Partly allowed

Machaiah B P S/O Late Battira Poovappa v. B M Muthavva (Died on 06.07.2015) W/O Late Battira G Mandappa

Karnataka HC7 Nov 2023RFA/1358/2009

Case brief

AI extract

What is this about?

The High Court dismissed the appeal, confirming that the trial court's decree declaring plaintiffs as owners was sustainable. The court held that defendants failed to prove full payment of sale consideration, thus forfeiting their protection under Section 53A of the Transfer of Property Act. The appeal was allowed only in part to correct the extent of properties covered.

What did the court decide?

Prayers for declaration of title and possession for specific schedule items were granted; plurality of properties was corrected via separate enquiry for mesne profits.

Machaiah B P S/O Late Battira Poovappa Vs B M Muthavva (Died on… — Partition | Karnataka HC (2023)

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NC: 2023:KHC:39746-DB RFA No.1358/2009

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^TH DAY OF NOVEMBER, 2023

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND

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THE HON'BLE MR JUSTICE K.V.ARAVIND

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REGULAR FIRST APPEAL NO.1358/2009 (DEC/PAR)

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BETWEEN:

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SRI.B.P.MACHAIAH S/O LATE BATTIRA POOVAPPA AGED ABOUT 62 YEARS

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SRI B P UTTAPPA S/O LATE BATTIRA POOVAPPA AGED ABOUT 56 YEARS

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SRI B P APPACHA S/O LATE BATTIRA POOVAPPA AGED ABOUT 53 YEARS

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SRI B P APPANNA S/O LATE BATTIRA POOVAPPA AGED ABOUT 45 YEARS

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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ALL ARE AGRICULTURISTS

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R/AT NAPOKLU NAD, MADIKERI TALUK

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KODAGU DISTRICT …APPELLANTS

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(BY SRI.N.R.NAIK, ADVOCATE)

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AND:

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SMT B M MUTHAVVA (DIED ON 06.07.2015) W/O LATE BATTIRA G MADAPPA SINCE DEAD BY HER LR’S WHO ARE RESPONDENTS 2 AND 3 ARE ALREADY ON RECORD

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SMT LALITHA UTAIAH W/O SRI ITHICHANDA S UTHAIAH AGED ABOUT 49 YEARS R/A BOIKERI VILLAGE VIRAJPET TALUK, KODAGU DISTRICT

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SMT K RADHA AIYANNA W/O SRI KALLICHANDA AIYANNA AGED ABOUT 45 YEARS R/AT NO.685, 3^RD MAIN OMBR LAYOUT, BANASAVADI BANGALORE – 560 043 …RESPONDENTS

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(BY SRI M.V.VEDACHALA, ADVOCATE FOR R2 & R3)

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THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 26.08.2009 PASSED BY THE CIVIL JUDGE (SR. DN.), MADIKERI IN O.S.NO.69/2000 PARTLY DECREEING THE SUIT FOR THE DECLARATION, POSSESSION AND MESNE PROFITS.

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THIS REGULAR FIRST APPEAL COMING ON FOR FINAL HEARING, THIS DAY, K.S.MUDAGAL.J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging the judgment and decree in O.S.No.69/2000 passed against them, the defendants in the said suit have preferred this appeal.

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The appellants were defendant Nos.1 to 4 and the respondents were plaintiff Nos.1 to 3 in O.S.No.69/2000 on the file of the Senior Civil Judge, Madikere. During pendency of this appeal, respondent No.1 died and respondent Nos.2 and 3 are her only surviving legal representatives. For the

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purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court.

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Plaintiff No.1 is the wife and plaintiff Nos.2 and 3 are daughters of one Battira G. Mandappa. Battira Poovappa was the brother of Mandappa. Defendant Nos.1 to 4 are children of late Battira Poovappa. The plaintiffs filed O.S.No.69/2000 against the defendants seeking decree for declaration of their title and possession of the suit schedule properties from the defendants and mesne profits etc.

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The case of the plaintiffs in brief is as follows:

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(i) The suit schedule properties were ancestral properties of Mandappa and his brother Poovappa. They partitioned the ancestral properties on 02.03.1950. In the said partition all the suit schedule properties were allotted to the share of Mandappa.

