Dismissed

Smt Nagamma v. Smt. D.V. Savithramma

Karnataka HC24 Sept 2021RFA/2355/2006

Case brief

AI extract

What is this about?

In an appeal against a decree for specific performance, the High Court held that the appellant, though not a formal party to the sale agreement, executed it as a witness and acknowledged the transaction. The will relied upon was invalid during the testator's lifetime. The court affirmed that while stamp duty was improperly paid, it could not bar the suit and ordered the document be sent for duty c

What did the court decide?

Appeal dismissed; registry directed to send document for stamp duty collection; trial records to be transmitted.

Smt Nagamma Vs Smt. D.V. Savithramma — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.F.A.NO.2355/2006 (SP)

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BETWEEN:

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SMT. NAGAMMA AGED ABOUT 41 YEARS W/O KARIYANNA R/AT VEERABHJADRANAPALYA KANAKADAS ROAD (SOUTH) P.O.DODDABALLAPURA AND SHE IS R/AT NO.1528 TERINAPETE DODDABALLAPURA TOWN – 561 203

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… APPELLANT

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[BY SRI C.R.SUBRAMANYA, ADVOCATE]

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AND:

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SMT. D.V.SAVITHRAMMA AGED ABOUT 65 YEARS W/O D.V.VENKATARAMANAPPA R/O NO.1194, SECOND WARD KUCHCHAPPANNA PET DODDABALLAPURA TOWN – 561 203 BANGALORE RURAL DISTRICT

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REP. BY HER POWER OF ATTORNEY HOLDER SRI D.V.KRISHNAMURTHY S/O D.V.VENKATARAMANAPPA AGED ABOUT 45 YEARS R/AT NO. 1194, SECOND WARD KUCHACHANAPPAPET

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DODDABALLAPURA TOWN BANGALORE RURAL DISTRICT – 561 203

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SRI C.H.SHAMAIAH SINCE DEAD BY L.R.S

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SMT. GANGAMMA S/O LATE SHAMAIAH AGED ABOUT 60 YEARS VIDYANAGAR BEHIND KONGADIAPPA HIGH SCHOOL COLLEGE ROAD DODDABALLAPURA – 561 203

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ASWATHAMMA

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W/O KRISHNAPPA AGED ABOUT 42 YEARS R/O DANAGANAHALLI MANCHANEHALLI HOBLI CHIKKABALLAPURA TALUK

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KOLAR DISTRICT – 572 101

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KRISHNAMMA @ KICHAMMA

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W/O MUTTAPPA AGED ABOUT 40 YEARS DEVARAJANAGAR

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DODDABALLAPURA TALUK – 561 203

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5. SANJEEVAMMA

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W/O ANGADI RAMASWAMY AGED ABOUT 38 YEARS KURUBARAPALYA KOLALAL HOBLI, KORATAGERE TALUK TUMKUR DISTRICT – 572 129

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6. GANGADHAR

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S/O LATE C.H.SHAMAIAH HINDU, MAJOR VIDYANAGAR OPP. KONGADIYAPPA HIGH SCHOOL DODDABALLAPURA – 561 203

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MUNIKRISHNA

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S/O LATE C.H.SHAMAIAH HINDU, MAJOR VIDYANAGAR OPP. KONGADIYAPPA HIGH SCHOOL DODDABALLAPURA

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KARIYANNA S/O LATE C.H.SHAMAIAH HINDU, MAJOR VIDYANAGAR OPP. KONGADIYAPPA HIGH SCHOOL DODDABALLAPURA – 561 203

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… RESPONDENTS

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[BY SRI Y.R.SADASIVA REDDY, SR. ADVOCATE FOR R1; SRI D.J.GOVINDARAJU, ADVOCATE FOR R2 TO R5; R6, R7 AND R8 ARE SERVED AND UNREPRESENTED]

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THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 21.08.2006 PASSED IN OS.NO.326/2002 ON THE FILE OF THE CIVIL JUDGE (SENIOR DIVISION), DODDABALLAPUR AND ETC.

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THIS R.F.A. COMING ON FOR HEARING THROUGH VIDEO CONFERENCING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed challenging the judgment and decree dated 21^st August 2006 passed in O.S.No.326/2002 against the appellant herein and also the other defendants on the file of the Civil Judge (Senior Division), Doddaballapur.

