Karnataka High Court
Shivanandappa S/O Channabasappa ... vs Hanumanthappa S/O Channabasappa ... on 17 June, 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MRS.JUSTICE K.S. HEMALEKHA
RSA No.918/2006
BETWEEN:
SHIVANANDAPPA,
S/O CHANNABASAPPA UKKUND,
AGED ABOUT 52 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/AT ARALIKATTI,
HIREKERUR TALUK,
HAVERI DISTRICT - 581 207.
...APPELLANT
(BY SRI. P.G.MOGALI, ADVOCATE)
AND
1. HANUMANTHAPPA,
S/O CHANNABASAPPA HADAGAL,
AGED ABOUT 68 YEARS,
R/AT ARALIKATTI,
HIREKERUR TALUK,
HAVERI DISTRICT - 581 207.
SINCE DECEASED BY HIS LR'S.
1(A) CHANNABASAPPA,
S/O HANUMANTHAPPA HADAGAL,
AGED ABOUT 60 YEARS,
OCC: AGRICULTURE,
R/AT ARALIKATTI,
HIREKERUR TALUK,
HAVERI DISTRICT - 581 207.
2
1(B) SIDDAPPA,
S/O HANUMANTHAPPA HADAGAL,
SINCE DECEASED BY HER LR'S.
(i) SMT. GANGAVVA,
W/O. SIDDAPPA HADAGAL,
AGED ABOUT 48 YEARS,
OCC: HOUSEHOLD,
R/O. ARALIKATTI,
TALUK: HIREKERUR,
DISTRICT: HAVERI,
AS SHE DIED, THE RESPONDENT
(B) (II) IS TREATED AS LR.,
OF R-(B) (I) BY THE ORDER OF THE
HON'BLE COURT DATED:27.08.2021.
(ii) RAJU,
S/O. SIDDAPPA HADAGAL,
AGED ABOUT 28 YEARS,
OCC: AGRICULTURE,
R/O. ARALIKATTI,
TALUK: HIREKERUR,
DISTRICT: HAVERI.
(C) CHANDRAPPA,
S/O. HANUMANTHAPPA HADAGAL,
SINCE DECASED BY HIS LR'S.,
(i) SMT. SUMITRA
W/O. CHANDRAPPA HADAGAL,
AGED ABOUT 45 YEARS,
OCC: HOUSEHOLD,
R/O.C/O. NINGAPPA BANDARI,
AT: GUMMANAHALLI,
TALUK: BYADGI,
DISTRICT: HAVERI.
(ii) MANJAPPA,
S/O. CHNADRAPPA HADAGAL,
3
AGED ABOUT 25 YEARS,
OCC:AGRICULTURE,
AT: GUMMANAHALLI,
TALUK: BYADGI,
DISTRICT: HAVERI.
(D) KANTESH,
S/O. HANUMANTHAPPA HADAGAL,
AGED ABOUT 40 YEARS,
OCC: AGRICULTURE,
R/O.: ARALIKATTI,
TALUK: HIREKERUR,
DISTRICT: HAVERI.
(E) ERAPPA
S/O. HANUMANTHAPPA HADAGAL,
AGED ABOUT 45 YEARS,
OCC: AGRICULTURE,
R/O.ARALIKATTI,
TALUK: HIREKERUR,
DISTRICT: HAVERI.
(F) MOUNESH
S/O. HANUMANTHAPPA HADAGAL,
AGED ABOUT 50 YEARS,
OCC: AGRICULTURE,
R/O. ARALIKATTI,
TALUK: HIREKERUR,
DISTRICT: HAVERI.
(G) SMT. PARAVVA
W/O. PAKEERAPPA SHIVANNAVAR,
AGED ABOUT 55 YEARS,
OCC: HOUSEHOLD,
R/O. WADEYANAPURA,
TALUK: HIREKERUR,
DISTRICT: HAVERI.
