IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO.987 OF 2015 BETWEEN:
1. SRI C.M.NARAYANASWAMY S/O LATE L.MOTAPPA, AGED ABOUT 53 YEARS 2. SMT. NARAYANAMMA WIFE OF C.M.NARAYANASWAMY, AGED ABOUT 45 YEARS 3. SRI. HARISH SON OF C.M.NARAYANASWAMY, AGED ABOUT 30 YEARS 4. SRI. RAGHAVENDRA SON OF C.M.NARAYANASWAMY, AGED ABOUT 28 YEARS ALL ARE RESIDING AT CHINNANDAHALLI VILLAGE, JADIGENAHALLI HOBLI, HOSKOTE TALUK, BANGALORE RURAL DISTRICT - 562 114.
...APPELLANTS (BY SRI JAGANNATHA H.T., ADVOCATE) AND:
SRI NARAYANASWAMY S/O MUNIPILLAPPA AGED ABOUT 43 YEARS, RESIDING AT CHINNANDAHALLI VILLAGE, JADIGENAHALLI HOBLI, HOSKOTE TALUK, BANGALORE RURAL DISTRICT-562 114.
…RESPONDENT THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 26.02.2015 PASSED IN R.A.NO.41/2013 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 06.12.2012 PASSED IN O.S.NO.2051/2006 ON THE FILE OF THE II ADDL.SR.CIVIL JUDGE, BENGALURU (R) DIST, BENGALURU AND ETC., THIS RSA HAVING BEEN HEARD AND RESERVED ON 11.11.2019 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THIS COURT DELIVERED THE FOLLOWING:
JUDGMENT This second appeal is by the defendants questioning the judgment and decree dated 26.02.2015 passed in R.A.No.41/2013 on the file of the Principal District Judge, Bengaluru Rural District, Bengaluru, confirming the judgment and decree dated 06.12.2012 passed in O.S.No.2051/2006 on the file of the II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru.
2. For the sake of convenience, the parties are referred to as per their status before the Courts below.
3. The facts leading to this top noted appeal is as under:
The respondent/plaintiff filed suit for specific performance of contract by specifically contending that the present appellants/defendants have executed an agreement of sale on 21.10.2004. As per the terms of the agreement, the respondent/plaintiff averred in the plaint that sale consideration was fixed at Rs.1,10,000/- and the present appellants herein having received a sum of Rs.1,00,000/- out of total sale consideration of Rs.1,10,000/- executed agreement of sale on 21.10.2004 and handed over possession of the suit property to the respondent/ plaintiff. The respondent/plaintiff further averred in the plaint that the present appellants/defendants had agreed to get their name mutated to the revenue records within two months but, however, failed to get their name mutated to the revenue records. Since the appellants/defendants failed to perform their part of contract, the respondent/plaintiff further averred in the plaint that a notice was issued on 24.10.2005 calling upon the appellants/defendants to execute the registered sale deed. The plaintiff further averred that the appellants/defendants refused to receive the notice and hence, suit for specific performance was filed.
4. The appellants/defendants, on receipt of suit summons, appeared and contested the proceedings by filing written statement. The appellants/defendants specifically contended that they were in need of hand loan of Rs.1,00,000/- and hence, the respondent/plaintiff taking undue advantage of this vital aspect, secured signatures on blank stamp papers and has created the suit agreement. The appellants/defendants also contended that as on the date of alleged agreement, the suit property was valued more than Rs.5,00,000/- and a contention was also taken in the written statement that the suit property is joint family property of the first appellant and his brother Ramappa and there is no division in the family. The appellants/defendants also averred in the written statement that the brother of the first appellant namely, Ramappa has filed suit for partition in O.S.No.2064/2007 and as such, the present suit filed without impleading his brother Ramappa is bad for non-joinder of parties and hence, prayed to dismiss the suit.
5. The Trial Court having examined the rival contentions, formulated the following issues:
“1) Whether the plaintiff proves that the defendants entered into an agreement to sell the property for Rs.1,10,000/- on 21.10.2004?
2) Whether the plaintiff further proves that the defendants received Rs.1,10,000/- and executed an agreement of sale?
3) Whether the plaintiff proves that he is ever ready and willing to perform his part of contract?