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The parties are referred to as per their original rankings before the Trial Court to avoid the confusion and for the convenience of the Court.

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The factual matrix of the case is that the first respondent herein had filed a suit in O.S.No.326/2002 before the

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Trial Court seeking for the relief of specific performance of contract against the defendants. It is the contention of the plaintiff that the first to fifth defendants are the owners of the suit schedule property and they have entered into an agreement of sale with the plaintiff on 24^th April 1998 for an amount of Rs.1,75,000/and by receiving an advance amount of Rs.40,000/- have executed a sale agreement. It is also the case of the plaintiff that the defendants had undertaken to complete the said sale transaction after obtaining necessary permission from the Government because the said land was granted with occupancy rights from the Land Tribunal, Doddaballapur in its Order LRF No.639/75-76 dated 17^th April 1986 with a nonalienation condition for about 15 years. As such, on the date of the sale agreement still three years remaining. But inspite of expiring the said period, the plaintiff repeatedly requested to receive the balance sale consideration and execute the

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registered sale deed, the defendants went on postponing the same. Instead the defendants have ventured to get the schedule property partitioned among themselves with an effort to get the kathas also changed in their names, notwithstanding to the suit agreement of sale entered into with the plaintiff. Hence, without any other alternative, the plaintiff approached the Court seeking the relief of specific performance of contract to enforce the sale agreement dated 24^th April 1998.

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The defendants No.1 to 3 in pursuance of the suit summons appeared and filed the written statement admitting the sale agreement and also the terms and conditions of the agreement and contend that they are helpless to do the needful

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due to reluctancy of the defendants No.4 and 5 in coming forward to execute the sale deed. The fifth defendant in the written statement totally denied the contention of the plaintiff and also the alleged sale agreement and the plaintiff claimed that she herself is the absolute owner of the suit schedule property in the background of the facts that the first defendant is her father-in-law and the fourth defendant is her husband and the defendants No.2 and 3 are her brother-in-laws. The first and

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fourth defendants are the drunkard and they had driven the plaintiff out of the house. As such, a panchayats were held in the village and on 11^th July 1994, a family settlement was taken place in which the first defendant executed a registered Will in favour of the fifth defendant bequeathing the suit schedule property. It is also the contention of the fifth defendant that when the first defendant had insisted to pay him Rs.50,000/towards the marriage expenses of the plaintiff and the same was paid and by receiving the said amount, he had executed a sale agreement in favour of the plaintiff followed by a General Power of Attorney dated 13^th July 1994. In view of the execution of the documents, the plaintiff became absolute owner of the suit schedule property and the plaintiff had been in possession of the suit schedule property and the defendants No.1 to 4 seems to have deliberately instigated the plaintiff to file the suit without any valid cause of action.

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Having heard the learned counsel appearing for the

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parties, the Trial Court had framed the following issues:

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“(1) Whether the plaintiff proves that defendants 1 to 5 have jointly agreed to sell the suit schedule land for consideration of Rs.1,75,000/- to plaintiff and have

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executed an agreement to sell on 24/04/1998 by receiving Rs.40,000/- as advance from plaintiff?

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(2) Whether the plaintiff proves that defendants 1 to 5 have agreed to execute the sale deed after obtaining permission from the concerned authorities, after the period of non-alienation is completed and to receive the remaining balance sale amount?

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(3) Whether the plaintiff proves that after the completion of non-alienation period, he has requested the defendants 1 to 5 to execute the registered sale deed of the suit schedule property by receiving the balance consideration amount but the defendants went on postponing the execution of the registered sale deed?

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(4) Whether the plaintiff proves his readiness and willingness to pay the balance sale consideration and to obtain the regular registered sale deed?

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(5) Whether defendants 1 to 3 prove that for one reason or the other, the other defendants have been postponing to execute the registered sale deed in favour of the plaintiff?

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(6) Whether the 5^th defendant proves that in the year 1998, defendants 1 to 5 have no subsisting right, title or possession over the suit schedule property and this suit is filed by the plaintiff at the instigation of defendants 1 to 4, who have colluded with the plaintiff?

