Karnataka High Court
Syed Zaheer S/O Late Syed Mahaboob vs C V Siddaveerappa S/O C M Veerabhadrappa ... on 18 December, 2009
Bench: K.L.Manjunath, B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THEEVDAY OE DECEMBER,
PRESENT _ J T'
THE HONBLE MRJUSTICE 1% T' 1'
THE HON'BLE MRs..Jus_T1cE"E,§2NAGAR,ATH'NA:-,'.'"'AV 1'
R.F.A.NO.377/2003 ORFA.1\:O..37C§'/2<5{33"'
BETWEEN:
SYED ZAHEER --
"
S/O_ 1..ATE":SY_EDj 1v:A.HAEOO.B ,
-
cH1c{§NLA:3AL'JR , "
SYED , A MAJ_OR,. ' " V s/'O LTE SYED ,. HABOOB _ TAMLL COLON Y, SEANTHA MARKET " CHICKMAGALUR SHAMEEMUNNISSA _ M'AJOR,----w/O NOOR AHAMED "MQSQ,U§E3 ROAD, FRAZER TOW BAN;GA1.ORE , SYED ASHIFUNNISSA MAJOR, W/O MOHAMED UMNLAR OFFICE ROAD, VIJAYAPURA ExTN., CHICKMAGALUR HASEENA W/O SYED MAHABOOB SHARIEFF STREET CHICKMAGALUR ...APPELLANTS (COMMON IN BOTH THE CASES} Axfi (By Sri: M V RAGHUNATH ACHAR FOR A1--5) AND :
C V SIDDAVEERAPPA 5/0 C M VEERABHADRAPPA SETTY 65 YEARS, BASAVANAI-LALLI MAIN ROAD V CHICKMAGALUR ... :@;:~'3I§().NIJ:%EI\§'1'S3:u v (C§'1v1MoN" IN SQTH T_HE"CASES)' [By Sri: c N KAMATH C"/R} 1 RFAS FILED U'/S; J96' -CED AGAINST THE JUDGMENT; DEGREE DT.'1e..1~2.02 PASSED IN D.S.No.179.,/99 i&'--.'.o;S.;I\;c>,.55,--:*9:3A ON THE FILE OF THE CIVIL JUD'GE_.-(SD),"CHIE}:/£AGAjJUR,"'DEcREEING THE SUIT FOR S1éEcH«jI'c%:.;1?ERE'oR1v1ANeE, OF AGREEMENT AND DISMISSING..VeT.TH1E' SUIT FOR DECLARATION AND PossE_SS__1oN.' Tfiese heard and reserved for orders on this day";~.th'e NA~GARATHNA J, pronounced the f0I1ow1'ng:--
.....
V 'Efife.':"appealS are flied against the Judgment and Decree 16.12.2002 passed in O.S.N0.179/1999 and ' " -- Q.S.N/ 1995 respectiveiy. The piaintiffs in « D;S.1§i'o.55/1995 are the defendants in O.S.N0.l'7'9/1999 and % _V_w}ee~versa.
2. For the sake of convenience the parties shal} be referred to in terms Dftheir Status in RF'A.N0.377/2003. fir
3. According to the appellants they filed O.S.No.55/1995 seeking the relief of declaration that the agreementilated 6.5.1991 is unenforceable as they are the owners' possession of the suit schedule property and of accounts under Order XX Rule""Vl'2'«CP"C. .g pendency of the trial the first plaint.i_ff"-i_.'e., died and his legal representati*ves"*were broughtv_;ori':rec'ord as if l{a) to [e] who are the ap.p'ella:nts;"»i._ According to the appellants suit schedijle" Sy.No.33/P measuring 4 acres each' is sitiia.tec:§'in Hiiiekolale village with cornrnon the was granted to Syed Zaheer,E'the«.first.al,.-arrg with Nairnunnissa, w/o of Syed _Mahai::oob.._'V-_Aft._er*°the death of Nairnunnissa, the mutate-din the name of the first and second pfappellpahts; :V"T':7'h:a't.the appellants were in debt and in strained finaricial cirfi-'.:;1::11stances and the first respondent herein who was a..closev friend and in whom the appellants had reposed if 1fffaith'--.exploited the situation of the appellants and obtained a ' deed of agreement of sale of the schedule property in his ldflwvfavour by deed dated 6.5.1991. The said agreement according to them is not signed by Late Syed Mahaboob but only the appellants had signed it. According to the 9 x?