4) Whether the defendant No.1 to 4 proves that the plaintiff obtained their signature on blank stamp papers for security of money and created an alleged agreement?
5) Whether the defendants prove that suit is bad for mis-joinder of parties?
6) Whether the plaintiffs are entitle for the relief of specific performance of contract as sought for?
7) What Order or decree?”
6. The respondent/plaintiff in support of his contention, examined himself as PW.1 and got marked documents at Exs.P-1 to P-9. The respondent/plaintiff also examined two witnesses to the suit agreement as PWs.2 and 3. The appellants/defendants in support of their contention, lead in oral evidence of DWs.1 and 2 and produced documents at Exs.D-1 and D-2. The Trial Court having examined the oral and documentary evidence, answered issue Nos.1 and 2 in the affirmative by holding that the respondent/plaintiff has established due execution of suit agreement and also receipt of entire sale consideration of Rs.1,10,000/-. The Trial Court also proceeded to answer issue No.3 in the affirmative by holding that respondent/plaintiff has established that he is ever ready and willing to perform his part of contract. The contention of the defendants was negatived by the Trial Court and accordingly, the suit was decreed. The appellants/defendants being aggrieved by the judgment of the Trial Court granting discretionary relief of specific performance preferred a regular appeal in R.A.No.41/2013.
7. The appellants having questioned the reasoning assigned by the Trial Court on issue Nos.1 to 3 also relied on additional evidence by filing an application. The Appellate Court on re-appreciation of the evidence, recorded a categorical finding that the additional evidence sought to be produced cannot be taken on record. The Appellate Court, while answering point No.1, has come to the conclusion that the valuation report sought to be produced by way of additional evidence by the appellants is not at all necessary for effective adjudication nor any substantial question is made out by the appellants/defendants to accept the additional evidence. Insofar as merits of the case are concerned, the Appellate Court, on re-appreciation, has come to the conclusion that the entire sale consideration is paid by the respondent/plaintiff and possession is also delivered. The Appellate Court has further on re-appreciation has agreed that the reasoning of the Trial Court by holding both the witnesses to the suit agreement have deposed in regard to due execution of suit agreement by the appellants/defendants, receipt of entire sale consideration and further both witnesses have stoutly denied the defence raised by the appellants/ defendants in regard to alleged loan transaction. The Appellate Court on re-appreciation having agreed with the reasoning assigned by the Trial Court had dismissed the appeal. The appellants/defendants being aggrieved by the concurrent judgment and decree of the Courts below have filed the top noted second appeal.
8. Heard learned counsel for the appellants.
9. Learned counsel for the appellants would vehemently argue that the suit property admittedly being a joint family ancestral property, the Courts below erred in granting discretionary relief of specific performance of contract. Learned counsel for the appellants would also bring it to the notice of this Court that the suit agreement has several material alterations and the same would create doubt in regard to genuineness in regard to due execution of suit agreement as per Ex.P-1. Learned counsel for the appellants would further argue that the witnesses of the defendants cannot be a ground to decree the suit of the respondent/plaintiff.
10. Having heard learned counsel for the appellants and having examined the material on record, what transpires is that at para 9 of the written statement, the appellants/defendants have in unequivocal terms admitted the due execution of suit agreement by setting up the defence that the same was executed by way of security towards loan advanced by the respondent/plaintiff. It is also relevant to note that the appellants/defendants have taken further contention that towards the hand loan of Rs.1,00,000/- they have periodically paid interest to the respondent/plaintiff. In this background, this Court is of the view that the contention of the appellants/defendants denying their execution of suit agreement is untenable.
11. The appellants/defendants have set up their defence in two fold, firstly, that the suit agreement came to be executed by way of security and secondly, the relief of specific performance cannot be granted in the present case of hand on the premise that as on the date of execution of suit agreement, the property was worth Rs.5,00,000/-. On perusal of suit agreement, it is evident that defendant Nos.1, 3 and 4 are the executants. Further, the mother of the first appellant namely, Chikka Pillamma and his brother Ramappa, who admittedly has half share have signed as consenting parties.