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(7) Whether the 5^th defendant proves that in a Family Settlement held on 11/07/1994, first defendant has executed a Registered Will bearing document No.45/9495 and an Agreement to Sell the suit schedule property

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in favour of the 5^th defendant for sale consideration of Rs.50,000/- and received the entire sale consideration?

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(8) Whether the 5^th defendant proves that she is the owner in possession and enjoyment of the suit schedule property?

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(9) Whether the 5^th defendant proves that the suit is barred by time?

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(10) What decree or order?”

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In order to prove the case of the plaintiff, got examined her son as P.W.1 in the capacity of a GPA holder along with two other attestor witnesses of the sale agreement and a Notary as PW2 to PW4 and got marked the documents at Ex.P1 to P8. On the other hand, the fifth defendant got examined herself as DW1 and also examined other three witnesses as DW2 to DW4 and got marked the documents at Ex.D1 to D7.

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The Trial Court after considering both the oral and documentary evidence, answered issue Nos.1 to 5 as affirmative in coming to the conclusion that the sale agreement was executed and also the defendants have agreed to execute the sale deed after obtaining the permission from the concerned authority and so also after the completion of the non-alienation period, the plaintiff requested the defendants No.1 to 5 to

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execute the sale deed by receiving the balance sale consideration and the plaintiff was always ready and willing to perform her part of contract and answered issue Nos. 6 to 9 as negative.

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The Trial Court considering the issue Nos.6 to 9 came to the conclusion that the fifth defendant has not proved that the defendants No.1 to 5 have no subsisting right, title or possession over the suit schedule property and the suit is filed at the instigation of the defendants No.1 to 4. The Trial Court also came to the conclusion that the contention of the fifth defendant that in a family settlement held on 11^th July 1994, the first defendant had executed a registered Will and agreement to sell

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the suit schedule property by receiving an amount of Rs.50,000/- and the same was not proved and also the fifth defendant had not proved that he is the owner in possession and enjoyment of the suit schedule property. The other contention that the suit is barred by time was also answered in the negative and granted a decree in favour of the plaintiff. Hence, the present appeal is filed by the 5^th defendant before this Court.

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The main contention of the fifth defendant before this Court that the Trial Judge has committed an error in coming to the conclusion that the suit is in time and the said observation is erroneous for the simple reason that the legal notice issued is after the expiry of three years and ought to have insisted for obtaining permission from the competent authority for conclusion of the sale. But the plaintiff has not offered any explanation in her legal notice in this behalf. Hence, the Trial Judge ought to have held that the suit is barred by time. The other contention of the appellant’s counsel is that the Trial Judge has failed to see that the appellant has not executed the alleged agreement of sale in favour of the plaintiff. Therefore, the suit for specific performance of agreement is not maintainable and hence, ought to have dismissed the same. The learned counsel vehemently contend that the alleged agreement of sale dated 24^th April 1998 was written on the stamp paper of Rs.200/- only and this document could not be marked and received as exhibit in evidence, since, it is not in conformity with the stamp duty as per Article 5(e)(i) of Schedule of the Karnataka Stamp Act, 1957. The counsel would also vehemently contend that the learned Judge ought to have impound the document at Ex.P2

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and collected the duty and penalty, if the plaintiff failed to pay the same, the learned Judge ought to have impounded the document at Ex.P2 and sent it to the District Registrar for collection of stamp duty as held by this Court in ILR 2002 KAR 5163 . The counsel also vehemently contend that the Trial Court erred in holding that the Will at Ex.D4 which is a registered document will not convey any right, title or interest in favour of the appellant and the said observation is also erroneous. The Trial court has failed to give findings on Ex.D4 which is a registered Will executed by the first defendant and the Trial Court also committed an error in holding that the appellant has subscribed her signature to the alleged agreement of sale at Ex.P2. Nowhere, in the evidence of the appellant who is examined as DW1 in the suit admitted her signature. Thus, it is very clear that the appreciation of evidence both the oral and documents adduced by the appellant are not properly appreciated. The counsel would also vehemently contend that notice was issued only against the first defendant and against the other defendants.