_4_ appellants they wanted a loan from the respondent and he advanced the entire sum of Rs. 13,40,000/--, then respondent took possession under the said agreement and he has-..been in cultivation of the schedule property and i. four annual coffee crops. Accordingto thern"th'c of the " "
Crop is more than Rs.5,00,000/-- in thesyear..19é'3--'9;i;.,,._pine agreement with the respondent A.hve._ reimburse a sum of Rs. 3,40,flGf)l/'~.uwith"intelresti and the respondent should reta_rr1_t};i_e prop-ei*ty'~to the appellants. According to the appellants, non--a1ienation clause of fifteenfgeiearsviwhenll the was granted and that nothenforceable as there was a violations of grant when the agreement was executed. l'Hence'~theyl filed the suit for declaration that «.V'Athe':p_jagr;eoe:nient dlated-----«6.5.l99l is unenforceable and sought V possession _frorn the respondent.
.__p.The"_~ryesp'ondent herein upon service of notice entered appcaranceand denied the material allegations made _:"against'h.irn. He however admitted that possession was with 'hinitand that the coffee plants were six to seven years old that he had developed estate and re--planted the coffee plants since the earlier plants were not yielding and that he :92 9 W5."
had spent not less than Rs.l,35,000/- for development of the coffee estate. He has also stated that coffee had started yielding from the year 1994-95 and that after knowing "abo1;t the value of the coffee estate and in order to . gain and defeat the bonafide p1.irchaser"s"'=interest,"_th,e appellants had filed the collusiye agreement dated 6.5.1991 was..__enforceable theredlfe. was no unfair advantage that thefirstg respondent had taken and that even if ther--.efi«--was a V non--ial'ienation clause as between the parties the "agreemen't'i_wl'as enforceable. After the period lnognaalienationjv th_e'~--first respondent was entitle:rl'wfor'eA sale deed from the appellants and 2 to 4. On the basis of the said pleadings" he sought dismissal of the suit with .....
5;. court framed the following issues for its ' . V consid.eration:
2 1.. Whether the plaintiffs prove that the agreement dated: 6.5.1.991 is not deed of agreement of sale but it is only securities deed for receipts of Rs.3,40,O0O/M from the defendants?
2. Whether agreement dated: 6.5.1991 by land grant rules, since the land is suit darkasth land with not alienation of condition is the grant'? 31 /1'»
3. Whether the plaintiff No.1 proves that the agreement of sale dated: 6.5.1991 is not binding?'
4. Whether the-4 plaintiff is entitled for declaration and possession of the land'?__ l --. --...
5. Whether the plaintiff is entitled for _me»s4n:e.Vpro:Iits? " --« ..
6. What order or decree? _ 1 1
6. In support of their case the«pparti'eVs which shall be adverted to at alater stage. _V v_
7. As far as O.S.No.l79/19l99_d'is_ concerned, the same was filed by the first iesjsondient 'iwhich isua suit for specific"lperfonn_ano:ell'ot"the agreenient dated 6.5.1991. in the plaint is the appellants herein are the children lat.<3.f. Mehaboob and Naimunnissa.
