-D:1488-DB RFA No. 100577 of 2019 advance sale consideration amount of Rs.15 lakhs. Further, agreed to execute a registered sale deed by accepting the balance consideration amount of Rs.25 lakhs on or before 04.10.2015. It is contended that, the plaintiff was/is always ready and willing to perform his part of the contract. The defendant failed to perform his part of the contract, and he evaded the same on one or the other pretext. The plaintiff got issued a legal notice dated 30.07.2014, calling upon the defendant to receive the balance sale consideration amount and execute a registered sale deed. The defendant replied to the legal notice vide reply dated 09.07.2015, denying the contents of the legal notice issued by the plaintiff. The plaintiff issued another legal notice on 26.10.2015, calling upon the defendant, to execute the registered sale deed as agreed upon. The defendant again replied to the legal notice dated 26.10.2015, denying the contents of the legal notice. Hence, a cause of action arose for the plaintiff to file a suit for specific performance of a contract.
Accordingly, prays to decree the suit.
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4. The defendant filed a written statement denying the averments made in the plaint. It is contended that, the defendant does not know the reading and writing of Kannada or any other language, and the plaintiff, taking undue advantage, has induced him to execute the agreement of sale of the suit properties by misrepresentation of facts. It is also contended that the suit schedule property is a joint family property, which was acquired from the joint family funds, the family members are having a share in the suit land. The defendant is not a manager of the joint family. The suit land is the only property and has an NA potentiality; as such the suit land has more value. It is contended that there was no necessity of selling the suit land. It is also contended that, there is no cause of action to file the suit. Hence, prays to dismiss the suit.
5. The trial court based on the aforesaid pleadings, framed the following issues: -5-
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1) Whether the plaintiff proves that the defendant entered with him a sale agreement dated 05.10.2013 thereby agreeing to sell the suit property for a consideration Rs.40,00,000/- and accepted an earnest money of Rs.15,00,000/- ?
2) Whether plaintiff proves that he was/is ready and willing to perform his part of contract?
3) Whether plaintiff proves that the defendant failed and neglected to perform his part of contract?
4) Whether the defendant proves that the plaintiff taking undue advantage of his illiteracy and ignorance, upon fraudulent misrepresentation got the document styled as sale agreement executed in his favour?
5) Whether the plaintiff is entitled for decree as sought for?
6) What order or decree?
6. The plaintiff to substantiate his case, examined himself as Pw.1, examined two witnesses as Pws.2 and 3, and marked 6 documents as Exs.P1 to 6. On the other hand, the defendant examined his father cum Power of Attorney holder as DW.1, and marked 10 documents as Exs.D1 to 10. The trial court, after recording the evidence, hearing on both sides and on assessment of oral and -6- NC: 2025:KHC-D:1488-DB RFA No. 100577 of 2019 documentary evidence, answered issue Nos.1 to 3 and 5 in the affirmative, issue No.4 in the negative, and issue No.6 as per the final order. The suit of the plaintiff was decreed with costs, and directed the defendant to execute a registered sale deed in favour of the plaintiff within two months from the date of the order.
7. The defendant aggrieved by the judgment and decree dated 30.10.2019 passed in O.S.No.148/2015, filed this regular first appeal.
8. Heard the learned counsel for the defendant and the plaintiff.
9. Learned counsel for the defendant submits that the plaintiff has failed to prove the execution of an agreement of sale. He submits that the defendant has seriously disputed the contents of the sale agreement and also denied the receipt of the sale advance amount of Rs.15 lakhs. He submits that, the plaintiff has not led any evidence nor proved the payment of a huge sum of sale -7- NC: 2025:KHC-D:1488-DB RFA No. 100577 of 2019 advance money. He further submits, that the plaintiff has failed to prove that he was ready, and willing to perform his part of the contract as per section 16(c) of the Specific Relief Act. He submits that, the plaintiff was in a dominant position and had an unfair advantage over the defendant, and the plaintiff dictated the contents of the Ex.P1. The said agreement of sale is created at the instance of the plaintiff. He further submits that, the trial court, while exercising its judicial discretion, has not properly exercised its judicial discretion under Section 20 of the Specific Relief Act. Hence, on these grounds, prays to allow the appeal.
