Bangalore District Court
Smt.M.Begum vs Sri. K.S.Venkatesh on 23 June, 2017
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY (C.C.H.No.8)
Dated this the 23rd day of June 2017
PRESENT: Sri.K.B.PATIL, B.Com.,LL.B.,(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.8836 of 2004
Plaintiffs Smt.M.Begum,
aged about 34 years,
wife of Sri.Moule Baig,
Residing at No.6,
Parsi Garden, 11th "A" Cross,
Swimming Pool Extension,
Malleswaram,
Bengaluru-560003
(By Sri.C.Rajanna , Advocate)
: Vs :
Defendants : Sri. K.S.Venkatesh
S/O Late K.G.Subramaniyam,
since deceased by his L.Rs
1(a) Smt. Rajeshwari
W/O Late Venkatesh K.S,
aged about 60 years,
1(b) Sri.Srinivas K.V
S/O Late Venkatesh K.S,
aged about 45 years,
1(c) Sri.Nagaraj K.V
S/O Late Venkatesh K.S,
aged about 42 years,
2 OS.No.8836 of 2004
1(d) Sri. Manjunath K.V
S/O Late Venkatesh K.S,
aged about 38 years,
1(e) Smt. Lakshmi K.V.
D/O Late Venkatesh K.S,
aged about 30 years,
(Defendant- Dead
D.(a) (c)- Sri. K.M. Advocate,
D.(b)(d)- Sri. K.V.V. Advocate
D.(e)- Sri. B.O.C advocate)
Date of the institution of 1.12.2004
suit:
Nature of the suit : Specific performance
Date of the commencement 5.11.2007
of Recording of the
evidence:
Date on which the judgment
Was pronounced : 23.6.2017
Total duration: Year/s Month/s Day/s
12 06 22
XI Addl.City Civil Judge,
B'lore city.
3 OS.No.8836 of 2004
JUDGMENT
The present suit filed by the plaintiff against the original defendant for the relief of specific performance of contract dated 26.10.1998 directing the defendant to execute sale deed in favour of the plaintiff and other releifs.
2. During the course of trial, the original defendant died, his L.rs were brought on record.
3. It is the case of the plaintiff that defendant's father K.G.Subramaniyam purchased the property bearing No.6, situated at Vyalikaval extension, Parsi Garden, Corporation Ward No.5, Bengaluru measuring east-west 54 ft., and north-south 14 ft., morefully described in the plaint schedule under registered sale deed dated 6.11.1969. Defendant is the only son of K.G.Subramaniyam and has inherited the same as legal heir. In the schedule property, the plaintiff, her father, mother and brothers and sisters have been have been residing for the past 50 years in the said property. The said property belonged to the aunt of plaintiff Bibijan. The said Bibijan has sold the schedule property in favour of K.G.Subramaniyam under registered sale deed . The remaining portion of property measuring 54ft.,X 15 ft., has been sold to Eswara Rao under registered sale deed 4 OS.No.8836 of 2004 dated 15.4.1969. The plaintiff is residing in the schedule property since from her birth. She is having love and affection towards the said property. The defendant offered to sell the suit schedule property and the plaintiff readily accepted to the offer and on 26.10.1998, the agreement of sale was entered into between plaintiff and defendant. On the same day, the plaintiff has paid the entire sale consideration of Rs.3,25,000/- to the defendant. On the date of agreement, the defendant delivered possession of the schedule property in favour of the plaintiff, the same was acknowledged by the defendant by executing an affidavit dated 26.10.1998. The defendant has also executed a GPA authoring the plaintiff to act on his behalf in respect of the schedule property. Thereafter, the plaintiff approached the defendant repeatedly and requested the defendant to execute the sale deed in her favour. The defendant went on postponing the execution of the sale deed and held out assurance to the plaintiff that she was in possession of the schedule property. She could continue to enjoy the same as there was no hindrance from his side and he would execute the sale deed. When the matter stood thus, one Venkatamma, Bibijan and Moti Begum started to interfere with the possession of the plaintiff. Hence, the plaintiff constrained to file a suit in O.S. No.5465/2002 on the file of 5th Additional City Civil Judge, Bengaluru for decree for permanent injunction against them. In the said suit, the 5 OS.No.8836 of 2004 defendant in collusion with the other defendants in O.S. No.5465/2002 filed a memo disputing the power of attorney executed by him in favour of the plaintiff. The plaintiff immediately contacted the defendant on 20.8.2002 and enquired into the conduct of the defendant. The defendant gave evasive reply and flatly