IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.462 OF 2005 BETWEEN Smt. Mehrunnisa, W/o. Hyder Ali Zeewabhoi No.17/1, Church Road, Basavanagudi, Bengaluru-560004.
(By Sri. T.V.Vijay Raghavan, Advocate) AND 1. Smt. Premavathi Pavani, D/o. Late S.Rangaiah, Aged 50 years, R/at No.15, Reservoir Street, Basavanagudi, Bengaluru-560004.
2. Sri. Abbaiah, S/o. Dekaiah, Since dead represented by LRs 2(a). Smt Gowramma W/o. Late Abbaiah, 2(b). A Viswanath, S/o. Late Abbaiah, …Appellant Both R/at No.11/1, 26th Main , 9th Block, Jayanagar, Bengaluru.
(cause title amended as per court order dated 23.05.2011) 3. Sri. Ramdas, S/o. Late Abbaiah, Aged about 31 years, R/at. No.11, Puttaiahnapalya, 9th Block, Jayanagar, Bengaluru-560041.
(R3 treated as L.R of deceased R2 vide order dated 23.5.2011) 4. Sri. C.Krishna, S/o. Late Chikka Annaiappa, Aged about 58 years, R/at. 15, Puttaiahnapalya, Jayanagar, Bengaluru-69.
5. Sri. C.Jayaraj, S/o. Late Chikka Annaiappa, Aged about 60 years, R/at No.2223, 39th ‘F’ Cross, 4th ‘T’ Block, Jayanagar, Bengaluru-41.
6. Smt. Muniyamma, W/o. Late Ramaiah, Aged about 59 years, R/at. 15/1, Puttaiahnapalya, 9th Block, Jayanagar, Bengaluru-69.
(R4 to R6 amended as per order dated 21.8.2012) …Respondents (By Smt. Pramila M Nesargi, Senior Counsel, for Sri. Muniswamy Gowda, Advocate for R1) This RFA is filed under Section 96 of CPC against the judgment and decree dated 19.02.2005 passed in O.S.No.199/1993 on the file of the I Additional Civil Judge (Sr. Dn.), Bengaluru Rural District, Bengaluru, decreeing the suit for specific performance of the contract.
This RFA coming on for final hearing this day, the court delivered the following:
JUDGMENT The seventh defendant in the suit, O.S.199/1993, on the file of the then I Additional Civil Judge (Senior Division), Bengaluru Rural District, Bengaluru, has preferred this appeal.
2. The plaintiff brought a suit for specific performance of an agreement of sale dated 9.11.1982. According to the plaintiff, the lands in Survey Nos.40, 42 and 43 of Gollahalli Village, Jigani Hobli, Anekal Taluk, belonged to defendants 1 to 5 and one Ramaiah, the husband of sixth defendant. These lands are described in plaint ‘A’ schedule. The defendants 1 to 6, by agreeing to sell ‘A’ schedule property to the plaintiff for total sale consideration of Rs.2,40,000/- executed an agreement of sale in favour of plaintiff on 9.11.1982 and put her in possession of the property. The plaintiff has stated she made payment of consideration amount to the defendants 1 to 6 on various dates; they made endorsements on the agreement itself for having received the money; and the total amount thus paid was Rs.2,05,000/-. She also claims to have paid balance of Rs.35,000/-; but did not obtain any endorsement for this payment.
3. It is further case of plaintiff that she was not an agriculturist. She was required to obtain permission from the Government for purchase of agricultural land as contemplated under sections 79A and 79B of Karnataka Land Reforms Act, and she obtained the same on 15.4.1987. After obtaining permission, she approached defendants 1 to 6 and requested them to execute the sale deed. They were not ready to execute the sale deed; they went on postponing the execution; and in order to avoid the same, they got filed a suit O.S.210/1990, for partition through the minor son of defendant No.4, without making her a party to the said suit though she was in possession of ‘A’ schedule property. But, the third defendant, namely C.Jayaraj, came forward to execute a sale deed in favour of plaintiff in respect of 2 acres 30 guntas of land in S.No.40, i.e., a portion of ‘A’ schedule property, and then executed a sale deed also on 5.7.1990 in favour of plaintiff. The said sale deed was registered on 5.9.1990. The land which was sold to her by third defendant is described in ‘B’ schedule. The lands that are described in ‘C’ schedule to the plaint are those in respect of which specific performance is sought.
