Allowed

Kenchamma v. Smt Kuppamma

Karnataka HC5 Mar 2022RSA/2543/2006

Case brief

AI extract

What is this about?

This second appeal challenges a decree for specific performance of an agreement to sell land. The High Court dismissed the appeal, confirming the lower courts' finding that the suit was within limitation, the signature under the agreement was proven via comparison with admitted documents, and subsequent buyers were bound by lis pendens.

What did the court decide?

RSA No.2525/2006 and RSA No.2543/2006 dismissed.

Kenchamma Vs Smt Kuppamma — Specific Performance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 05^th DAY OF MARCH, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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R.S.A.No.2525 OF 2006

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C/W

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R.S.A. No.2543 OF 2006

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IN R.S.A.No.2525 OF 2006

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BETWEEN:

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KRISHNANANDA S/O LATE NARAYANA SHEIT

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AGED ABOUT 45 YEARS

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MANJUNATHA VITTALA SHEIT S/O LATE VITTALA SHEIT AGED ABOUT 56 YEARS

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SUNIL KUMAR

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S/O LATE NARAYANA SHEIT AGED ABOUT 45 YEARS

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SRIDHARA

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S/O LATE NARAYANA SHEIT AGED ABOUT 27 YEARS

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VIMALA

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D/O LATE NARAYANA SHEIT AGED ABOUT 40 YEARS

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APPELLANTS 1 TO 5 ARE R/O 3^RD CROSS DURGI GUDI SHIMOGA CITY.

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BHAVANI SHANKAR S/O RUTHER SHEIT MANAKAMI

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AGED ABOUT 55 YEARS R/O SAHYADRI COLONY PUNE ROAD, SIRSI TOWN SHIMOGA CITY - 577 201.

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APPELLANTS NOS. 1, 2 , 5 & 6 ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER SRI SUNIL KUMAR THE APPELLANT NO.3 HEREIN.

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… APPELLANTS (BY SRI. S.V. PRAKASH, ADVOCATE(P/H)

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AND:

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SMT. KUPPAMMA W/O DHARMANNA AGED ABOUT 57 YEARS

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SMT. KENCHAMMA W/O LATE CHIKANNA AGED ABOUT 80 YEARS

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HANUMANTHAPPA SINCE DEAD, REP. BY LRS

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3(a) RENUKAMMA W/O LATE HANUMANTHAPPA AGED ABOUT 40 YEARS

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3(b) NANJUNDI S/O LATE HANUMANTHAPPA AGED ABOUT 18 YEARS

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3(c) LATHA D/O LATE HANUMANTHAPPA AGED ABOUT 16 YEARS

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3(d) PAVITHRA D/O LATE HANUMANTHAPPA AGED ABOUT 14 YEARS

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ALL ARE R/AT THREEMURTHY NAGAR NEAR VENKATARAMANA SWAMY

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NAVELI, SHIMOGA CITY R3(C), R3(D) ARE MINORS REPRESENTED BY MOTHER GUARDIAN 3(A) RENUKAMMA

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AMENDMENT CARRIED OUT V/O DATED:19.07.2001

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SMT. JAYAMMA W/O NAGAPPA AGED ABOUT 48 YEARS

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SMT. LAKSHMI W/O NAGAPPA AGED ABOUT 39 YEARS

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SMT. SHARADA W/O SIDDESH AGED ABOUT 37 YEARS

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KUM. CHANDRIKA D/O LATE CHIKANNA AGED ABOUT 35 YEARS

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ALL ARE R/O NAVILE VILLAGE SHIMOGA TALUK & DIST -577 201.

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… RESPONDENTS

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(BY SRI. R.V.JAYAPRAKASH, ADVOCATE FOR R1(P/H) SRI. S.P. KULKARNI, ADVOCATE FOR R2, R4 TO R7 R3(A&B)-SERVED UNREPRESENTED R3(C&D)-MINORS REP. BY R3(A&B)

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THE REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 24.03.2006 PASSED IN R.A. NO. 10/2002 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (SR.DN) & CJM, SHIMOGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:19.12.2001 PASSED IN OS.NO.704/1991 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE (JR. DN), SHIMOGA.

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IN R.S.A.No.2543 OF 2006

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BETWEEN:

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KENCHAMMA W/O CHIKKANNA AGED ABOUT 79 YEARS

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HANUMANTHAPPA S/O LATE CHIKKANNA AGED ABOUT 44 YEARS SINCE DEAD REP. BY LRS

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2(a) RENUKAMMA W/O LATE HANUMANTHAPPA AGED ABOUT 40 YEARS

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2(b) NANJUNDI S/O LATE HANUMANTHAPPA AGED ABOUT 18 YEARS

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2(c) KUM.LATHA D/O LATE HANUMANTHAPPA AGED ABOUT 16 YEARS

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2(d) KUM.PAVITHRA D/O LATE HANUMANTHAPPA AGED ABOUT 14 YEARS

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ALL ARE R/O NAVILE VILLAGE SHIMOGA TQ & DISTRICT LR'S 2(C) AND 2(D) ARE MINORS REPRESENTED BY LR NO.2(A)

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AMENDMENT CARRIED OUT AS PER

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V/O DATED:19.07.2001

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SMT JAYAMMA W/O NAGAPPA AGED ABOUT 47 YEARS

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SMT LAKSHMI W/O NAGAPPA AGED ABOUT 38 YEARS

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5. SHARADA

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W/O SIDDESHA AGED ABOUT 36 YEARS

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KUM CHANDRIKA D/O LATE CHIKKANNA AGED ABOUT 34 YEARS

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ALL ARE MAJORS R/O NAVILE VILLAGE SHIMOGA TALUK - 577 201.