refused to execute the sale deed in favour of the plaintiff. The conduct of the defendant clearly establishes that he has no intention to execute the sale deed in favour of the plaintiff. The plaintiff has already paid entire sale consideration amount under the agreement dated 26.10.1998. Plaintiff was continuously undisturbed possession of the schedule property. The plaintiff is and was ready and willing to perform her part of contract. The defendant has to execute sale deed in favour of the plaintiff , which could not be completed due to the intentional and deliberate conduct of the defendant. The conduct of the defendant shows that he wants to get himself enriched at the cost of the plaintiff. The plaintiff has paid the consideration amount out of her hard earnings. The balance of convenience is in favour of the plaintiff and cause of action arose on 26.10.1998 when the agreement, affidavit and power of attorney were executed in favour of the plaintiff and when a memo was filed by the defendant on 20.8.2002 disputing the execution of the power of attorney and further when the defendant refused to execute the sale deed and hence, prayed for decree the suit.
6 OS.No.8836 of 20044. The original defendant filed his written statement denying almost all plaint allegations specifically and further contended that the has brought the suit O.S. No.5465/2002 as if it is filed by the defendant on the basis of false, forged and fabricated GPA alleged to have been executed by the defendant in favour of the plaintiff. In the said suit, the plaintiff on 9.8.2002 the plaintiff at nowhere in the plaint has made allegations about the existence of agreement of sale and affidavit dated 26.10.1998 acknowledging sale consideration and delivering possession of property to the plaintiff. What was plaintiff not mentioning the same, if such a genuine and true document in her favour was existing on the date of suit in O.S. No.5465/2002. When the plaintiff filed her evidence by way of affidavit on 14.9.2004, she has disclosed the existence of these forged and fabricated documents by saying that the defendant has executed the GPA and also agreement of sale and affidavit acknowledging the sale consideration and delivering possession on 26.10.1998. She filed a suit in O.S. No.5465/2002 on the basis of GPA alleged to have been executed by the defendant, but failed to make a mention of the agreement of sale and affidavit dated 26.10.1998, which clearly and without any semblance of doubt established that plaintiff has ingeniously and with fraudulent intention, knock off the property of the 7 OS.No.8836 of 2004 defendant has brought out the present suit and fabricated the documents. The plaintiff at no time and during the proceedings, when the suit was pending for the last two years from 9.8.2002 the date of filing the suit, the date of evidence, failed to make any reference to the court, existence of the agreement of sale and affidavit as the same was not in existence during the said period. The plaintiff at that time had only the tainted, fabricated, forged GPA with her and filed the suit O.S. No.5465/2002, later on, fabricated the agreement of sale and affidavit. The suit of the plaintiff is silent in not giving any explanation about not taking the sale deed in her favour even after 6 years and paying Rs.3,25,000/- , the full sale price of the property, which is mentioned in the agreement and acknowledging in the affidavit. Hence, it is clear that the documents are false and fabricated. The plaintiff has not paid Rs.3,25,000/- to the defendant or any amount under the agreement of sale & the same being acknowledged in the affidavit dated 26.10.1998. The defendant denies the receipt of Rs.3,25,000/- or any amount towards the sale price of the property from the plaintiff on 26.10.1998 or any other date. The defendant became aware of the contents of the fabricated, forged agreement and affidavit a and applied for the copy of the same on 24.1.2005 and obtained the same on 5.2.2005. The suit is bad for non-joinder of necessary parties as Bibijan @ Mohisa Begm and one Venkataram, who are 8 OS.No.8836 of 2004 necessary and proper parties to the suit. They are defendants in O.S. No.5465/2002. The Bibijan claiming ownership in the suit on 16.3.2002 executed the gift deed in favour of Mohisin Begum and the said Mohisin Begum executed the deed of sale in favour