Dismissed

Sri Karigowda v. Sri Munisonnappa

Karnataka HC16 Aug 2021RSA/942/2017

Case brief

AI extract

What is this about?

In this Regular Second Appeal, the High Court of Karnataka dismissed the appeal prayed for by the defendants against the decree for specific performance granted to the plaintiff in favor of an Agreement of Sale. The Court held that the sale was for legal necessity and the lower courts' findings were correct, dismissing the appeal.

What did the court decide?

The Regular Second Appeal was dismissed at the Admission stage.

Sri Karigowda Vs Sri Munisonnappa — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF AUGUST 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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R.S.A. No. 942/2017

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BETWEEN:

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SRI KARIGOWDA

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SINCE DEAD, REPRESENTED BY HIS LRS

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1a. SMT. PUTTAMMA

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W/O LATE KARIGOWDA AGED ABOUT 72 YEARS R/AT EACHAGERE VILLAGE KERAGODU HOBLI MANDYA TALUK MANDYA DISTRICT-571 446.

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1b. SMT. SUKANYA

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D/O LATE KARIGOWDA W/O SURESHA AGED ABOUT 45 YEARS R/AT HURUGALAVADI VILLAGE KOPPA HOBLI MADDUR TALUK-571 425.

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1c. SMT. SAVITHA

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D/O LATE KARIGOWDA W/O SRIDHARA AGED ABOUT 39 YEARS R/AT SUNAGAHALLI VILLAGE KOTHATHI HOBLI MANDYA TALUK-571 478.

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1d. SMT. SUMA

D/O LATE KARIGOWDA

W/O PRASANNA

AGED ABOUT 35 YEARS R/AT CHANDAGALU VILLAGE DUDDA HOBLI MANDYA TALUK-571 405.

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SRI SIDDEGOWDA S/O KARIGOWDA AGED ABOUT 46 YEARS R/AT EACHAGERE VILLAGE KERAGODU HOBLI MANDYA TALUK MANDYA DISTRICT-571 446.

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... APPELLANTS

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(BY SRI ANANDA K, ADVOCATE)

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AND:

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SRI MUNISONNAPPA S/O DODDANNA AGED ABOUT 71 YEARS R/AT SUBBAIAHNAPALYA BANASAVADI DHAKLE-560 049 KRISHNARAJAPURA HOBLI BENGALURU TALUK BENGALURU DISTIRCT

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... RESPONDENT

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(BY SRI HARIPRASAD N, ADVOCATE)

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THIS R.S.A. IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 17.12.2016 PASSED IN R.A.NO. 43/2016 ON THE FILE OF IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.04.2016 PASSED IN OS.NO.101/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MANDYA.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is preferred by defendant No.2 and legal representatives of defendant No.1 challenging the judgment and decree dated 17.12.2016 passed in RA.No.43/2016 on the file of the IV Additional District and Sessions Judge, Mandya, confirming the judgment and decree dated 27.04.2016 passed in OS.No.101/2003 on the file of the Principal Senior Civil Judge and CJM, Mandya, decreeing the suit of the plaintiff.

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For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.

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The plaint averments are that the plaintiff and defendants have entered into an Agreement of Sale dated 30.03.2002 wherein, the defendants agreed to sell the suit schedule property in favour of the plaintiff for total consideration of Rs.99,000/- and the defendants have received Rs.66,500/from the plaintiff on the date of the agreement and agreed to receive the balance sale consideration amount of Rs.32,500/- on the date of execution of the registered Sale Deed.

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It is the case of the plaintiff that the plaintiff is ready and willing to pay the balance sale consideration amount and approached the defendants to comply with the terms of the agreement, however, the defendants delayed the execution of the Sale Deed and as such the plaintiff got issued legal notice dated 23.01.2003 to the defendants calling upon the them to execute the registered Sale Deed in respect of the suit schedule properties. Despite receipt of the legal notice, defendants did not come forward to comply with their part of obligation and as such, the plaintiff filed OS No.101/2003 on the file of the trial Court seeking the relief of specific performance of the contract.

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After service of summons, the defendant No.1

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appeared through his counsel but did not choose to file written statement. Defendant No.2 did not appear before the trial Court and as such, he was placed ex-parte and thereafter, the trial Court decreed the suit on 20.01.2009. Thereafter, the defendants filed in C.Misc.No.33/2009, which came to be dismissed on 16.07.2010 and being aggrieved by the same, the defendants have filed MA No.34/2010 on the file of the Additional District Judge, Mandya and said appeal came to be allowed on 04.04.2013, consequently, the suit was restored before the trial

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Court. After restoration, the defendants have filed written statement before the trial Court denying the averments made in the plaint. It is the defence of the defendants that the defendants have approached the plaintiff for loan of Rs.20,000/and as such, the plaintiff had agreed to advance the said loan with a condition that the defendants have to sign the paper before Sub-Registrar Mandya, as a security for the loan. It is further averred in the written stated that the defendants are illiterates and being ignorant on the fact and as such, trusted the plaintiff and affixed their signature on the stamp paper before the Sub-Registrar, Mandya and thereafter, they came to know about the said document i.e., Agreement of Sale dated 30.03.2002. Therefore, they contended that the said Agreement of Sale is sham and not binding on them. The defendants have also stated that, the four daughters of defendant No.1 filed suit for partition in OS No.608/2010 before the trial Court and same came to be decreed, consequently, Final Decree proceedings are pending consideration before the competent court.

