Dismissed

K. S. Venkatesh v. Smt. M. Begum

Karnataka HC11 Aug 2023RFA/2186/2017

Case brief

AI extract

What is this about?

The appeal by the legal representatives of the vendor against a decree for specific performance of an agreement for sale of immovable property was dismissed. The court upheld the trial court's finding that the plaintiff had proved the agreement, paid full consideration, and was ready and willing to perform, and the suit was not barred by limitation.

What did the court decide?

The Regular First Appeal filed by the defendants No.1(b) and 1(d) (appellants) stands dismissed as devoid of merits.

K. S. Venkatesh Vs Smt. M. Begum — Specific Performance | Karnataka HC (2023)

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R.F.A.No.2186 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY REGULAR FIRST APPEAL NO.2186 OF 2017 (SP)

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Between:

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K.S. Venkatesh, Since dead by his LRs

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1 Sri. Srinivas K.V. Aged about 52 years

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2 Sri. Manjunath K.V., Aged about 34 years,

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Both are children of late K.S. Venkatesh R/at No.2, Shivaji Road, 15th Cross, Shivajinagara, Bangalore -560051.

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…Appellants

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(By Sri. Murthy K., Advocate)

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And:

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Smt. M. Begum, Aged about 49 years, W/o. Moule Baig, Residing at No.6, Parsi Garden, 11^th A Cross, Swimming Pool Extension, Malleshwaram, Bengaluru -560 003.

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Smt. Rajeshwari Aged about 66 years,

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Sri. Nagaraj. K.V., Aged about 48 years,

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Smt. Lakshmi, K.V., Aged about 40 years,

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Respondent No.2 is wife and respondents No.3 and 4 are children of late K.S. Venkatesh,

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Respondents No.2 to 4 are Residing at No.2543, 12^th Main, 'E' Block, Rajajinagar II Stage, Bangalore -560 010.

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…Respondents (By Sri. Karumbaiah, T.A., Advocate for R1; Smt. Vanajakshamma P., Advocate for R2 to R4)

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This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 praying to call for entire records in O.S.No.8836/2004 on the file of the learned XI Additional City Civil Judge at Bangalore (CCH-8) and set aside the Judgment and Decree dated 23.06.2017 passed in O.S.No.8836/2004 and dismiss the suit as prayed for by allowing this appeal, in the interest of justice and equity and grant such other relief/s as this Court deems fit to grant in the above case in the interest of justice and equity.

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This Regular First Appeal having been heard through physical hearing/video conferencing hearing and reserved on 27.07.2023 , coming on for pronouncement of judgment, this day, the Court delivered the following:

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J U D G M E N T

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The defendants No.1(b) and 1(d) in the trial Court have filed the present appeal. The present respondent No.1 herein as a plaintiff, had instituted a suit against the defendants in O.S.No.8836/2004, in the Court of the learned XI Additional City Civil Judge (CCH-8), Bangalore (hereinafter for brevity referred to as “the Trial Court”), seeking the relief of specific performance of contract dated 26.10.1998, directing the defendants to execute the Sale Deed in favour of the plaintiff and for other reliefs.

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During the pendency of the suit before the trial Court, the original defendant Sri. K.S. Venkatesh was reported to be dead and his legal representatives were brought on record as defendants No. 1(a) to 1(e).

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The summary of the case of the plaintiff in the Trial Court was that, the original defendant Sri. K.S. Venkatesh’s father Sri. K.G. Subramaniyam had purchased a property bearing No.6, situated at Vyalikaval Extension, Parsi Garden, Corporation Ward No.5, Bengaluru, measuring East-West

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54 ft., and North-South 14 ft., more-fully described in the schedule to the plaint, under a registered Sale Deed dated 06.11.1969. The defendant Sri. K.S. Venkatesh was the only son of Sri. K.G. Subramaniyam and had inherited the said property as his legal heir. In the schedule property, the plaintiff, her father, mother, brothers and sisters have been residing for the past fifty years. Originally the said property was belonging to the Aunt of the plaintiff by name Smt. Bibijan. The said Bibijan has sold the suit schedule property in favour of said Sri. K.G. Subramaniyam. The remaining portion of property measuring 54 ft. x 15 ft. has been sold to one Sri. Eswara Rao under a registered Sale Deed dated 15.04.1969. The plaintiff is residing in the plaint schedule property since from her birth. The defendant offered to sell the suit schedule property and the plaintiff accepted the offer, as such, on the date 26.10.1998, an Agreement of Sale was entered into between the plaintiff and the defendant. On