of Venkataram. Hence, the said persons referred to above are necessary and proper parties. The suit in O.S. No.5465/2002 for bare injunction. The plaintiff is claimed that under the forged documents, she has received possession of the suit schedule property and the agreement of sale, affidavit has to be construed as single document as sale agreement and hence liable to pay stamp duty as a conveyance on Rs.3,25,000/- as possession is delivered to the plaintiff by defendant on 26.10.1998 itself. Hence, she is liable to pay 10 times of duty and penalty, which will be about Rs.3,90,000/-. The suit for specific performance of agreement on the basis of insufficient stamp duty is liable to be dismissed in limine. The plaintiff has given wrong address of the defendant. The defendant is residing in Subramanyanagar with his family since last 30 years. The plaintiff is unable to trace the origin of previous owners of the suit schedule property. This also establishes that plaintiff is ignorant of the previous owners and the property originally belongs to one Varadarajulu Naidu, and owns and possessed 54'X20' sq.ft. and he sold the northern portion measuring 54'X14' to Bibijan Hussain @ Sabjan and the remaining half 9 OS.No.8836 of 2004 portion to Eswara Rao, K.G.Subramanyam, father of the defendant purchased the northern portion from Bibijan Hussain. After the death of his father, he is in possession of the same as he is only son to his father. The contention of the plaintiff that she was ready and willing to perform her part of contract is false as the documents are fabricated. There is no cause of action for the suit. The defendant has not executed any agreement of sale, received any amount from the plaintiff. Hence, prayed for dismiss the suit.
5. After the death of the 1st defendant, his LRs were brought on record and they have filed their written statement adopting the written statement filed by deceased 1st defendant and further contended that, the plaintiff has filed the suit for specific performance of contract against the defendant K.S,Venkatesh. The plaintiff has not made necessary parties as defendants to the present suit is liable to be dismissed for non-joinder of necessary parties. During the life time of K.S.Venkatesh, i.e., the defendant has not executed any agreement of sale in favour of any body or plaintiff is concerned. More over, the defendant has no valid or individual right to deal with the schedule property to the third parties by isolating the L.rs of the defendant. The L.Rs of the defendant were major and having legitimate share in the suit schedule property. The plaintiff is claiming right over the suit schedule 10 OS.No.8836 of 2004 property based on created, concocted and fabricated documents. The L.Rs 2 and 4 of the defendant already filed a suit for partition in O.S. No.2075/2014 against L.Rs No.1, 3 and 5 and the plaintiff claiming their 1/5th share in the suit schedule property, wherein the plaintiff is also one of the defendant in the said suit as defendant No.7. The suit is pending for consideration. The plaintiff has not challenged the transactions taken place in respect of the suit schedule property prior to the suit. That the plaintiff has not paid sufficient court fee on the market value of the schedule property as on the date of suit and hence, prayed for dismiss the suit.
4. On the basis of the above pleadings, the following issues and additional issues are framed :-
1. Whether the plaintiff proves that the defendant was agreed to sell the suit schedule property for Rs.3,25,000/- and executed an agreement of sale dated 26.10.1998 receiving the entire sale consideration?
2. Whether the defendant proves that the agreement of sale dated 26.10.1998 is concocted and fabricated document?
3. Whether the plaintiff proves that she was put in possession of the suit schedule property in part performance of contract?11 OS.No.8836 of 2004
4. Whether the plaintiff proves that she has been always ready and willing to perform her part of the contract?
5. Whether the suit is bad for non-joinder of necessary parties?
6. Whether the suit is barred by limitation?
7. Whether the plaintiff is entitled the relief of specific performance of contract?
8. What order or decree?
ADDITIONAL ISSUES
1. Whether defendants LRs 2 and 4 proves that suit schedule property is ancestral property of late defendant and themselves ?
