Partly allowed

Sri Shivashankar v. Smt Kamalamma

Karnataka HC14 Dec 2020RSA/1094/2011

Case brief

AI extract

What is this about?

The Court allowed a partial revision appeal filed by a defendant-grandmother against a decree for specific performance of a sale agreement. The agreement was deemed unenforceable due to uncertainty over land extent, government acquisition, and complicated boundaries. The Court ordered refund of advance money with interest and held the subsequent purchaser was not bound.

What did the court decide?

The judgment and decree in R.A. No. 46/2007 are set aside. The appellant is directed to refund Rs. 30,000 with 12% interest. The subsequent purchaser is not bound by the order.

Sri Shivashankar Vs Smt Kamalamma — Specific Performance | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF DECEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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R.S.A.No.1094/2011 C/W

R.S.A.No.759/2011

IN RSA No.1094/2011

BETWEEN:

SRI SHIVASHANKAR S/O LATE GURUMALLAPPA AGED ABOUT 70 YEARS R/AT.No.2/11, AGRAHARA DASARAHALLI, 2^ND CROSS, 4^TH MAIN, BANGALORE – 560 040.

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..APPELLANT

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(BY SRI V F KUMBAR, ADVOCATE)

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AND:

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1 . SMT. KAMALAMMA W/O.K NAGARAJU AGED ABOUT 48 YEARS R/AT No.260, 2^ND CROSS, NAGARABHAVI, MOODLAPALYA PANCHASHEELANAGARA BANGALORE – 560 072.

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2 . SMT. SHARADA W/O.GUBBANNA D/O.LATE BASAVARAJAPPA

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AGED ABOUT 50 YEARS.

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3 . SRI VIKRAM RAJU S/O.LATE BASAVARAJAPPA & MANGALAGOWRAMMA AGED ABOUT 43 YEARS.

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RESPONDENTS 2 AND 3 ARE R/AT VASANTHAPURA UTTARAHALLI HOBLI SUBRAMANYAPURA POST BANGALORE DISTRICT – 560 061.

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4 . SRI G S MAHADEVAIAH S/O SHIVARUDRAPPA AGED ABOUT 47 YEARS R/AT OLD GABBADI HAROHALLI, KAGGALAHALLI POST KANAKAPURA TALUK.

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… RESPONDENTS

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(BY SRI D R SUNDARESH, ADVOCATE FOR R4 SRI K S MANJUNATH, ADVOCATE FOR R1 SRI SATISH B, ADVOCATE FOR R3 V/O DATED 2.11.2015 NOTICE TO R2 HELD SUFFICIENT)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.01.2011 PASSED IN R.A.No.46/2007 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, RAMANAGARA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 05.02.2005 PASSED IN O.S.No.141/1998 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (SR.DN.), RAMANAGARAM.

IN RSA No.759/2011

BETWEEN:

SRI G S MAHADEVAIAH S/O SHIVARUDRAPPA AGED ABOUT 41 YEARS R/AT OLD GABBADI VILLAGE HAROHALLI HOBLI KAGGALAHALLI POST KANAKAPURA TALUK. RAMANAGARAM DISTRICT – 571 511.

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…APPELLANT

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(BY SRI D R SUNDARESH, ADVOCATE)

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AND:

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SMT. KAMALAMMA W/O.K NAGARAJU AGED ABOUT 43 YEARS R/AT No.260, 2^ND CROSS, NAGARABHAVI, MOODLAPALYA PANCHASHEELANAGARA BANGALORE – 560 072.

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SMT. HONAMMA W/O LATE GURUMALLAPPA SINCE DEAD BY HER LRs.

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a). SHIVASHANKAR S/O LATE GURUMALLAPPA AGED ABOUT 75 YEARS R/AT, 2/11, AGRAHARA DASARAHALLI, 2^ND CROSS 4^TH MAIN, BANGALORE – 560 057.