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(ii) The parties are governed by Hindu law. Plaintiff Nos.2 and 3 being daughters became coparceners with Mandappa. Mandappa without the knowledge and consent of plaintiff Nos.2 and 3 and without any family necessities entered into agreement of sale dated 03.06.1992 with the

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defendants agreeing to sell the suit schedule properties to

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them. Such agreement of sale does not bind them.

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(iii) Apart from that the defendants did not pay the sale consideration as per the terms of the agreement, thereby they have committed breach of contract. Mandappa and plaintiffs got issued notice dated 27.12.1999, rescinding the contract and calling upon the defendants to redeliver the possession of the properties for which the defendants issued untenable reply dated 20.01.2000. Mandappa died on 09.04.2000. Since the agreement of sale itself was vitiated for non concurrence of plaintiff Nos.2 and 3 and the terms of the agreement was not performed, the defendants are liable to handover the possession of the properties.

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(iv) Plaintiff No.1 was not worldly wise woman. Her signature was taken on agreement of sale by misrepresentation. The defendants have played fraud on Mandappa also in taking agreement of sale. The defendants have wrongfully utilized the properties depriving the plaintiffs of huge profits. Therefore, they are liable to pay mesne profits. Thus they sought decree for declaration of their title, possession and mesne profits.

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The defendants contested the suit denying rights

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of the plaintiffs over the properties. It was also denied that plaintiff Nos.2 and 3 had interest in the properties as coparceners and the agreement of sale was vitiated for not taking their concurrence. It was further alleged that Mandappa had intended to settle down in Virajpet with his daughters i.e., plaintiff Nos.2 and 3. Therefore he purchased the properties at Virajpet and non-payment of consideration as agreed was denied. It was contended that they have paid the entire sale consideration. It was further contended that the plaintiffs are liable to execute the sale deed and the defendants’ possession is protected under Section 53A of the Transfer of Property Act, 1882. (‘the Act’ for short). The defendants further contended that the suit was bad for non-joinder of necessary parties, hit by the principle of res-judicata and limitation.

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Based on the said pleadings, the trial Court framed the following issues: (i) Whether the plaintiffs prove that they are the owners of suit schedule properties?

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(ii) Whether the plaintiffs further prove the agreement of sale dtd.3.6.1992 for sale

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consideration of Rs.2,50,000-00 has already been terminated by late Sri Battira G.Mandappa by a notice dtd.27.12.1999?

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(iii) Whether the plaintiffs further prove the amount of Rs.50,000/- paid by the defendants as advance by virtue of agreement of sale dtd.3.6.1992 is forfeited for the breach of terms and conditions recited in the said agreement of sale by the defendants?

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(iv) Whether the plaintiffs are entitled for declaration as prayed?

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(v) Whether the plaintiffs are entitled to the possession of the suit properties as prayed?

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(vi) Whether the defendants prove that they were ever ready to perform their part of performance of the contract?

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(vii) Whether the defendants further prove the agreement of sale dtd.3.6.1992 is still existing and binding on the plaintiffs?

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(viii) Whether the defendants further prove the sale transaction by virtue of agreement sale dtd.3.6.1992 is for the benefit and welfare of the family of the plaintiffs?

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(ix) Whether the suit is bad for non-joinder and misjoinder of the parties?

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(x) Whether the suit of the plaintiffs is hit by the principles of resjudicata?

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(xi) What order or decree?

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In support of the case of the plaintiffs, plaintiff No.2 was examined as PW.1 and on their behalf, Exs.P1 to P49 were marked. Defendant Nos.1, 2 and 4 were examined as DWs.1, 2 & 4 and two witnesses were examined as DWs.3 and 5. On their behalf, Exs.D1 to D9 were marked.

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The trial Court on hearing the parties, by the impugned judgment and decree held that the defendants have failed to perform their part of the contract by paying sale consideration as agreed. The trial Court held that the defendants have established payment of only installments upto 1994. The trial Court further held that Ex.D4 agreement of sale does not include some of the suit schedule properties and the plaintiffs have failed to establish exclusive ownership of Mandappa over such properties. The trial Court further held that the plaintiffs are entitled to possession of the properties shown only in Ex.D4. The trial Court further held that the defendants have failed to prove the payment of last two installments, therefore they cannot claim benefit of Section 53A of the Act. So holding, the trial Court partly

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decreed the suit declaring that the plaintiffs are the owners of the undivided share of their father Mandappa in suit schedule properties and directed the defendants to deliver possession of the properties mentioned in Ex.D4 the sale agreement within four months. The trial Court also granted decree for mesne profits and directed to hold separate enquiry for mesne profits.