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It is contended that the appellant is in possession

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and enjoyment of the said property and the Trial Court has not considered the documents produced by the appellant and committed an error in directing the appellant to execute the sale deed along with the other defendants. The counsel vehemently contend that the plaintiff has not proved her readiness and willingness to have the sale deed. The Trial Court with regard to the readiness and willingness has erroneously observed that the plaintiff had paid the huge Court fee and making a payment of Court fee itself is not a ground for an order of specific performance. The counsel in support of his argument relied upon the judgment reported in ILR 2002 KAR 5163 in the case of JAYALAKSHMI REDDY vs THIPPANNA AND OTHERS

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wherein this Court, regarding unregistered agreement of sale is concerned, held that the proper stamp duty payable under the Karnataka Stamp Act being not paid and when the document was sought to be used in evidence, the Court below was justified in passing the impugned order and needs no interference. The counsel also relied upon the judgment reported in AIR 1982 KAR 264 in the case of SMT.RANGANAYAKAMMA vs

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N.GOVINDA NARAYN regarding the hardship is concerned and

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the counsel referring to this judgment vehemently contended that under Section 20(2)(b) Explanation and (3), in a suit for specific performance of contract to sell entered into by defendant, a woman enforcement of contract liable to cause hardship to the defendant and non-enforcement of the contract not liable to cause hardship to plaintiff, specific performance was refused, principles governing the determination of hardship stated. Hence, it is clear that when the hardship causes, there cannot be any discretionary relief in favour of the plaintiff. The counsel also relied upon the judgment of the Apex Court passed in Civil Appeal No.3372/2003 dated 18^th October 2010 and brought to notice of this Court to paragraph 9 wherein it is held that if the document is signed as a witness and not as a party, the said document had neither been exhibited nor was admissible in evidence. This document cannot be termed as contract as the appellant was not a party to it. Even, otherwise, the terms of a contract can be read and enforced only in consonance with law and the same would not confer any right or interest in appellants’ favour. At the most, it can be held that out of love and affection, the respondents/original plaintiffs had permitted the appellant/original defendant to occupy the

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premises. The counsel referring to this judgment also

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vehemently contend that even assuming that the appellant had signed the documents, it will not create any right and the same is also not enforceable against this appellant.

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Per contra, the counsel appearing for the respondents vehemently contend that it is not in dispute that the land was granted in favour of one Shamaiah by the Land Tribunal in the year 1986 and there is a condition that not to alienate the suit schedule property to any other person for a period of 15 years, Hence, in the agreement itself, a specific mention is made to execute the sale deed after the expiry of 15 years by receiving the balance sale consideration. The counsel vehemently contend that the said condition of 15 years will be completed on 16^th April 2001 and the plaintiff had issued a legal notice on 17^th July 2001 and the suit is filed in the Month of October 2001 and hence, the suit is in time and there cannot be any demand before the expiry of 15 years for execution of the sale deed. Hence, the contention of the defendant that the suit is barred by time cannot be accepted. Immediately after expiry of 15 years, demand was made to execute the sale deed and when

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the defendants did not execute the same in terms of the notice, the suit was filed.

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The counsel would vehemently contend that the defendants have not come forwarded to execute the sale deed.

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The fifth defendant who is the appellant herein had the knowledge of the execution of the sale agreement and also the other documents and the appellant herein also the signatory to all the documents including the sale agreement, affidavit and in the affidavit itself it is mentioned that the earlier documents executed in favour of this appellant are withdrawn and the sale agreement is executed in favour of the plaintiff. The counsel vehemently contend that when the appellant herself signed the agreement of sale and other affidavits, now cannot contend that she is the absolute owner of the property in pursuance of the Will executed in the year 1994. The counsel vehemently contend that Will comes into effect only after the death of the executant and the said executant died in the year 2004 and hence, during the lifetime of the executant of the Will only agreed to sell the property in favour of the plaintiff and all other sons and also the appellant who is the daughter-in-law of the

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first defendant was also the signatory to all the documents, now cannot contend that she is the owner of the suit schedule property and hence, the counsel seeks for dismissal of the appeal on the ground that there is no merit in the appeal.