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b). SMT.SHARADA S/O BASAVARAJU

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AGED ABOUT 35 YEARS.

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c). VIKRAMRAJU S/O BASAVARAJU AGED ABOUT 45 YEARS LRS of 2(b) and 2(c) ARE R/AT VASANTHAPURA UTTARAHALLI HOBLI SUBRAMANYA PURA POST BANGALORE DISTRICT – 560 061.

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…RESPONDENTS

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(BY SRI K S MANJUNATH, ADVOCATE FOR R-1 SRI V F KUMBAR, ADVOCATE FOR R2(a) R2(b) SERVED, UNREPRESENTED SRI SATHISH B, ADVOCATE FOR R2(c))

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.01.2011 PASSED IN R.A.No.46/2007 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, RAMANAGARA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 05.02.2005 PASSED IN O.S.No.141/1998 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (SR.DN.), RAMANAGARAM.

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THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE AT BENGALURU DELIVERED THE FOLLOWING:

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JUDGMENT

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These two appeals are filed against the

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judgment and decree dated 28.01.2011 passed in R.A.No.46/2007 by the Presiding Officer, Fast Track

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Court, Ramanagara, allowing the appeal and setting aside the judgment and decree dated 05.02.2005 passed in O.S.No.141/1998 by the Additional Civil Judge (Sr.Dn.), Ramanagara.

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RSA No.1094/2011 is filed by Shivashankar/

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appellant-defendant No.1(a) and RSA No.759/2011 is filed by G.S.Mahadevaiah/appellant-defendant No.2 to set aside the judgment and decree dated 28.1.2011 passed in R.A.No.46/2007 by the Presiding Officer,

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Fast Track Court, Ramangara and confirm the judgment and decree passed in O.S.No.141/1998 on 5.2.2005 by the Additional Judge (Sr.Dn) Ramanagar.

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The suit schedule property is an immoveable property bearing survey No.226/1 of Gabbadi village, Harohalli Hobli, Kanakapura Taluk, Bangalore District measuring 35 guntas.

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The substance of the suit of the plaintiff-

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Kamalamma wife of Nagaraju in O.S.No.141/1998 is that 1^st defendant-Honnamma being the owner of

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the schedule property agreed to sell the same for the total consideration of Rs.60,000/- as she was in need

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of money for legal necessities. She entered into an agreement on 14.1.1998 and an advance amount received from plaintiff is Rs.30,000/- on that day and regular sale deed was agreed to be executed within three months and on the date of the agreement possession of the property was handed over to the plaintiff. The rest is, 1^st defendant did not execute the registered sale deed of the property in question in accordance with the agreement and there was exchange of notices and the suit came to be filed.

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Defendants 1 and 2 hotly contested the suit

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and execution of agreement, receipt of consideration and balance considerationACcording to them it is

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concocted. 2^nd defendant is the purchaser of 15

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guntas of land in survey No.226/1 on 11.2.1998 from the first 1^st defendant.

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On the basis of the pleadings and contentions

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of both the parties, the trial court framed the following

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issues:

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“1. Whether the plaintiff proves that the 1^st defendant being the absolute owner and in possession of the suit land entered into an agreement of sale in her favour on 14.1.1998 agreeing to sell the same for Rs.60,000/- and duly executed an agreement of sale by receiving part consideration of Rs.30,000/- and delivered the actual possession of the suit property to the plaintiff agreeing to execute the registered sale-deed within 8 months by receiving the balance amount as alleged?

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Whether the plaintiff further proves that thereafter on 11.2.1998, 1^st defendant sold the suit property in favour of 2^nd defendant and the suit sale is not binding on the plaintiff as alleged?

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Whether the plaintiff is and was ever ready and willing to perform her part of contract ?

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Whether the 2^nd defendant proves that he is a bonafide purchaser for lawful consideration of 15 guntas of land as suit

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Sy.number from the first defendant under a registered sale deed dated:11.2.1998 and he is also cultivating the remaining extent of 20 guntas and he is cultivating it on Gutta basis as alleged in para No.5 of his written statement?