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… APPELLANTS

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(BY SRI. R. GOPAL, ADVOCATE(P/H)

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AND:

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SMT. KUPPAMMA W/O DHARMANNA AGED MAJOR R/O NAVILE SHIMOGA TALUK - 577 201.

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KRISHNANANDA W/O NARAYANA SHEIT AGED MAJOR R/O 3^RD CROSS DURGIGUDI

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SHIMOGA - 577 201.

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MANJUNATHA VITTALA SHEIT S/O VITTAL SHEIT AGED ABOUT 56 YEARS R/O 3^RD CROSS DURGIGUDI SHIMOGA CITY -577 201.

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SUNILKUMAR S/O NARAYANA SHEIT AGED MAJOR R/O 3^RD CROSS DURGIGUDI SHIMOGA CITY -577 201.

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SRIDHARA S/O NARAYANA SHEIT REPRESENTED BY GUARDIAN NEXT FRIEND-SUNIL KUMAR R/O 3^RD CROSS DURGIGUDI SHIMOGA CITY - 577 201.

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SMT. VIMALA D/O NARAYANA SHEIT AGED MAJOR R/O 3^RD CROSS DURGIGUDI SHIMOGA CITY - 577 201.

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BHAVANISHANKAR S/O RUTHER SHEIT AGED MAJOR R/O SAHYADRI COLONY POONA ROAD SIRSI TOWN - 581 401.

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(BY SRI. R.V. JAYAPRAKASH, ADVOCATE FOR R1 SRI. S.V. PRAKASH, ADVOCATE FOR R2 TO R7

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THE REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 24.03.2006 PASSED IN R.A. NO. 11/2002 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (SR.DN) & CJM, SHIMOGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:19.12.2001 PASSED IN OS.NO.704/1991 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE (JR. DN), SHIMOGA.

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THESE APPEALS BEING HEARD AND RESERVED FOR JUDGMENT, COMING ON PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Regular Second Appeal No.2525/2006 is filed by the appellants/defendants Nos.7 to 11 and Regular Second Appeal No.2543/2006 is filed by the appellants/defendants Nos.1 to 6 against the concurrent findings and conclusions rendered in Judgment and decree dated 24.03.2006 passed in R.A. No.10/2002 and R.A.No.11/2002 respectively on the file of The Additional Civil Judge & CJM (Sr.Dn), Shimogga (hereinafter referred to as the ‘First Appellate Court) and in the judgment and decree dated 19.12.2001 passed in O.S.No.704/1991 on the file of The I Additional Civil Judge (Jn.Dn), Shimogga (hereinafter referred to as the ‘Trial Court’) .

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Parties are referred to as per their ranking before the trial Court.

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Plaintiff-Smt.Kuppamma w/o Sri.Dharmanna, filed the above suit originally against defendant Nos. 1 to 6 namely, Smt.Kenchamma, Sri.Hanumanthappa, Smt. Jayamma, Smt.Lakshmi, Smt. Sharada and Kum. Chandrika being the wife and children of one Sri Chikkanna seeking

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relief of specific performance of an agreement of sale dated 22.9.1975 and for consequential relief of permanent injunction, contending inter alia that;

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(a) Sri.Chikkanna, husband and

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father respectively of defendant Nos.1 to 6 had borrowed a sum of Rs.900/- from Sri. Dharmanna-husband of the plaintiff in the year 1969 by executing a deed of Usufructuary mortgage in respect of his land measuring 2 Acres 31 guntas in Sy.No.44/2, Navile Village and had delivered the physical

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possession of the said land in terms thereof. That during the subsistence of said mortgage, Chikkanna sold 2 acres out of 2 acres 31

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guntas of land in favour of said Sri. Dharmanna under two deeds of sale dated 20.05.1974 and 21.10.1974. The unsold portion of land measuring 31 guntas remained in possession of husband of the plaintiff -Dharmanna. The said 31 guntas of

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land is referred to as the suit schedule property.

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(b) Thereafter, Chikkanna the

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husband and father of the defendant Nos.1 to 6 executed an agreement of sale dated 22.09.1975 in favour of the plaintiff as desired by her husband, agreeing to sell the aforesaid 31 guntas of land for a sale consideration of Rs.900/- out of which a sum of Rs.600/- was paid on the date of the agreement and remaining Rs.300/- was agreed to be paid at the time of execution of the deed of sale which was postponed, as there was prohibition for registration of documents conveying immovable properties. That after removal of such prohibition whenever the plaintiff makes a demand, the said Chikkanna would come and execute the deed of sale. That after some times, upon the

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request of Chikkanna remaining part of sale consideration of Rs.300/- was also paid on

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02.12.1976 which has been acknowledged in the said agreement of sale. Plaintiff was permitted to have her name entered into the revenue records based on the agreement of sale. That possession of the suit schedule property, which was already in possession of the husband of the plaintiff was agreed to be treated as possession with the plaintiff and her husband as a part performance of the agreement.

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(c) That said Sri.Chikkanna died about 10 to 12 years prior to filing of the suit. Since a year prior to filing of the suit defendant Nos.1 and 2 were having an eye on the schedule property. That during December, 1990, the plaintiff’s husband being desirous of selling part of his property applied and obtained certified copy of RTC extract in respect of land in Sy.No.44/2. Only then, plaintiff and her husband learnt about the revenue entries made in respect of the

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suit schedule property substituting name of the defendant No.1 with that of the name of the plaintiff. Immediately, thereafter the plaintiff preferred an appeal before Assistant Commissioner, Shimogga and the said appeal was pending consideration in PDA No.105/1990-91.