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Having heard the respective counsel and also on

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perusal of the grounds in the appeal, the following points that arises for the consideration of this court are:

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1. Whether the Trial Court has committed an error in directing the appellant who is not a party to the sale agreement to execute the sale deed in favour of the plaintiff?

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1. Whether the Trial Court has committed an error in not recognizing the appellant / defendant No.5 as the owner of the property in question by virtue of registered will at Ex.D4?

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1. Whether the Trail Court has committed an error in coming to the conclusion that the plaintiff is entitled for the relief of specific performance that the plaintiff was always ready and willing to perform his part of contract?

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1. Whether the Trial Court has committed an error in not impounding the document since the document-Ex.P2 is

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not in conformity with the stamp duty as per Article 5 (e) (i) of schedule of the Karnataka Stamp Act, 1957?

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Whether the Trial Court has committed an error in not exercising the discretion in favour of the appellant under Section 20 of the Specific Relief Act?

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6) What Order?

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Points No.1 and 2.

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Having heard the respective counsels and also on perusal of records, it is not in dispute that in terms of recitals of Ex.P-2 the sale agreement dated 24-04-1998 the appellant is not a party but the document reveals that though she has not signed the document in each page as party, in the sale agreement she has signed the document and the same is also marked as Ex.P-2(c).

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The learned counsel appearing for the respondent – plaintiff also brought to the notice of this Court that she has not only signed this document Ex.P-2 and she also signed the document Ex.P-3 being executed by her father-in-law Sri C.H.Shamaiah and other family members wherein the appellant she has signed the said affidavit and her signature is

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marked as Ex.P-3(a). On the very same day, one more affidavit was executed by her father-in-law Sri C.H.Shamaiah wherein the said Shamaiah has made it clear that he had executed Power of Attorney and affidavit in favour of the appellant on 11-07-1994 and the said General Power of Attorney, affidavit and sale Agreement in favour of the respondent – plaintiff are canceled. In the said document also she is a signatory to the affidavit and her signature is marked as Ex.P-4(a), though she disputed the signature but not seriously disputed the signature sending the document to expert. Having noted all the signatures available in the documents particularly, Exs.P-2 to 4, it is clear that she had the knowledge of the sale transaction entered into between the family members and also with the plaintiff and now she cannot contend that she is not a party to the sale transaction. Though she has not been arrayed as party to the sale agreement Ex.P-2 but she has signed the document as witness to this document. When such being the case, the very first contention of the appellant’s counsel that she is not a party to the sale agreement and she cannot be directed to execute the sale deed cannot be accepted. No doubt, her husband is also a party to the sale agreement, he has been arrayed as defendant No.4 and he also

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not contested the matter. No doubt, she has relied upon the document Ex.D-4 and the same is also a registered document dated 11-07-1994 and on the very same day, the sale agreement was executed in favour of the appellant herein for having received an amount of Rs.50,000/- and also an affidavit by her father-in-law and also the General Power of Attorney. These documents are cancelled by executing the document Ex.P4 and the appellant is also a party to the said affidavit wherein she has signed the said affidavit. It is clear that she had the knowledge of sale transaction and no doubt Ex.D-4 is the registered Will executed in her favour by her father-in-law on 11-07-1994 and Will would come into force only on the death of the executant and before his death he himself is a party to the sale agreement and based on the Will, she cannot claim as absolute owner as contended in the appeal and hence, her contention that she has derived title in pursuance of the Will also cannot be accepted, since the executant of the Will during his lifetime executed the sale agreement. The appellant had the knowledge of the execution of the sale agreement and also signatory to all the documents executed in favour of the plaintiff and hence the very contention of the appellant that she is not a

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party and she cannot be directed to execute the sale deed also cannot be accepted.

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The other contention that deriving title on account of the execution of Will in her favour also cannot be accepted and the same cannot create any right in her favour during lifetime of executant and hence I answer both the Points in Negative.