4. It is further case of plaintiff that the defendants 1, 2 and 4 to 6 got filed another suit, O.S.329/1990, in which not only they were defendants, but the plaintiff was also one of the defendants; curiously the relief was claimed against the plaintiff only. This was a suit filed at the instance of defendants 1, 2 and 4 to 6 to dispossess the plaintiff. The plaintiff pleaded further that she met the defendants again and requested them to execute the sale deed. She also bought non judicial stamp papers for the purpose of obtaining sale deed. When she came to know that the defendants were not interested to execute the sale deed, she got issued a legal notice to them on 16.7.1990 and then brought the suit seeking enforcement of agreement of sale. She stated she was always ready and willing to perform her part of the contract including to pay Rs.35,000/- once again if the court were to arrive at a conclusion that she should pay that amount.
5. The defendants 1, 3, 4 and 5 did not enter appearance before the court. Second defendant filed written statement which was adopted by the fifth defendant also. The second defendant virtually admitted the plaintiff’s case. Though they took up a stand that the suit should be dismissed, they actually pleaded that sale deed could not be executed in favour of plaintiff because of lack of unanimity among the brothers.
6. The seventh defendant purchased the properties bearing survey numbers 42 and 43 from the first and sixth defendant on 27.10.1994 for valuable consideration. She claims to be a bona fide purchaser without knowledge of earlier agreement of sale between the plaintiff and defendants 1 to 6. She also contended that the suit was time barred and that the plaintiff was not ready and willing to perform her part of the contract.
7. The trial court framed the following issues and additional issues : -
Issues 1. Whether the plaintiff proves that he was ready and willing to perform his part of said agreement to sell?
2. Whether the plaintiff proves that the entire sale consideration of agreement to sell has been received by defendants?
3. Whether the plaintiff is entitled for specific performance of contract?
4. What decree or order?
Additional Issues 1. Whether the 7th defendant proves that she is a bonafide purchaser of C schedule properties for valuable consideration without notice as alleged in para 6 and 11 of written statement?
2. Whether the 7th defendant proves that the suit is barred by limitation?
8. Analyzing the evidence, both oral and documentary, the trial court decreed the suit directing the defendants to execute a sale deed.
9. I have heard the arguments of learned counsel for appellant/7th defendant and the respondent/plaintiff.
10. The learned counsel for appellant assails the judgment of the trial court on three scores. His point of argument was that since the plaintiff herself did not step into witness box and rather preferred to examine her power of attorney, the evidence given by the latter as PW1 with regard to plaintiff’s readiness and willingness to perform her part of the contract was of no use. He argued that none other than the plaintiff could speak about readiness and willingness. He also pointed out that the plaintiff applied for permission to purchase agricultural land four years after the date of execution of agreement. That means the plaintiff did not show any interest for four years. This shows that she was not ready. To this point of argument, the learned senior counsel for respondent replied that the appellant being a pendene lite purchaser had no locus standi to question the plaintiff’s case that she was ready and willing to perform her part of the contract.
11. The learned counsel for appellant submitted that appellant was a bona fide purchaser without notice of agreement between the plaintiff and defendants 1 to 5 and husband of defendant No.6, and being a defendant in the suit, she could take all such defences as are available under law, and therefore the appellant could question the plaintiff’s readiness and willingness.