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(d) Plaintiff’s husband having learned about the hostile attitude of the defendants demanded for an execution of deed of sale. Though, the defendants initially agreed to execute the deed of sale, failed to fulfill their promise. In the meanwhile, husband of the plaintiff-Dharmanna passed away on 03.04.1991. Being embolden by the death of the plaintiff’s husband, defendants refused to execute the deed of sale and threatened to take the possession of the property. In furtherance of their intention, defendant No.1 also filed a suit for injunction in O.S.No.390/1991.

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(e) That the plaintiff had fully

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performed her part of contract having paid the entire sale consideration. It was only the said Chikkanna who had to execute a deed of sale which was postponed due to the prohibition contained under the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act. These acts of the defendants amounted refusal to perform the terms of agreement of sale dated 22.09.1975, constraining the plaintiff to file the suit for specific performance and for relief of permanent injunction.

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(f) That during the pendency of the suit, defendant Nos.1 to 6 have executed deeds of sale purportedly conveying suit schedule property in various portions in favour of defendant Nos.7 to 11, thereby requiring their impleadment in the suit.

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Defendant Nos.1 to 6 filed their written

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statement denying the entire case of the plaintiff including the averment regarding Chikkanna borrowing money from the husband of the plaintiff and executing Usufructuary Mortgage in the year 1969, execution of the deeds of sale dated 20.05.1974 and 21.10.1974 by Chikkanna in favour of husband of plaintiff conveying 2 acres, out of 2 acres 31 guntas of land. It is further contended that even if any such deeds of sale were executed, same were not binding on defendant Nos.1 to 6. The property was ancestral property and defendants 2 to 6 were minors. That taking undue advantage of minority of defendant Nos.2 to 6 and illiteracy of defendant No.1, husband of plaintiff managed to be in possession of the property without any rights.

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The agreement of sale dated 22.09.1975 executed by Chikkanna in favour of the plaintiff and receipt of sale consideration has been specifically denied. It is further contended that even if such an agreement was in existence, same was only concocted, fraudulent and created

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for the purposes of the case. Entries of name of plaintiff in respect of the suit schedule property has been denied. It

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further specifically contented that the suit filed for specific performance of an agreement dated 22.9.1975 is barred by limitation and unenforceable and hence, sought for dismissal of the suit.

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Defendant Nos.7 to 11 in their written statement while denying plaint averments have contended that they are bonafide purchasers of suit schedule property for valid consideration without any notice of the pendency of the suit from any one. That they have been put in possession and enjoyment of the suit schedule property and have got their name entered into the revenue records. That their vendordefendant Nos.1 to 6 had never informed them about the pendency of the suit and learnt about pendency of the suit only when they were served with a Court summons that they are not necessary parties to the suit and the plaintiff had impleaded them with malafide intention of harassing and troubling them. Hence, sought for dismissal of the suit.

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The Trial Court based on the pleading, framed the following issues and additional issues;

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“Issues :

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1. Whether the plaintiff proves that Chikkanna desired to sell away the portion of the land and the plaintiff's husband purchased 2 acres of land under the two sale deeds dated 20.05.1974 and 21.10.1974?

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2. Whether the plaintiff further proves that Chikkanna has executed an agreement dated 22.09.1975 agreeing to sell the remaining 31 guntas of land?

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3. Whether the plaintiff further proves that the possession of the property continued under the Agreement of Sale in the hands of the plaintiff, which was already in their possession since 1969?

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4. Whether the plaintiff proves that she and her husband were all along ready and willing to perform their part of contract in having the sale deed executed?

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5. Whether the defendants prove that the suit is clearly barred by law of limitation?

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

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7. What decree or order?"

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Additional Issues:

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“1. Whether the plaintiff proves that the defendants are liable to joint the execution of the sale deed for having purchased the suit schedule property during the pendency of the suit?

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2. Whether the defendants 7 to 11 prove that they are bonafide purchasers of this suit schedule property without notice of the pendency of the suit and that they are not liable to join execution of the sale deed in the event of decree in the suit?”

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and recorded evidence.

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Plaintiff has examined herself as PW1 and

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exhibited 20 documents marked as Ex.P1 to Ex.P20. One Sri.Sunil Kumar and Smt.Kenchamma have been examined as DW1 and DW2 and exhibited 8 documents marked as Ex.D1 to Ex.D8.

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Trial Court on appreciation of evidence decreed the suit as prayed for by its judgment and decree dated 19.12.2001. Being aggrieved by the same, defendant Nos.7 to 11 filed regular appeal in RA No.10/2002 while defendant Nos. 1 to 6 filed RA No.11/2002.

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The first appellate Court on re-appreciation of evidence by its common judgment and order dismissed both the appeals in RA No.10/2002 filed by the defendant Nos.7 to 11 and RA No.11 /2002 filed by the defendant Nos. 1 to 6

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confirming the judgment and decree passed by the trial Court dated 19.12.2001 in O.S.No.704/1991.

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Aggrieved by the said judgment and decree and concurrent findings rendered, defendant Nos.7 to 11 have filed present RSA No.2525/2006 and defendant Nos. 1 to 6 have filed RSA No.2543/2006. This court by its order dated 29.08.2011 admitted the aforesaid appeals to consider the following substantial questions of law;

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"(1) Whether the courts below were justified in decreeing the suit filed on 27.07.1991 seeking for specific performance of agreement of sale dated 22.09.1975?

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Whether the suit filed for specific performance of agreement of sale dated 22.09.1975 was barred by limitation under Article 54 of the Limitation Act?

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(2) Whether the trial Court was correct in holding agreement to sell dated 22.9.1975 has been proved by the plaintiff on a comparison of signatures under Section 73 of the Evidence Act and holding that same has been proved?