""~._y'1\lai.rri'i1r3.n_iss.a was'v*----g--ranted the suit schedule land on 'she died after obtaining saguvali chit and thatbtthel herein and their father had jointly ',.eXec1u1ted*«._alpower of attorney on 5.1.1984 authorizing the 1' lljffiAVrst''«appellant herein, namely. Sri. Syed Zaheer to sell the ' acqiiired property by late Naimunnissa. Accordingly, he had 1' "entered into an agreement with the respondent herein to sell the suit schedule property items 1 <3: 2 as per general power of attorney executed by other appellants along with their fir 1' n 7 a father late Syed Mehaboob, vide agreement dated 6.5.1991. According to the respondent herein though the sale agreement was executed by the first appellant in the power of attorney holder of other title holders and . Mehaboob, other appellants herein hadalso theiri 9' "
signature to the agreement since theyfWered'presVe'nt"
time of negotiation and that possession, the respondent after receiving the entirety saleconsideéfation of Rs.3,40,000/~ which also ;;_the*--.._'1na'rk_et value of the property then, as the....yaluev--. "th.eV"'lr--.r;;offee land was comparativelyldess the. scl1_edul'e"property was not properly"cultiyeated:fifgand'not yielding a good income. The appellants herein obtain permission from the governmentto exec:.__1te--ithe"sale deed since there was a non- elause 'vin.««'the grant certificate. Since the not come forward to execute the sale deed, a 1egal"notice*V'fwa:s got issued on 24.6.1999 and since there was no response even after the receipt of the legal notice, he had 9' ~fi:1eld'«.theHsuit. Aecording to the first respondent he was ready "willing to perform his part of contract since he had 9' "already paid the entire amount of sale consideration to the plaintiff. The appellants herein had filed O.S.No.55/1995 for cancellation of the agreement, which the first respondent «tr 3' flg_ had contested. Hence he prayed for a direction to the appellants and executors of the agreement dated 6.5.1991. to execute the sale deed in his favour. '
8. Upon service of notice and summons from the --su'it_,:thve appellants herein resisted the suit by filirig." M statement and stated that the agree1ner1t«wa:s not:evn.f_orc'ea;ble--rp and that since the respondent herein was in "pnossess1».jri.. of._ both items of the property an into the rne"snVe'profits 9' 9 had to be gone into. According**--to.."p'the1n the niarket value of the property was respondent had cu1tivate'd"the:+ that they were ready to respondent and sought for return of propevrty*~.as'~t'he agreement dated 6.5.1991 was V' _110tV.._€i1fO1;ycea_ble.AA ' ..... .. v ' On' theanbasis of the said pleadings, the trial court A *~t'ran1_ed-theyfollowing issues for its consideration:
1.v~W_h:ether the plaintiff proves that the defendants 1 H Vfltov 4 along with Syed Mahaboob executed an agreement dated: 6.5.1991 to sell the schedule items 1 and 2 in favour of the plaintiff?
2. Whether the plaintiff proves that the defendant have delivered the possession of schedule properties to the plaintiff'? lg /'
3. Whether the plaintiff proves that he has paid the entire sale consideration of Rs.3,40,000/-- to the defendants?
4. Whether the plaintiff proves that the defendants are liable to execute the registered sale deed the schedule properties in favour of the plaintiff?" -- ._ '2
5. Whether the plaintiff proves that V' have failed to perform their part_--o*f' contract "~ under the agreement dated:W6.'5«.19i)1?_:. _ .
6. Whether the defendants p1=ov:'e_thatf»they.have"'not'._p executed the agreement dated "6.5.1;99fL ,eithe_§r by themselves or throughvtheir G.P.vA.'h.Vol'der?V
7. Whether the d,--efendan'ts...prove,_thatlthe agreement dated: 6.5.1991 is not enfo1'o_eab'le?
8. Whether the defendantsip provetithat plaintiff has failed to: perform his partaof. the contract?
gdofendantsv prove that the suit is b:11red"'oy"- 1in2§tatio'n.?' '
10. r4_Whether"Tthefldefendants prove that the suit is badfor not joinder of necessary party?
if 1 o whatreliefs the parties are entitled to'? O.S.No.55/1995 as well as O.S'L'No.1"79,/1999 were clubbed, common evidence was let 'appellants herein let in evidence of PW.l Sayed Zaheer and got marked EXP} to P25 while the respondent .,.h--erein let evidence of himself as DW.l and one V SI'i.Rudregowda as DW.2 and got marked EXDI to 1321. }x W 19 W
11. On the basis of the said material, the trial Court answered the issue Nos. 1 to 5 raised in O.S.No.55/19:95 in the negative and the said suit was dismissed. O.S.No.l79/1999 is Concerned, issue Nos. 1 1. in the affirmative and issue Nos. Stop 10 were---lheldtinthe "
negative and the said suit was deereed_'."s.F3eii1gl aggrliéifed the dismissal of O.S.No.55/'l99.5, has been filed and being aggrielxl/'ed' by ltliefldecrfeeing of O.S.No.179/1999, RFA.1--\1§;-3/2,9o'3~.1j1ss'~t>een filed.