2. Whether defendant's L.Rs proves that suit is bad for non-joinder of necessary parties?
3. Whether L.Rs No.2 and 4 proves that in view of pendency of partition suit O.S. No.2975/214 is pending for partition and possession and this suit is not maintainable ?
5. Additional Issue No.3 was wrongly framed as O.S. No.2975/2014 was filed by L.Rs No.2 to 4 for partition and hence the same is recasted as under:-
12 OS.No.8836 of 2004Additional Issue No.3:
Whether L.rs 2 to 4 of prove that during the pendency of partition suit in O.S No.2075/2014 is pending for partition and possession and the suit is not maintainable?
5. On behalf of plaintiff, plaintiff got examined herself as P.W.1 and 11 documents marked as Ex.P.1 to P.11 and one more witness examined on behalf of plaintiff as P.W.2. On behalf of defendant, deceased defendant got examined himself as D.W.1 and LR.No.4 of deceased defendant got examined himself as D.W.2 and got marked two documents as Ex.D.1 and Ex.D.2.
6. Heard the arguments on both sides.
7. My answers to the above issues and additional issues are as follows:-
Issue No.1: In affirmative;
Issue No.2: In negative;
Issue No.3: In affirmative;
Issue No.4: In affirmative;
Issue No.5: In negative;
Issue No.6: In negative;
Issue No.7: In affirmative;
13 OS.No.8836 of 2004
Addl.IssueNo.1 In negative;
Addl.issue No.2: In negative;
Addl.Issue No.3: Does not survive for consideration
Issue No.8: As per final order for the following
reasons:
REASONS
8. Issue No.1,2, 3, 4, and Additional Issue No.1:- All these issues are interconnected with each other. Hence I answer these issues in order to avoid repetition of facts.
The case of the plaintiff in short is that the father of the deceased defendant has purchased the suit schedule property under registered sale deed dated 6.11.1969. After his death, his only son the deceased defendant become the absolute owner of the suit schedule property. The plaintiff is residing in the suit schedule property along with her family members more than 50 years prior to filing the present suit. The defendant offered to sell the suit schedule property and plaintiff agreed to purchase the same. In that regard on 26.10.1998 agreement of sale was entered into between the plaintiff and the defendant and the sale consideration was fixed for Rs.3,25,000/-. Plaintiff has paid the entire sale consideration amount and defendant has symbolically delivered the possession of the suit schedule property in favour of the plaintiff. The same was acknowledged by the defendant by executing an affidavit 14 OS.No.8836 of 2004 and GPA in favour of the plaintiff. The time was not the essence of contract as the katha was not changed in the name of defendant after the death of his father with respect of the suit schedule property. One Venkatamma, Bibijan and Moti Begum started to interfere with the possession of plaintiff. Hence, plaintiff has filed the suit for injunction in O.S. No.5465/2002 on the file of 5th ACCJ, Bengaluru for a decree for permanent injunction. In the said suit, the power of attorney holder i.e., 1st defendant disputed the execution of power of attorney and immediately the plaintiff approached the defendant and he has given an evasive reply and hence he has filed the present suit.
The original 1st defendant appeared and filed his written statement denying almost all contents of the plaint and further alleged that Ex.P.1, 2 and 8 are the concocted documents . The plaintiff has filed the false suit. Plaintiff has not ready and willing to perform her part of contract One Bibijan claiming ownership of the suit schedule property on 16.3.2002 executed the deed of Gift in favour of Mohisin Begum and the said Mohisin Begum executed the sale deed in favour of Venktaram and hence the said persons are necessary parties to the present suit and hence, prayed for dismissal of the suit.