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(3) Whether the courts below were justified in decreeing the suit without considering relevant provisions of Section 20 of the Specific Relief Act."

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Sri.S.V.Prakash, learned counsel for the

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appellants/defendant Nos.7 to 11 in RSA No.2525/2006 reiterating the grounds urged in the memorandum of appeal submitted that;

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a) The suit is hopelessly barred by limitation as it was not filed within three

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years from the date of the alleged agreement. That even in the absence of stipulation regarding the time being essence of contract, it is expected that suit for specific performance has to be filed within reasonable time. Since the plaintiff approached after 16 years, the suit suffers from delay and laches.

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b) There was no prohibition under any law in force as on the date of the alleged agreement or subsequent thereto and no such law was pointed out by the plaintiff before the courts below. Therefore, courts

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below completely erred in not considering these important aspects of the matters.

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c) When defendant Nos.1 to 6 had in categorical terms denied the execution of agreement of sale by late Chikkanna including denying his signature, it was incumbent upon the plaintiff to have adduced valid and acceptable evidence by examining attesting witnesses to the document and also examining the expert to prove the signature of late Chikkanna.

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d) The trial Court ought not have invoked the powers under Section 73 of the Evidence Act to compare the signatures in Ex.P2 with other documents without seeking the opinion of Hand writing experts and said approach of the trial Court is contrary to the law laid down by the Apex Court.

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e) The schedule property being an ancestral property could not have been sold by Chikkanna when admittedly defendant Nos.2 to 6 were minors without there being any legal necessity or benefit of the family.

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f) There was no evidence with regard to readiness and willingness on the part of the plaintiff right from the date of an agreement which the courts below failed to take into consideration.

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g) The findings of the courts below with regard to the possession of plaintiff and her husband is perverse and without any evidence. Therefore, granting of decree of permanent injunction is unsustainable.

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h) Merely because plaintiff has established her right under the agreement, the courts are not bound to grant specific performance as it is a

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discretionary relief without reference to

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Section 20 of the Specific Relief Act.

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i) The Courts below have not considered that defendant Nos.7 to 11 were bonafide purchasers for valuable consideration without notice of agreement of sale and pending of the suit.

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Therefore, he submits the substantial question of law raised in the matter needs to be answered in favour of the appellants/defendant Nos.7 to 11.

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He relied upon the following judgments in

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support of his case.

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1. K.S. Vidyanadam and others vs. Vairavan (AIR 1997 SC 1751)

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2. Manjunath Anandappa Urf. Shivappa Hanasi vs. Tammanasa & Ors.(2003 (3) Supreme 248)

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3. Sharanappa (deceased) by Lrs vs. Sumitrabai and Another (2004(3) KCCR 1476)

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4. V.S.Munirathanam, Since deceased by L.Rs vs. P.Sundaram, since deceased by L.Rs and Ors. (ILR 2004 KAR 2328)

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5. Shivasharnappa vs. The Deputy Commissioner, Gulbarga District and others –(1999 (2) KCCR 866)

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6. Smt. Parvathamma & Ors. vs. Smt. Uma and ors. (2011 (1) AIR Kar.R 615)

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7. Ishwari Prasad Misra vs. Mohammad Isa (AIR 1963 SC 1728)

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8. State of Maharashtra vs. Sukhdeo Singh and Another (AIR 1992 SC 2100)

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9. Ajit Savant Majagavi vs. State of Karnataka - (AIR 1997 SC 3255)

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10. A.C.Arulappan vs. Smt. Ahalya Naik(AIR 2001 SC 2783)

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11. V.Muthusami (dead) by Lrs., vs. Angammal and others (AIR 2002 SC 1279)

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12. S.Kugashankar vs. Subhash Chand Goel and Others (ILR 2006 Kar. 3689)

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13. Kadupugotla Varalakshmi vs. Vudagiri Venkata Rao & Ors. (LL 2021 SC 104)

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14. Nellikkottu Kolleriyil Madhavi vs. Kavakkalathil Kalikutty and Others (ILR 1997 Kar. 2632)

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Sri.R.Gopal, learned counsel appearing for

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appellants/defendant Nos.1 to 6 in RSA No.2543/2006 has submitted that;

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(a) the plaintiff has not explained

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the delay of 16 years in filing the suit seeking enforcement of her rights under the agreement of sale.

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(b) the defendant Nos.1 to 6 being

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the wife and children of Sri.Chikkanna

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have specifically denied his signature on the agreement of sale. Therefore, the plaintiff ought to have proved the signature in the manner known to law and in the absence the execution of agreement has not been proved. As such, question of granting relief of specific performance would not arise.

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taken into consideration the hardship which was caused to the defendant Nos.1

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to 6 while granting the discretionary relief

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in favour of the plaintiff.

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(d) that suit schedule property

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which the plaintiff is claiming to have purchased for Rs.900/- is much more valuable in view of urbanization and inflation, which factor has not been taken into consideration by the Courts below.

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Hence, he submits that substantial question of law be answered in favour of defendant Nos. 1 to 6.

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Sri.R.V.Jayaprakash, learned counsel for the plaintiff justifying concurrent findings and conclusions arrived at by the Trial Court and First Appellate Court submits;

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a) That there was no specific time fixed under the agreement of sale except mentioning bar of registration and there is no specific reference to any ‘Act’. In substance, it was agreed that the deafendant would execute the deed of sale as and when requested by the plaintiff.

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b) That cause of action for the suit arose when the defendant Nos.1 and 2 filed suit in O.S.No.390/1991 and when their names were entered in the revenue records.