4
(H) SMT. SHANTHAVVA
W/O. GONEPPA KURBAR,
AGED ABOUT 30 YEARS,
OCC: HOUSEHOLD,
R/O. TAVARAGI,
TALUK: HIREKERUR,
DISTRICT: HAVERI.
...RESPONDENTS
(BY SRI. AVINASH BANAKAR, ADVOCATE FOR
R1(A,D,E,F,G) AND R1(B)(II) AND R1(C) (I AND II)-
R1(B)(II) IS TREATED AS LRS OF DECEASED R1(B)(I)-
R1(H) SERVED)
***
THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CPC, AGAINST JUDGMENT AND DECREE DATED
16.01.2006 IN R.A. NO.29/1991 FILE OF THE CIVIL JUDGE
SENIOR DIVISION AND PRINCIPAL JMFC, RANEBENNUR,
ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 17.11.1990 PASSED IN
OS 138/89 ON THE FILE OF THE CIVIL JUDGE SENIOR
DIVISION AND PRINCIPAL JMFC, RANEBENNUR
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, K.S.HEMALEKHA J., DELIVERED
THE FOLLOWING:
5
JUDGMENT
The present second appeal by the defendants assailing the judgment and decree dated 16.01.2006 in RA No.29/1991 on the file of the Civil Judge, Senior Division and Prl. JMFC, Ranebennur, reversing the judgment and decree dated 17.11.1990 in OS No.138/1989 on the file of the Munsiff Hirekerur.
2. The parties herein are referred to as per their ranking before the trial Court.
3. Suit for declaration of title, possession and mense profits.
4. The relevant brief facts of the case are as under:
Plaintiff is the owner of the suit schedule properties and the property bearing RS No.85/1, measuring 1 acre 33 guntas, that the plaintiff was working as a Secretary and defendant No.2 was the Chairman of Wadenapur GSS Limited Society upto 1972 and that the plaintiff was under 6
the control of defendant No.2 when the plaintiff was working as a Secretary, that criminal proceedings were initiated against the plaintiff and defendant No.2 for misappropriation of funds in the society, defendant No.2 taking advantage of the situation got sale deed registered on 10.11.1972 without valid sale consideration in respect of the suit schedule properties and RS No.85/1 in favour of defendant No.1, who is none other than the son of defendant No.2, that due to fear, implicated by defendant No.2, the plaintiff has executed the sale deed in favour of defendant No.1 and contended that the said sale deed is not genuine as it was never intended to be executed and as such, the registered sale deed executed is null and void and is a forged one and that the cause of action arose in the year 1975 when the defendants forcibly obtained possession of the suit schedule properties.
5. The defendants, pursuant to the summons issued by the trial Court, appeared and defendant No.2 7 filed his written statement, the same being adopted by defendant No.1.
6. The defendants denied the plaint averments and contended that the plaintiff has voluntarily executed the sale deed in favor of defendant No.1 for a valuable sale consideration of Rs.14,000/-. The contention of the plaintiff about the criminal proceeding against the plaintiff and defendant No.2 is admitted. However, the contention insofar as obtaining of sale deed by force is specifically denied. The defendants contend that the suit schedule properties were under the ownership of the plaintiff, the plaintiff had debts and to discharge the debts, a registered sale deed was executed in favour of defendant No.1 and thus contended that after the lapse of more than twelve years, now the plaintiff cannot contend that the said sale deed was obtained by force, undue influence, misrepresentation and fraud. It is also specifically contended by the defendants that the suit of the plaintiff is barred by limitation.
8
7. The trial Court, based on the pleadings, framed the following:
ISSUES "1. Whether the plaintiff proves that the 2nd defendant by playing fraud, coercion and misrepresentation on the plaintiff had taken a bogus sale deed dated: 10-11-1972 of the suit lands and R.S.No.85/1 in favour of the 1st defendant as alleged in para 3 of the plaint?