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Whether the 2^nd defendant further proves that the sale of property by 1^st defendant in his favour on 11.2.1998 was for al legal necessities, requirements and to clear the antecedents of the family as alleged?

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Whether the plaintiff is entitled for the reliefs of specific performance of contract against the defendants as prayed?

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To what relief if any, the parties are entitled?

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7. Learned trial judge was accommodated

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with the oral evidence of PW is as under:

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PW-1-Kamalamma	-- 07.04.2004
PW-2-Vikramaraj	-- 27.09.2004
PW-3-Basavaraju	-- 27.09.2004

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2.Witnesses examined on behalf of the defendant is as under:

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DW.1-Honnamma --	04.07.2001
DW.2-G.S.Mahadevaiah--	03.11.2004
DW.3-Shivashankar	-- 08.11.2004
DW.4-Basavaraju --	08.11.2004

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3.List of documents marked on behalf of the plaintiff is as under:

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Ex.P-1 - Agreement of Sale Ex.P-1(a) - Signature of PW.2 Ex.P-1(b-d) -Signature of witnesses Ex.P-2 - Will Ex.P-3,4 -Notice issued by Land Acquisition Officer. Ex.P-5 - Mutation Extract Ex.P-6 - RTC Extract Ex.P-7 - C.C.of Police complaint.

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List of documents marked on behalf of the defendant is ad under:

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Ex.D-1 - Sale deed Exs.D-2-5 - RTC extract Exs.D-6-8 - Land Revenue Receipts Exs.D-9 - Cancellation of Will deed Exs.D-10 - Patta Book Ex. D-11 - C.C.of Will

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8. Finally, on conclusion of the trial, learned

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trial judge dismissed the suit of the plaintiff. Being aggrieved by the judgment and decree passed by the learned trial judge, plaintiff-Kamalamma preferred an regular appeal in R.A.No.46/2007 before the appellate court, which came to be allowed on 28-01-2011. The

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operative portion of the judgment passed by the

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appellate court is as under:

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“The appeal is allowed. The judgment and decree passed in O.S.141/98, dated 05.02.2005 on the file of additional Civil Judge (Sr.Dn.), Ramanagara is set aside.

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The suit of the plaintiff is decreed with costs. The plaintiff is directed to deposit the balance sale consideration amount of Rs.30,000/- within 3 months from the dated of this order.

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The defendants are directed to execute the regular sale deed in favour of the plaintiff on receiving the balance sale consideration amount of Rs.30,000/from the dated within 30 days after the lapse of 3 months nor from the date of deposit of the balance sale consideration amount which ever is earlier.

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The plaintiff is directed to notify the date of deposit to the defendants.

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In case of any failure by the defendant to execute the regular sale deed in favour of the plaintiff it is to be got registered through the Commissioner appointed by the Court of Law on following the due procedure of law.”

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Being aggrieved by the said judgment and

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decree passed by the first appellate judge in R.A.No.46/2007 dated 28-01-2007, defendant

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No.1(a)-Shivashankar filed RSA No.1094/2011 and

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defendant No.2-G.S.Mahadevaiah filed RSA

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No.759/2001.

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Learned counsel Sri.V.F.Kumbar for

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appellant Shivashankar in RSA No.1094/2011 would submit that the defendants are taken for a ride by the plaintiff. He would further submit the agreement entered into was a false one and also there was no intention on the part of the defendant No.1 to sell the schedule property which is reduced from 35 guntas to 10 guntas by virtue of sale to the defendant No.2 to an extent of 15 guntas and also by virtue of acquisition of 10 guntas for formation of road. He would further submit that the sale of 15 guntas of land in favour of defendant No.2 is a bonafide transaction.