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On the basis of the rival pleadings, the trial Court has formulated following issues for its consideration:

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1 . Whether the plaintiff proves that the defendants have agreed to sell the suit schedule property for total sale consideration of Rs.99,000.00?

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2. Whether the plaintiff proves that the defendants have executed a registered agreement of sale in his favour on 30.03.2002 by reserving Rs.66,500/- out of the total sale consideration amount of Rs.99,000.00 and agreed to pay the balance amount of Rs.32,500.00 at the time of execution of sale agreement?

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3. Whether the plaintiff proves that he is ever ready and willing to perform his part of contract?

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4. Whether the defendants prove that the suit of the plaintiff is bad of non joinder of necessary parties as contended by him in para NO.11 of his written statement and other contents of the same para?

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5. Whether the defendants prove that the court fees paid by the plaintiff is insufficient?

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6. Whether the plaintiff is entitled for the reliefs as sought for?

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7. What order or decree?

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In order to establish their case, plaintiff got

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examined three witnesses as PW1 to PW3 and got marked 7 documents as Exs.P1 to P7. On the other hand, defendants examined one witness as DW1 and no documents were produced before the trial Court.

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The trial Court, after considering the material on record, by its judgment and decree dated 27.04.2016 decreed the suit of the plaintiff and being aggrieved by the same, defendants have preferred Regular Appeal in No.43/2016 on the file of First Appellate Court and the said appeal was resisted by the plaintiff. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 17.12.2016, dismissed the appeal and confirmed the judgment and decree passed by the trial Court in OS.No.101/2003. Being aggrieved by the judgment and decree passed by courts below, the appellants have preferred this Regular Second Appeal under Section 100 of CPC.

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Sri.Ananda.K., learned counsel for the appellants submits that the finding recorded by both the courts below is contrary to law and the suit schedule property is the ancestral and joint family property of defendant No.1 and as such, the daughters have equal share as that of defendant No.2. He further contended that the plaintiff has played fraud by executing the registered agreement of sale dated 30.03.2002 (Ex.P2) and as such, same is not binding on the defendants. He further contended that, there is variance in the testimony of PW2 and

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PW3 with regard to the preparation of the Ex.P2 and said aspect of the matter was not considered by the Courts below.

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Per contra, Sri.Hari Prasad N., learned counsel for the respondent sought to justify the impugned judgment and decree passed by the courts below and argued that both the courts below, on concurrent facts on record, arrived at a conclusion, which cannot be disturbed under Section 100 of Code of Civil Procedure.

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Heard the learned counsel appearing for the parties and perused the finding recorded by both the Courts below.

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On careful perusal of the findings, it is clear that it is not in dispute that the defendants and plaintiff entered into registered Agreement of Sale dated 30.03.2002 and parties agreed that the suit schedule property would be sold in favour of the plaintiff on execution of the registered Sale Deed. In this regard, the principal submission of the learned counsel for the appellants is that the daughters of the defendant No.1 have filed suit in OS No.608/2010, which came to be decreed and final decree proceedings are pending consideration before the competent court. In that background, I have examined the

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agreement at Ex.P2. The recital to the said agreement reads as under:

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“ºÁ° £À£Àß ¸Áé¢üÃ£Á£ÀÄ¨sÀªÀzÀ°ègÀÄªÀ F PÉ¼ÀUÉ µÉqÀÆå¯ï£À°è £ÀªÀÄÆzÀÄ ªÀiÁrgÀÄªÀ ¸ÀévÀÛ£ÀÄß F ¢ªÀ¸À £ÁªÀÅ £ÀªÀÄä zÀgÀzÀÄ ¤«ÄvÀåªÁV CAzÀgÉ ¸Á®U¼À £À Äß wÃgÀ ÄªÀ ½ À ªiÁqÀ ®Ä ºÁUÀ Æ UÀ ÈºÀ PÀ ÈvÀ åzÀ RaðUÁVAiÀ ÄÆÀ ¤ªÀÄUÉ £ÀUÀzÀÄ UËgÀßªÉÄAmï ZÀ¯ÁªÀuÉ 99.000.00 vÉÆA¨sÀvÉÆÛA§vÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ½UÉ ±ÀÄzÀÞ PÀæAiÀÄPÉÌ PÉÆqÀ®Ä M¦à F ¢ªÀ¸À F ªÁå¥ÁgÀzÀ SÁwæUÁV ªÀÄÄAUÀqÀzÀ ªÉÆ§®UÀÄ 66,500.00 CgÀªÀvÁÛgÀÄ ¸Á«gÀzÀ LzÀÄ£ÀÆgÀÄ gÀÆ¥Á¬ÄUÀ¼À£ÀÄß F PÀgÁgÀÄ ¥ÀvÀæzÀ jf¸ÀÖgï ªÉÃ¼É ªÀÄA:¸À:j:gÀªÀgÀ ¸ÀªÀÄPÀëªÀÄ £ÀUÀzÁV ¥ÀqÉzÀÄPÉÆ¼ÀÄîvÉÛÃ£É.”

