IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE N.K.SUDHINDRARAO REGULAR SECOND APPEAL NO.450 OF 2012 BETWEEN S RAMACHANDRA S/O SRINIVASA AGED ABOUT 44 YEARS R/AT D NO.1951/3, NARAYANA SHASTRI ROAD, 1ST CROSS, DEVARAJA MOHALLA MYSORE (BY SRI T N RAGHUPATHY, ADVOCATE) AND SHANKAR SINCE DEAD BY LRS 1. SMT MANJULA W/O LATE SHANKAR AGED ABOUT 47 YEARS 2. S ANITHA D/O LATE SHANKAR AGED ABOUT 26 YEARS 3. S SUNITHA ... APPELLANT D/O LATE SHANKAR AGED ABOUT 24 YEARS ALL ARE RESIDING AT D.NO.436, DODDAVOKKALAGERI MANDI MOHALLA MYSORE – 570 005.
AND ALSO AT D.No.48 III CROSS, II STAGE OKALIPURAM, BANGALORE 560 021.
4. K S HARISHKUMAR S/O LATE K SUBRAHMANYA AGED ABOUT 50 YEARS NO.48, III CROSS, II STAGE, OKALIPURAM BANGALORE-560021 .. RESPONDENTS (By Sri. N G SREEDHAR – ADV. FOR R4; R1, R2 AND R3 ARE SERVED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 03.11.2011 PASSED IN R.A.NO.194/2010 ON THE FILE OF THE IV ADDITIONAL DISTRICT JUDGE, MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:26.3.2010 PASSED IN O.S.NO.130/2004 ON THE FILE OF THE JUDGE, SMALL CAUSES AND SENIOR CIVIL JUDGE, MYSORE.
THIS APPEAL COMING ON FOR FINAL DISPOSAL THIS DAY THE COURT DELIVERED THE FOLLOWING :-
JUDGMENT The matter is set down for admission. However, with the consent of learned counsels on both sides, it is taken up for disposal.
2. The appeal is directed against the judgment and decree dated 3.11.2011 passed by the IV Additional district Judge, Mysore, in R.A.No.194/2010 wherein the appeal came to be dismissed thereby confirming the judgment and decree dated 26.3.2010 passed by the Judge, Court of the Small Causes, Mysore, and Senior Civil Judge, Mysore.
3. In order to avoid confusion and overlapping, parties are referred to in accordance with the status and rankings held by them before the Trial Court.
4. To begin with, it is a suit for specific performance instituted before the learned Civil Judge(Senior Division) on 19.2.2004 wherein the plaintiff claimed that defendants 1 to 3 agreed to receive the balance sale consideration of Rs.2,50,000/- and execute registered sale deed in respect of the suit schedule property.
5. The pleadings of the plaintiff is that the first defendant is the wife and defendants 2 and 3 are the daughters of one Shankar, who is no more. During his life time, the said Shankar and the plaintiff on 12.1.2011 entered into an agreement of sale in respect of the schedule property for valuable consideration of Rs.3,00,000/-. The said Shankar was the owner of the property as he inherited the same by virtue of a will dated 6.10.1986 executed by his mother Smt.Krishnamma. Advance amount of Rs.50,000/- was paid and transaction of sale deed was to be completed within three months. The said Shankar had agreed to receive balance sale consideration of Rs.2,50,000/- from the plaintiff. All the documents were agreed to be given at the time of registering the sale deed.
6.The vendor-Shankar had agreed to get the signature of the first defendant as the consent witness to the sale. But he died leaving behind defendants 1 to 3 as his legal heirs/representatives. The plaintiff also claimed that Shankar during his life time was indebted to several persons such as M.B.Doddegowda, Sathyanarayanasetty, Mariswamygowda, Siddappa, Nazemuddin and Ajay Sait. They started pressing Shankar to pay back the amount. The plaintiff on the advise of the first defendant discharged the debt due by Shankar to the tune of Rs.48,000/-. Everything was within the knowledge of the defendants. The defendants, who are the legal heirs/representatives of Shankar, denied the agreement however, admitted that the schedule property belonged to deceased-Shankar during his life time. The Trial Judge was accommodated with the pleadings, oral evidence of PWs 1 to 3 and the documentary evidence- Exhibits P1 to P13. The oral evidence of the defendants are DWs 1 to 3 and the documents marked therein are exhibits D1 to D11.
7. The learned counsel for the plaintiff would submit that earlier plaintiff was a tenant in the schedule property, which is a shop premises measuring 8ft x 8ft at Devaraja Market square, Mysore. He would further submit that the agreement has all the characteristics of a valid contract. The said Shankar was a man with proper competency to execute the sale agreement in favour of the plaintiff as he was the head of the family and therefore, there are no flaws in the agreement.