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Learned counsel Sri. D.R.Sundaresha for appellant G.S.Mahadevaiah in RSA No.759/2011 who

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is defendant No.2 would submit that defendant No.2 purchased 15 guntas of land in schedule property on 11.2.1998 for Rs.94,000/- and he is in possession and enjoyment of the same and denied all the contentions of the plaintiff including her possession and enjoyment of the suit property.

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It is the contention of the plaintiffKamalamma that, written statement discloses that the defendants had a plan of deceiving the plaintiff right from the beginning. The further mischief that finds in the material is, that the sale agreement was entered into for the sale of 35 guntas of land, but defendant No.1 sold 15 guntas of the land to the defendant No.2 and 10 guntas of land was acquired for the purpose of formation of road. However, inevitably the extent of land was deducted. It is further contended that plaintiff is made as a scape

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goat of collusion by the defendants and the plaintiff

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was absolutely entitled for the decree.

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This court while admitting RSA No.1094/

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2011 and RSA No.759/2011 on 06-01-2014 has framed the following substantial questions of law:

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Whether the lower appellate court was justified in holding that the agreement dated 14.01.1998 is valid and enforceable when the same is not duly stamped as contemplated under the provisions of Karnataka Stamp Act, 1957?

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Whether the lower appellate court was justified din ignoring the finding on Issue Nos. 1 to 3 and 6 before holding that the same is arbitrary, capricious and illegal?

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Insofar as Stamp Act is concerned, the

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agreement was stated to have been written on 11.2.1998 and the duty and penalty was made good.

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In the circumstances of the case, it is necessary to frame additional substantial question of law as under:

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Whether the agreement of sale lands into too many complexities and has become uncertain?

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The basic contextual fact of entering into

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the agreement by the defendant No.1 with plaintiff is not seriously disputed.

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First appellate court finds that though defendant No.1 against whom claim of specific performance is made, during his life time filed written statement and admitted the entire claim of the plaintiff and he is ready to receive Rs.30,000/- and execute the sale deed. It is also revealed that defendant No.1 is the grand Mother of the Plaintiff.

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In the context of the matter and by virtue of admission may be in the form of pleading without coupled with the evidence it is a statement made by a party to the suit filed within the meaning of pleadings being verified had its own sanctity and unfair

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advantage cannot be taken as granted to dispute the execution. In by and large, execution of the agreement is established.

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Now the question is, the date of agreement is 14.1.1998. Time fixed at the time of agreement was eight months. Suit was filed on 19-08-1998. The extent of land and property agreed to be sold is, 35 guntas of land in survey No.226/1 of Gabbadi village, Kanakapura Taluk. The description of the schedule land and property as per the agreement of sale, Ex.P1 is as under:

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Land and property in survey No.226/1 measuring an extent of 35 guntas situated in Gabbadi village, Harohalli Hobli, Kanakapura Taluk, Bangalore Rural District and boundaries are as under: East by: Land belonging to BWSSB; West by: Road; North by:Road; South by:Land of Thattekare Kadappa.”

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19. Here, it is necessary to mention Section 14

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of the Specific Relief Act which reads as under:

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“14. Contracts not specifically enforceable.—

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(1) The following contracts cannot be specifically enforced, namely:—

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(a) a contract for the non-performance of which compensation in money is an adequate relief;

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(b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms;

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(c) a contract which is in its nature determinable; (d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise.

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(2) Save as provided by the Arbitration Act, 1940 (10 of 1940), no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than an arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.

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(3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of sub-section (1), the court may enforce specific performance in the following cases:— (a) where the suit is for the enforcement of a contract,—

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(i) to execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower is not willing to repay at once: Provided that where only a part of the loan has been advanced the lendor is willing to advance the remaining part of the loan in terms of the contract; or

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(ii) to take up and pay for any debentures of a company;

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(b) where the suit is for,—

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(i) the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or

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(ii) the purchase of a share of a partner in a firm;

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(c) where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land: Provided that the following conditions are fulfilled, namely:—

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(i) the building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work;

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(ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non-performance of the contract is not an adequate relief; and

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(iii) the defendant has, in persuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.”