The plaintiff in support of his case, plaintiff examined P.W.1 and 2 and got marked Ex.P.1 to P.11. P.W.1 is cross 15 OS.No.8836 of 2004 examined by the defendant's counsel in detail, but failed to elicit anything in support of the case, except denying the plaintiff's case in the present suit. P.W.2 is the attestor of Ex.P.2 and 8. During the cross-examination, P.W.2 has stated that he has signed on Ex.P.2 and P.8 in Kannada language, but in Ex.P.1 and P.2, the signature of this witness is in English. Except this, nothing was brought on record to disbelieve the case of the plaintiff in the present suit. It is undisputed fact that deceased defendant Sri. K.S.Venaktesh was the owner of the suit schedule property inherited from his father K.G.Subramanyam, who purchased the suit schedule property under a registered sale deed. In support of his contention, the plaintiff has produced a certified copy of sale deed as per Ex.P.3. This fact is not disputed by the defendant in the present suit. Under these circumstances, title with respect to the property is concerned, there is no dispute. During the course of trial, original defendant K.S.Venkatesh died, his L.Rs were brought on record. The contention of these L.Rs is that, they have filed the suit for partition in O.S. No.2075/2014 and hence, the present suit is not maintainable. However, the advocate for defendant produced the certified copy of judgment in O.S. No.2075/2014, wherein suit filed by the L.rs of the defendant was dismissed. In the said case, the present plaintiff is 7th defendant. The defendants have also produced certified copy of judgment and decree in O.S. 16 OS.No.8836 of 2004 No.5465/2002. The said suit was also dismissed on 26.3.2008. Under these circumstances, the contention of the L.Rs of the defendant that they are the sharers of the suit schedule property cannot be accepted. It is admitted fact that the father of the deceased defendant has purchased the suit schedule property. Hence, it is his self acquired property. Deceased defendant being the only son has succeeded to the said property. Under these circumstances, the contention of the L.Rs of the defendant that, the suit schedule property is their ancestral property of the defendants cannot be accepted. The defendants have contended that, they have challenged the judgment and decree in O.S. No.2075/2014 in RFA No.4/2017. In that regard, no evidence is produced by the defendant, even otherwise as on today, the claim of L.rs of the defendant is rejected by the competent court of law.
As far as the execution of Ex.P.8 by the deceased defendant is concerned, the L.rs of the deceased defendant and the original defendant have denied the signature of the deceased defendant on Ex.P.1, 2 and 8. However, in a suit filed by the deceased defendant through GPA holder, who is the present plaintiff in this present case, memo filed by plaintiff K.S.Venkatesh in that suit was disposed off on merits, wherein it was observed that Ex.P.1, 2 and 8 bears the signature of the original deceased defendant. It is true that, the said memo was ordered to be considered along with 17 OS.No.8836 of 2004 main suit. But the observation of the court by considering the said memo to the effect that are as follows:
"On perusal of the original GPA, which consists of four stamp papers of Rs.50/- and two stamp papers of Rs.20/- each and another stamp paper of Rs.10/-. Each stamp papers bears the signature of plaintiff in English as K.S.Venkatesh. The memo filed by plaintiff K.S.Venkatesh dated 20.8.2002 bears his signature is admitted signature and the signature of the plaintiff K.S.Venkatesh on the order sheet dated 28.10.2002. When compared this admitted signatures with that of the four signatures of the plaintiff on each stamp paper of the GPA are identical and similar. The court has power under Sec.73 of Evidence Act to compare the disputed signatures as well as the admitted signatures of the parties in order to cull out the real intention of the parties. It is very hard to accept the contention of the plaintiff that he has not executed the alleged GPA in favour of Smt. M.Begum on 26.10.1998."
