Dismissed

Sou. Kamalavva Chanappa Katte v. Shri. Basappa Virpad Dugani (Since Deceased Thr. L/H.) 1.1 Smt. Bhagirathi Basappa Dugani

Bombay HC30 Jan 2013SA/454/2012

Case brief

AI extract

What is this about?

The High Court of Bombay dismissed the second appeal filed by the heirs of a vendress against a decree for specific performance. The court held that the trial and appellate courts did no error in accepting evidence regarding the Power of Attorney and payment of consideration, thus the second appeal is not admissible.

What did the court decide?

Second appeal dismissed with no order as to costs; Civil Application No.918 of 2012 dismissed.

Sou. Kamalavva Chanappa Katte Vs Shri. Basappa Virpad… — Specific Performance | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO. 454 OF 2012

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Sout, Kamalavva Chanappa Katte

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& Others .. Appellants

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v/s.

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Shri Basappa Virpad Dugani

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& Others ..Respondent/s

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Mr.M.M.Sathaye i/b. Anilkumar Patil for the Appellant. Mr.N.V.Bandiwadekar for the Respondent Nos.1/1 to 1/6.

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CORAM: R.Y.GANOO, J. DATED : 30^th JANUARY 2013.

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P.C. :

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Heard learned Advocates on both sides. The appellants herein are the heirs of one Mrs. Gangavva. The present respondents are heirs of original plaintiff by name Mr. Basappa.

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Said Mr.Basappa had filed a suit against the present appellants in

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the year 1982 being Regular Civil Suit No.43 of 1982 so as to seek

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pps 1/9

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specific performance of agreement dated 1.8.1976 purported to have been executed by Mr. Chandrashekar, Power of Attorney of Mrs. Gangavva. It is noticed that the present suit is filed after death of said Gangavva. The suit was attended to by learned Civil Judge, Junior Division, Jat, and by judgment and decree dated 15.1.2003 the suit filed by Basappa was dismissed. Said Basappa instituted Civil Appeal No.23 of 2003 in the District Court at Sangli. It is noticed that the heirs of Basappa are on record at the time of disposal of the appeal by District Court. The learned District Judge, by judgment and decree dated 22.11.2011 allowed the appeal and decreed the suit for specific performance. On account of the decree for Specific Performance, the present appellants against whom the decree was passed have filed this second appeal.

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3 The document of Agreement to Sale dated 1.8.1976 was executed by Chandrashekhar acting as Power of Attorney of Gangavva and it was executed in favour of Basappa. The consideration for transaction of sale was fixed as Rs.15000/-. About this there is no

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pps 2/9

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dispute. Learned Advocate Mr.Sathaye appearing on behalf of the appellants contended that the document of Power of Attorney purported to have been executed by Gangavva in favour of Chandrashekhar was a document which could not have been accepted as proper document on the ground that the said stamp paper does not bear the date on which the said document was sold. So far as this aspect is concerned, the stamp vendor, Mr.Ramrao, who had sold the stamp paper concerning the Power of Attorney was examined. He has admitted that the stamp paper was sold by him. He has further admitted that he was not possessing a valid license to sell stamp papers and despite that he had sold the same. Learned Advocate Mr. Sathaye had contended that on account of the evidence of Mr. Ramrao the Appellate Court should not have believed that the document concerning the Power of Attorney was properly sold. In so far as the absence of date on the said stamp paper, said Ramrao has not been confronted with the fact of absence of the date. Hence the contention that the said stamp paper should have been seen with doubt cannot be accepted. In my view, the appellants had an opportunity to cross

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pps 3/9

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examine Ramrao in regard to the absence of the date, and Ramrao could have given some explanation as to why the date is missing. In the absence of such cross examination the stand that the said document of Power of Attorney should have been discarded cannot be accepted.

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The document of power of attorney was executed on 5.12.1989. Ramrao had admitted that he is unable to lay hands on the register of 1969 where entry regarding sale of stamp paper of power of attorney could be traced. The register of 1969 assumes importance because the Power of Attorney is dated 5.12.1969. It is required to be noted that Ramrao came to the Court to give evidence in the year 2002 and in such a situation if the register of 1969 was not traceable by Mr. Ramrao, that by itself cannot be considered to hold that the document on which the Power of Attorney was scribed was not at all sold. In fact, Ramrao had admitted that he was selling documents without having the proper license. In this connection it may be that Ramrao was selling documents without having proper license. That by itself will not be a factor on which the balance would tilt in favour of the

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appellants.