10. Per contra, learned counsel for the plaintiff submits that, the defendant executed a registered sale agreement in favour of the plaintiff by receiving advance consideration of Rs.15 lakhs, and agreed to pay the balance consideration amount at the time of registration of the sale deed. He submits that, the plaintiff, to show his readiness and willingness, got issued a legal notice calling -8- NC: 2025:KHC-D:1488-DB RFA No. 100577 of 2019 upon the defendant to receive the balance consideration amount and execute the registered sale deed. He further submits that, the defendant has admitted the execution of the sale agreement in favour of the plaintiff, regarding the suit schedule property. He submits that, when the defendant had admitted regarding the execution of the sale agreement, said admission is sufficient to hold that the plaintiff had proved the sale agreement executed by the defendant in favour of the plaintiff. He also submits that, the plaintiff proved that, he was/is always ready and willing to perform his part of the contract. The trial court has rightly decreed the suit. There is no error in the impugned judgment. Hence, on these grounds, he prays to dismiss the appeal.
11. Perused the records, and considered the submissions of the learned counsel for the parties.
12. The points, that arise for our consideration are that:
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1) Whether the plaintiff proves that the defendant executed a sale agreement dated 05.10.2013 agreeing to sell the suit property for consideration of Rs.40 lakhs and accepted an earnest money of Rs.15 lakhs?
2) Whether the plaintiff was/is always ready and willing to perform his part of the contract?
3) Whether the defendant proves that in case if the suit for specific performance of a contract is granted the defendant would be put to hardship?
4) Whether the defendant proves that the judgment and decree passed by the trial court is arbitrary and erroneous?
5) What order or decree?
13. Re-point No.1 and 2: These points are interlinked with each other and they are taken together for common discussion to avoid the repetition of facts.
The plaintiff, to prove his case, examined himself as PW.1. He has deposed that, the defendant is the absolute
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NC: 2025:KHC-D:1488-DB RFA No. 100577 of 2019 owner of the suit property. He agreed to sell the suit schedule property for valuable consideration of Rs.40 lakhs, and the plaintiff paid a sum of Rs.15 lakhs as an advance sale consideration amount, and it was agreed that, the balance sale consideration amount is to be paid on or before 04.10.2015, and it was agreed that, the defendant shall execute a registered sale deed on or before 04.10.2015. He has deposed that the plaintiff was/is always ready and willing to perform his part of the contract, but the defendant was not willing to perform his part of the contract. The plaintiff got issued the legal notices dated 30.07.2014 and 26.10.2015 calling upon the defendant to receive the balance consideration amount and execute the registered sale deed. The defendant replied to the legal notices by his reply notice dated 09.07.2015 and 03.11.2015. The defendant, in the reply, denied the execution of the sale agreement and receipt of Rs.15 lakhs as an advance sale consideration amount.
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14. The plaintiff has produced the registered sale agreement marked as Ex.P1, which discloses that the defendant agreed to sell the suit schedule property for valuable consideration of Rs.40 lakhs, and received a sum of Rs.15 lakhs towards advance sale consideration amount, and also it was agreed that, the defendant shall execute a registered sale deed on or before 04.10.2015. The said sale agreement was registered on 05.10.2013. Ex.P2 is the RTC extract of the suit property, which discloses that the defendant is the absolute owner of the suit schedule property and he has acquired the suit property as shown in M.R.No.486/2008-09 dated 30.07.2009. Exs.P3 and 4 are the office copies of the legal notices issued by the plaintiff to the defendant, calling upon the defendant to receive the balance sale consideration amount, and execute the registered sale deed. Exs.P5 and 6 are the reply notices issued by the defendant, wherein the defendant has denied the execution of Ex.P1, and receiving of an advance sale consideration amount of Rs.15 lakhs.
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15. In the course of cross- examination, it was suggested to PW.1 that, the land was standing in the name of the defendant. The said suggestion was admitted by PW.1. It was suggested that, PW.1 has fraudulently obtained the thumb mark of the defendant in the guise of obtaining an election identity card. He denied the said suggestion. It was suggested to PW.1 that the said land was purchased by the defendant and his family members. The said suggestion was admitted by him. To the suggestion that, there is no division in the defendant's family. PW1 pleads ignorance. The plaintiff to prove the contents of the Ex.P1, examined the attesting witness as Pw.2, who has deposed that, the defendant agreed to sell the suit schedule property in favour of the plaintiff for the valuable consideration of Rs.40 lakhs and the plaintiff paid Rs.15 lakhs to the defendant. After receiving the advance sale consideration amount of Rs.15 lakhs, the defendant executed the registered sale agreement dated 05.10.2013. He has deposed that, he was present at the time of
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NC: 2025:KHC-D:1488-DB RFA No. 100577 of 2019 execution of a sale agreement, and he affixed his signature on Ex.P1 as a witness to the transaction. His signature is marked as Ex.P1(b). In the course of cross- examination, nothing has been elicited to discard the evidence of Pw.2. Pw.3 is the scribe of the sale agreement. He has deposed that, on 05.10.2013, the plaintiff and defendant, Shekhar S/o Babu Mali, Yusuf S/o Ameerbeg, and Sunil Shankarayya Hiremath approached him, and requested to draft the sale agreement. As per the instructions of the defendant and one Husainsab, he has drafted the sale agreement and thereafter, read over the contents. The parties, after having understood the contents of the sale agreement, have affixed their signatures and thumb marks on the sale agreement. The signature of PW.3 is marked as Ex.P1(c). Nothing has been elicited from the mouth of this witness to discard the evidence.