These observations have not been challenged by the present defendant in the said suit. The order attains finality. In the present case, the original defendant has filed I.A.No.4 under Sec. 45 of Indian Evidence Act read with Order 26 Rule 10-A CPC and under the said application only the disputed signatures were prayed to send for Handwriting expert. No documents consisting the admitted 18 OS.No.8836 of 2004 signatures of the deceased defendant were not proved and prayed to send Handwriting expert. The said application was not pressed by the defendant during his life time. After the death of the defendant, the present L.rs of the defendant filed I.A.No.13 under Order under Order 26 Rule 10(A) read with Sec.151 of CPC read with Sec.45 of Indian Evidence Act to send the disputed documents and admitted documents for Handwriting expert. The said application was dismissed by this court by order dated 28.3.2017. The said order has not been challenged by the present defendants and hence, the same is attained finality. Under these circumstances, it is to be held that the signatures found on Ex.P.2 and P.8 are that of the deceased defendant K.S. Venkatesh. It is true that the entire sale consideration was paid by the plaintiff on the date of Ex.P.8 itself, the sale deed was not executed for the reasons mentioned by the plaintiff in the plaint that katha with respect to the suit schedule property was not changed in the name of deceased defendant and hence, the sale deed was not got executed . This fact is admitted by D.W.1 during the cross- examination to the effect that, after the death of his father, katha was not changed in his name. But he has disputed the suggestion to the effect that only for that reason, he has executed GPA in favour of the plaintiff. However, considering the facts and circumstances of the case, the contention of the deceased defendant that, they have not executed Ex.P.1, 2 and 9 not been executed in favour of 19 OS.No.8836 of 2004 the plaintiff cannot be accepted. It is also pertinent to note that, even after the said admission with respect to not changing of katha with respect to the suit schedule property in favour of the deceased defendant in his evidence and also after his death, the L.rs have not made any attempts to produce the documents to show that katha with respect to suit schedule property was standing in the name of the deceased defendant as on the date of Ex.P.8. under these circumstances, the contention of the defendant that Ex.P.1, 2 and 8 have fabricated documents cannot be accepted. Till today, neither the deceased defendant nor the L.rs of the defendant have challenged those documents in any competent court of law. Since the plaintiff has contended that entire sale consideration amount was paid by her to the deceased defendant, there is no act to be performed by the plaintiff to get execute the sale deed with respect to the suit schedule property in his favour. The defendant has to get change katha in his name and execute sale deed in favour of the plaintiff. Under these circumstances, readiness and willingness on the part of the plaintiff cannot be questioned by the defendants. The defendants have failed to prove that agreement of sale dated 26.10.1998 is concocted and fabricated document as contended by them in the written statement and in their evidence. The plaintiff is claiming that, she was in possession of the suit schedule property even prior to Ex.P.8. Though this fact is not clearly mentioned in Ex.P.8, D.W.1 has clearly admitted that as 20 OS.No.8836 of 2004 on the date of Ex.P.8, the plaintiff is residing in the suit schedule property with her family members. It is the case of the plaintiff that after execution of Ex.P.8, the deceased defendant has handed over the symbolic possession of the suit schedule property in favour of the plaintiff as she was already in possession of the suit schedule property along with her family members. This fact is admitted by D.W.1 during cross-examination. He has admitted in his evidence that, in all there were 3 houses in the suit schedule property. One house is in possession of Mohammed Ali and the middle house was in possession of Bibijan and the another house was in possession of Murthuja. The present plaintiff is the daughter of Mohammed Ali. From the date of purchase of the suit schedule property by the father of D.W.1, the Mohammed Ali and Bibijan used to pay rent to his father. From this admission, it is clear that the plaintiff was in possession of the suit schedule property along with her parents and hence, the question of handing over actual possession under Ex.P.1 does not arise at all. Apart from this, D.W. 2 during cross-examination in last line has admitted that , it is true that when the alleged documents Ex.P.1, 2 and 8 were executed , he was minor. By admitting this fact, the execution of Ex.P.1, 2 and 8 by the 1st defendant is, admitted by L.rs of deceased defendant. Considering the over all facts and circumstances of the present case, it is clear that the plaintiff has proved that the defendant has executed an agreement of sale, agreeing to 21 OS.No.8836 of 2004 sell the suit schedule property for Rs.3,25,000/- and executed an agreement of sale on 26.10.1998 and handed over the symbolic possession of the suit schedule property to the plaintiff. On the other hand , the defendant failed to prove that the agreement of sale dated 26.10.1998 is concocted and fabricated document. From the conduct of the plaintiff, it is clear that nothing was there on the part of the plaintiff to perform her part of contract. However, plaintiff has stated that she was and is always ready and willing to perform her part of contract to get execute the sale deed. The entire sale consideration was already paid by the plaintiff to the deceased defendant on the date of Ex.P.8 itself. Under these circumstances, this court is of the opinion that the plaintiff has proved Issue No.1, 3 and 4 and defendants are failed to prove Issue No.2 and additional issue No.1. Hence, I answer Issue No.1, 3 and 4 in affirmative and Issue No.2 and additional issue No.1 in negative.