12. We have for the appellants and lea;rnefd"eosi1nsle§1fVforjlihe respondlent.
13. Atieordivng' " l Counsel for the appellants, o.s,,1$1s'}31979/1999.V[x;§zas¢:r11ed on 13.8.1999, the said suit is sbarred limitation. However, the trial court failed to the Limitation Act and therefore, the suit ought toihe "dismissed on the said ground. Elaborating his 3 ._fleior1,tentVioii he has stated that the date of the agreement is '6f.'s;ii991 and the suit is filed on 13.8.1999 which is nearly eight years after the agreement and therefore on the ground of limitation, the suit ought to be dismissed. He has also stated that the agreement dated 6.5.1991 was not an ér ".11"
agreement to sell the suit schedule property. It was in fact an agreement with regard to a usufructuary mortgage. Since the appellants were in need of money, in order to meet-.,their financial difficulties, they had mortgaged the _ property to the respondent who was entitleddtoglulsegthel usufructs of the coffee estate and:=.,:after_a7 lapse.' of 'time payment of consideration amount i.e,, hlalq to return the possession to the'i._lappellarits,_,:l'Hevvfhas also stated that the appellants. had n.oJ"authority to alienate the suit schedule property in was granted in the year $2-6.9:.l;"E:)8?1' "fo.r:a period of fifteen years ,thérei..,§;zas goP£5'rat1on'lll'a nonvalienation clause. Therefore, the a.gree'me'ntlldated 6.5.1991 was in violation of the said clause and hence the agreement was opposed to policy andvv------u--n'lawfu1 and therefore barred under 'S~:ec'tion<.23 l_of:.lth.e Contract Act. In the alternative, he has stated the relief of specific performance is a discret.ion_ary relief and in the instant case, the trial court if l..ffhas"«--.,not appreciated the evidence on record and has ' eijroneously granted the said relief to the respondents herein if hence this is a fit case where the Judgment and Decree passed in both the cases ought to be reversed by allowing both the appeals. £94 ,12_
14. Another contention raised on the question of limitation is that the 5"' appellant herein namely Smt. Haseena was not initially impleaded in the suit andvsllielvsgas impleaded later on and hence the suit as barred as on the date of iinpleadrnent. In" his contentions he has relied upon cer'tain_citation*s whieyhpshfially' be adverted to later.
15. Per contra, counsel_ for the iesppon-dent stated that the suit filed is not hit the Limitation Act; tl*}.'atmtr'ie.:'Suit:7fS'chle'dliile was granted with a condition ofnon--alienation-..;fo.:' a period of fifteen years, that on 6.5.19SlI"-.it'wias--_ o}iiy'*a'i5 agreement of sale for the said wasl"entered into, there was no sale or fconveyancelsuch and that only after the lapse of fifteen yearsthel specific performance had been filed. The lehsaid '-qvas filed within three years from the date of coming if lfto 'an, end of fifteen years from the date of grant namely ' 983 and hence the same is not hit by Article 54 of the if 'Limitation Act. It is also contended that permission had to be obtained from the competent authority so as to make a sale in question and so long as the said permission was not is:
_13_ obtained time did not run against the respondent herein. He has also stated that under the terms and conditionso-'f_ p the agreement, time was not the essence of the contraet'p:'an'd therefore. filing of the suit in the year 1999 alias H proper and the trial court was justified-iri d'ecr_eeiI1g_his--.E-;uit.& and dismissing the suit filed by thelilappellantls.' ytr1ii,ch ._ call for any interference in these_:'apppeals..__ ' A _ V
16. Having heard the counsel_"o'nv_both sides_, the following points arise for our consideration;V;' "
V yyyy "iav:/:i;a;:::I;etz%,'ot{s;Na.;iV79y;I1999 filed by the respondent herefn'wza.s not rnaintainable as being barred by*;='._ ' 9292-. to point No.1 is in the _affimi;af.ioe_.. _].wr:etn--er the agreement dated i 6'.5.199I" .__ is unenforceable as sought in ' Q..5.No.55/91995?
