The High Court of Karnataka dismissed a second appeal challenging a decree for specific performance of a registered sale agreement. The court upheld the Trial Court and First Appellate Court's findings that fraud allegations were unfounded, noting corroborative signatures from other family members who were not parties to the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF SEPTEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A.NO.393/2021 (SP)
BETWEEN:
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[BY SRI PRAKASH K.A., ADVOCATE] AND:
SMT. C.K. MANJULA, W/O K. CHANDRAPPA, AGED ABOUT 44 YEARS, R/AT 3RD CROSS, NEAR SHANKAR MATTA, BEHIND BENNOOR COLLEGE, SIDDHAROODANAGARA EXTENSION, BHADRAVATHI, SHIVAMOGGA DISTRICT-577 301. … RESPONDENT [BY SRI UMESH MOOLI MANI, ADVOCATE FOR SRI S.V. PRAKASH, ADVOCATE FOR C/R]
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THIS R.S.A IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 24.02.2021 PASSED IN R.A.NO.130/2017 ON THE FILE OF THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.03.2017 PASSED IN O.S.NO.33/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, HARIHAR.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This matter is listed for admission today. Heard the learned counsel for the appellants and the learned counsel for the respondent.
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Davanagere District, based on the agreement of sale dated 01.12.2011, which came to be registered on 02.12.2011. It is also the contention of the plaintiff that out of the sale consideration of Rs.7,50,000/-, an amount of Rs.7,25,000/- is paid to the husband of defendant No.1 and father of defendant Nos.2 to 7. It is also the contention of the plaintiff before the Trial Court that the plaintiff was always ready and willing to perform her part of the contract. Defendant No.2 filed the written statement before the Trial Court that the sale agreement dated 02.12.2011 came out of fraud, misrepresentation and cheating by the plaintiff. The other defendants, who are the mother, sisters and brother of defendant No.2 have adopted the written statement filed by defendant No.2.
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appellants/defendants in R.A.No.130/2017 have contended that the respondent herein took the signature of Haladappa, who was addicted to bad vices. The First Appellate Court, on reappreciation of both oral and documentary evidence placed on record, formulated the point for consideration whether the appellants proves that the plaintiff created the sale agreement to knock off the valuable property and whether Haladappa has no exclusive right to execute the sale agreement in favour of the respondent and whether the impugned judgment and decree of the Trial Court requires interference. The First Appellate Court, on re-appreciation of both oral and documentary evidence placed on record answered all the issues as negative. Hence, the present appeal is filed before this Court against the concurrent findings of both the Courts.
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Haladappa Dasadi was not the absolute owner of the suit schedule property. Both the courts have also not taken note of the hardship caused to the appellants while exercising the power under Section 20 of the Specific Relief Act. Hence, it requires interference of this Court.
respondent/plaintiff would contend that both the courts have taken note of the conduct of the defendants and they contend that there was a suit in O.S.No.149/2006 and the said suit is filed by defendant No.2 against the father and uncles and claimed 1/6th share out of 1/3rd share of their father. The learned counsel would contend that the brothers and sisters who have been arraigned as defendants in the present suit have not been arraigned as defendants in the partition suit filed by defendant No.2. The learned counsel would submit that the said decree is only an exparte decree. The suit was decreed in 2007 and later on in 2008, FDP was initiated. The learned counsel would contend that the father and all other family members have signed the document Ex.P.2 and the said document is also a registered document. Both the courts have come to the
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conclusion that the defence of defendant No.2 cannot be accepted and concurrent finding is given with regard to allegations of fraud, misrepresentation and cheating against their father in obtaining the sale agreement. The learned counsel would contend that earlier O.S.No.149/2006 is filed in respect of Sy.No.12/2 P3 and the suit schedule property is in respect of Sy.No.12/5. Both the courts considered that subsequent to the sale agreement, in FDP No.08/2008 got included the suit schedule property deleting the earlier Sy.No.12/2 P3.