The appellants had contended before the Trial Court as well as before the Appellate Court that said Gangavva died on 11.10.1978 and that it is their case that the document of Agreement to Sale dated 1.8.1976 was brought into existence after the death of Gangavva i.e.. after 11.10.1978. In so far as this aspect is concerned, the evidence of scribe of the document dated 1.8.1976 is material. His name is Ramchandra. My attention was drawn to the evidence of said Ramchandra and on the basis of his evidence it was sought to be contended that Ramchandra was in habit of scribing documents at the instance of Chandrashekhar and at times Chandrashekhar used to ask

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him to scribe the stamp papers which were purchased in the past. Learned Advocate Mr. Sathaye wanted this court to accept his contention that on account of the practice which Mr. Ramchandra had admitted that he was in practice of scribing on stamp papers which were purchased in the past, the case of the appellants that the agreement dated 1.8.1976 has been scribed by Ramchandra on a

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pps 5/9

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stamp paper which was already purchased in the past. On perusal of the evidence of Ramchandra it is clear that the stamp paper on which the agreement dated 1.8.1976 is scribed bears dated as 30.7.1976 and the agreement is executed on 1.8.1976. If these two dates are seen, in my view, there appears to be no suspicious circumstance, inasmuch as scribing of the document has been done and the document is executed on 1.8.1976. This is being stated on the basis of a date appearing on the said document.

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Learned Advocate Mr. Sathaye wanted this court to treat the

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testimony of Ramchandra a person whose evidence should not be believed. It was submitted that Ramchandra was in a habit of writing documents as per the wishes of some persons and in particular Chandrashekhar . It was argued that Chandrashekhar was Power of Attorney of Mrs.Gangavva and therefore the possibility of Chandrashekhar asking Ramchandra to write the document after 11.10.1978 cannot be ruled out. I am not inclined to accept this argument because though Ramchandra was available for cross

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pps 6/9

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examination. The present appellants did not put questions to said Ramchandra by confronting the document of agreement dated 1.8.1976. It was possible for the appellants to elicit answers from Ramchandra in support of their case that suit agreement was scribed by him after 11.10.1978. In my view, merely because Ramchandra has stated that he was in a habit of scribing documents at the instance of Chandrashekar that cannot be accepted to hold that the suit agreement was scribed by him at the instance of Chandrashekhar and that the document was scribed after 11.10.1978. The appellants had enough opportunity to extensively cross examine Ramchandra and to suggest to him that he had scribed the document after 11.10.1978. The cross examination of Ramchandra is silent on this aspect. Hence the stand of the appellants that suit agreement was scribed after 11.10.1978 cannot be accepted.

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Basappa, while giving evidence had stated that he gave the sum of Rs.15000/- in cash. In the cross examination, question was asked to Basappa to produce documentary evidence to show that sum of

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pps 7/9

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Rs.15000/- was paid in cash. Basappa had frankly admitted that there was no documentary evidence. In such a case, it was open for the appellants, while conducting the cross examination to ask voluminous questions so as to destroy the case of Basappa about the payment of Rs.15000/- in cash. However, in the cross examination of Basappa, except suggesting that no cash of Rs.15000/- was paid, there is no other cross examination. The learned District Judge has accepted the oral testimony of Basappa and has accepted the case of Basappa that the sum of Rs.15000/- was paid in cash. I see no infirmity in the exercise carried out by the learned District Judge while accepting the testimony of Basappa. In view of this I do not accept the stand of appellants that the learned District Judge was wrong in accepting the case of Respondents that Rs.15000/- were paid in cash.

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It was sought to be pointed out on the basis of judgment of the trial court that the agreement dated 1.8.1976 speaks of situation to happen viz. if the document of sale deed is not executed, during the lifetime of Gangavva, the same would be executed by her heirs. It was

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pps 8/9

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submitted that, if the entire consideration was paid by Basappa then what was the need to postpone the execution of the sale deed, and why the same was not done after payment of money in cash. In my view, all these points were not material while considering the case of Basappa as to whether he was entitled for specific performance.

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In my view, the learned District Judge has rightly appreciated the evidence on record and that he was justified in setting aside the decree passed by the learned trial court and pass decree for specific performance.

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For the reasons aforesaid, the second appeal cannot be admitted. Same is dismissed at the stage of admission with no order as to costs.

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In view of dismissal of second appeal, Civil Application No.918 of 2012 does not survive and the same is dismissed.

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[R.Y.GANOO, J.]

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Sou. Kamalavva Chanappa Katte v. Shri. Basappa Virpad Dugani (Since Deceased Thr. L/H.) 1.1 Smt. Bhagirathi Basappa Dugani

Case brief

What is this about?

What did the court decide?

Sou. Kamalavva Chanappa Katte v. Shri. Basappa Virpad Dugani (Since Deceased Thr. L/H.) 1.1 Smt. Bhagirathi Basappa Dugani

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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