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Point No.3 –Execution of sale agreement

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The very contention of the plaintiff is that defendants have executed the sale agreement in favour of the plaintiff by receiving more than Rs.40,000/- under the document Ex.P-2. But the recitals discloses that the land was granted in the year 1986 and also there was a condition not to alienate the property for a period of 15 years. It is not in dispute that the property was granted in favour of father-in-law of this appellant and also the condition imposed not to alienate the property within 15 years. In the agreement itself, it is specifically mentioned that 3 years remaining to complete 15 years and hence the very execution of the sale deed is postponed. The defendants who have executed the sale agreement have also not disputed the

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very execution of the sale agreement. It is also not in dispute that after the completion of 15 years period, the plaintiff has caused legal notice on 17-07-2001 against defendant No.1 and not against all the defendants though defendants 1 to 3 have contested the matter by filing written statement and they have not filed any appeal before this Court. Aggrieved by the Judgment & decree of the trial Court the appellant who is the daughter-in-law of the first defendant had raised this ground. As already pointed out, she is also one of the signatory to the sale agreement though not party to the sale agreement, but she had the knowledge of the sale agreement. It is also important to note that the said notice was issued immediately after the expiry of 15 years and hence it clearly discloses that the plaintiff was always ready and willing to have the sale deed in his favour, immediately after completion of 15 years and also the suit is filed within a span of three months and no delay has been caused.

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The other contention of the appellant is that the suit is filed beyond limitation also cannot be accepted. It is contended that plaintiff ought to have issued a notice prior to 3

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years to the expiry of 15 years and the same also cannot be accepted. The agreement itself is very clear that the remaining 3 years are there to complete 15 years and immediately after the completion of 3 years in terms of the sale agreement, notice was issued to the plaintiff. Though the execution of the sale agreement is not disputed and this appellant is also signatory to the sale agreement and also other documents are executed by her father-in-law including her husband and family members, now cannot contend that the plaintiff is not entitled for the relief of specific performance and that the suit is barred by limitation. Hence the trial court has not committed any error in decreeing the suit for specific performance in coming to the conclusion that the sale agreement was executed and received the advance amount in part performance of contract. Hence the grounds urged by the appellant with regard to the very contention that the trial court committed an error in coming to the conclusion that the plaintiff was always ready and willing to perform his part of contract and entitled for the relief of specific performance. Hence, I answer point No.3 as negative.

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Point No.4

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The other contention of the appellant’s counsel that

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the trial Court has committed an error in not considering the document Ex.P-2 and the same is not in conformity with the sale deed as per Article 5(e)(i) of the Stamp Act and also not collected the stamp duty and ought to have collected duty and penalty and hence, committed an error. No doubt, the Stamp Act is amended by virtue of Act No.8 of 1995 on 1-4-1995 and in view of amendment to Article 5(e)(i) it is clear that the instrument relating to sale of immoveable property in part performance of the contract if possession of the property is delivered or agreed to be delivered before executing the conveyance stamp duty as a conveyance under Article 20 on the market value of the property. Having perused the document ExP-2, it is clear that in terms of the sale agreement the possession is delivered. The main contention of the respondent’s counsel that when the document was marked and the same is not objected and also no application was filed before the trial Court to collect duty and penalty and now for the first time, they have raised the said contention. It is not in dispute that for the first time, the said objection is raised before this Court.

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The learned counsel appearing for the respondent would contend that under Section 35 of Stamp Act, 1957 wherein an instrument has been admitted in evidence such admission shall not except as provided in Section 58, to be called in question at any stage of the proceedings on the ground that the instrument has not been duly stamped. It is to be noted that the Stamp Act is amended in order to generate revenue to the State. Admittedly, in terms of the document Ex.P-2 the possession was delivered and when the possession was delivered and when the stamp duty is not properly paid in terms of Article 5(e)(i) of the Stamp Act, the duty of the Court is to direct to pay the duty and penalty or to refer the document to the District Registrar for recovery of the same and the same has not been done in the case on hand. Only on the ground that the stamp duty is not paid in terms of the amendment dated 01-04-1995, the Court cannot disallow the claim of the plaintiff and only course open to the court is to refer the document to the concerned District Registrar to collect duty and penalty in accordance with law and hence there is force in his submission of the appellant’s counsel that the stamp duty is not paid in terms of Article 5(e)(i) of the Karnataka Stamp Act.