9. Issue No.5 and Additional Issue No.2: Both these issues are interrelated to each other and hence, I answer these issues in order to avoid repetition of facts.
The original defendant and the L.Rs in their written statement contended that the suit is bad for non joinder of necessary parties. The original defendant contended that Bibijan claiming ownership in the suit schedule property on 22 OS.No.8836 of 2004 16.3.2002, she has executed a deed of Gift in favour of Mohisin Begum and the said Mohisin Begum executed sale deed in favour of one Venkataam and hence, the said persons are necessary parties to the present suit. Against whom, the plaintiff has filed the suit in O.S. No.5465/2002 for injunction. In support of this contention, neither original defendant nor the L.rs of deceased defendant have produced any documentary evidence. In the absence of any evidence produced by the defendant in that regard, the contention of the defendant that the suit is bad for non joinder of necessary parties cannot be accepted. The defendants have produced only two documents i.e., certified copy of plaint as per Ex.D.1 and certified copy of order sheet in O.S. No.2075/2014 as per Ex.D.2, except these two documents, no other documents produced by the defendants. Under these circumstances, in the absence of evidence produced by the defendants to the effect that the suit is bad for non joinder of necessary parties cannot be accepted. Hence, I answer Issue No.5 and additional issue No.2 in negative.
10. Issue No.6: The defendant contended that the suit is barred by limitation. In entire Ex.P.8, there is no recital as to when the sale has to be completed. On perusal of the recital of Ex.P.8, it is clear that the time is not the essence of contract. Admittedly as discussed above as on the date of Ex.P.8, katha with respect to the suit schedule property was not standing in the name of the deceased 23 OS.No.8836 of 2004 defendant. Hence unless the katha is changed, the sale deed cannot be executed . Under these circumstances, from the date of denial, the limitation starts as per the Limitation Act. In the present case, the denial of the 1st defendant is arise only when the defendant disputed GPA executed by him in a suit filed by the plaintiff on behalf of original owner in O.S. No.5465/2002 and hence, the time starts from the date of denial. Plaintiff has shown cause of action for the suit as 26.10.1998 i.e., the date of agreement and affidavit and power of attorney executed in favour of the plaintiff and when the memo was filed by the defendant on 20.8.2002 in a suit filed in O.S. No.5465/2002, the present suit is filed on 1.12.2004 i.e., within 3 years from 28.10.2002 and hence, the suit is in time. Under this, the contention of the defendant that the suit is barred by time cannot be accepted.
11. Additional Issue No.3: The defendants have contended that they have filed the suit for partition in O.S. No.2075 of 2014 and the same is pending for consideration, but the advocate for defendant himself has produced the certified copy of judgment passed in O.S. No.2075/2014 , the claim of the present defendant is rejected and the suit was dismissed. Advocate for defendant has contended that he has filed RFA No.4/2017 on the file of Hon'ble High Court of Karnataka, but in that regard, no evidence is produced. Under these circumstances, in view of the fact that O.S. 24 OS.No.8836 of 2004 No.2075/2014 is already disposed off. Hence, additional issue No.3 is not survive for consideration.
12. Issue No.7: The advocate for defendant relying on a decision reported in AIR 2006 Karnataka 180 (a), (b) and (c) is as follows:-
(A) Specific Relief Act.S.9- Contract Act,S.29-Enforceable contract- Requires defined shares, consideration of sale price-
Agreement of sale nowhere mentioning extent of respective shares of defendant-
Nor it shows that, what is consideration is to be paid to respective vendors- Extent of property sought to be sold under agreement is vague- No explanation coming from plaintiff in that regard- On facts and evidence led by plaintiff, it is not possible to ascertain intention of parties- Terms are uncertain and parties are not ad idem-
There can be no specific performance as it would not constitute a valid contract.