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the same day, the plaintiff has paid the entire sale consideration of `3,25,000/- to the defendant. On the date of

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agreement, the defendant delivered the possession of the schedule property in favour of the plaintiff, which was acknowledged by the defendant by executing an Affidavit dated 26.10.1998. The original defendant has also executed a General Power of Attorney authorising the plaintiff to act on his behalf in respect of the schedule property.

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It is further the case of the plaintiff that she repeatedly approached the original defendant and requested him to execute the Sale Deed in her favour, however, the defendant went on postponing the execution of the Sale Deed. When the matter stood thus, one Venkatamma, Bibijan and Moti Begum started to interfere with the possession of the plaintiff, hence, the plaintiff instituted a suit in O.S.No.5465/2002, on the file of learned V Additional City Civil Judge at Bengaluru, for decree of permanent injunction against them as a General Power of Attorney holder (for brevity GPA) of the defendant. In the said suit the original defendant in collusion with other defendants filed a memo disputing the Power of Attorney executed by him in favour of the plaintiff. When enquired by

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the plaintiff, he gave an evasive reply and also refused to execute the Sale Deed in her favour.

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The plaintiff has further stated that she has always been ready and willing to get the Sale Deed registered in her favour and the only act to be completed towards fulfillment of the contract between the parties was that the defendant had to execute the Sale Deed in favour of the plaintiff, which he did not do intentionally. This made the plaintiff to institute the present suit for the relief of specific performance of the Agreement dated 26.10.1998.

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3. In response to the suit summons served upon him,

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the original defendant Sri. K.S. Venkatesh appeared through his counsel and filed his written statement, wherein, he denied almost all the averments and specifically contended that the plaintiff instituted a suit in O.S.No.5465/2002 in his name on the basis of false, forged and fabricated GPA. In the said suit, nowhere the plaintiff had made allegation about the existence of the Agreement of Sale and Affidavit dated 26.10.1998. It was only in her evidence, she has disclosed the existence of

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the forged and fabricated documents by saying that defendant had executed GPA and also an Agreement for Sale and affidavit acknowledging the receipt of sale consideration and delivering the possession on 26.10.1998.

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He contended that the same shows the fraudulent intention of the plaintiff to knock-off the property of the defendant. He denied the execution and existence of Agreement for Sale dated 26.10.1998. He called it as a fabricated agreement. He also expressed his doubt about the plaintiff keeping silence and not giving any explanation about she not taking the Sale Deed in her favour even after six years and after alleged payment of the full consideration of 3,25,000/-. He has contended that the same shows that the documents are forged and fabricated and denied the receipt of alleged sale consideration of a sum of 3,25,000/-.

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He also contended that suit is bad for nonjoinder of necessary parties, i.e., Bibijan @ Mohisa Begum and one Venkataram, who were necessary and proper parties to the suit. He also contended that the stamp duty paid upon the

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alleged Agreement of Sale is insufficient. He contended that the property was originally belonging to one Sri.Varadarajulu Naidu, measuring 54 x 20 ft. He sold the Northern portion measuring 54 ft. x 14 ft. to Bibijan Hussain @ Sabjan and remaining half portion to Sri. Eswara Rao. Sri. K.G. Subramaniyam, father of the original defendant, purchased the Northern portion from Bibijan Hussain. After the death of his father, the original defendant is in possession of the same, as he is the only son to his father. He denied that the plaintiff was ready and willing to perform her part of the contract and he denied the accrual of the cause of action.