2. Whether the plaintiff's title still subsists in respect of the suit properties?
3. Whether the plaintiff proves that he was forcibly dispossessed from the suit lands by the defendants during 1975 as alleged?
4. Whether the 1st defendant is the bonafide purchaser for value of the suit lands from the plaintiff?
5. Whether the suit claim is barred by limitation?
6. Whether the suit is bad for mis-joinder of parties?
7. Whether the suit is maintainable without seeking cancellation of the sale deed in question?
8. Whether the plaintiff is entitled to declaration and possession relief as prayed for?
9. Whether the plaintiff is entitled to mesne profits? If so how much and at what rate?9
10. Whether the suit in the present form is maintainable?
11. What decree or order ?"
8. The plaintiff, to substantiate his contention, examined himself as PW.1 and three witnesses were examined as PWs.2 to 4 and got marked six documents at Exs.P.1 to P.6. On the other hand, defendant No.3 examined himself as DW.1, and four witnesses were examined as DWs.2 to 5 and got marked five documents at Exs.D.1 to D.5.
9. The trial Court, based on the pleadings, evidence and material on record, dismissed the suit, holding that the plaintiff has failed to prove the execution of the sale deed in favor of defendant No.1 is obtained by fraud, coercion and misrepresentation and held that the suit of the plaintiff was barred by limitation.
10. The plaintiff being aggrieved, filed RA 29/1991 before the First Appellate Court seeking to set aside the judgment and decree of the trial Court.
10
11. The First Appellate Court framed the following points for consideration:-
POINTS "1. Whether appellant/ plaintiff proves that, the IInd defendant obtained the bogus sale deed dated:10/11/1972 in respect of the suit lands in favour of Ist defendant by playing fraud, misrepresentation and coercion?
2. Whether appellant/ plaintiff proves that, he is having the title over the suit properties?
3. Whether appellant/ plaintiff proves that, he was forcibly dispossessed from the suit land by the defendants respondents in the year 1975?
4. Whether Ist defendant-respondent is the bonafide purchaser of the suit land?
5. Whether defendant/ respondents proves that the suit filed by the appellant/ plaintiff is barred by limitation?
6. Whether defendant/ respondent proves that, the suit filed by the plaintiff/ appellant is bad for misjoinder of parties?
7. Whether defendant-respondent proves that, suit is not maintainable without seeking the cancellation of the registered sale deed?11
8. Whether appellant/ plaintiff proves that, he is entitled for the relief as prayed for ?
9. Whether appellant/ plaintiff is entitled for mesne profits ?
10. Whether the suit filed by the appellant/ plaintiff is maintainable in the present form ?
11. Whether Judgment and decree passed by the lower court, in O.S. 138/89 is in justified?
12. What order or decree ?"
12. In the appeal by the plaintiff, the First Appellate Court reversed the judgment and decree of the trial Court, and allowed the appeal by decreeing the suit of the plaintiff declaring that the registered sale deed dated 10.11.1972 executed in favour of defendant No.1 is null and void and that the plaintiff is entitled to recovery of possession of the suit schedule properties from defendant No.1.
13. Aggrieved by the judgment and decree of the First Appellate Court the defendants have preferred the present appeal.
12
14. This Court, vide order 05.06.2006, has admitted the appeal on the following substantial questions of law:-
1. Whether the first appellate Court justified in holding that the suit is not barred by limitation
2. Whether the First Appellate Court was justified in holding that Ex.P.1 was obtained by coercion, fraud and misrepresentation?
3. Whether the First Appellate Court has rightly appreciated the evidence on record?
15. Heard learned counsel for the appellant Sri P.G.Mogali and the learned counsel for the respondent Sri Avinash Banakar.