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Sri N.R.Naik, learned Counsel for the appellants reiterating the grounds of the appeal memo submits that the trial Court has failed to appreciate the evidence in judicious manner, the trial Court should have accepted that the entire sale consideration was paid under Ex.D4. He further submits that the plaintiffs were married much prior to the Hindu Succession Act, 2005, so they are not the coparceners, therefore their claim to the properties as coparceners is unsustainable. He submits that the defendants have developed the properties by investing huge amounts, therefore the plaintiffs are not entitled to mesne profits or possession of the properties.

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Per contra, Sri M.V.Vedachala, learned Counsel for respondent Nos.2 and 3 submits that the defendants did

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not dispute their relationship with the plaintiffs and Mandappa. They did not even dispute execution of the agreement of sale Ex.D4 and right of Mandappa over the suit schedule properties. He further submits that the defendants failed to prove the payment of sale consideration as agreed. Therefore the trial Court was justified in holding that they are not protected by Section 53A of the Act. The last installment due was on April 1996. Since the defendants failed to perform their part of the contract, the notice was issued on 27.12.1999. The defendants’ was issued on reply 20.01.2000. The suit was filed on 26.05.2000. Therefore, the same was on time.

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In support of his submissions, he relies on the

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following judgments:

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Vasanthi v. Venugopal¹

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Monnanda Nanaiah –vsBalladichanda Caveriamma²

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P.A.Machiah v. M.B.Ponnavva³ 4. Pemmada Prabhakar v. Youngmen’s Vysya Assn.⁴

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1 (2017) 4 SCC 723

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2 ILR 1985 KAR 1599

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3 AIR 1973 Mysore 1

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4 (2015) 5 SCC 355

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On considering the submissions of both side and

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on examination of the materials on record, the questions that arise for determination of the Court are:

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(i) Whether the findings of the trial Court that the plaintiffs are entitled to undivided share of Mandappa in suit schedule properties is sustainable in law?

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(ii) Whether the trial Court was justified in holding that the defendants have failed to perform their part of the contract and they are liable to redeliver the possession of the properties which are the subject matter of the agreement of sale Ex.D4?

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(iii) Whether the decree for mesne profits is sustainable?

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Analysis

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Reg. Point No.1 & 2:

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Since the evidence on point Nos.1 and 2 overlap on each other, to avoid repetition they are taken up together for consideration. The parties are not at dispute that plaintiffs are the wife and daughters of Mandappa and Poovappa the father of defendant Nos.1 to 4 and Mandappa

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were full brothers. They also did not dispute that there was partition between Mandappa and Poovappa under Ex.P1 the partition deed dated 02.03.1950 and in that partition, the suit schedule properties had fallen to the share of Mandappa. The defendants also did not dispute that Mandappa executed agreement of sale Ex.D4 in respect of the properties shown in the schedule of the said document for total consideration of Rs.2,50,000/-. The exchange of notice between Mandappa, plaintiff Nos.2 and 3 and defendants as per Exs.P47 and P48 was also not disputed.

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The plaintiffs claim that they were the coparceners along with Mandappa and defendants have obtained the agreement of sale from Mandappa and plaintiff No.1 by playing fraud, misrepresentation etc. therefore the said agreement of sale does not bind them. They claim hostile interest against Mandappa. They joined Mandappa in issuing notice Ex.P47. Mandappa during his lifetime did not claim any fraud or undue influence in obtaining Ex.D4. Even in notice Ex.P47 no such contention was taken. They got issued notice Ex.P47 during the lifetime of Mandappa, seeking enforcement of the said agreement. Plaintiff No.1 did

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not enter the witness box to prove any fraud or misrepresentation on her. Even after Mandappa’s death, in the suit, plaintiffs seek enforcement of the agreement claiming redelivery of the possession for non performance of the terms of the contract by the defendants. Therefore their contention that agreement of sale was the out-come of the fraud, misrepresentation etc. deserves no merit.

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Then the next question is whether the terms of agreement of sale were performed by the parties and whether the plaintiffs were entitled to seek declaration of their title by terminating the agreement.