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( Emphasis supplied)

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Perusal of the Agreement of Sale would indicate that the defendants agreed to sell the suit schedule property for a total consideration of Rs.99,000/-, and have received an advance amount of Rs.66,500/- from the plaintiff. In order to prove the readiness and willingness, the plaintiff issued legal notice-Ex.P3 and same was served on the defendants. The defendants did not make any effort to reply to the said legal notice which would clearly establish the fact that the plaintiff has proved the readiness and willingness to purchase the suit schedule property from the defendants. The plaintiff has examined PW2, one of the witnesses to Ex.P2 and got marked the death certificate of his father as per Ex.P7. PW2 admits the signature of his father on the Agreement of Sale. The plaintiff also examined the scribe to

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the said document as PW3 and same would establish the fact that the said Agreement of Sale is genuine and free from element of fraud as alleged by the plaintiff, and therefore, the finding recorded by the trial Court on issue Nos.1 and 2 is just and proper. I have also considered the cross-examination of DW1, who deposed that he had received amount outside the Subregistrar office, Mandya and, since, Ex.P2 is the registered document and as such, the contents of the said document cannot be questioned by the defendants as stated in the written statement. Though the learned counsel appearing for the appellants drew the attention of the Court with regard to the share of the daughters and pendency of the Final Decree proceedings before the competent court, however, the aforementioned recital to Ex.P2 would substantiate the fact that the defendants have sold the suit schedule property to meet the legal necessity in the family and as such, the arguments advanced by the learned counsel appearing for the appellants cannot be accepted. In this regard, the finding recorded by the trial Court at Paragraphs 27 and 28 would establish the fact that the trial Court decreed the suit based on the oral and documentary evidence on record.

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At this juncture, it is useful to refer to the law declared by the Hon’ble supreme court in the case of KEHAR SINGH (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS v. NACHITTAR KAUR AND OTHERS reported in (2018)14 SCC 445. Wherein it is held that to sell the ancestral property existence of legal necessity is prerequisite. The observation made at paragraph 24 is as follows:

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“ 24. It has come in evidence that firstly, the family owed two debts and secondly, the family also needed money to make improvement in agriculture land belonging to the family. Pritam Singh, being a Karta of the family, had every right to sell the suit land belonging to family to discharge the debt liability and spend some money to make improvement in agriculture land for the maintenance of his family. These facts were also mentioned in the sale deed.

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25. In our considered opinion, a case of legal necessity for sale of ancestral property by the Karta (Pritam Singh) was, therefore, made out on facts. In other words, the defendants were able to discharge the burden that lay on them to prove the existence of legal necessity for sale of suit land to defendant Nos.2 and 3. The defendants thus satisfied the test laid down in Hindu law as explained by Mulla in Article 254 (2) read with Article 241(a) and (g)quoted above.

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26. Once the factum of existence of legal necessity stood proved, then, in our view, no co-coparcener (son) has a right to challenge the sale made by the Karta of his family. The plaintiff being a son was one of the coparceners along with his father Pritam Singh. He had no right to challenge such sale in the light of findings of legal necessity being recorded against him. It was more so when the plaintiff failed to prove by any evidence that there was no legal necessity for sale of the suit land or that the evidence adduced by the defendants to prove the factum of existence of legal necessity was either insufficient or irrelevant or no evidence at all. ”

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In the light of the law declared by the e Apex court, referred to above, the defendants intended to sell the suit schedule property for the purpose of legal necessity of the family and as such, impugned judgment and decree passed by he courts below are legal, and cannot be interfered with in this appeal.

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I have also noticed the finding recorded by the First Appellate Court, wherein the First appellate Court at paragraph 19 of the judgment had pointed out that daughters of the defendant No.1 were well aware about the agreement entered into between the plaintiff and the defendants as per Ex.P2 and perusal of the finding at Paragraph 18 would disentitle the defendants from seeking dismissal of the suit. It is well settled

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principle that, suit for specific performance has to be adjudicated based on the material on record and same is discretionary in nature. Equitable principles play vital role while adjudicating the suit for specific performance. In the present case, learned counsel appearing for the appellants had appeared in OS No.101/2003 and OS No.608/2010. In that view of the matter, the finding recorded by the First Appellate Court is just and proper and it does not call for interference in this appeal.

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Therefore, I do not find material irregularity or perversity in the judgment and decree passed by the Courts below and accordingly, the Regular Second Appeal is liable to be dismissed . Since, the appellants have not made out ground for formulation of substantial question of law as required under Section 100 of Code of Civil Procedure, appeal is liable to be dismissed at the Admission stage itself, accordingly, dismissed .

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Sd/JUDGE

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SB

Sri Karigowda v. Sri Munisonnappa

Case brief

What is this about?

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Sri Karigowda v. Sri Munisonnappa

Case brief

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