Dismissed

M.N.Shivakumar v. M.N.Somashekhar

Karnataka HC11 Dec 2020RSA/984/2009

Case brief

AI extract

What is this about?

High Court dismissed the respondent's appeal against a decree for specific performance. The Court held that the suit sale agreement was valid, found no irregularity or uncertainty, and confirmed judgments of lower courts directing the defendant to receive balance consideration and execute release deeds.

What did the court decide?

Appeal dismissed; judgments of lower courts confirmed; appellant to pay costs throughout.

M.N.Shivakumar Vs M.N.Somashekhar — Specific Performance | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^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.984/2009 (SP)

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BETWEEN:

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M.N.Shivakumar,

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Since deceased by legal heirs.

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1(a) Smt.Nagarathana, Aged about 72 years, Wife,

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1(b) M.S.Vijaya Kumar,

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Aged about 50 years, Son, R/a No.14, MIG 2 II Phase, Housing Board Colony, Jyothinagara Post, Chikkamagalur – 577 107.

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1(c) Smt.M.S.Surekha W/o K.N.Dayanand, Age 49 years, Sindhur Nilaya, Kalyan Nagaram Chikkamagaluru, Jyothi Nagara, Chikamagaluru – 577 102.

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1(d) Smt.M.S.Geetha W/o S.M.Prakash Age 43 years, Shiva Krupa, Kuvempu Nagara, Kote, Chikmagaluru – 577 101.

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...Appellants

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(By Sri.V.V.Gunjal, Advocate for A1 (a to d))

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AND:

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M.N.Somashekhar, Major, S/o late Nanjappa Shetty, R/at Uma Nilaya, No.2286, Vijayapura Extension, Chikkamagalur City 577 102.

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M.N.Shadakshari, Major, S/o late Nanjappa Shetty, Secretary of Model English School, Uppally, Chikkamagalur – 577 102.

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Smt.Shantha Karibasappa, W/o Karibasappa, Major, C/o Dr.Chidananda, E.S.I. Hospital Quarters, Gokul, Mysore City – 570 002.

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Smt.Dakshayini Somashekar, W/o B.Somashekhar, Major, No.93, Sapthaswara, 8^th Main, 9^th Cross, Kuvempunagara, Mysore – 09.

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Smt.Hema Basavaraj, W/o M.Basavaraj, Major, Officer, State Bank of Mysore, Surabhi, S.B.M.Colony, Vivekanandanagara, Mysore – 570 009.

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Smt.Uma Rajanna,Major, W/o B.M.Rajanna, No.28, II Cross, 4^th Block,

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Kumara Park West, Bengaluru – 560 020.

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…Respondents

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(By Sri.Shanmukhappa, Advocate for R2; R5 is dispensed with vide order dated 26.07.2018; Appeal against R1 stands abated vide order dated 12.03.2019)

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This RSA is filed u/S 100 of CPC., against the judgment and decree dated:25.02.2009 passed in R.A.No.35/2002 on the file of the Prl. District Judge, Chikmagalur, dismissing the appeal against the judgment and decree dated 11.10.2002 passed in O.S.No.79/1995 on the file of the Civil Judge (Sr.Dn.) Chikmagalur.

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This RSA Coming on for dictation this day, the Court delivered the following:

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JUDGMENT

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Appeal is directed against the judgment and decree passed in R.A.No.35/2002 dated 25.02.2009, by the learned Principal District Judge at Chikmagalur, wherein the appeal came to be dismissed confirming the judgment and decree dated 11.10.2002 passed in O.S.No.79/1995 by learned Civil Judge (SD), Chikmagalur.

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The trial judge earlier had decreed the suit against the defendant and granted the relief of Specific

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Performance and the operative portion of the said judgment and decree reads as under:-

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“ The suit of the plaintiff is decreed with cost against the defendant for the relief of specific performance of the agreement. The defendant is directed to receive Rs.10,000/- and execute the necessary relinquishment deed and release deed in favour of the L.Rs of the plaintiff. If the defendant fails to execute the same the L.Rs of the plaintiff can deposit the amount before court and apply for execution of the deed on behalf of the defendant.”

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In order to avoid confusion and overlapping,

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the parties are referred in accordance with their ranks as held by them before the trial Court.

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The brief facts of the case is that the plaintiff filed the original suit in O.S.No.398/1991 that came to be renumbered as O.S.No.79/1995, praying to direct the defendant to receive balance sale consideration of Rs.10,000/- and to execute the release deed in favour of the plaintiff.

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The plaint schedule is a house bearing

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No.2286 having partly Mangalore Tiled roofing and partly R.C.C sheet measuring 39 feet into 150 feet, situate at 2^nd main road, Vijayapura Extension, Chikmagalur City which is being bounded on the east by second main road of Vijayapura Extension, west by conservancy road, north by site of Siddaiah and south by Babanna’s garage.