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There is no dispute that the sale consideration agreed under Ex.D4 was Rs.2,50,000/-. As per Ex.D4 on date of agreement namely 03.06.1992, Rs.50,000/- was paid as advance consideration and first installment. That was accepted by Mandappa himself. The balance sum of Rs.2,00,000/- was agreed to be paid as per the time schedule mentioned below:

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Sl. No.	Amount in Rs.	Period (on or before end of)
1.	50,000/-	April 1993
2.	50,000/-	April 1994
3.	50,000/-	April 1995
4.	50,000/-	April 1996

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Clause 11 of the said agreement reads as follows:

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“If the purchasers fail to pay any one of the installments towards sale consideration as stated above, the vendor is at liberty to cancel the agreement and forfeit the advance received by him and take possession of the scheduled properties from the purchasers.”

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Clause 12 of the agreement says that on receiving the full sale consideration, if the vendor fails to execute the sale deed the purchasers are entitled to seek specific performance of the agreement.

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Admittedly neither the defendants filed any suit for specific performance of the agreement nor they filed any counter claim in the suit seeking specific performance of the agreement. They claimed that they had paid the entire sale consideration. Therefore the burden was on them to prove the said fact. To prove such payment, they relied on the endorsements made on the back page of Ex.D4 agreement of sale. As per the said agreement, Mandappa has made endorsement on 20.04.1993 and on 20.04.1994 for having received Rs.50,000/- on those two dates. The trial Court accepted those two payments. The plaintiffs have not

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challenged the said findings. However, the trial Court did not accept the evidence of the defendants with regard to payment dated 08.05.1994.

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Admittedly, a sum of Rs.50,000/- was paid on the date of the agreement. Therefore as rightly pointed out by the trial Court, dispute was only with regard to payment of installments in the years 1995 and 1996. To prove such payments, the defendants relied on last endorsement on Ex.D4 and Ex.D9 the separate receipt said to be executed on stamp papers by Mandappa, acknowledging receipt of the installments due on 16.05.1996. DW.1 admitted that regarding such payments no endorsement was taken on Ex.D4. He further admits that there is no endorsement for the years 1995 and 1996. DW.2 also admitted that on Ex.D4 there is no signature of Mandappa about payment of Rs.50,000/- in the year 1996.

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As rightly pointed out by the trial Court up to 17.01.2008, neither in the written statement nor in his evidence as DW.1, there was any whisper about the existence of the receipt of payments made in the year 1995 and 1996. It was randomly said that the entire sale

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consideration was paid earlier only. Ex.D9 was marked on 18.07.2008 on recalling DW.1. Ex.D9 is inscribed on two stamp papers which were allegedly purchased by Mandappa. But upon perusal of Ex.D9, nothing is found to show in whose name the stamp paper were purchased. Even in reply notice Ex.P48, there was no whisper about such payments. If the endorsement were taken on Ex.D4 regarding earlier payments, in the ordinary course, the endorsements regarding payment on 16.05.1996 also should have been taken on Ex.D4. The evidence of DWs.2 to 4 was also not found reliable with regard to payment of Rs.50,000/- under Ex.D9. DW.2 admits that as per terms of Ex.D4, if the entire sale consideration was not paid as per the payment schedule, Mandappa was entitled to forfeit the payment made and they were liable to redeliver possession of the properties to him.

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DW.3 is the alleged scribe of Ex.D9. He admits that he does not hold any bond-writers’ license. He says that, he had not seen the documents preceding Ex.D9. At one breath, he says that on that day, Mandappa picked him up from his house for writing his document and at another breath he says that one week prior to execution of Ex.D9

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Mandappa had informed him about execution of the said document. DW.3 admits that if there are corrections in the document that has to be endorsed by the parties. But no such endorsement was forthcoming for the correction made in Ex.D9. In Ex.D9 nothing is forthcoming to show who purchased those stamp papers, though DW.3 says that Mandappa had purchased them. Therefore the trial Court rightly disbelieved the evidence of DW.3 regarding he being the scribe of the document and Mandappa purchasing stamps in his presence and securing him as scribe of the said document.