_ if the answer to point no 1 and 2 are in __ c the"'a;;}_ffIrrncitive, whether the respondent herein is ' entittecf .:';'o a decree of specific performance? V 4. What order?"
it At the outset it is necessary to mention that the exelcotion of the documents dated 6.5. 199}. is not in dispute. 99 is also admitted that under the said document a sum of Rs.3,40,000/» was given by the appellants to the respondent, so that it was given by the respondents to the 1%:
W14"
appellants who utilized the said amount to pay the bank debts and other financial institutions. It is also an admitted fact that the said amount was paid to Syed his children and on receipt of the said amount, 'possessi-ori it the suit schedule property was giV'en.to flthel.llresyporidents Ex.P4 is the agreement dated 6.5. pp agreement of sale and one K.l{;.l_E§udregoin'da' is ltheliattestor of l the said agreement Whohas been exaniiened
18. The other admitted":factl_ is 1--that.__in the grant certificate issued, there was a non«;a1ienation._clatjse'~and the said grant was under fere,'.:eti1t:{;}:'tie'e of coffee and it is an undisptitedfaet granted to Syed Mehaboob and his wife andkthat. at-_non~alienation clause was for a period of ..e.Afif'[-églli years. 'I'hle'gra1'1t is of the year 198364 and the said for ends in the year l998--99. The appellants thernselves'lls:ha:ye admitted that they knew the respondent and lthelrefore, the appellants and the respondent were not A C: * strangers and that they were having a business relationship betvtreen them.
..._1':3. PW.l--Syed Zaheer is the power of attorney holder of the members of the family including Syed Mehaboob. The % 3 _]_6_ date fixed for the performance of the contract and two, if no such date is fixed then when the plaintiff has notice the performance being refused. Much reliance has been' on the decision of the Apex Court in the cas_e"--of * Saheb Abidulla Mulla Vs. Bibyan reported iii"{2'oo,9)V"'5V'_ScC_V
462) by the counsel for the appellants contend instant case. the suit filed"for---...SPecAifi.c }7eri7:)rrfi_E1nCe -'was 2 A' beyond the prescribed period of__lirnitati_on an*d_ther_efore. the suit filed by the respond--ent_ Aherein;r:1ot._ maintainable by placing reliance on thie-"second-- ."'.Article 54 of the limitation Acti \l'§'hile.Vconsi'dering fti';ne'"frorn which period beginsitvo A the Limitation Act, the Apex Court irigthe aI'oresa:_id_'l'de:cisiGn held that 'fixed' used in the said article "in "cssenc'e_ means having final or crystallized stop'p--ec'--.«"to change or fluctuation and the 'i11'3'\xfiT,ab1{-3p'.COl'J¢1U.SiO1'l is that the expression "date fixed for is a crystallized notion which is clear from loathe factttlfiavt the second part of Article 54 states "time from X_' which period begins to run" which refers to a case where no ' suchfldate is fixed. In other words, the Apex Court held that if "when date is fixed, it means that there is a definite date fixed for doing a particular act and when there is no date fixed then when the plaintiff has notice that performance is ix W18"
not be performed on account of permission not being obtained. However, a declaration with regard to unenforceability of the contract was sought by the by filing a suit in the year 1995 itself. But, wheat 1 "
noticed is the fact that on account"'of.pthe none-alienati.on».y clause it was specifically mentionedlin collmfacty sale deed would be registeredon'ly_afteAr"con1in§._to':._aii'end of " V the non--alienation period, which----w(oL1ld--~havel been inithe year 1998. Therefore. until thenorpaiienaltionpl'period came to an end the respondent also have asked for perforinancewdf 4' _co11tra_ct._ by.) 9 appellants. Only after the encjlofwtne. perio'di.e., in the year E998 the cause olf-.action performance of the contract arose for the ~.resp.on-dent.' ' yfl'l1<<:_3l'2';Vt),'1;ellants in fact filed a premature suit seeking a declarationlltireagarding unenforceability of the contract when it was ..alolear or admitted fact that till the year 1998 the said A ffciontract could not be enforced or performed by the appellants. Therefore, the time that has to be reckoned in "the instant case from the date fixed for the performance i.e., after the completion of the non~alienation period which was in the year 3998 and on obtaining the permission of the %»:
m A Deputy Commissioner, the sale deed had to be registered by the appellants in favour of the respondents. V.