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In terms of original suit is concerned, the plaintiff is one Smt.Parvathamma wife of Mugalavalli Nanjappa Shetty and the defendant is M.N.Shivakumar son of Mugalavalli Nanjappa Shetty and plaintiff.

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Originally, the property was owned by

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Mugalavalli Nanjappa Shetty and he died during the year 1978 and the suit schedule property is his property which is claimed to have been treated as joint family property of the plaintiff, defendant and children of plaintiff – Smt. Parvathamma. As the schedule property is a house that could not be divided among eight co-sharers, therefore, it was decided by them to sell the said property.

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The case of the plaintiff is that the defendant

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who is none other than her son had agreed to receive a sum of Rs.14,000/- and release his share of the property in favour of the plaintiff.

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The defendant entered appearance and filed his written statement.

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The learned trial judge in O.S.No.79/1995, framed necessary issues and after considering the oral and documentary evidence, decreed the suit and the Appellate Judge has also confirmed the same dismissed the appeal. Being aggrieved by the same, the defendant is in appeal.

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This Court on 02.07.2019, while admitting the

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appeal has framed the following substantial questions of law:

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“1. Whether on the basis of the agreement dated 23.8.1978 the present suit for specific performance regarding the undivided share in favour of the plaintiff is maintainable?

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Whether upon the dearth of mother of plaintiff, the defendant to join

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the list of legal representatives of deceased leaves impact on the suit?”

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The some of the dates of events which were connected to the suit transaction are as under:

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On 22.10.1978, an agreement was entered

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into by plaintiff and defendant, advance amount of Rs.10,000/- was paid and 90 days time limit was fixed for paying the balance sale consideration of Rs.4,000/-. It appears disagreement grew between the parties and there was a Panchayath . Perhaps due to certain development on 10.12.1979, the sale consideration was increased from Rs.14,000/- to Rs.23,000/-.

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On 14.04.1983, another agreement was executed by the defendant and the sale consideration amount was enhanced to Rs.23,000/- from Rs.14,000/under the said agreement and it was further enhanced to Rs.23,130/-. The time limit for performance of the deed of agreement was fixed as after the execution of the registered sale deed of Sy.No.28 of Arasinguppe village in

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favour of one Sri. I.M.Ramegowda, jointly by the plaintiff, defendant and other sons of plaintiff. At this stage, it is to be understood that the plaintiff was expecting her share from the sale of the property that was jointly held by plaintiff, defendant and other share holders. Thus, happening of the registration of agreement dated 14.04.1983 rested on the sale of land at Arasinguppe to one Ramegowda. The plaintiff called it as a contingent contract. After a gap of really one decade, sale deed in favour of Ashok son of Ramegowda was executed, naturally the sale proceeds got from the sale of Arasinguppe land has to be appropriated to plaintiff, defendant and other joint sellers. Accordingly, on the execution of the registered sale deed, the defendant refused to receive the money i.e, the balance sale consideration which is unpaid under the agreement dated 14.04.1983 and demanded more money. In this connection, on 11.06.1991, the plaintiff has left with no other alternative has got issued the demand notice.

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14. Learned counsel for defendant would contend

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that if there is no certainty either of time or of consideration or of property, the agreement must fail. The partition was refused by the plaintiff. He would further contended that upon the death of Parvathamma-original plaintiff, the present respondents are impleaded as LR’s of said plaintiff and as it is stated by Parvathamma that she had no money to pay the balance sale consideration to defendant and the same was linked to sale of property to Ramegowda of Arasinguppe after ten years. The sale consideration of Rs.10,000/was not paid. On 10.02.1980, an endorsement was made at page No.5 of Ex.P2 - the agreement dated 10.12.1979, to the effect that “by mutual consent the time for performance of this agreement dated 10.12.1979 is extended till 15.04.1980” and in the same page another endorsement is made which reads thus: “by mutual consent, time for performance of the terms of this agreement is extended till 30.04.1980”. The transaction shall be completed by 30.04.1980 by the execution and registration of the Release Deed. Further, it

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was on 11.10.2002, the suit came to be decreed. He would further submit that agreement is void for uncertainty. The plaintiff never had resource to buy the property and she cannot mobilize the resources and it is a contingent contract. The evidence of PW.1 violated what was pleaded by her. The amendment to specific performance of the agreement was physically not possible.

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Learned counsel for plaintiff would submit that the agreement is capable for performance and it cannot be compared to regular scope of specific performance. On the other hand, certain principles applicable to regular suit for specific performance may not be applicable in the strict sense. The refusal of specific performance would only create chaos between the parties. It is necessary to mention the different acts brought out in the case. The suit sale agreement was executed on 22.10.1978. The total sale consideration was fixed at Rs.14,000/- and the amount of Rs.10,000/- was given as advance and

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Rs.4,000/- to be paid before the registration of sale deed which is within the period of 90 days.