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c) that the very fact that husband of plaintiff was put in possession of 2 acres 31 guntas of land in terms of Usufructuary Mortgage in the year 1969 and husband of the defendant No.1 namely, Chikkanna having executed two deeds of sale dated 20.05.1974 and 21.10.1974 which remained unchallenged and undisputed would reveal that the remaining extent of 31 guntas of land has always been in possession of the plaintiff and her husband. Execution of agreement dated 22.09.1975 by Chikkanna in favour of the plaintiff has to be looked at from these admitted facts.

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d) that since the parties were in cordial relationship, execution of agreement of sale cannot be suspected and disputed.

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e) He submits that courts are competent to

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compare the signatures on the admitted documents under Section 73 of Evidence Act and no illegality can be found with the same.

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He relied upon the following judgments in

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support of his case.

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(1) H.M. Krishna Reddy vs. H.C. Narayana Reddy –(ILR 2001 KAR. PAGE 3870)

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(2) Shivasharanappa vs. The Deputy Commissioner and others(ILR 1999 KAR. PAGE 2042)

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(3) Mohammed Ali Abdul Chanimomin vs. Bisahemi Kom Abdulla Sab(AIR 1973 MYSORE PAGE 131)

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(4) Guruswamy Nadar vs. P. Lakshmi Ammal (dead) through Lrs and others(2008) 5 SCC PAGE 796)

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(5) N.Hanumantharaya vs. Smt.Mariyamma and Others(2008(1) AIR KAR.R PAGE 446)

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(6) Gurudev Kaur and Others vs. Kaki and Others-(2007 (1) SCC- PAGE 546)

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(7) Sughar Singh vs . Hari Singh (dead) through Lrs. and Others (CDJ 2021 SC 855CIVIL APPEAL NO.5110/2021)

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Heard learned counsel for the parties. Perused the records.

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There is no dispute with regard to the fact that the land in Sy.No.44/2 measuring 2 Acres 31 guntas belonged to late Chikkanna, the husband and father respectively of defendant Nos.1 to 6. Though, the defendant Nos.1 to 6 have in their written statement adopted the stand of a total denial of all the transactions, the fact remains that the transaction with regard to mortgage by Chikkanna in favour of Dharmanna coupled with delivery of possession in the year 1969 and subsequent execution of deeds of sale dated 20.05.1974 and 21.10.1974 conveying 2 Acres of land by Chikkanna in favour of Dharmanna are all in terms of registered documents and the said registered documents have remained unchallenged.

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The possession of the entire extent of land measuring 2 acres 31 guntas was handed over to

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Dharmanna by Chikkanna-the husband of defendant No.1 in terms of mortgage deed. Though subsequently 2 acres of land out of 2 acres 31 guntas was sold, there is no evidence of Dharmanna or his wife-the plaintiff redelivering the physical possession of the suit schedule property to Chikkanna during his life time or even thereafter to the defendant Nos.1 to 6.

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Learned counsel for the appellants fairly submitted that there is no direct evidence with regard to this aspect of the matter except the entries in the revenue records made in the year 1984.

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Ex.P2- agreement of sale was executed on 22.09.1975 in respect of suit schedule property being 31 guntas of land remained unsold after execution of two deeds of sale as above.

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Defendant No.9(a)- Sunil Kumar, who is one of the purchasers of the suit land during the pendency of the suit examined himself as DW1 for himself and on behalf of defendant Nos. 7, 8, 10 & 11 except stating that defendant Nos.7 to 11 are the bonafide purchasers for value without

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notice of pendency of suit till receipt of summons, has not spoken anything in his evidence with regard to previous transactions between Chikkanna and Dharmanna.

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It is seen from the records that when the matter was posted for arguments of defendants before the trial Court, Smt.Kenchamma- defendant No.1 reopened the case and examined herself as DW2. Her evidence is total denial of the case of the plaintiff. She confirms that she has alienated 31 guntas of land in favour of defendant Nos.7 to 11. During cross-examination, she has admitted plaintiff being in possession of the land in Sy.No.44/2. She pleads ignorance about her husband mortgaging the property in 1969 and executing two deeds of sale conveying 2 Acres of land in favour of husband of the plaintiff. She also pleads ignorance

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of agreement of sale with respect of remaining land measuring 31 guntas. When a specific question has been asked with regard to signature of her husband on the agreement of sale dated 22.09.1975-Ex.P2 she has deposed that "she cannot identify the signature of her husband". She

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has even denied filing of suit by her in O.S.No.390/1991 against the plaintiff. She has even expressed her inability to

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identify her own signature in the copy of the plaint filed by her in O.S.No.390/1991.

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In the aforesaid background of facts and circumstances, the substantial question of law needs to be answered.

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Regarding Limitation - Filing of the suit on 27.07.1991 seeking for specific performance of agreement of sale dated 22.09.1975:

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Learned counsel for the appellants/defendants assailed the concurrent findings of the trial Court and first appellate Court mainly on the ground of limitation. It is their contention that the agreement dated 22.09.1975 though did not prescribe any time limit, the same would not give any advantage to the plaintiff not to seek specific performance of the same for all time to come. Further, referring to contents of paragraph 7 of the plaint, wherein the plaintiff has pleaded that the registration and execution of the deed of sale could not be done in view of the prohibition contained in the Karnataka Prevention and Fragmentation and Consolidation of Holdings Act, learned counsel submitted

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that no such prohibition was contemplated. Reference is also made to the deposition of PW1 recorded on 14.10.1999 and 29.07.2000 regarding prohibition. It is submitted that since there is no legal prohibition under the Act for executing and registering the deed of conveyance, the same cannot be the ground for not seeking specific performance of the contract within reasonable time. Thus, it is submitted the courts below grossly erred in entertaining the suit which is hopelessly barred by limitation.