8. Learned counsel would further submit that insofar as the proof of agreement is concerned, it was validly done. Learned counsel would further submit that the entry of the plaintiff to the suit schedule property was by way of a tenant. As a matter of fact, his father was running a sweet stall and it was continued by the plaintiff upon the death of his father. However, monthly rent is stated to be Rs.3,000/-. It was further submitted that the plaintiff has been in possession of the property. Thus, by virtue of executing this sale agreement, the previous relationship of land-lord and tenant between the said Shankar and the plaintiff came to an end. It was submitted that the schedule property was agreed to be sold to the plaintiff for Rs.3,00,000/-. On the other hand, the defendants have executed a sale deed in favour of defendant No.4. Thus, the plaintiff claim that subsequent to the sale deed dated 23.3.2002, suit is pending for specific performance of an amount of Rs.1,70,000/- in an abnormal and unnatural circumstance regard being had to the fact that the agreement was entered for a sale consideration of Rs.3,00,000/- to the plaintiff.
9. Per contra, learned counsel for defendant No.4 submits that the plaintiff in order to grab the schedule property has played a game of cheating the defendants. Insofar as the schedule property is concerned, defendant Nos.1 to 3 got entered into a registered sale deed dated 23.2.2002 in favour of defendant No.4 for a valid consideration of Rs.1,70,000/-. The learned counsel would further submit that the claim of the plaintiff to the effect that he is in possession of the suit schedule property is false and it is an example of deception. The learned counsel would further submit that Shankar, husband of defendant No.1, had no occasion to sell the schedule property to the plaintiff. It is submitted that 4th defendant - Harish Kumar is nothing but the sister’s son of defendant No.1.
10. Exception being raised by learned counsel for the plaintiff in selling the property to defendant No.4, who is a close relative of defendant No.1, shows the deceiving mentality of Shankar and the present defendant. It is also stated that Shankar was said to be in Coma when registered sale deed was effected in favour of defendant No.4 (page 6 of the evidence of DW1). The said factor has no relation to scope of the case and the deprival of any right of the parties or does it lead to material impact of the material of the case. In the circumstances of the case, the substantial question of law as proposed by the plaintiff are :-
1. Whether the courts below erred in holding that the agreement of sale is not proved ?
2. Whether the courts below erred in not holding that the 4th respondent is a bonafide purchaser for value especially when the plaintiff-appellant is in possession of the property?
11. During the disposal of the case, I have re- framed the substantial question of law as under :-
1. Whether the plaintiff is in possession of the schedule property in part performance of the contract dated 12.11.2001 claiming the ingredients of Section 53A of the Transfer of Property Act?
2. Whether the Trial court considered the provisions of Specific Relief Act and the Transfer of Property Act?
3. Whether disposal of HRC No.116/2003 as withdrawn has a bearing on the case to the very rights and duties of the parties?
4. Whether liability is created on defendant Nos.1 and 3 to execute the sale deed in favour of the plaintiff by virtue of the sale agreement dated 12.11.2001 ?
12. Before dwelling upon the other circumstance, it is necessary to consider Ex.P1- sale agreement. It is stated that it was entered into on 12.11.2001 and the property was mortgaged by the said Shankar in order to counter the family necessities and also the fact that Shankar had incurred debts with various persons amounting to Rs.48,000/-. He could not repay the loan and requested the plaintiff to clear the loan and that the plaintiff has cleared the loan amount of Rs.48,000/-. The earlier status of the plaintiff in respect of the schedule property as a tenant is not denied. Insofar delivery of possession is concerned, it was submitted by the learned counsel for the plaintiff that though it is not mentioned in the sale deed regarding delivery of possession of the schedule property, in fact, possession was delivered to the plaintiff as an intended purchaser. By this statement, what the plaintiff tried to say is that earlier possession over the schedule property by the plaintiff in the capacity of the ‘tenant’ came to an end and possession got transferred into that of a ‘purchaser’. Thus, literally the plaintiff claims that he is in possession of the schedule property in part performance of the contract.
13. Insofar as the date of sale agreement is concerned which is 12.11.2001, in this connection if possession was handed over under the said sale agreement, though it is not mentioned in the agreement whether accidentally or other wise, it is necessary to make a mention with effect to the Karnataka Stamp Act on 1.4.1995 in respect of the monitory registration and the stamp duty put forth in respect of the sale agreement under which possession is delivered however, insofar as that aspect of the matter is not occupying the dominant domain of the case.
14. Insofar as the HRC petition was filed and that was got withdrawn on 5.2.2005, the learned counsel for the defendant No.4 - Sri.Sridhar would submit that though the HRC petition seeking eviction was withdrawn on 5.2.2005, a fresh HRC petition was filed by virtue of the dismissal of the R.A.194/2010 and the said HRC petition was numbered as HRC No.590/2013. The grey area regarding the sale agreement is neither considered by the Trial Court or the Appellate Court. However, the question of considering the registration, stamp duty and the related documents, the same was the substantial part for determination.