(B) Specific Relief Act.S.20-Specific performance of contract- Discretionary relief can be refused when there is absolutely no clear and certain evidence of proof of agreement of sale- plaintiff is not examined- In turn, plaintiff's son examined as power of attorney of plaintiff- Admittedly he is not a signatory to alleged agreement either as a witness or identifying alleged signature of defendants- Power of attorney/son of plaintiff- cannot depose on behalf of plaintiff nor his evidence will prove execution of agreement.
25 OS.No.8836 of 2004© Specific Relief Act S.16-Readiness and willingness to perform contract-
Plaintiff vendee is not only required to be always ready and willing to perform his part of contract-But, his readiness must be from date of agreement till getting of registered sale deed in his favour.
With due respect to the above decision, the principles laid down in the above case cannot made applicable to the present case. In the present case, though the defendants have denied the signature of the deceased defendant on Ex.P.8. I.A.No.4 was not considered by this court in view of the death of the original defendant and the L.rs of the defendant i.e., the present defendants filed I.A.No.13 for the same was dismissed by this court and the same was not challenged by the defendants.
Further relying on a decision reported in 2014 SAR (Civil) 107, with due respect to the above decision, this court is of the opinion that the principle laid down in the present case, only few of the facts as discussed above, as he has paid the entire sale consideration to the defendant as on the date of Ex.P.8 itself. Admittedly katha was not changed in the name of deceased defendant or in the name of present defendants. Under these circumstances, the defendants have to perform their part of contract i.e., changing with respect tot the suit schedule property in 26 OS.No.8836 of 2004 their name and execute sale deed in favour of the plaintiff with respect to the suit schedule property.
Further he relying on another decision reported in 2015 SAR (Civil) 617, with due respect to the decision, this court is of the opinion that the principle laid down in the above case cannot be made applicable to the present case as the facts and circumstances of the present case and the above decisions are entirely different as discussed above.
In view of the discussions made above, the plaintiff is entitled for the relief of specific performance of contract as sought for in the present suit. It is true that granting of relief of specific performance is a discretionary as contemplated under Sec. 20 of Specific Relief Act. In the present case, no grounds made out by the defendant as contemplated under Sec. 20 of Specific Relief Act in order to exercise discretion in favour of the defendants. Hence, I answer Issue No.7 in affirmative.
13. Issue No.8: In view of the discussions made above, I proceed to pass the following:-
ORDER The suit of the plaintiff is decreed with costs.
The defendants are hereby directed to execute sale deed in respect of suit schedule property in favour of the 27 OS.No.8836 of 2004 plaintiff within 3 months from the date of this judgment by changing katha of suit schedule property in their name.
On their failure to do so, the plaintiff is at liberty to apply to the court for the same.
Draw decree accordingly.
{Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court this 23rd day of June 2017.} (K.B.PATIL) XI Addl. City Civil Judge Bangalore city.
ANNEXUERE List of witnesses examined for plaintiff:-
PW.1 Smt. M.Begum P.W.2 Sri.Narayanaswamy
List of documents exhibited for plaintiff:-
Ex.P.1 Certified copy of affidavit dated 26.10.1998 executed by defendant Ex.P.2 Certified copy of GPA executed by defendant Ex.P.3: Certified copy of sale deed dated 6.11.1969 28 OS.No.8836 of 2004 Ex.P.4: Certified copy of Ration card Ex.P.5: Certified copy of T.C of P.W.1 Ex.P.6: Certified copy of Marks card of P.W.1;
Ex.P.7: Certified copy of pass port of P.W.1
Ex.P.8: Agreement of sale dated 26.10.1998
Ex.P.9: Voter list of family of P.W.1
Ex.P.10: Vakalath in O.S. No.8836/2004
Ex.P.11: Certified copy of orders on Memo in O.S.
No.5465/2002
List of witnesses examined for defendant/s:
DW.1 Sri. K.S.Venkatesh D.W. 2: Sri. Manjunath K.V
List of documents exhibited for defendant/s:
Ex.D.1: Certified copy of plaint in O.S. No.2075/2014 Ex.D.2: Certified copy of order sheet in O.S. No.2075/2014 XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY 29 OS.No.8836 of 2004