23. In the instant case since the suit for4.specif1_c performance has been filed by the respondent _ I999 i.e., within three years from the year it be reckoned in the instant case as the .p.¢rfo4nna_ncwe1,. .
the said suit is rI1aintainable.'__withinvlithe of limitation prescribed under of tlieihirnitlaition Act and therefore, the trial was in holding that the Suit is not barred by 1infii_tationf_._ll f:Evenl'5th_é.mrrse the trial court 'regard aspect of the matter that the--tagreern.ent:"e§{eC_u't6:d--~ in the year 1991 at EXP4 clearly stipulated.that=.the"appellants should approach the ' «.vDep.nty Qommissione--r----and get permission and then executed the "sale-._cl1'eedAVlin. favour of the respondents. There is no doeuinent 'show that such a permission had been obtained syhfrorn ltl1el£_)eputy Commissioner, on the other hand, the case A appellants is that such a permission could not be ' obtained. Hence there was no time fixed in the agreement it yyhen the sake deed had to be executed and therefore, time was not the essence of the contract as only after the lapse of the non--alienation period, the agreement was enforceable. 5/.
W2OW The above reasoning is also correct in View of the facts of the case.
24. The case of Ganapathy {Padala} Suryakumafis. Dr.Erra Reddy and Another reported in AIR 2007 £.ili8lhas« u been cited to contend that if a party is added as a plaintiff or a defendant in the suit as .fart.&as.; that._partj1r concerned, the date of institution ofllsnitizivould as the date on which the orderfillowiné the is it passed by the court and that the instant 'case, 51"
appellant was arrayed as -the respondent herein thelsiiit and that the suit was barred ll«irnitatiori~tas.._:iagai--nst her. However, the said position of law is not correct in View of proviso to Section 21 "'~.of §_.irnitationli'Aet-«Which has been interpreted by the in the case of Munshi Ram V/s. Narsi Ram & artother SC 271), wherein it has been held that if "V.'th€ court: is satisfied with the omission to include a new A or a defendant was due to a mistake or the mistake ' was made in good faith it may direct that the suit as regards piaintiff or defendant should be deemed to have been instituted on any earlier date. The said proviso is inserted to take care of the case of omission to implead a person due to xi ,/fie m_23_ respondent who was put in possession of the suit schedule property not only by virtue of the agreement of sale but"a1so under the general power of attorney dated was an irrevocable one.
28. From the said documents it becomes apparent that was never in the mind of thle';p'arties lthatrgtliellagreement 1 dated 6.5.1991 was security lfor a loan transaction amounting fact the word used in the ri'otli:f§iey1' at and therefore, the contention by the counsel for the 6.5.1991 was given only as a ll'E1€V("3L11'iViy"~ respondent had to use the usufruct of the "V-.1an_d"~~~and received the amount of Rs. 3';l?ll3,QAQ:O/'veepfron"rthe~appellants is only an after thought. In 1 filed is for a declaration that the agreement 'dated [EX.P4} is unenforceable on account of non~ alienation clause. Therefore,- the appellants cannot now 1' spcorttend that the said agreement was entered into by way of security for a loan transaction. In the face of such a relief sought in the suit, the contention that EX.P4 is not an agreement for sale, but only an agreement of security or a mortgage for use of usufruct of the suit schedule property for 5;;
_.26, accepted. Hence point No.2 is answered against the appellant.
31. Gahesa Naicken V/s. Arumugha Naicken V. Madras 811] has been cited to contend that«l.__"wl1:erel"thew darkhast grant was in the nature ofiallgiftby they f§ot9ernn1ent with a specific provision that thelbpriopelrty llshalli alienated Without the consent 0fejlti1.e Tahswi_1dar,l anyzvvcontract it which has the effect of ..circun1ver1teing_ thisal'policy§ of the Government would be 'opposed policy and the agreement to sell the pro'pelfty_:'Wofi1Vld V'b«e'V°void. The said decisionlist"not}applicableflto thelllfacts of the present case since sale to be executed by the appellants after they 'per'iod"of non-alienation and it is only on " the the saidperiod that the respondent filed the suit for specific,'"peitformance. Similarly, the decision in Re,ee¢ha,;e,>{ler;h V/3. Nagappa Naidu [ILR 1995 Kar 570) is _ N pp 'also not applicable.