15. Insofar as the fourth defendant is concerned, he has issued notice to him seeking vacation of the schedule property and the present HRC petition is filed by the fourth defendant. Insofar as the sale agreement is concerned, it is necessary that the claim of the plaintiff is that it was executed by Shankar. The date of sale agreement is dated 12.11.2001 and the amount of sale consideration is Rs.3,00,000/-. The advance stated therein is Rs.50,000/-. Time prescribed for registration is three months. However, no notice was issued to the defendant within the time. The submission by learned counsel for the plaintiff was that the notice Ex.D10 came to be issued regarding specific performance. Regard being had to the fact that the quit notice was issued on 28.2.2003 and the fact of defendant No.4 purchasing the property was also mentioned therein.
Reply is given on 25.2.2003. However, his reply as per Ex.P2 mentions the sale agreement-Ex.P1 executed by said Shankar and the fact that jural relationship existed between the father of the plaintiff and Shankar and the plaintiff continued in possession of the property in furtherance of the sale agreement and not in possession to pay the dues or loan. It is also to be seen that the notice seeking specific performance was not issued by the plaintiff stating that he was willing to perform his part of the contract which is also one of the ingredients of part performance and the suit itself was filed for specific performance. The date of filing of the suit is 19.2.2004. In the circumstances of the case, date of sale agreement is 12.11.2001 and the time stipulated was three months. That means due date would fall during February 2002. There is no document or circumstance to show the readiness or willingness of the plaintiff in respect of the sale agreement Ex.P1.
However, learned counsel for the plaintiff submitted that the defendant No.4 has purchased the property. Hence, there was no occasion to issue notice and straight away proceedings were instituted. It is also necessary to focus on the date of issue of quit notice- 28.2.2003 and the date of sale deed -23.3.2002 in favour of the fourth defendant regard being had to the fact that the suit for specific performance is filed on 19.2.2004. In this connection, it is also necessary to observe the conduct of the plaintiff in respect of the information received by him through postal communication by quit notice dated 28.2.2003 making clear that the schedule property was purchased by the fourth defendant. This actually is nothing but straight and direct denial of the agreement in favour of the plaintiff. Having received quit notice dated 28.2.2003, he kept mum till 19.2.2004 to file suit for specific performance and that the readiness and willingness here is a vanishing point. Further, the plaintiff claims to be a tenant of the suit schedule property. His father was a tenant and invariably, he continued as a tenant. It is not the case that he denied ownership. The fact of filing the suit for specific performance against the defendants is a conclusive evidence that he admitted ownership in continuation of ownership of Shankar. The plaintiff has not furnished a scrap of paper that he has neither tendered or paid the loan. Specific performance is equitable and also a remedy to the plaintiff but the defendant shall not be put to unfair advantage. The conduct of the plaintiff in keeping quiet is a negative factor of his approach. Further rent having not been paid cannot be ignored. More particularly it is stated that earlier the rate of rent was Rs.3,000/- p.m.
16. In the circumstances of the case, in execution of an agreement, in my opinion, the plaintiff must be ready and willing to perform his part of contract at all reasonable and crucial stages. The plaintiff has resorted to false hood, be it in respect of agreement, advance amount and discharging the debts by deceased Shankar to various persons viz. Doddegowda and others to the extent of Rs.48,000/-.
17. Thus considering the bunch of inconsistencies, lack of readiness and willingness, the false claim of part performance- such as that plaintiff relied on document as per agreement Ex.P1, it was never the intention of Shankar and plaintiff.
18. He also denied the relationship of tenancy that was not proper. Defendant No.4 became the purchaser by virtue of the registered sale deed and was landlord. The question of consideration of Rs.1,70,000/- being the sale consideration for the schedule property that was sold under sale agreement to defendant No.4 and calling it as paltry amount in the light of the sale consideration agreed under Ex.P1. It is necessary to place on record that plaintiff has no locus standi to question to adequacy of consideration.
The plaintiff has miserably failed to prove the execution of the sale agreement by Shankar receiving the consideration and his possession by way of part performance under Section 53A of the Transfer of Property Act. In the circumstances, conduct of absence of readiness and willingness is unjustifiable conduct and inconsistent conduct disentitle the plaintiff for the remedy of specific performance. I do not find any infirmity or irregularity or lapse in the judgment passed by the learned Trial Judge in O.S.130/2004 and by the District Judge in R.A.No.194/2010. Their findings deserve to be confirmed for the well reasoned judgment. The substantial questions of law are answered accordingly.
Hence, confirming the findings and the reasonings in the judgments of the trial Court and the First Appellate Court, I proceed to pass the following :-
The appeal is dismissed. The payment of Rs.50,000/- by way of advance is not established.
Sd/- JUDGE rs