16. Learned counsel for the appellant canvassed that the suit of the plaintiff is barred by limitation as to the sale deed as per Ex.P.1 is executed on 10.11.1972 and the suit is filed on 09.11.1984 and the contention of the plaintiff that Ex.P.1 was obtained by coercion, fraud and misrepresentation is not sustainable as the execution of the sale deed is admitted by the plaintiff in his pleadings. It is specifically contended, that the plaintiff was in debt 13 and to discharge the debt, the plaintiff had willfully executed the registered sale deed in favour of defendant No.1 for a valuable consideration of Rs.14,000/- as mentioned in the sale deed and that the debt was discharged by defendant No.2 and as such, the sale deed executed in favour of defendant No.1 is genuine and not obtained by fraud, coercion or misrepresentation. It is further contended that the suit of the plaintiff is barred by limitation as per Article 58 of the Limitation Act. It is further contended that the trial Court on analyzing and considering the factual aspects, has rightly dismissed the suit of the plaintiff, while the First Appellate Court, by misconstruing the facts and evidence on record, has allowed the appeal of the plaintiff and decreed the suit holding that Ex.P1, the registered sale deed dated 10.11.1972 was obtained by fraud, coercion and misrepresentation. This according to learned counsel for the appellant, is not in consonance with the judgments of the Hon'ble Apex Court. To buttress his submission, 14 learned counsel for the appellant relied upon the following judgments:
(a) (2009) 5 SCC 713 in the case of Vimal Chand Ghevarchand Jain and Others.
(b) (1999) 3 SCC 573 in the case of Vidhyadhar -vs- Manikrao and Another.
(c) (1995) 1 SCC 198, in the case of Smt. Ramti Devi -vs- Union of India.
(d) ILR 1999 KAR 1524 in the case of A.V.
Rangacharya & Another -vs-
Pillanjinappa & Another.
(e) 2019 (4) KCCR 3891 in the case of M/s.
Durga Projects and Infrastructure Pvt.
Ltd., Bengaluru -vs- Sri. S.Rajagopala Reddy and Others.
17. The appellant also sought to produce certain documents by filing I.A.No.1/2022 for additional evidence to show the aspect that the sale deed dated 10.11.1972 is duly acted upon. Documents sought to be produced are as under:
1. Copy of ME No.1387 dt: 15-11-1972
2. Copy of ME No.1563 dt: 19-10-1981 15
3. Copy of RTC of Sy. No.83/3A & B
4. Copy of RTC of Sy. No.62/1A 5. Copy of RTC of Sy. No.49/4 6. Copy of RTC of Sy.No.49/2
7. Copy of RTC of Sy.No.89/1A 8. Copy of RTC of Sy.No.85/1 Urging these grounds, the appellant sought to allow the appeal.
18. Per contra, learned counsel for the respondent/plaintiff would contend that the sale deed was executed by practising fraud, coercion and misrepresentation on the plaintiff and that there was no passing of valid sale consideration in favour of the plaintiff and as such, the registered sale deed is not a genuine one. It is further averred that the First Appellate Court, rightly considering the evidence of DWs.1 and 2 has decreed the suit of the plaintiff holding that the suit is not barred by limitation. The learned counsel contends that the suit of the plaintiff is not barred by limitation, as Article 65 of the Limitation Act is applicable, as the plaintiff is seeking 16 possession and in light of the same, the suit would be well within limitation and accordingly, sought to answer the substantial questions of law in favour of the plaintiff. To substantiate his contention, learned counsel for the respondent relied upon the following judgments:
(i) 2022 AIAR (Civil) Supreme Court of India in the case of Kewal Krishan -vs- Rajesh Kumar and Others .Etc.,
(ii) 2010 SCC Online KAR 501 in the case of Electronics and Controls -vs- KIADB, Bangalore.
(iii) Unreported judgment in RFA 1830 of 2014 in the case of Smt. Umavati and Another -vs- Ananda Poojary and others.