12. In regard to this aspect it has to be stated that the appellant being defendant No.7 and subsequent purchaser, cannot be said to be incompetent to question the plaintiff’s readiness and willingness. That right is certainly available to her. It is held by the Supreme Court in RAM AWADH (DEAD) BY L.RS AND OTHERS VS ACHHAIBAR DUBEY AND ANOTHER [(2000) 2 SCC 428], a decision cited by appellant’s counsel that it is open to any defendant to contend and establish that the mandatory requirement under section 16 (c) of the Specific Relief Act has not been complied with and it is for the court to determine whether it has or has not been complied with. There is no question that this plea is available to one defendant and not to another. Thus to this extent the argument of appellant’s counsel is sustainable. But in regard to another point that PW1 is incompetent witness being a power of attorney of the plaintiff, it is to be noted here that as the circumstances disclose, there is nothing to be proved by the plaintiff indicating his readiness and willingness. Some of the defendants chose not to contest the suit, and the other defendants who filed the written statement clearly admitted to have received Rs.2,05,000/- from the plaintiff. Balance was Rs.35,000/-. Though the plaintiff stated that she had already paid this amount, she also stated that still she was ready to pay that amount. Further when the trial court granted an order of temporary injunction, it directed the plaintiff to make deposit of Rs.35,000/-. The plaintiff complied with this direction. Therefore, so far as making payment of money, there was nothing left. On the point that the plaintiff applied for permission after four years, it is not a point that the appellant can urge because a condition to obtain permission from the Government is not stipulated in the agreement marked as Ex.P2. What a party is required to prove is to be ready and willing to perform conditions stipulated in the agreement and nothing else. If the plaintiff stated about applying for and obtaining permission according to sections 79A and 79B of Karnataka Land Reforms Act, and if there was delay in doing it, the seventh defendant cannot complain of it. Thus considered, even if PW1 is considered to be an incompetent witness to speak about readiness and willingness on the part of the plaintiff, the latter’s case does not lose strength.
13. The learned counsel for appellant has relied upon a decision of the Supreme Court in the case of MAN KAUR (DEAD) BY LRS vs HARTAR SINGH SANGHA [(2010) 10 SCC 512]. In this decision, the Hon’ble Supreme Court has postulated the principles as to how the evidence of a power of attorney of a party to suit must be assessed. One of the postulates is as follows : -
“18. (g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his `state of mind' or `conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his `bona fide' need and a purchaser seeking specific performance who has to show his `readiness and willingness' fall under this category ”.
14. With great respect, it is to be mentioned here that the circumstances in the case on hand as discussed above, indicate that there remained nothing to be proved further by the plaintiff about her being ready and willing to get the sale deed executed from defendants 1 to 6. Therefore this ruling is not helpful to appellant. For these reasons the argument of appellant’s counsel on this point fails.
15. The next point that the learned counsel argued was that suit was barred by time. The trial court should not have held that suit was not time barred. He argued that the agreement came into existence on 9.11.1982. The agreement does not stipulate any time period within which sale transaction should be completed. The plaintiff claims to have made payments to defendants 1 to 6 on different dates, but these payments cannot be considered to hold that suit was filed within time. In the plaint itself, plaintiff refers to suits filed by minor son of defendant no.4. The plaintiff also speaks about third defendant executing a sale deed in respect of ‘B’ schedule property, the obvious inference therefore should have been that the defendants were not ready to execute the sale deed in respect of ‘C’ schedule property. From the plaint averments, it is noticeable that the plaintiff came to know about defendants’ reluctance to execute the sale deed. Therefore from the date of knowledge, the suit should have been filed within three years. The learned counsel has relied on the judgments viz., (1) MANICK LAL SEAL AND ANOTHER vs K.P.CHOWDHURY [AIR 1976 CAL 115]; (2) SHAKUNTALA (SMT) vs NARAYAN GUNDOJI CHAVAN AND OTHERS [(1999) 8 SCC 587] and (3) K.NARAYAN REDDY VS RAMAKRISHNA REDDY [ILR 2000 KAR 1865].
16. The learned senior counsel for respondent/plaintiff argued that the agreement does not specify the time within which the contract should be performed, that the plaintiff got issued a notice to defendants 1 to 6 as per Ex.P10 and the suit was filed within time from the date of notice. According to Article 54 of the Limitation Act, suit for specific performance must be filed within three years from the date fixed for performance, or, if no such date is fixed, when the plaintiff becomes aware of refusal of performance.