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During the pendency of the suit, the sole defendant Sri. K.S. Venkatesh died, as such, his legal representatives were brought on record as defendants No.1 (a) to 1(e). Those defendants filed their written statement adopting the written statement filed by the deceased sole defendant (K.S. Venkatesh) and further contended that suit is bad for nonjoinder of necessary parties. They also denied that original defendant Sri. K.S. Venkatesh had executed any agreement in

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favour of the plaintiff agreeing to sell the plaint schedule property. They also contended that the original defendant had no valid or individual right to deal with the schedule property to the third parties by isolating his legal representatives, who were already major, having legitimate share in the suit schedule property. They further contended that legal representatives No.2 and 4 of the original defendant had already filed a suit for partition in O.S.No.2075/2014 against legal representatives No.1, 3 and 5 of original defendant and the plaintiff, claiming their 1/5^th share in the suit schedule property, wherein, the plaintiff was also one of the defendants and the said suit is pending for consideration. They contended that the plaintiff has not challenged the transaction taken place in respect of suit schedule property prior to the suit.

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Based on the pleadings of the parties, trial Court

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framed the following issues and additional issues:

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Issues

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1. Whether the plaintiff proves that the defendant was agreed to sell the suit

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schedule property for Rs.3,25,000/- and executed an agreement of sale dated 26.10.1998 receiving the entire sale consideration?

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2. Whether the defendant proves that the agreement of sale dated 26.10.1998 is concocted and fabricated document?

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3. Whether the plaintiff proves that she was put in possession of the suit schedule property in part performance of contract?

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4. Whether the plaintiff proves that she has been always ready and willing to perform her part of the contract?

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5. Whether the suit is bad for non-joinder of necessary parties?

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6. Whether the suit is barred by limitation?

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7. Whether the plaintiff is entitled the relief of specific performance of contract?

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8. What order or decree?

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Additional Issues

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1. Whether defendants LRs 2 and 4 proves that suit schedule property is ancestral property of late defendant and themselves?

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2. Whether defendant's L.Rs proves that suit is bad for non-joinder of necessary parties?

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3. Whether L.Rs No.2 and 4 proves that in view of pendency of partition suit O.S.No.2975/214 is pending for partition and possession and this suit is not maintainable?

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Observing that additional issue No.3 was wrongly framed as O.S. No.2975/2014 was filed by L.Rs. No.2 to 4 for partition the same was recasted as under:

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Additional Issue No.3:

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Whether L.rs 2 to 4 of prove that during the pendency of partition suit in O.S.No.2075/2014 is pending for partition and possession and the suit is not maintainable?

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6. On behalf of the plaintiff, the plaintiff got examined

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herself as PW-1 and one more Sri. Narayanaswamy as PW-2 and marked eleven documents as Exs.P.1 to P.11. On behalf of the defendant, the original defendant got examined himself as DW-1 and after the death of original defendant, his legal representatives have come on record and among them, one of the legal representative of deceased original defendant i.e., defendant No.1(d) was examined as DW-2 and got marked two documents as Exs.D.1 and D.2.

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7. The Trial Court records were called for and the

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same are placed before this Court.

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8. Heard the arguments of the learned counsel for the

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appellants and learned counsel for respondent No.1.

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Perused the material placed before this Court including the impugned judgment, memorandum of appeal and the Trial Court records.

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For the sake of convenience, the parties herein

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would be henceforth referred to as per their rankings before the Trial Court.

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Learned counsel for the appellants in his argument submitted that suit was barred by limitation. He also contended that the plaintiff did not disclose about the alleged Agreement of Sale in the previous suit bearing O.S.No.5465/2002. This gives rise to a suspicion about the existence of alleged Agreement of Sale dated 26.10.1998. He also contended that the original defendant K.S. Venkatesh himself has filed a memo in O.S.No.5465/2002 stating that he has never executed any GPA in favour of the plaintiff. Further DW-1 has denied his signature at Ex.P.8(a). All these aspects would clearly go to show that alleged agreement at Ex.P.8 is not executed by the original defendant in favour of the plaintiff and that it is a fabricated document. However, the trial Court without appreciating these aspects has erroneously decreed the suit.