12. Though the appellants/defendants have denied the suit agreement at para 1 of the written statement, but have admitted the due execution of the suit agreement dated 21.10.2004 as per Ex.P-1 at para 9 of the written statement, wherein a contention is taken by the appellants that they have received Rs.1,00,000/- from respondent/plaintiff as hand loan and they have regularly paid the interest on every month. This material admission in the written statement clinches the issues insofar as execution of agreement of sale in favour of respondent/plaintiff. The contention of the defendants that it was a hand loan and they have paid interest is not supported by any documentary evidence.
13. At this stage, learned counsel for the appellants would rely on the judgment in the case of Shanmughasundaram and others vs. Diravia Nadar (Dead) by L.Rs. and another reported in AIR 2005 SC 1836 and would contend that suit agreement is not enforceable since it is a joint family ancestral property. Even this contention has been met out by both the Courts below meticulously. Admittedly, the appellants/defendants have sold only 37 guntas in Sy.No.51 measuring 1 acre and both the Courts have concurrently come to the conclusion that what is agreed to be sold is only their legitimate half share. In this background, both the Courts have rightly negatived the contention of the appellants/defendants that the suit agreement is not enforceable. The mother and brother of appellant No.1 have signed the suit agreement as consenting parties. Hence, suit agreement in respect of specific portion is enforceable.
14. On perusal of record, it is also evident that the appellants/defendants have executed an agreement to sell with an intention to sell the land and have received the entire sale consideration of Rs.1,10,000/-. The mother of the appellant No.1 namely, Chikka Pillamma and his brother namely, Ramappa have also signed the suit agreement as consenting witnesses. The appellants/defendants having received entire sale consideration cannot be permitted to reap the benefits of transaction through their unilateral acts and unfair defence that suit property is joint family property. Both the witness to the suit agreement who are examined as PWs.2 and 3 have withstood the test of cross-examination and nothing material is elicited in the cross-examination by the appellants/ defendants. It is also elicited in the cross-examination that the children of first appellant/defendant No.1 are educated. The second defendant who is the wife of first defendant has adopted the written statement filed by the first defendant and it is elicited in the cross-examination of the second defendant as to whether she had instructed her counsel on record to her disputed LTM which is found on the suit agreement vide Ex.P-1.
She has stated in the cross-examination that her Counsel never sought any instructions in regard to her LTM as per Ex.P-1. The appellants/defendants have taken all possible defences which are mutually destructing in order to avoid and escape from the performance based on sale agreement vide Ex.P-1. The appellants/defendants in para 9 of the written statement have taken a plea that they have signed on blank stamp paper for having taken hand loan of Rs.1,50,000/-. If these averments in the written statement and the defence in trial by the defendants that there are material alteration in the suit agreement are taken into consideration, then this Court is of the view that the plea of material alteration and forcible execution will not reinforce with each other, but will repel each other. The overall conduct of the appellants which can be gathered from the averments made in the written statement and during trial, what could be inferred is that the appellants/defendants tried their best to see that the plaintiff is denied the discretionary relief of specific performance.
15. This material aspect has been meticulously examined by the Courts below. Both the Courts have come to the conclusion that the appellants/defendants have entered into an agreement to sell the suit land for a valuable sale consideration and the appellants have received the entire sale consideration. The theory of offering the suit property as a security towards alleged hand loan is not proved by the appellants by producing cogent and clinching evidence.
16. Both the Courts have taken judicial note of the conduct of appellants/defendants in the present case on hand. The total denial of the very execution of suit agreement by appellants and having received the entire sale consideration have set up Ramappa who has filed a partition suit only in respect of the suit land. During trial, the contention by the appellants that the suit property is a joint family ancestral property and as such, the suit agreement is not enforceable reflects badly on the conduct of the defendants. The judgment and decree of the Courts below in granting discretionary relief of specific performance is guided by judicial principles, equity and good conscience. The Trial Court while exercising discretion has taken into consideration the circumstance of the case, conduct of parties and their respective interest under the agreement. On re- appreciation, the Appellate Court has declined to interfere with the discretion exercised by the Trial Court. Both the Courts have dealt with the material on record and have acted with fairness to both the parties.
17. In that view of the matter, the judgment and decree of the Courts below do not suffer from any infirmities and as such, no substantial question of law would arise for consideration in the top noted second appeal. Consequently, the appeal is dismissed.
No order as to costs.
Sd/- JUDGE CA