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The learned counsel appearing for the appellant also brought to the notice of this Court the Judgment in the case of

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JAYALAKSHMI REDDY vs. THIPPANNA AND OTHERS reported in 2002 KARNATAKA 5163 wherein this Court also has dealt with regard to the sale agreement which is unregistered and not duly stamped can be marked in evidence and has discussed in detail regarding Article 5(e) (i) of the Karnataka Stamp Act and the Judgment is also applicable to the facts of the case on hand though document herein is not compulsorily registrable as on the date of the sale agreement but payment of stamp duty is concerned and the same is not paid under document Ex.P-2. So far as registration is concerned, the amendment was brought to Section 17 of the Registration Act only on 24-1-2001 and hence, I answer point No.4 as affirmative.

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Point No.5

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The other contention of the appellant’s counsel is that the trial Court ought to have exercised discretion in favour of the appellant herein invoking Article 20(2) (b) explanation and sub-Clause(iii) of the Specific Relief Act and not in favour of the

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plaintiff. He further contends that the appellant is also a woman whose right is protected by executing a document by father-inlaw, when the difference arose between the son and daughterin-law, the Will was executed in the year 1994 itself and documents Exs.D-4 to 8 were also executed and hence ought to have exercised the discretion in favour of the appellant. No doubt, in the case for specific performance, even agreement is executed and lawful to do so, the Court has to exercise discretion under Section 20 of the Specific Relief Act. The Court has to evaluate the hardship whether it is caused to the plaintiff or to the defendant. But under the facts and circumstances of the case on hand, no doubt earlier even the documents executed in respect of the very same suit schedule property in favour of the appellant herein but subsequently the documents which have been executed in favour of the appellant were cancelled and the same is stated in the affidavit in Ex.P-4 and in Ex.P-4 she is the signatory to the said document, though contended that the said signature does not belonged to her but not seriously disputed the same and also document is not referred for any hand writing expert. The Court can also compare the admitted signature and also the signature available in Exs.P-2 to 4 under Section 73 of

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the Evidence Act. Though the Court is having conscious, the Court cannot act as an expert to comparing the signature under Section 73 of the Evidence Act and on perusal of the admitted signature and also the signatures found on Exs.P-2 to 4, it can be seen that the signature available on document also pertains to the signature of the appellant and hence the appellant cannot blow hot and cold in one breath that the signatures are not that of her and claim that she is the owner of the property in terms of the Will.

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As already pointed out that the Will would come into force after the death of the executant and the executant is none other than father-in-law of the appellant herein. The father-inlaw with the consent of all the family members executed only sale agreement in favour of the plaintiff along with his sons and in all these documents also the appellant is the signatory to the sale agreement, affidavit for withdrawing the documents made in favour of the appellant. Hence the very contention of the appellant’s counsel that the trial court has not exercised the discretion in favour of the appellant cannot be accepted.

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The learned counsel relied on the Judgment in the

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case of Smt. RANGANAYAKAMMA v. N.GOVINDA NARAYAN

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reported in AIR 1982 KARNATAKA 264 , wherein the Court has discussed with regard to the hardship is concerned. There is no dispute with regard to the exercise of discretion in a case of specific performance, the hardship caused to the executant of the sale agreement. The factual aspects of the case is different from the case so relied upon by the appellant’s counsel. Hence, I do not find any merit in the contention of the appellant’s counsel that the trial court has not exercised discretion in favour of the appellant herein.

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Having considered both oral and documentary

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evidence I have already pointed out that the suit schedule property is granted in favour of the father-in-law in the year 1986 and there was a sale agreement executed on 24-04-1998 before the expiry of 15 years but having had the knowledge of bar of non-alienation, the document recitals discloses that the very postponement of registration, there is recital in the document. When such being the case though the parties had a knowledge when transacted and when the plaintiff also

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immediately after the expiry of 15 years caused legal notice and requested to execute the sale deed and he has shown his readiness and willingness to have the sale deed immediately after the expiry of 15 years and hence, the Court cannot find fault with the trial court in exercising the discretion in favour of the plaintiff.

¶141

Hence, I do not find any merit in the appeal and also the other defendants have not contested the matter and only the appellant being the daughter-in-law of the first defendant who is grantee of the said land had challenged this Judgment and decree of specific performance. Hence I do not find any merit in this appeal to comes to other conclusion to reverse the finding of the trial court.

¶142