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Per contra , learned counsel for the respondent No.1

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in his argument contended that the evidence of PW-1, which is supported by the evidence of PW-2, proves the agreement at Ex.P.8. DW-2 in his cross-examination has stated that he was aware of the agreement under consideration since the year 1998, however, he did not take any action challenging the said Agreement of Sale, thus Ex.P.8 stands established. He further submitted that Agreement at Ex.P.8 does not prescribe any time limit for performance of the agreement. Further Khata was required to be obtained by the sole defendant in his name before executing the Agreement, admittedly he did not secure the Khata, as such, the suit is not barred by limitation. He further contended that the plaintiff as a GPA holder of sole defendant had filed O.S.No.5465/2002. As such, apart from executing Agreement in her favour, the sole defendant had also executed a GPA in her favour. It is considering these aspects, the trial Court has rightly decreed the suit, which does not warrant any interference at the hands of this Court.

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In the light of the arguments addressed as above

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and by perusal of the materials placed before this Court, including impugned judgment, the following points arise for my consideration:

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1) Whether the plaintiff has proved that the original sole defendant Sri. K.S. Venkatesh had executed an agreement of sale of the suit schedule property in her favour on 26.10.1998 agreeing to sell the suit schedule property to the plaintiff and had received the entire sale consideration?

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2) Whether the plaintiff has proved that she has already to performed her part of the promise under the agreement and it was only the defendant who was due to execute the registered Sale Deed in her favour?

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3) Whether suit was barred by limitation?

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4) Whether the impugned judgment warrants interference at the hands of this Court?

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The plaintiff who got herself examined as PW-1 has

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reiterated the plaint averments even in her Affidavit evidence

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filed in the form of examination-in-chief. She has produced the certified copy of Affidavit dated 26.10.1998 said to have been executed in her favour by the original defendant at Ex.P.1. The recital in the said Affidavit shows that the Executant Sri. K.S. Venkatesh has acknowledged he executing the Sale Agreement and notarised a GPA in favour of the plaintiff on the very same day. The certified copy of the GPA dated 26.10.1998 which is produced and marked at Ex.P.2 by PW-1, shows that the very same Sri. K.S. Venkatesh, the original defendant, has executed the said GPA in favour of the plaintiff, wherein, the Executant has appeared to have given several powers to his Attorney i.e., plaintiff, including to do negotiations and sale of suit schedule property and entering into an Agreement and also to execute the Sale Deed. The certified copy of the Agreement of Sale dated 26.10.1998 marked as Ex.P.8 by PW-1 shows that the original defendant Sri. K.S. Venkatesh has agreed to sell the suit schedule property in favour of the plaintiff for a consideration of a sum

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of `3,25,000/- and has acknowledged the receipt of the entire sale consideration.

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In the cross-examination of PW-1, some more details have come out, wherein, the witness has given the background of the sale transactions of the suit schedule property between herself and the original defendant. She has given the details as to how the negotiations took place and who were all present at the time of negotiations. She has specifically stated that negotiations took place in the house of the original defendant, at which time, herself, one Sri. David,

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Sri. Narayana Swamy, original defendant and his wife were all present. She stated that the said negotiations and talks took place prior to execution of Agreement of Sale. She has also stated that she had a sum of 2,25,000/-, however, the deficit sum of 1,00,000/- she had borrowed from others and had given it to the original defendant. She further stated that the witnesses to the agreement Sri. David must have been died, however, Sri. Narayana Swamy is still alive.

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In her cross-examination, nothing could be elicited to suspect the evidence of this witness given in her examinationin-chief. In her cross-examination she has given further details as to who had brought the stamp paper and where the Agreement of Sale was got typed etc., She has also stated that since she was already given with the GPA by the original defendant he asked her to institute a suit for permanent injunction. Accordingly, she instituted suit in O.S.No.5465/2002. However, she agreed that denying the said GPA, the original defendant had filed a memo in O.S. No.5465/2002.