17. Now if the decisions cited by appellant’s counsel are seen, in the case of Manick Lal Seal (supra) , the High Court of Calcutta has held as below:-
“4. ……. According to Article 113 of the old Limitation Act, the limitation for specific performance of contract starts when the plaintiff has notice that performance is refused. The word "Notice" means intimation, information, cognizance, or observance. 'Notice' implies knowledge and this knowledge comes from direct perception or from inference reasonably arising out of several facts and circumstances. According to the plaintiff, as I have already stated, the written out document was handed over to the defendant No. 2, in or about December, 1956 and if the vague evidence of the plaintiff about the demand made to the durwan for execution of the deed is assumed to be acceptable and when the plaintiff did not get any reply or response from the defendant No. 2 in that respect, what would be the feeling or natural inference in the mind of an ordinary prudent man of the world? In my view, the only inference that a man can have would be that the man asked to do the thing and giving no answer for a long period, say a year or more, was unwilling to do that act or refused to comply with the demand ”
18. The Hon’ble Supreme Court in the case of Shakuntala (Smt) (supra) has held as under : -
“7. It is clear from the findings of the High Court and the first appellate Court that on 17-6- 1977 the defendant clearly refused to perform the contract and subsequently the property was also sold on 26-7-78 to the present appellant. It is clear that such a notice will amount to refusal on the part of the vendor to perform the contract covered by the compromise. But the High Court stated in paragraph 7 that the lower appellate Court committed a mistake in this behalf because the plaintiff had paid Rs. 1,000/- advance after 17-6-1977 and it was received by the defendant. Learned Counsel for the respondent-plaintiff tried to submit before us that once the defendant accepted Rs. 1,000/-subsequent to the notice dated 17-6-77, it must be held that the vendor was not standing by his refusal to perform the contract as stated in notice dated 17-6-77”.
19. This court in K.Narayan Reddy (supra) in the facts and circumstances of that case observed as below : -
“11. … In any event, what the plaintiff was doing from 1975 to 1978 in not moving his little finger for this purposes is not explained. The mere payment spread over for a period of 7 years will not ipsofacto follow that the plaintiff was really willing. Therefore, the question of limitation has to be held against the plaintiff and the suit must fail on that ground alone. ……”
20. Where a question as to limitation arises, a decision in that regard has to be taken based on facts and circumstances of a given case. There cannot be a straitjacket formula. For this reason, the conclusions arrived at in the cases of Shakuntala and K.Narayan Reddy (supra) are based on facts of those cases only. However, as has been held by Calcutta High Court, the meanings that can be ascribed to the word ‘notice’ are intimation, information, cognizance; observance. In the light of this meaning, it is to be examined when actually the plaintiff came to know about breach of agreement.
21. The trial court has recorded findings on this issue that the defendants 1 to 6 received payment of sale consideration amount from the plaintiff on different dates in between 4.11.1984 and 28.9.1990 and there are endorsements on the agreement itself about these payments, that the plaintiff issued a legal notice to the defendants 1 to 6 on 12.9.1993 as per Ex.P10 which is not disputed and that 28.9.1990 was the date when last payment was made to defendants 1 to 6 by the plaintiff. The suit was filed on 14.7.1993, and therefore it was within time.
22. I do not think that the above findings of the trial court are incorrect. Firstly the agreement does not contemplate a time period for completing the contract. It is undisputed that defendants 1 to 6 received the payments on different dates and that 28.9.1990 was the last date of receipt of money from them. Whether the defendants received the consideration amount jointly or individually does not matter much. Because in the written statement of defendant No.2 there is clear and unequivocal admission with regard to receiving the money. In the circumstances, receipt of money by one of the defendants amounts to receiving money on behalf of others also, if not, defendant No.2 could have taken a stand that receipt of money by one of them did not bind others.