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The learned counsel for the appellants has relied upon the following judgments of Apex Court and this Court:

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a) In the case of K.S.VIDYANANDAM AND OTHERS

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VS. VYRAVAN (supra)., wherein the Apex Court dealing with the urban property involving constant and continuous raise in the value of the land, at para 11 has held as under:

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"11. …….Indeed we are inclined to think that the rigour of rule evolved by Courts that time is not the essence of the contract in the case of immovable properties and evolved in times when prices and values were stable and inflation was unknown and requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time we do so. It further held that

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while exercising its discretion, the Court should also bear in mind that when the properties prescribed certain time limit(s) for taking steps by one or the other party, it must have some significance and that the said time limit(s) cannot be ignored altogether on the ground that the time has not been made the essence of contract (regarding immovable properties).

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b) In the case of MANJUNATHA ANANDAPPA urf

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SHIVAPPA HANASI supra, the Apex Court taking note of the facts in the said case that plaintiff had filed the suit almost after six years from the date of entering into agreement of sale and he not having brought any material on record to show that he had ever asked Defendant No.1owner of the property to execute a deed of sale, and that he filed suit only after he came to know that the suit land had already been sold in favour of the Defendant No.3, has held that “it was obligatory on the part of the plaintiff for obtaining a discretionary relief having regard to Section 20 of the Act to approach the Court within a reasonable time.”

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The Apex court having regard to the conduct of the plaintiff held he was not entitled for discretionary relief. Referring to its earlier Judgment in the case of Veerayee Ammal vs. Sini

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Ammal (2002(1) SCC 134), the Apex Court in the aforesaid

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case, has extracted its observation as under:

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“11. When, concededly, the time was not of the essence of the contract, the appellant-plaintiff was required to approach the court of law within a reasonable time. A Constitution Bench of this Hon’ble Court in Chand Rani v. Kamal Rani(1993) 1 SCC 519 held that in case of sale of immovable property there is no presumption as to time being of the essence of the contract. Even if it is not of the essence of contract, the court may infer that it is to be performed in a reasonable time if the conditions are (i) from the express terms of the contract; (ii) from the nature of the property; and (iii) from the surrounding circumstances, for example, the object of making the contract. For the purposes of granting relief, the reasonable time has to be ascertained from all the facts and circumstances of the case”.

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c) A co-ordinate Bench of this Court in the case of

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SHARANAPPA (DECEASED BY L.Rs) supra, dealing with

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the suit of the plaintiff for declaration of title and injunction and alternative relief of possession wherein the defendant had set up a counter-claim seeking relief of specific performance on the strength of the agreement of sale at Ex.D1, had held that the terms of the document did not spell any time-limit for parties. Therefore, taking advantage of

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the absence of time-limit, the defendant keeps mum for almost ten years without taking any steps to offer the balance sale consideration and seek registration of the sale deed. In that view of the matter, this Court had held that the conduct of the defendant did not suggest that he was ready and willing to perform his part of the contract.

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d) Counsel for the appellant referred to the Judgment of the co-ordinate Bench of this Court in the case of SHIVA SHARNAPPA supra, which was with reference to the provisions of Section 4 of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966. After referring to this section, the co-ordinate Bench of this Court had held that:

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“ Notwithstanding anything contained in any law or in any Judgment, decree or order of any Court or other authroity, any transaction including transfer, partition or substantial question of lawdivision of any land entered into or effected and any action or thing taken or done in relation to land before the commencement of the Amending Act and in contravention of the provisions of the Principal Act shall notwithstanding anything contained in the Principal Act, be not deemed to be void merely on the ground of such contravention.”

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e) In the case of SMT.PARVATHAMMA supra, co-

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ordinate Bench of this Court dealing with a suit for specific performance of a contract of sale dated 01.07.1998, wherein the defendants having received the sale consideration of Rs.12,000/- had agreed to execute a sale deed upon the repeal of Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966, which was repealed on 05.02.1991 and even after such repeal, the defendants had failed to execute and register the sale deed as agreed despite repeated demands, constraining the plaintiffs to issue notice dated 09.10.1995, this Court in the light of the above factual aspect of the matter held that though the Act was repealed on 05.02.1991 and the plaintiff having admitted to have made demand as late as 27.10.1992 ought to have filed suit within the period of limitation while suit was filed on 28.10.1995, was certainly barred by limitation.

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On the other hand, learned counsel for the plaintiff justifying the orders passed by the Trial Court and the First Appellate Court submits that in the first place the agreement at Ex.P2 did not refer to prohibition for

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registration on account of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act and that such reference is made only in the plaint. He further submits not withstanding such pleading in the plaint, in an identical facts and circumstances of the matter, a co-ordinate Bench of this Court in the case of H.M.KRISHNA REDDY supra, at Paragraphs 16, 17, 18, 19 and 20 had elaborately dealt with the ingredients of Article 54 of the Limitation Act, 1963 with reference to ban for selling of the land under the Act, and held that when the agreement of sale did not fix the date for performance of the contract nor mentioned an event “certain to happen” on the happening of which, specific performance became due. Therefore, it was held the later part of Article 54 applies, that is, time begins to run only when the plaintiff had knowledge of defendants’ refusal to perform.

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The principles laid down by the Apex Court and this Court in the Judgments relied upon by the learned counsel for appellants/defendants regarding plaintiff approaching the Court within reasonable time are under completely different set of facts and circumstances of the

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case. Even as held by the Apex Court in the case of Chand Rani vs. Kamal Rani reported in (1993) 1 SCC 519, the Court may infer requirement of reasonable time (i) from the express terms of the contract, (ii) from the nature of property, and (iii) from surrounding circumstances.