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In support of her contention the plaintiff got examined one Sri. Narayana Swamy as PW-2 who in his examination-inchief, filed in the form of Affidavit evidence, has stated that the Agreement for Sale at Ex.P.8 was entered into in his presence. He had stated that, he too was present at the time of negotiations for the purchase of the suit property by the plaintiff. He has stated that, the original defendant agreed to sell the suit schedule property in favour of the plaintiff for a

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sum of `3,25,000/- and by receiving the entire sale consideration, executed sale agreement in favour of the plaintiff.

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Even in his cross-examination, he adhered to his original version.

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The evidence of Sri. K.S. Venkatesh, the original defendant as DW-1 in his examination-in-chief, was the repetition of his contentions taken by him in the written statement. He has denied that he executed any Agreement of Sale much less, at Ex.P.8. He has denied his signature at Ex.P.8 as that of his signature.

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In his cross-examination, he admitted that he is the owner of the suit schedule property to which he succeeded after the death of his father, and also stated that after purchase of the suit schedule property by his father one Mohammed Ali, Bibijan and Murthuja were tenants in the said house and were giving rent to his father. He stated that after the death of his father, the Khata was not got transferred in his name. He denied the suggestion that he had entered into

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an agreement as per Ex.P.8 and also executed an Affidavit and

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GPA in favour of plaintiff. However, in his further crossexamination he has stated that he has not initiated any legal action or criminal action against the plaintiff for the cancellation of the alleged, created GPA and the Agreement of Sale at Ex.P.8 by her. On the other hand, DW-1 has stated that he knows about the said Agreement of Sale since the year 1998.

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One Sri. K.V. Manjunath stated to be the son of original defendant - Sri. K.S. Venkatesh who was examined as DW-2 on behalf of defendants, though has stated that the original defendant-Sri. K.S. Venkatesh has not executed any agreement in favour of the plaintiff agreeing to sell the suit schedule property, however, he could not give any details as to on what basis he says that defendant had not executed any such Agreement in favour of the plaintiff. In his cross-examination, he has admitted that in the year 1998, he was aged 15 years, as such, he was a minor. Though from the side of defendants, a certified copy of the plaint in O.S. No.2075/2014 and certified copy of the order sheet in

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O.S.No.2075/2014 were marked as Exs.D.1 and D.2 respectively, same would go to show that two sons of original defendant Sri. K.S. Venkatesh, including DW-2 had instituted a suit for partition and declaration. However, as admitted by DW-2 in his cross-examination, on the date 28.07.2016, the said suit came to be dismissed. As such, the contention of the legal representatives of the deceased original defendant Sri. K.S. Venkatesh that they had a right in the suit schedule property under succession and that as they had filed a suit in O.S.No.2075/2014, as such the suit filed by the plaintiff was not maintainable, would not hold good.

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Regarding execution of Ex.P.8 the Agreement of Sale, the original defendant and his legal representatives have denied the same. Though they have denied the signature of deceased defendant at Exs.P.1, P.2 and P.8, however, in O.S. No.5465/2002 filed by the deceased defendant through the present plaintiff as his GPA holder, a memo came to be filed by the plaintiff therein i.e., Sri. K.S. Venkatesh, who is the original defendant herein, contending that he has not

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executed any GPA in favour of the present plaintiff. The said memo was ordered to be considered along with the main suit. The trial Court wherein O.S.No.5465/2002 was filed, in its order has given a detailed reasoning about the memo and alleged execution of GPA by Sri. K.S. Venkatesh and after comparing his signatures placed before it under Section 73 of Indian Evidence Act, has held that it was hard to accept the contention of the original defendant Sri. K.S. Venkatesh that

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he had not executed the alleged GPA in favour of Smt. M. Begum (present plaintiff) on 26.10.1998. Admittedly, the said observation has not been challenged by the present defendants.

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A perusal of the records further go to show in the present case that, original defendant has filed an I.A. No.4 under Section 45 of the Indian Evidence Act, read with Order 26 Rule 10-A of Code of Civil Procedure, 1908 (for brevity CPC) and had prayed the Court to refer the disputed signature for the opinion of handwriting expert. However, no documents showing the admitted signature of deceased defendant

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Sri. K.S. Venkatesh were produced for sending the alleged disputed signature to the handwriting expert. Incidentally, the said application was also not pressed by the original defendant during his life time. After the death of original defendant, Sri. K.S. Venkatesh, his legal heirs have filed I.A.No.13 under Order 26 Rule 10(A) read with Section 151 of CPC and Section 45 of Indian Evidence Act, requesting the Court to send the disputed documents and admitted documents to handwriting expert for his opinion.