23. Then, with regard to two suits O.S.210/1990 and O.S.329/1990, it has to be stated that in O.S.210/1990, the plaintiff was not a party and it was filed by a minor son of defendant No.4. O.S.329/1990 was also filed by minor son of fourth defendant. The plaintiff was also one of the parties in addition to defendant Nos. 1 and 3, and one C.Krishna.
The relief of permanent injunction was claimed against plaintiff herein. It is not understandable as to how the suit for specific performance becomes time barred if a minor son of one of the defendants filed a suit. The plaintiff in O.S.329/1990 is a stranger to agreement, Ex.P2. Mere filing of suit by one who is not a party to agreement cannot be held and considered to hold that subsequent suit for specific performance as time barred unless it is demonstrated that by virtue of that suit, the plaintiff could expressly or impliedly get the information or intimation about breach of agreement. Nothing can be made out from evidence that plaintiff could apprehend the breach of contract when the suits were filed. Even if it is assumed for argument sake that the plaintiff got the intimation about breach of contract after institution of O.S.329/1990 of the suit on 24.9.1990, it can be held that the suit having been filed on 15.7.1993 can be said to be not time barred. The plaintiff also issued a notice to defendants 1 to 6 on 12.9.1993. The defendants 1 to 6 did not reply. Therefore, from the date of notice, the suit was filed within time. For all these reasons, I hold that suit is not time barred.
24. The learned counsel for appellant, during his argument, stressed a point that the appellant was a bona fide purchaser, it requires to be answered. His argument was that the appellant did not have knowledge about pendency of the suit. The revenue records disclosed the names of first and sixth defendants and believing them to be lawful owners, she purchased the property. He argued that though the appellant is a pendente lite purchaser, the sale in her favour was not bad and it was subject to result in the suit. He also argued that action for contempt could be taken for violation of temporary injunction, but sale does not become void. In this case the plaintiff did not take action for contempt. Therefore sale in favour of appellant cannot be assailed. In this regard he referred to a judgment of High Court of Allahabad in the case of DUSHYANT KUMAR AND 5 OTHERS vs ASWANI KUMAR SINGH AND 25 OTHERS [LAWS (ALL) 2019 1 59]. The learned senior counsel for respondent met this point of argument by arguing that appellant cannot be called a bona fide purchaser as the sale in her favour was in violation of interim order of temporary injunction. Whether action for contempt is taken or not, the appellant cannot claim to be bona fide purchaser. She placed reliance upon three rulings, in the cases of (1) THOMSON PRESS (INDIA) LIMITED vs NANAK BUILDERS AND INVESTORS PRIVATE LIMITED AND OTHERS [(2013) 5 SCC 397; (2) SMT. NANCY PAIS vs S.SURENDRA AND ANOTHER [RFA NO. 74/2007] and (3) SHIVADARSHAN BALSE vs STATE OF KARNATAKA AND OTHERS [2017 (3) KCCR 2153].
25. The conspectuses of the decisions referred to above are that any transfer pendente lite is subject to outcome in the suit. Though sale is not bad at the inception, if the suit is held against the seller or transferor, the purchaser is bound by the decree. In case of alienation or transfer in violation of interim order of temporary injunction, though the transfer cannot be said to be bad, the violator is liable for action for contempt, but the transferee cannot claim the status of bona fide purchaser. It is the duty of the transferor to disclose everything pertaining the property to the intending purchaser or transferee. If pendency of litigation is suppressed and the suit or dispute is decided against the transferor, the transferee, in such an event, can sue his transferor for damages: Especially in a suit for specific performance, if disputed property is sold in violation of order of temporary injunction, the purchaser cannot be called a bona fide purchaser. Section 19 of the Specific Relief Act protects the interest of one who purchases the property before the commencement of suit in good faith without notice of prior agreement. Since in this case the appellant bought the property during pendency of the suit, her interest is not protected.
26. The above discussion takes me to conclude that the trial court has rightly come to conclusion to decree the suit. There are no grounds to take a different view. Judgment of the trial court is confirmed. Appeal is dismissed with costs.
Sd/- JUDGE