it Narasappa & another V/s. Shaik Hazrat & e._o't.tiérs':(AIR I960 Mysore 59) has been cited on behalf of the appellant to contend that where permission of the collector is " a condition precedent. for alienation under the Act and the F9 /' ,._27._ plaintiffs sought before the Civil Court specific perforrnance .. of the agreement to sell and if the said suit is would defeat the pre-condition of obtaining ~ would be in contravention of the grant regarding ll"
alienation of such grant and Section 2_3lo:f the: Co'ntra:ctAA{rt:
and would be a bar to such asuit. However, a1'esiotl'3&:er.clg)ivi3sion . "
Bench of this court in the caseVllllof_llp:Yogantb'ikcts.v:fNarsingh IILR 1992 Kar 717) hasihreld ;§x}:<:_1_=fln.:phe presence of a period of non-alienation a document I allotment'; suit for Specific performance. to enforce contract which is thefacts of present case.
33. In thecase of'v--.Nirn1ciZE1lAnand V/s. Advent Corporation o.thersfAIR*"2'O02 SC 2290) it has been held that .7yvheri'vtheveonstruction company refused construction on the ground' original lease of plot was terminated by the '.rnuniclipalitvV and the facts showed that there was a ll..possilbi'..lity of renewal of lease and revalidation of building =f'p1a'n and the purchaser was ready to perform her part of the "contract, then specific performance cannot be refused. The said decision is applicable to the facts of the present case. ls»:
-3Oc permit the respondent to enjoy the property since theentire sale consideration was received by the appellanvtsg"{The appellants had also executed general power . favour of the respondent for the use and developirncelrlt the "
suit schedule property consideringizthe that the fifteen years non--alienation clause inflthe grantlmade by the authorities would come to only year 1998 Therefore in order to "enjoy the property, the power of All that the appellants had: to necessaxy permission for conveying;ithlella. from the Deputy Commi:ssion'er.:or conDcernle,dlllauthority after the lapse of non--alie"n..ation' the year 1998 and thereafter to execute thefsale deed 91:1 ltayour of the respondents. In fact .---__the hladv----performed his part of the contract by parting entire sale consideration and as a part perfonnancefjofi' the agreement to sell, the appellants had flehanded. over possession to the respondent for the lideveloprnent of the coffee estate. Under the circumstances ~ fTth'c:re was no action or step which was necessary to be taken the respondent for the specific performance of the contract. The entire burden of completing the terms and 5%:
_3gi under the said section so as to contend that specific relief cannot be granted by this court in favour of the respondents.
39. Section 20 of the Act states that the jurisd.i_cti_on_ to decree specific performance is discretionary.
Court is not bound to grant such relief mere1y--.ibepcai1seg itvpiisu p lawful to do so. Such a discretion,._-hoiiveverl, is no't___to.;be exercised arbitrarily, but must benbased :onj_'soun_d and*. reasonable judicial principles. Section flalso specifies the circuinstances iniyliicliywthe Court may properly exercise the discretion. not toVfdecree.,'specif1c performance and it also specifies lW~hE§I1,iVli1 an appropriate case, a decree could be giyeniby proper exercise of discretion. Section 20 is not an S provision, but merely illustrative as it is not 'C ppossible'toj_ define the circumstances in which equitable relief couldifiorvé could not be granted. if, therefore, on a if » if consideration of all the circumstances of the case, the Court that it will be inequitable to grant the relief asked for. H it should not give the relief. In this context, it is necessary to refer to explanation to Section 10 of the Act provides that. unless and until the contrary is proved, the Court shall 52» II an 3;3 mm presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money. But the said presumption is a presumption. __
40. Sub--section [2] of Section 20 certaing circumstances when discretion V=may...yl:;e- 'eyXercisedf'=not,;to decree specific performance, These" circrunistryanceys flare'; illustrative and they can be defined as folIovvs:'--':
41. ('1) {iii} when ' ofgthe contract or the conduct__of' thehvfpartiehs. at time of entering * r. if 'V f f._or" the circumstances under was entered into are such f * that give the plaintiff an unfair 'adv:-u'itage over the defendant.