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When the agreement runs with unnecessary

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complications and there is no certainty regarding material matters in the sale agreement and when it

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becomes in capable of performance due to complex

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issues, the relief also cannot be granted when it puts

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the defendants in unfair advantage of the subject

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matter. In this case, let us assume that the specific performance sought for by the plaintiff is for 35 guntas of land. Out of which, supervening impossibility of performance is acquisition of land of 10 guntas by the Government for the formation of road. In this connection, collusion cannot be pleaded also and another 15 guntas of land has been sold to defendant No.2 on 11-02-1998. Meanwhile Government is not a party to the suit.

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Learned counsel for plaintiff would contend

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that the scope of Ex.P1 and consumption of land for road purpose. Now that the boundaries given in the sale agreement, Ex.P1 is for 35 guntas and consolidated sketch or fragmentation or division of survey number have not effected. Thus, in case of inference of the relief to be granted, process in Revenue Department, Survey Department which are all inevitable. On the whole, it involves complicated

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procedure. On the face of it, it is uncertain runs into too many complexities not only the defendants it runs into unfair advantage and unnecessarily drags the Government also into controversy.

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In the totality of the circumstances, if the contextual reference of Section 14 of the Specific Relief Act, is made I find that the sale agreement dated 14-01-1998 Ex.P1 does not deserves specific performance in its strict sense. However, the defendant No.1 cannot be allowed with the luxury of the amount of Rs.30,000/- what has already been given by the plaintiff-Kamalamma and that requires to be refunded to the plaintiff with interest as the partition in the property based on the evidence and the subsequent developments are not viable factors in this case. Hence, the plaintiff is entitled for the refund of Rs.30,000/- with interest at 12% p.a.from the date of suit till the date of payment.

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Insofar as RSA No.759/2011 is concerned, it

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is filed by the 2^nd defendant-G.S. Mahadevaiah, who is

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the purchaser stated to have purchased 15 guntas of land in suit schedule property from defendant No.1. and said 15 guntas of land is nothing but the portion of 35 guntas of land which is the subject matter in this case. Out of which, 10 guntas is acquired by the government and 15 guntas is sold by defendant No.1 in favour of defendant No.2. Now the question to implead this defendant arose as he was the purchaser and he being a subsequent purchaser after the agreement he was impleaded and the relief sought for is that he has to be bound by the judgment and decree which is going to be passed by this court in terms with the agreement dated 14-01-1998.

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Learned counsel Sri. V.F. Kumbar for appellant in RSA No.1094/2011 submitted that

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defendant No.2-G.S.Mahadevaiah is a bonafide purchaser for a value and there was no occasion for him to know about the previous agreement and the complications, he would not have gone even if there is any doubt also.

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In the over all circumstances, I find the binding effect of the sale agreement shall not be there on defendant No.2. He cannot be made bound by the binding effect of the order of this court and also by virtue of the reasons assigned above in respect of appeal No.1049/2011. Hence, the appeal in RSA 759/2011 deserves to be disposed of. The substantial question of law are answered accordingly.

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In the result, I proceed to pass the following:

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ORDER

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(i) RSA 1094/2011 filed by Shivashankar,

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defendant No.1 (a) is allowed in part.

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(ii) The judgment and decree dated 28-01-2011

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passed in R.A.No.46/2007 by the appellate judge is set aside. Defendant No.1 is directed to return the advance amount of Rs.30,000/- paid by the plaintiffKamalamma together with interest at 12% p.a. from the date of suit till the date of payment.

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(iii) RSA No.759/2011 filed by the defendant

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No.2-G.S.Mahadevaiah is disposed of holding that he

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is not bound by the effect of the order of this court.