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In the instant case, the husband of Defendant No.1 had executed a Usufractuary Mortgage as per Ex.P1 in favour of the husband of the plaintiff in the year 1969 in respect of 2 acres 31 guntas of land and possession of the land was also delivered in terms thereof. Thereafter, in the year 1974, the husband of the Defendant No.1, by executing two deeds of sale, had conveyed 2 acres of land in favour of the husband of the plaintiff. The husband of the defendant had thereafter agreed to sell the unsold land measuring 31 guntas being the suit schedule property in favour of the plaintiff and had received the entire sale consideration. There remained nothing to be performed on the part of the plaintiff as the entire sale consideration was paid. Plaintiff and her husband continued with the possession of the property. The cause of action of the suit arose when the

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plaintiff and her husband during December, 1990 learnt about the change of name in the revenue records and when Defendant No.1 filed the suit in O.S.No.390/1991. These factual aspects constrained the plaintiff to file the suit on 27.07.1991. Thus, the facts and circumstances, nature of transaction of the matter are different and distinguishable. Therefore, the aforesaid Judgments of the Apex Court and of this Court referred to by the appellant would be of no avail.

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Thus, from the facts and circumstances of the matter and in view of the aforesaid principles of law, the trial Court while answering issue No.5 has elaborately dealt with regard to limitation and has taken into consideration the filing of the suit in OS No.390/1991 by the defendant Nos.1 to 6 denying the possession of the plaintiff over the property to be the cause of action for plaintiff to seek relief of specific performance. The first appellate Court at paragraphs 23, 24, 25, 26 of the judgment, while dealing with the issue has rightly come to the conclusion of the suit of the plaintiff being within a period of limitation. No infirmity or illegality can be found with the said reasoning.

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Regarding comparison of Signature by the trial court

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under Section 73 of Indian Evidence Act:

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The Courts below have taken note of the fact that though defendant No.1 who has been examined as DW2 denied and pleaded ignorance of her husband of having sold 2 acres of land, however in her earlier suit in O.S.No.390/1991 she has categorically pleaded and admitted that her husband during his life time has sold 2 acres of land to the husband of the plaintiff under registered deed of sale dated 20.05.1974 and 21.10.1974 and had retained 31 guntas of land. The trial Court taking into consideration of the said admission of Defendant No.1 regarding execution of deeds of sale by her husbandChikkanna has compared the signatures of the said Chikkanna found on the said deeds of sale with that of the signature in the agreement of sale marked as Ex.P2 and has thus come to the conclusion that signatures seen on the said deeds of sale and the agreement of sale are similar and that of the signature of the said Chikkanna. Thereby, the courts

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below have come to the conclusion that plaintiff proved the execution of agreement of sale and possession over the suit schedule property.

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Section 73 of the Evidence Act provides as

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under;

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" 73. Comparison of signature, writing or seal with others admitted or proved. — In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. 1[This section applies also, with any necessary modifications, to finger-impressions."

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33. In view of the above provision of law providing

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power to the Court to compare signature/hand writing to strengthen its finding, the method adopted by the trial Court as elaborately reasoned in paragraph 20 of its judgment cannot be found fault with.

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Counsel for the appellants relied upon the Judgment of the Apex Court in the case of STATE OF MAHARASHTRA vs. SUKHDEV SINGH supra in support of his argument regarding the power of the Court to compare the signature under Section 73 of the Act. In the said case, the Apex Court was dealing with offence punishable under Sections 300 and 302 of the Indian Penal Code. At Paragraph 29 of the said Judgment, it was held that:

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“It is well settled that evidence regarding identity of author of any document can be tendered (i) By examining the person who is conversant and familiar with the handwriting of such person; ii) Through testimony of an expert who is qualified and competent to make a comparison of the disputed writing of the admitted writing on the scientific basis; and iii) By the Court comparing the disputed document with the admitted one.

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In the said case, the prosecution has resorted on the second

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mode by relying upon the evidence of hand-writing expert. It is under these circumstances the Apex Court has held that in no case can the Court base its finding solely on the basis of hand-writing expert and has placed a heavy responsibility on the part of the court to exercise extra care and caution before going on such information.

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In the case of Ajit Savant Majagavi Vs. State of Karnataka which is yet again a case under Section 300 of the IPC wherein dealing with Section 73, the Apex Court has held as under:

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“Section 73 does not specify by whom the comparison shall be made. Further, looking into the other provisions of the Act, it is clear that such comparison cannot either be made by Handwriting Expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by Court itself. As a matter of extreme caution and judicial discipline, the Courts should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of expert. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73”.

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In the instant case, in the suit in O.S.No.390/1991

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filed by the Defendant No.1, a specific statement is made admitting the execution of deeds of sale by her husband in favour of the husband of the plaintiff. The said suit was taken up for common disposal by the Trial Court. Though it was dismissed as not pressed, at the later stage. The deeds of sale admitted by the Defendant No.1 therein are Ex.P9

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and Ex.P.20 marked by the plaintiff. In view of the said admission and also in view of the registered mortgage deed executed by the husband of the Defendant No.1 in favour of husband of plaintiff marked as Ex.P1, there were three registered undisputed documents available before the Trial Court. It is also on record that the Defendant No.1 had deposed that she was not in a position to identify the signature of her husband. She has therefore not denied the signature found on Ex.P2. It is in these circumstances the Trial Court had ventured to compare the signature of Ex.P2 with that of on Ex.P1, Ex.P9 and Ex.P20 and had come to a conclusion that those signatures are similar.

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In the aforesaid facts and circumstances of the case and even as held by the Apex Court in the aforesaid decisions relied upon by the appellants themselves, the power of the Court to compare the disputed signature with the admitted signature is clearly available under Section 73 and in the facts and circumstances of the case, appellant cannot be heard to say that the Trial Court had no power to compare the signatures.