16. In rebuttal, the father cum Power of Attorney holder of the defendant was examined as DW.1. He filed
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NC: 2025:KHC-D:1488-DB RFA No. 100577 of 2019 the examination-in-chief along with an affidavit and reiterated the written statement averments. He has deposed that, the defendant is an illiterate, and he does not know reading and writing of kannada or any other language. He has deposed that, the plaintiff, by misrepresentation of facts, obtained the signatures of the defendant and created the sale agreement. He deposed that, the suit schedule property is the joint family property of the defendant and his family members. The alleged sale agreement is not enforceable. The defendant relied on the documents Ex.D1. Ex.D1 is the General Power of Attorney which discloses that, the defendant had executed a power of attorney authorizing DW.1 to depose, on behalf of the defendant; Ex.D2 is the khata extract; Ex.D3 is the RTC of RS No.434/1B/1, of the suit land which discloses that the defendant is the owner and in possession of the suit schedule property. Ex.D4 is the voter's ID card, which discloses the identity of the defendant. Ex.D5 is the copy of the legal notice issued to the plaintiff by the family members of the defendant stating that they have learnt
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NC: 2025:KHC-D:1488-DB RFA No. 100577 of 2019 that the plaintiff entered into a sale agreement with the defendant in respect of R.S.No.434/1B/1 measuring 2 acres 7 guntas on 05.10.2013. It is stated that he is ignorant and does not know reading and writing. He further states that, the suit property is the joint family property purchased out of the joint family funds. Ex.D6 is the reply issued by the plaintiff to the legal notice Ex.D5. The plaintiff denied the contents of Ex.D5. Exs.D7 and 8 are the postal acknowledgments. Exs.D9 and 10 are postal receipts.
17. In the course of cross-examination, DW.1 admitted that he had acquired the suit schedule property as per the compromise decree passed in RSA No.145/2006. From the perusal of the entire material on record and also the evidence of PWs.1 and 3 and DW.1, it is clear that the defendant is the absolute owner of the suit schedule property. He acquired the said property under a compromise decree passed in RSA No.145/2006. The defendant agreed to sell the suit schedule property in
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NC: 2025:KHC-D:1488-DB RFA No. 100577 of 2019 favour of the plaintiff for the consideration of Rs.40 lakhs, and the plaintiff paid a sum of Rs.15 lakhs as an advance sale consideration amount and the defendant executed the registered sale agreement on 05.10.2013, and it was agreed that the defendant shall execute the registered sale deed on or before 04.10.2015. The plaintiff, to establish that, he was/is always ready and willing to perform his part of the contract, got issued a legal notice on 30.07.2014 as per Ex.P3. The defendant replied to Ex.P3 -legal notice vide reply, dated 09.07.2015. Further, in the reply, the defendant has denied the execution of a sale agreement and receiving of receipt of Rs.15 lakhs as an advance sale consideration amount. The plaintiff again issued another legal notice on 26.10.2015, calling upon the defendant to receive the balance sale consideration amount and execute the registered sale deed. The defendant replied to the legal notice as per Ex.P6 on untenable grounds.
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18. Though, the defendant has taken a defense in the written statement that the plaintiff has played fraud and misrepresented the defendant, and created the sale agreement, the defendant has not entered the witness box, and it is observed that the defendant examined the power of attorney holder. Admittedly, DW.1 was not present during the sale talks between the plaintiff and defendant. DW.1 has no personal knowledge about the sale transaction. A power of attorney holder cannot depose on behalf of the principle in view of the law laid by the Hon'ble Apex Court in the case of JANKI VASDEO BHOJWANI AND ANOTHER VS. INDUSIND BANK LTD., REPORTED IN AIR 2005 SC 439. Hence, the evidence of DW.1 cannot be considered. Therefore, his evidence is discarded.