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Another agreement came to be executed on 10.12.1979 and under the said agreement, the sale consideration stood increased to Rs.23,000/-. The defendant addresses the said agreement as contingent agreement and the same is defined as performance of the agreement will be depending upon the happening or nonhappening of particular event. Further, it was called as contingent agreement on the ground that the sale deed was agreed and sale consideration was increased to Rs.23,123/- and further it was agreed that the sale consideration would be paid after the sale of Arasinguppe property to one Ramegowda (may be to get proceeds of sale). The plaintiff is none other than the mother of the defendant. The suit was filed for specific performance asking the defendant to receive the balance sale consideration of Rs.10,000/- and to execute the necessary release deed in favour of the plaintiff. The suit was decreed

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and the appeal also came to be allowed. Other significant aspect to be noted herein is the property originally was agreed to be sold for Rs.14,000/-, time and again, it was increased and finally, the same was landed at Rs.23,123/-.

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As the property belonged to father of the defendant in other words, husband of the plaintiff upon the death of the propositus, it was literally not possible to divide the property into eight parts, it was because with that intention, plaintiff claim that she has entered into agreement with defendant to buy the portion of the defendant’s share.

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Further, the obstructions under Section 14 of the Specific Relief Act were come in the way of the second agreement which is called as contingent contract that runs into numerous details involved supervision by the Court which complex the understanding between the parties. The agreement may fail under genuine circumstances.

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19. At this stage, the following substantial question

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of law arises for my consideration :

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“ Whether all the principles of the

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Specific Performance of a regular suit strictly applicable to an agreement by a co-owner to another?”

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20. During the course of evidence, the defendant

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has stated that on 14.04.1983, there was an agreement entered into by himself and his mother regarding different property, wherein both of them had common interest. It was agreed by the plaintiff and defendant that the plaintiff would pay the balance sale consideration out of the share which he gets from selling Arasinaguppe property. The date of the institution of the suit is 31.07.1971. Now the question is, as per the agreement, the trial Court has ordered the defendant to receive Rs.10,000/- and to execute the sale deed as the suit schedule property is a constructed house, due to extracting of 1/8^th share, is nothing but claiming a pound of flesh subject to the

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condition without letting a drop of blood out. So under the circumstances, unfair advantage to the defendant is out of question.

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Uncertainty in the description of the property is no way applicable. On the other hand, one sharer that too mother seeking to purchase the another share from her own son in respect of the property belonged to her husband, there are sentiments and emotions are attached to it. However, the Court is not concerned with such sentiments and emotions.

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The sale consideration was not paid for the reasons already stated above, even the defendant also agrees for the same. It cannot be forgotten for a while that the sale agreement under Ex.P3 shows portion of performance and the payment of balance sale consideration. The relevant paragraph No.5 in the Ex.P3 reads as under:-

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“5. The parties to this deed have mutually agreed that a release deed relating to

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the schedule property should be executed and got registered at the time the sale deed in respect of S.No.28 of Arasinaguppe village is executed and registered by the parties hereto and the other co-owners of S.No.28. This arrangement for execution of the Release deed relating to the house is made at the time of the execution of the sale deed relating to S.No.28, to suit the convenience of the second party and to avoid inconvenience to the second party in having to go over to Chikmagalur twice for these transactions. Therefore, the parties hereby agree that the release deed or any other suitable document to extinguish the right, title and interest of the second party in the schedule property should be executed and registered at the time the sale deed is executed by the parties hereto and the other co-owners in respect of S.No.28 of Arasinaguppe village, in favour of Sri. I.M.Ramegowda or his nominee.”

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23. The agreement by the defendant dated 22.10.1978 is nothing but a kind of preparation, however, no sale deed is effected to others by the defendant.

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The limitation is no factor in this case nor it is

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raised. Under the circumstances, viewed from any angle, advantage, hardship, the convenience the agreement fulfills all good qualities of the sale agreement which deserves performance. No doubt, it runs into numerous details regarding payment of consideration and happening of sale of property in Arasinaguppe. For a moment, considering the nature and the circumstances of the property, now the land of Arasinaguppe has been sold both plaintiff and defendant are having interest in the subject matter and the sale deed happened to be executed. It is the case of the plaintiff that defendant refused to receive the amount and went away from the registered office. This explanation of the plaintiff claims that defendant refused to receive the balance amount of Rs.10,000/- and demanded that he require more amount.

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In the present circumstances, the conduct and nature and contentions of the defendant are not fit and deserves appreciation. He has not come with clean hands

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and has no regards for legality and promise to fulfill the agreement.

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It is a case for specific performance that requires to be recognized.

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I do not find, there is irregularity, infirmity or uncertainty, lapses or perversity in the judgment of both the courts below and they deserves to be confirmed and appeal is liable to be dismissed, also the substantial questions of law answered accordingly.

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Accordingly, appeal is dismissed with costs

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throughout. Judgments of both the courts below are hereby confirmed.

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Sd/JUDGE

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M.N.Shivakumar v. M.N.Somashekhar

Case brief

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M.N.Shivakumar v. M.N.Somashekhar

Case brief

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