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Thus, in view of the aforesaid factual and legal aspect of the matter, no infirmity cannot be found with the reasoning of the trial Court and first appellate Court in arriving at conclusion regarding proof of execution of sale agreement dated 22.09.1975 by the husband and father respectively of the defendant Nos. 1 to 6 in favour of plaintiff.

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REGARDING DECREEING THE SUIT IN LIGHT OF

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SECTION 20 OF THE SPECIFIC RELIEF ACT:

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Learned counsel for the appellants/defendants submitted that relief of Specific performance cannot be granted as a matter of right without having regard to the circumstances contemplated under Section 20 of the Act. He submits that the Trial Court and the First Appellate Court have erred in not considering the hardship that would be caused to the appellants in granting specific performance of the contract. In support of the submission on the question of granting of relief of specific performance under Section 20 of the Act, the counsel for the appellant has relied upon the

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Judgment of the Apex Court in the case of A.C.ARULAPPAN

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supra. The Apex Court has held that if under the terms of

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the contract, plaintiff gets an unfair advantage over the defendant, the Court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of the agreement. If it is inequitable to grant the relief, then also, Court would desist from granting decree to the plaintiff. Similar principles have been laid down by the Apex Court in the case

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of V.MUTHU SWAMY supra .

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In the instant case, as noted earlier, the question of comparative hardship would not arise inasmuch as Defendants 1 to 6 during the pendency of the suit have sold the suit schedule property in several bits in favour of Defendants 7 to 11 under different deeds of sale. The plaintiff and her husband had made payment of entire sale consideration on the date of entering into agreement of saleEx.P2. There remained nothing to be performed on the part of the plaintiff. It is also necessary to reiterate that plaint schedule property being 31 guntas of land is only a portion remained unsold after conveying 2 acres of land in

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favour of the husband of the plaintiff as stated above. It can therefore, be inferred that the husband of Defendant No.1 had intended to sell the entire land for his advantage as the price mentioned in Ex.P2 was similar/equal to that of the price mentioned in the said deeds of sale at Ex.P9 and Ex.P20. In that view of the matter, Section 20 of the Specific Relief Act cannot be pressed into service by the appellants.

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It is also necessary to note that on one hand, the Defendants 1 to 6 had disputed and denied the execution of agreement of sale-Ex.P2 and on the other, have contended through the purchaser that the plaintiff had not shown readiness and willingness. As noted above, since the entire sale consideration was paid and the plaintiff and her husband were put in possession of 2 acres 31 guntas of land which included suit schedule property back in 1969 continued to be possession of the property and the husband of the Defendant No.1 had agreed categorically to execute the deed of sale as and when requested by the plaintiff, these requiring no terms of the agreement to be performed by the plaintiff. In

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these peculiar facts and circumstances of the case, the aforesaid decisions relied upon by the learned counsel for the appellants/defendants are of no avail.

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Learned counsel for the appellants/defendants also relied upon the Judgment of Division Bench of this Court in the case of MOHAMMED ALI ABDUL CHANIMOMIN supra dealing with object of Section 54 of the Transfer of Property Act, wherein at Para No.14 of the Judgment, this Court has held as under:

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14. So far as the legal aspect is concerned, little argument is necessary to make out that the object of Section 52 is to subordinate all derivative interests or all interests derived from parties to as suit by way of transfer pendente lite to the rights declared by the decree in the suit and to declare that they shall not be capable of being enforced against the rights acquired by the decree-holder. A transferee in such circumstances therefore takes the consequences of the decree which the party who made the transfer to him would take as the party to the suit. The principle of lis pendens embodied in Section 52 being a principle of public policy, no question of good faith or bona fides arises. Such being the position, the transferee from one of the parties to the suit cannot assert or claim any title or interest adverse to any of the rights and interests acquired by another party under the decree in suit. The

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principle of lis pendens prevents anything done by the transferee from operating adversely to the interest declared by the decree.”

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The similar issue was dealt with by the Apex Court

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in the case of GURUSWAMY NADAR wherein it is held that:

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“Normally as a public policy, once a suit has been filed pertaining to any subject matter of the property in order to put an end to such kind of litigation, principle of lis pendens has been evolved so that litigation may finally terminate without intervention of third party. This is because of public policy. Otherwise, no litigation will come to an end. Therefore, in order to discourage that same subject matter of property being subject to subsequent sale to a third party, this kind of transaction is to be checked. Otherwise, litigation will never come to an end.

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In the instant case, Defendants 7 to 11 having purchased the suit schedule property from Defendants 1 to 6 during the pendency of the suit, cannot claim to be the bonafide purchaser as in the light of Section 2 of the Transfer of Property Act which makes transfer pendente lite subject to outcome of the pending suit as a matter of public policy, the question of Defendants 7 to 11 being bonafide purchaser cannot be countenanced.

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For the aforesaid analysis and reasoning, the substantial questions of law formulated in this appeal are answered accordingly. The concurrent findings and conclusions arrived at by the Trial Court and the First Appellate Court are confirmed. Consequently, RSA No.2525/2006 filed by appellants/defendant Nos.7 to 11 and RSA No.2545/2006 filed by appellants/defendant Nos.1 to 6 are dismissed. Judgment and Decree dated 19.12.2001 passed in O.S.No.704/1991 on the file of the Trial Court and the Judgment and Decree dated 24.03.2006 passed in R.A.No.10/2002 and in R.A.No.11/2002 on the file of the First Appellate Court are confirmed.

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Sd/- JUDGE

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RU/bnv*

Kenchamma v. Smt Kuppamma

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Kenchamma v. Smt Kuppamma

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