19. Before adverting to the substantial questions of law, I.A.No.1/2022 for producing documents by way of additional evidence needs to be considered. The reasons assigned by the appellant/defendant for production of the documents stated supra is that the plaintiff himself has produced the copy of M.E.No.1387 and the RTCs showing the name of the defendant being entered in the record of 17 rights. However, the said document was not marked in the evidence and the First appellate court decreed the suit of the plaintiff holding that the defendant has not produced RTCs to show possession of the suit land in his favour. This being so, it is contended by the learned counsel for the appellant that the documents sought to be produced are relevant documents and necessary to decide the actual dispute between the parties and thus sought to allow the application I.A.No.1/2022. It is also relevant to note that the respondent/plaintiff has not chosen to file objections to I.A.No.1/2022. A perusal of I.A.No.1/2022 would depict that the documents sought to be produced are the documents after the registered sale deed dated 10.11.1972 and the said documents being not in dispute as the plaintiff has admitted about the execution of the sale deed and also about entering the name of the defendant in the revenue records based on the sale deed, and the said documents are public documents. This being so, this Court exercises the Power under Order 41 Rule 28 of CPC and in light of the judgment of the Apex Court in 18 the case of Abdul Ghani Memorial Trust and Others Vs. Bihar State Sunni Wakf Board and Others reported in 1987 (Supp) SCC 577, wherein the Apex Court has held that in a Second Appeal in the course of the exercise of power under Section 100 of CPC can consider the additional evidence and proceed to determine the matter under law. In light of the judgment of the Apex Court, this Court is of the considered view that I.A.No.1/2022 needs to be allowed for proper adjudication of the lis between the parties.
20. Having heard the learned counsel for the parties and having perused the material on record, the substantial questions of law need to be answered accordingly.
21. Re: First substantial question of law:
i) Whether the first appellate Court justified in holding that the suit is not barred by limitation?19
It is the foremost contention of the appellant that the suit of the plaintiff is barred by limitation as the registered sale deed dated 10.11.1972 was executed by the plaintiff in favour of defendant No.1 and the suit filed in the year 1984 is beyond the period of limitation. It is to be borne in mind that the execution of the sale deed dated 10.11.1972, Ex.P.1 is not disputed by the plaintiff, but the dispute is that the execution of the sale deed was obtained by coercion, fraud and misrepresentation and also that there was no passing of valid sale consideration in favour of the plaintiff. Taking this into account, the pleadings and oral and documentary evidence needs to be considered.
22. The pleadings of the plaintiff in paragraph No.3 state that there was no loan obtained nor there was any debt due to the society and defendant No.2 under the threat has obtained the sale deed. The plaintiff further stated in his plaint that the plaintiff was working as a Secretary of Gram Seva Sahakari Sangha till 1977 and defendant No.2 was the Chairman, defendant No.2 20 exercising his power as Chairman by fraud has got the sale deed executed in favor of defendant No.1 and the sale deed executed is nominal one never intended to be acted upon.
23. PW.1 in his evidence stated that from 1952 till 1977 plaintiff was working as a secretary and defendant No.2 as a Chairman and PW.1 has admitted in his cross- examination that the plaintiff was suspended from his service in the year 1972 due to misappropriation of funds in the society. The plaintiff contends that at the time of the execution of the sale deed there was no passing of valid sale consideration in favour of the plaintiff and it was just a promise made by defendant No.2 to pay the debts of the plaintiff.
24. Perusal of the plaint discloses that the plaintiff has executed the sale deed on 10.11.1972 knowing fully well the contents of the document. The evidence of PW.1 depicts the fact that the plaintiff has signed the sale deed before the Sub-Registrar and the contents of the document 21 were made known to the plaintiff and the statement of the witnesses insofar as non-passing of consideration is of fewer consequences as the sale deed Ex.P.1 clearly states that Rs.14,000/- was to be paid to the Society by defendant No.2 himself and clear the debts as evident in Ex.P.1. The sale deed depicts that the plaintiff has incurred debt from the Seva Sahakari Sangh and to discharge the said debt and also to clear off the debt where he has stood as a guarantor the sale deed was executed for Rs.14,000/- in favour of defendant No.1. The amount of Rs.14,000/- was to be paid by defendant No.2 directly to the Society's loan account and to obtain the receipt for having paid the amount.