---tvhere the performance of the contract would fvfinvolve some hardship to the defendant whereas, its non~performance would involve no such hardship on the plaintiff.
that it makes it inequitable to enforce specific performance.
While explaining these circumstances, Explanationd 52:
._.34W speaks about unfair disadvantage. Explanation--II relates to hardship which is a circumstance in favour of the defendant, while Explanations--llI and IV are in favour of the plaintiff when in a case where the plaintiff has done in consequence of a contract capable of specifilc._Vpe-rforlmaince ' or refused specific performance, me'i+"e1y~ because the contract is not enforceable at the instance = if K
42. The decision of the If in V} the case PARAKUNNAN JiosisP'ri.?,s.rslA"'soN MATHEW Vs NEDUMBARA KURUVILAS soar ap1\EI'5"v4v3l"i':'l£-4I,;'&'.i?S (AIR 198'? so 2328) is reliesdlufpon bf;the""respoiidé1:t--~to contend that it is the of that litigation is not used as an instrument' of oppression" to have an unfair advantage to the plaintiff.' In theulsaici decision, the I-Ion'bIe Supreme Court, W1}iil€' Section 20 of the Specific Relief Act, stated that :2f0"'preserves judicial discretion to Courts as to decreeirig' -_specific performance. The {Court should rneticuloiisly consider all facts and circumstances of the case A' --.,and...lithe Court is not bound to grant specific performance _,c_r"herely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. .§*"'f.
M 35 _
43. In 1999(3) Kar.L.J. 6'77 (Y.N.GOPALA RAO "vs D.R.LAXMINARAYANA AND OTHERS) it has been held by this Court that the presumption in a suit for specific performance is that a breach of contract""'cann_lotpbe adequately relieved by compensation in contract can be satisfied only estate contracted for sale; and thebsaid isg rebuttable, and the burdenl'lrebutti11.€§wsV': the Party opposing enforcernent:of_cont.ract~-where party has failed to rebut presumption, performance is to be decreed"ag'ains:t principle is also stateiduin' iegplafiéigtiofi'--{ij"-to siibisvection {b) of Section 10 of the Specific Relief . , V.
44. Whileliadverting.--to'Section 20 of the Act, it is stated in thisldecision "thatvrisel in price is no ground to refuse specific V' 'perfor:mAaI1C"e.._ and the refusal may also have tendency to in the piaintiff in acquiring such property or other property at such time.
2 iii AER 2004 so 909 {i\/1.S.MADHUSOODHANAN AND 7g\NoTHER Vs. KERALA KAUMUDI PVT.LTD.. AND OTHERS) 'Hit is observed that the guidelines for the exercise of the xéz.
m,36m Court's discretion to decree specific performance of an agreement have been statutorily laid down in subjs.ec-téifon (2) of Section 20 of the Act and that, in Explanationmi' 20, it is stated that rnere inadequacy of con.sideira.ti'on, or the V. g mere fact that the contract is oneroustjou'the._defe'nc}antrigor improvident in its nature notfb.e"deemedV'h' toigconsgtituteifle. an unfair advantage within 'the_"meaning clause (a) or hardship within the if
46. {LR 19§92:fi<;AR ifs NARSINGH] is relied upoiiiffhfytthefh that the mere fact that servant cannot at all be considered ground to refuse to enforce the contract henhadg ~Viv¢1gfn'cafi1y agreed to and that, under V. Section of thAe'fAet--,«t'he grounds which enable the Court to 'I'efi1--se to a decree must be such which were not in the conternplatijonfgi' of the parties when they entered into an agreement of sale and also that the defendant had no control :f..oVe1*._.those grounds and as a result of those grounds, it has
-- becorrie impossible for him to get on without the property " "agreed to be sold.
47. For the aforesaid reasons we hold that the Judgment and Decree passed by the trial court is just and proper & ,9 W37_ which do not call for any interference in these appeals. Hence the appeals are dismissed. Parties to bear their own Costs.
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