Sd/JUDGE

tsn*

NKSJ: RSA No.1094/2011 16-12-2020 C.W.RSA No.759/2011

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ORDER ON MEMO FOR ‘BEING SPOKEN TO’ Learned counsel for Sri. K.S.Manjunath for plaintiff-Kamalamma, who is respondent No.1 in both the appeals filed a memo for ‘being spoken to’ and submits that he had not granted opportunity to argue and address the matter.

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The judgment was dictated in the open court and the transcription is in progress. In the ends of principles of natural justice, I find it just and proper to take up the matters for hearing the counsel for respondent No.1/Plaintiff-Kamalamma.

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He would submit that he disputes the sale deed stated to have been executed by defendant No.1 in favour of defendant No.2. He further submits that the land acquired is only four guntas in Sy.No.226/1 and

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not 10 guntas and thus, the appellants have misled

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the court.

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Sri. V.F.Kumbar, learned counsel appearing for the appellant-Shivashankar in RSA No.1094/2011 would submit that he has nothing to do with the conversion of the land and therefore, the matter was partly allowed which states that the plaintiff will have to be refunded the advance amount by defendant No.1 together with interest and in case the acquisition is only for 04 guntas of land and not 10 guntas, the remaining land which will be in the custody of plaintiff would be 16 guntas.

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Any how, the scope is not to find out how many guntas were acquired by the government. Now, having heard learned counsel Sri. K.S. Manjunath for plaintiff-Kamalamma, the out come is, plaintiff herself has agreed that the land acquired was 04 guntas and

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Exs.P3 and P4 indicates that the land acquired was 04 guntas.

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For the reasons morefully assigned above, this court considered Section 14, of the Act and circumstance under which specific performance cannot be granted and also running into minute details and discrepancy in the boundaries and involved further continued process. Thus, I find, further submission of learned counsel for plaintiff/respondent No.1 does not affect or establish grounds for altering the earlier judgment. If 04 guntas of land is acquired instead of 10 guntas, the remaining land would go to the land owner.

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Learned counsel further submits that even after hearing the matter for forty minutes, the time is not sufficient and goes on repeating what he has stated and he has stated that he want to make further

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submission. They are also heard. Again, he urges for further time.

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His further submission is the sale agreement in favour of the plaintiff is dated 14.01.1998 and possession was handed over and the defendant No.1, is none other than the grand mother of the plaintiff and sale deed dated 11.02.1998 was a collusive and conspired act by the defendant No.2 and defendant No.1. He further submits that defendant No.1 in her written statement has admitted the execution of the sale agreement in favour of the plaintiff. The said agreement of sale was registered on 14.01.1998. Thus, the further points which learned counsel wanted to submit are:

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Admission of defendant No.1 regarding execution of the sale agreement through existing blood relationship between plaintiff and defendant No.1 and also admission of sale agreement by defendant No.2.

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The grounds that are stated are not in authenticity of the agreement.

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In the context, execution of the sale agreement is admitted, what was left for adjudication is, whether it is entitled for specific performance?

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Considering the reasons morefully assigned above and with reference to Section 14 of the Specific Relief Act, I find that no alteration or variation is called for in the judgment already dictated in the open court.

¶198

Accordingly, ‘memo for being spoken to’ is disposed of.

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Learned counsel for plaintiff/respondent No.1 also stated that it is not only Rs.30,000/- what plaintiff has paid, on the other hand, deficit stamp duty of Rs.66,000/is paid and hence,

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plaintiff/respondent No.1 is entitled for specific

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performance.

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In this connection I find the yardstick for specific performance is being measured in terms of how much of stamp duty is given as stamp duty or penalty and such approach would be most un-ethical and the said statement is not encouraged.

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The amount if any, deposited by the plaintiff by virtue of the appeal in the Appellate Court is concerned, plaintiff is entitled to withdraw it.

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Sd/JUDGE

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Sri Shivashankar v. Smt Kamalamma

Case brief

What is this about?

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Sri Shivashankar v. Smt Kamalamma

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