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DW.4 was also examined to prove Ex.D9. He claims to be the witness to the execution of Ex.D9. Ex.D9 bears his purported signature. He says that the said document was written on 16.05.1996 between 10.00 a.m. to 10.30 a.m. He was also not able to say who purchased the stamps for Ex.D9. According to him, Ex.D9 contains one stamp paper worth Rs.20/- whereas Ex.D9 contains two stamp papers. He admits that Ex.D9 does not contain the name of the purchaser of the stamp or the name of Mandappa as purchaser of the stamp. Apparently, Mandappa

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had migrated to Virajpet. DWs.1 to 4 were from the area of the defendants. The aforesaid facts and circumstances go to show that DWs.3 and 5 were interested in the defendants rather than the plaintiffs who were the heirs of Mandappa and residing elsewhere. It is also material to note that, if at all payment scheduled was complied, the defendants could not have kept quiet without seeking execution of the sale deed. They have not raised their little finger, untill Mandappa and the plaintiffs got issued notice Ex.P47 dated 27.12.1999. That conduct also goes to show that they were enjoying all the properties without due payments and therefore they did not bother to seek execution of the sale deed. The trial Court after thorough appreciation of the evidence rejected the alleged payment under Ex.D9.

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Admittedly the suit schedule properties were ancestral properties of Mandappa. Plaintiff Nos.2 and 3 were his daughters. This Court in P.A.Machiah’s case referred to supra held that Coorg District is governed by Mitakshara school of Hindu law. Therefore the plaintiffs along with Mandappa had 1/3^rd share each in the suit schedule properties. Even otherwise, on his death, they succeed to his

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interest by virtue of Section 8 of the Hindu Succession Act, 1956 along with plaintiff No.1 as his Class I heirs. Therefore the trial Court was justified in declaring them to be the title holders of the suit schedule properties. Once if it is held that the defendants have committed breach of terms of the contract, then automatically clause 11 of the agreement becomes operative. Therefore, Mandappa and the plaintiffs were entitled to forfeit the advance received by Mandappa and for possession of the schedule properties.

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So far as the claim of protection under Section 53A of the Act, the Hon'ble Supreme Court in the judgment in Vasanthi’s case referred to supra held that, if the transferee fails to comply with one of the essential prerequisites of the contract, he cannot claim the protection under Section 53A of the Act. It was further held that to avail the benefit under Section 53A of the Act, it is imperative for the purchaser in possession of the property in part performance of the contract to perform his part of the contract. It was held that the right to claim protection under Section 53A of the Act would not be available, if the transferee remains passive without taking any effective steps and abstains from performing his part of the contract or

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conveying his readiness and willingness to that effect. In the light of the said judgment and the failure of the defendants to pay the balance sale consideration as per the payment schedule, the trial Court was justified in rejecting the contention of the defendants regarding the protection under Section 53A of the Act.

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So far as the defendants’ claim of development of the properties by investing huge amount, no evidence was placed to that effect. According to the plaintiffs, the properties were yielding net income of more than 1.5 lakhs per annum. The defendants without paying the balance consideration have enjoyed the properties all these years. Under the circumstances, the trial Court was justified in rejecting the contention about the development of the properties and awarding mesne profits.

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The suit is for declaration of title and delivery of the possession of the suit properties and mesne profits. As rightly pointed out by the trial Court, the agreement Ex.D4 related to plaint schedule item Nos.1 to 5 and 12 to 15 alone. But they claim declaration of title and possession from the defendants even in respect of suit schedule item Nos.6 to 11

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properties. When they are not the subject matter of the agreement, the plaintiffs are not entitled to seek declaration and possession in respect of those properties on the basis of Ex.D4.

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Moreover in the RTC’s of those properties the names of other persons are also shown. So without impleading them, plaintiffs cannot maintain suit with regard to those properties. Therefore, the decree of the trial Court requires to be modified only to that extent. The plaintiffs are entitled to mesne profits only in respect of suit schedule item Nos.1 to 5 and 12 to 15 properties. If the plaintiffs have any rights in item Nos.6 to 11 of suit schedule properties, liberty is reserved to them to take appropriate legal remedy in respect of those properties. Therefore the appeal succeeds in part. Hence the following:

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ORDER

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(i) The appeal is allowed in part. (ii) The suit in O.S.No.69/2000 on the file of the Sr.Civil Judge, Madikeri is partly decreed.

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(iii) It is declared that the plaintiffs are the absolute owners of the plaint schedule item Nos.1 to 5 and 12 to 15 properties.

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