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present defendant Nos.3 to 6 as respondent Nos.2 to 5. The said unlawful and unadvisable conduct of defendant No.2 transpires that with wrongful intention to cause loss to the plaintiff and to get wrongful gain to him he got incorporated the present suit schedule property in FDP No.8/2008, which was ended in compromise and received schedule property to his share only. It is further observed that it is crystallized from the said materials and evidence that the present defendant No.2 is master minded and played mischievous role in order to get rid from the result of this suit. The First Appellate Court also taken note of this aspect while re-appreciating the material available on record and concurred with the finding of the Trial Court.
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numbers properties are one and the same. Hence, the contention of the respondent cannot be accepted.
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on record, taken note of this aspect that the father as well as the other defendants have had the knowledge of the execution of the sale agreement and rejected the claim of the defendants/appellants that the document Ex.P.2 is obtained by fraud.
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went to the Sub-Registrar office and executed the document Ex.P.2. Both the courts have given the concurrent findings with regard to the allegations of fraud played on the father of the defendants in coming to the conclusion that the same cannot be accepted. The document is also registered sale agreement and the attesting witness has been examined as P.W.2 and scribe is examined as P.W.3. When the Trial Court and the First Appellate Court considered the evidence available on record with regard to the execution of the registered sale agreement and having received the sale consideration and executed the sale agreement Ex.P.2, the very contention of playing fraud in obtaining Ex.P.2 cannot be accepted in the second appeal. Both the courts have given a finding with regard to the said fact and not accepted the defence of defendant No.2. No doubt, defendant No.2, who contested the matter by filing the written statement is not the signatory to the sale agreement. But the fact is that the father and all other family members have executed the sale agreement.
is filed against the father and uncles and though he claims 1/6th share in respect of the suit schedule property out of 1/3rd share
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of his father and while obtaining the decree in O.S.No.149/2006,
he has not made his other brother and sisters as parties to the proceedings and the suit is filed subsequent to amendment to Section 6 of the Hindu Succession Act and the decree is obtained behind the back of the other defendants. Now, an ingenious method is adopted in the suit filed before the Trial Court for specific performance wherein defendant No.2 only files the written statement and other defendants have adopted the written statement of defendant No.2 in spite of they were the signatories to the sale agreement. Even assuming that they are only witnesses to the document, but they had the knowledge while executing the sale agreement, is not in dispute. It is also important to note that both the courts have taken note of the conduct of defendant No.2 and though decree was obtained in O.S.No.149/2006 in respect of Sy.No.12/2 P3, the same is amended subsequent to the execution of the sale agreement dated 01.12.2011 in the absence of their uncles and impleaded the present defendants, sisters and brother as parties to the proceedings and the said amendment is also on 16.01.2012 subsequent to the sale agreement dated 01.12.2011. Hence, it is clear that defendant Nos.2, his brother and sisters with an
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intention to avoid the sale agreement dated 01.12.2011, joined together and all of them are sailing together to avoid the sale agreement dated 01.12.2011.
case and when the father and other family members have executed the sale agreement in favour of the respondent, both the courts have given the concurrent finding taking note of the conduct of defendant No.2 and others and rightly comes to the conclusion that it is a case for granting relief of specific performance and hence I do not find any force in the contention of the appellant/defendant No.2 counsel and the other defendants have also joined along with defendant No.2 to avoid the sale agreement dated 01.12.2011 and hence it is nothing but an attempt made by the other defendants and also defendant No.2 to avoid the execution of sale deed, the defence is set up that the document is obtained with fraud and misrepresentation. The same is also not proved but the respective courts have taken note of the conduct of defendant No.2 and also the brother and sisters, who are the signatories to Ex.P.2 also joined along with defendant No.2. Hence, I do not find any substantial
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question of law to invoke Section 100 of CPC and there is no merit in the second appeal.
following:
ORDER
The appeal is dismissed.
Sd/JUDGE
MD
3 issues framed by the court
Whether the defense of fraud and misrepresentation by the father in executing the sale agreement is sustainable given the signatures of other family members.
Whether the appellate court committed an error in refusing to exercise its power under Section 20 of the Specific Relief Act due to alleged hardship caused by the partition of property.
Whether the concurrent findings of the Trial Court and First Appellate Court regarding the bona fides of the sale agreement deserve interference.
1 provisions across 1 enactments
Kenchamma
Sri Channappa
Smt. Nagamma
Smt. Haladamma
Smt. Puttamma
Smt. Ambika
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