19. However, it is the defense of the defendant that, the suit schedule property is the joint family property of the defendant and his family members. The defendant, except producing the RTC extract, has not produced any other records to establish that the suit schedule property
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NC: 2025:KHC-D:1488-DB RFA No. 100577 of 2019 was the joint family property of the defendant and his family members. The plaintiff has produced the certified copy of the compromise petition and judgment passed in RSA No.145/2006, which discloses that, the defendant had acquired the said property under the compromise decree passed in RSA No.145/2006. There is no rebuttal evidence by the defendant. Hence, the plaintiff has proved that the defendant executed the registered sale agreement in favour of the plaintiff for valuable consideration of Rs.40 lakhs, and the defendant received a sum of Rs.15 lakhs towards an advance sale consideration amount. The plaintiff was/is always ready and willing to perform his part of the contract. On the other hand, the defendant was not willing to perform his part of the contract. In view of the above discussion, we answer point Nos.1 and 2 in the affirmative.
20. Re-Point No.3: Learned counsel for the defendant submits that the trial court has not exercised judicial discretion under Section 20 of the Specific Relief
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NC: 2025:KHC-D:1488-DB RFA No. 100577 of 2019 Act. He submits that in case the suit for specific performance of the contract is granted, the defendant would be put to hardship. He submits that the defendant, except the suit schedule property, does not possess any other properties, and the defendant's family depends on the income derived from the suit schedule property. During the course of the cross-examination, DW.1 admitted, that the defendant had purchased 10 acres of land at Shirol village from Mulgode and he has 3 acres 7 guntas of land in R.S.No.457. The defendant has other properties, other than the suit schedule property.
21. Section 20 of the Specific Relief Act, would go to show as to under what circumstances hardship can be taken into consideration in refusing the specific performance of the contract. It is not possible to enumerate the different circumstances that constitute a hardship. It will suffice if it is noted that the question of hardship will have to be adjudged in the facts and circumstances of the case.
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22. As per Section 20, merely a rise in price subsequent to the date of the contract is not to be treated as a hardship entailing refusal or specific performance of a contract. Further, the hardship involved should be one not foreseen by the party and should be collateral to the contract. In some cases, it is not just one factor or two that is relevant for consideration. But it is the sum total of various factors which is required to enter into the judicial verdict. Merely, the defendant has pleaded in the written statement that the defendant does not possess any other properties and, if specific performance is granted, would cause hardship is not a ground to decline the relief of specific performance of a contract. The Hon'ble Apex Court in the case of PARSWANATH SAHA VS. BANDHANA MODAK (DAS) AND ANOTHER IN CIVIL APPEAL NO.14804/2024 disposed of ON 20.12.2024 reported in 2024 SCC ONLINE SC 3834 held in para No.34, which reads as under:
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NC: 2025:KHC-D:1488-DB RFA No. 100577 of 2019 "34. The High Court seems to have overlooked the fact that the question of hardship in terms of Section 20(2)(b) of the Act, 1963, read with explanation (2), bears reference to hardship, which the defendant did not foresee at the time of entering into the contract. In other words, the issue of hardship would come into play only if it is established by cogent evidence that late Prabha Ranjan Das, who executed the agreement of sale, was unable to foresee the hardship at the time of entering into the contract".
23. Thus, the defendant has failed to establish that if the specific performance of the contract is granted, the defendant would be put to hardship. In view of the above discussion, we answer point No.3 in the negative.
24. Re-Point No.4: The trial Court, considering the evidence of PWs.1 to 3 and Ex.P1 i.e., Registered sale agreement, held that, the defendant has not entered the witness box, and has held that, the plaintiff has proved that, the defendant agreed to sell the suit schedule property for valuable consideration of Rs.40 lakhs, and the plaintiff paid a sum of Rs.15 lakhs as an advance sale
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NC: 2025:KHC-D:1488-DB RFA No. 100577 of 2019 consideration amount, and the defendant executed the sale agreement as per Ex.P1 and also recorded a finding that, the plaintiff was/is always ready and willing to perform his part of contract. On the other hand, the defendant did not perform his part of the contract. The defendant committed a breach of contract. The trial court rightly decreed the suit. We do not find any error in the impugned judgment. We concur with the impugned judgment. Accordingly, we answer point No.4 in the negative.
25. Re-Point No.5: As we already answered point Nos.1 to 4 in favour of the plaintiff, accordingly, we proceed to pass the following:
ORDER The appeal is dismissed.
The judgment and decree passed in
O.S.No.148/2015 by the learned Additional
Senior Civil Judge, Jamkhandi, is hereby
confirmed.
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RFA No. 100577 of 2019
No order as to the costs.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
SKS