25. This being so, having known about the contents of the sale deed on 10.11.1972 itself, the plaintiff filed the suit for declaration that the sale deed executed is void as the same was obtained by fraud, coercion and misrepresentation beyond the period of limitation. Further, the evidence of PWs.2 to 4 is not much help to establish 22 the case of the plaintiff. The plaintiff had contended that the sale deed executed on 10.11.1972 is obtained by fraud, coercion and misrepresentation and ought to have filed the suit within three years from the date of registration as the registration was well known to the plaintiff on 10.11.1972 itself. The Limitation Act prescribes the period of limitation to file the suit and Article applicable in the present case are Articles 56 and 58 of the Limitation Act, which read as under:-
56. To declare the forgery of Three When the issue or an instrument issued or years registration becomes registered. known to the plaintiff
58. To obtain any other Three When the right to sue declaration years first accrues.
26. The suit being for declaration of the title based on fraud, coercion and misrepresentation as per Articles 56 and 58 the suit ought to have been filed within three years from the date of registration known to the plaintiff or when the right to sue first accrues. A perusal of the pleadings and evidence of PWs.1 to 4 establishes the fact that the execution of the sale deed was very much within the 23 knowledge of the plaintiff and no initiation was made by the plaintiff either by filing any police complaint against the defendants on the ground that the sale deed was obtained by coercion, fraud and misrepresentation. This having not been done and no action being forthcoming on behalf of the plaintiff, the plaintiff after a prolonged period of more than 12 years cannot contend that the sale deed executed on 10.11.1972 is obtained by fraud, coercion and misrepresentation. In light of Articles 56 and 58 of the Limitation Act, the suit of the plaintiff is barred by limitation and accordingly, substantial question of law is answered against the plaintiff. It is also relevant to note here that the plaintiff to come within the purview of limitation sought to contend that the defendant has illegally taken possession in the year 1975 and if the year of dispossession is taken into account, then as per Article 65, the suit is filed within 12 years. This contention of the plaintiff is not sustainable for the reasons that no materials are forthcoming to show that the plaintiff was dispossessed in the year 1975, on the contrary, Ex.P.1 the sale deed 24 depicts that the possession was delivered as on the date of registration itself and the documents produced along with I.A. No.1/2022 by the appellant in the present appeal, which is not disputed by the respondent/plaintiff, shows the entry of the name of the appellant/plaintiff in the revenue records under the execution of the sale deed dated 10.11.1972 in the year 1972 itself.
27. The evidence of DW.2 which is been relied upon by the plaintiff to contend that the suit is within limitation as DW.1 in his evidence contended that he owns the properties since 14 years and considering the date of evidence, 14 years would be that the plaintiff was in possession till 1976. This contention of the plaintiff is not acceptable for the reason that stray sentences in the evidence of DW.2 cannot be considered to make the suit well within limitation. The plaintiff has to stand or fall on his pleadings and not on the weaknesses of the defendant. Given the undisputed fact in totality, the period of limitation needs to be considered from the date of 25 execution of the registered sale deed dated 10.11.1972 and the contention of the plaintiff that Article 65 applies to the present facts is not acceptable as the Articles to be applied are Articles 56 and 58 of the Limitation Act.
28. The judgment relied upon by the plaintiff- respondent in the case of Electronics and Control stated supra, does not apply to the facts and circumstances of the present case and also since as per Ex.P1 the registered sale deed mentions the delivery of possession in favour of defendant No.1 on 10.11.1972 itself and thus, the plaintiff without any specific pleading and material cannot contend that the plaintiff was dispossessed in the year 1975.
29. For the reasons stated supra, the suit of the plaintiff is barred by limitation and the first substantial question of law is answered against the plaintiff. 26
30. Re: Second and Third Substantial question of law:
(ii) Whether the first Appellate Court is justified in holding that Ex.P.1 was obtained by coercion, fraud and misrepresentation?
(iii) Whether the first Appellate Court has rightly appreciated the evidence on record?
The second and third substantial questions of law are taken up together for the sake of convenience and to avoid repetition of facts. It is relevant to mention that as the first substantial question of law is answered against the plaintiff for the reasons stated supra stating that the suit of the plaintiff is barred by limitation, the answering of the second and third substantial questions of law is, however, to put an end to the litigation and giving reasoning to the judgment and decree of the first appellate Court wherein the first appellate Court has held that Ex.P-1 the registered sale deed was obtained by coercion, fraud and misrepresentation and accordingly, needs to answer the same.
27
31. In light of the contentions of the plaintiff, the words "coercion, fraud and misrepresentation" as defined in Indian Contract Act, need to be considered which reads as under:
Section 15 of the Indian Contract Act, 1872 defines "coercion" reads as under:-
"15. 'Coercion' defined.- 'Coercion' is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement."
Section 17 of the said Act defines "fraud" and the same reads as under:
"17. 'Fraud' defined.- 'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract."28
Section 18 of the Indian Contract Act defines "misrepresentation" as under:
"18. "Misrepresentation" defined.- "Misrepresentation" means and includes-
(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
(2) any breach of duty which, without an intent to deceive, gains an advantage of the person committing it, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him;
(3) causing, however innocently, a partly to an agreement, to make a mistake a to the substance of the thing which is the subject of the agreement."
32. The fraud, coercion and misrepresentation as pleaded by the plaintiff of such nature need to be established beyond reasonable doubt and the plaintiff has to prove that there was a motive by the defendants to obtain the sale deed by fraud. The evidence as it stood is very little reliable to connect with the contention of the 29 plaintiff that defendant No.2 by coercion, fraud and misrepresentation has got the execution of the sale deed in favour of defendant No.1 without any valuable consideration. It is further contended that the amount mentioned to the extent of Rs.14,000/- in the sale deed is not paid by defendant No.2 as there was no debt incurred by the plaintiff. It is contended that because of the non- passing of consideration amount as per the sale deed at Ex.P1 the agreement is void. The judgment relied upon the learned counsel for the respondent/plaintiff in Kewal Krishan stated supra is not applicable as in the said judgment the facts reveal that there was no sale consideration or payment at any future date and there is no quarrel in respect of the settled proposition that without payment of the price and if the document does not provide for payment of the price at a future date it is not a sale at all in the eye of law and such sale is void.
33. The Apex court in Vidyadhar case stated supra at para Nos.35, 36, 37 and 38 held as under: 30
"35. Even if the findings recorded by the High Court that the plaintiff had paid only Rs.500 to defendant 2 as sale consideration and the remaining amount of Rs.4500 which was shown to have been paid before the execution of the deed was, in fact, not paid, the sale deed would not, for that reason, become invalid on account of the provisions contained in Section 54 of the Transfer of Property Act, 1882 which provide as under:
"54. 'Sale' is a transfer of ownership in exchange for a price paid or promised or part- paid and part-promised.
Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.31
A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property."
36. The definition indicates that to constitute a sale, there must be a transfer of ownership from one person to another, i.e., transfer of all rights and interests in the properties which are possessed by that person are transferred by him to another person. The transferor cannot retain any part of his interest or right in the transfer of ownership has to be for a "price paid or promised or part-paid and part-promised". Price thus constitutes an essential ingredient of the transaction of sale. The words "price paid or promised or part-paid and part-paid and part- promised" indicate that actual payment of the whole of the price at the time of the execution of the sale deed is not a sine qua non to the completion of the sale. Even if the whole of the price is not paid but the document is executed and thereafter registered, if the property is of the value of more than Rs.100, the sale would be complete.
32
37. There is a catena of decisions of various High Courts in which it has been held that even if the whole of the price is not paid, the transaction of sale will take effect and the title would pass under that transaction. To cite only a few, in Gayatri Prasad v. Board of Revenue it was held that non-payment of a partition of the sale price would not affect the validity of the sale. It was observed that part-payment of consideration by the vendee itself proved the intention to pay the remaining amount of the sale price. To the same effect is the decision of the Madhya Pradesh High court in Sukaloo v. Punau.
38. The real test is the intention of the parties. To constitute a "sale", the parties must intend to transfer the ownership of the property and they must also intend that the price would be paid either in praesenti or in future. The intention is to be gathered from the recital in the sale deed, the conduct of the parties and the evidence on record."
Thus, applying the principles enunciated in Vidyadhar's case stated supra, the transaction and contents of the Sale document having been accepted, the plaintiff is not entitled to the relief as sought for and given 33 the present facts the consideration amount is been mentioned in the sale deed Ex.P.1 and the amount to be paid on a future date is also mentioned. In light of this, the judgment in Kewal Krishan stated supra is in another context and not applicable to the present facts and circumstances of the case.
34. It is relevant to note that any agreement without consideration is void, however, a promise to compensate for something is done or a promise to pay a debt does not make an agreement void as contemplated under Section 25 (2) of the Indian Contract Act, which reads as under:
"25. Agreement without consideration, void, unless it is in writing and registered or is a promise to compensate for something done or is a promise to pay a debt barred by limitation law.- An agreement made without consideration is void, unless-
(1) it is expressed in writing and registered under the law for the time being in force for the registration of documents, and is 34 made on account of natural love and affection between parties standing in a near relation to each other; or unless (2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do; or unless.
(3) It is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized on that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits."
35. Section 25(3) of the Indian Contract Act contemplates that a promise to pay even a time-barred debt would be valid and enforceable provided it is made in writing and signed by the person to be charged therewith. The plaintiff contends that at the time of execution of the sale deed there was no passing of valid consideration amount by the defendant in favor of the plaintiff and it was just a promise made by the defendant to pay the debts of 35 the plaintiff. It is contended that there was a loan of Rs.1,365/- against the plaintiff but the sale deed showed the consideration of Rs.14,000/- and the same was not paid to the plaintiff. Accordingly, in light of Section 25 of the Indian Contract Act and given the settled proposition of law that inadequacy of amount in an agreement cannot make the document void, this court is of the considered view that the sale deed at Ex.P.1 is not a void document.
36. The First Appellate Court went on an assumption that Rs.14,000/- which was to be paid by defendant No.2 to the society was not paid, when it is nobody's case that the said amount is not paid, it is the contention of the plaintiff that there was no debt payable to the society or anybody else as on the date of the sale deed dated 10.11.1972 if this contention of the plaintiff is accepted, it would be relevant to note that the plaintiff has not taken any steps to challenge the sale deed when admittedly the registration and contents of the sale deed were well within the knowledge of the plaintiff. This being 36 so, the First Appellate Court without appreciating the pleadings, evidence and material on record has concluded that the sale deed is obtained by fraud, coercion and misrepresentation. Given the reasons, stated supra the First Appellate Court was not justified in holding that Ex.P.1 was obtained by coercion, fraud and misrepresentation.
37. Accordingly, the substantial questions of law
(ii) and (iii) framed are answered in the negative and against the plaintiff.
38. For the reasons stated above, this Court pass the following:
ORDER
(i) The appeal filed by the defendant is hereby allowed.
(ii) The judgment and decree dated 16.01.2006 in RA No.29/1991 on the file of Civil Judge Senior Division and 37 JMFC, Ranebennur, is hereby set aside.
(iii) The judgment and decree dated
17.11.1990 in OS No.138/1989 on the
file of Munsiff Hirekerur is hereby
confirmed and the suit in OS
No.138/1989 is hereby dismissed.
(iv) No order as to cost.
Sd/-
JUDGE
Pj.