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A perusal of the trial Court records would also go to show that said application came to be dismissed by the trial Court by its order dated 28.03.2017. The said order has not been challenged by the defendants. Even in the present appeal also the learned counsel for the appellants has not made any submission about the dismissal of the said I.A.No.13 by the trial Court. Therefore, it has to be held that signatures found on Exs.P.2 and P.8 as of its Executant, are of the original deceased defendant-Sri. K.S. Venkatesh.

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The agreement at Ex.P.8 further go to show that

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the entire sale consideration has been received by the said vendor/Executant Sri. K.S. Venkatesh. The learned counsel for the appellants in his argument contended that, had the plaintiff paid the entire sale consideration, nothing had prevented her to get the Sale Deed executed by the original defendant immediately instead of postponing the said task. He also drew the attention of the Court to one recital in the Agreement of Sale at Ex.P.8 where it states that the Khata of the suit property was transferred to the name of the vendor and he has paid the property tax to the Bruhat Bengaluru Mahanagara Palike. However, the reason given for nonexecution of the Sale Deed and the delay in the said process is that the Khata of suit schedule property was not got transferred in the name of the original defendant as on the date of execution of the sale. In that regard, to show that Khata was already transferred in the name of the original defendant, no documents were produced by the defendants. On the contrary, DW-1 in his cross-examination has admitted

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a suggestion as true that after the death of his father, the Khata of the suit schedule property was not got made in his name. Therefore, the very admission on the part of the original defendant as DW-1 that Khata was not got made shows that Sale Deed could not be executed by him since Khata of the suit schedule property was not transferred in his name. Had really the Khata was got transferred in his name, as shown in Ex.P.8, the defendants would have necessarily produced the Khata certificate to substantiate their contention. As such, argument of the learned counsel for the appellants that the plaintiff could have got the Sale Deed executed on the very same day of the Agreement of Sale at Ex.P.8 is not acceptable.

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In addition to the above, the admitted fact by DW-1 in his cross-examination that he was aware about Ex.P.8 the agreement from the year 1998 cannot be ignored. Had he really been aware of the said agreement in the year 1998 itself, which is the year of its execution, and if according to him, he has not executed any such agreement in favour of the

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plaintiff, then he would have necessarily taken appropriate legal action either civil or criminal or both against the plaintiff. However, admittedly, no such legal action has ever been taken by the original defendant or his legal representatives. Thus, all these aspects clearly go to show and establish that having received the entire sale consideration from the plaintiff, the original defendant K.S. Venkatesh had executed an Agreement of Sale of the suit schedule property in favour of the plaintiff as per Ex.P.8 on 26.10.1998. Thus, the plaintiff is to be held as proved the execution of Agreement of Sale dated 26.10.1998 by the original defendant in her favour.

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It was also an argument of the learned counsel for the appellants that plaintiff has neither pleaded nor shown her readiness and willingness to perform her promise under the contract.

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A perusal of the plaint would go to show that the plaintiff clearly and specifically stated in paragraph No.9 of her plaint that she was always ready and willing to get the Sale Deed registered in her favour and the only act to be completed

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towards fulfillment of the contract between the parties was that the original defendant had to execute the Sale Deed in her favour which he could not complete due to intentional and deliberate conduct. Thus, in her pleading, the plaintiff has specifically stated that she was always ready and willing to get the Sale Deed registered in her favour. The plaintiff has also stated in her plaint that she repeatedly requested the defendant to execute the Sale Deed in her favour, however, the defendant went on postponing the execution of the Sale Deed. The same is reiterated by her in her evidence as PW-1.

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Thus, plaintiff, both in her pleadings and in her evidence has stated that she was always been ready and willing to get the Sale Deed executed in her favour. As observed above, the plaintiff has pleaded and established that the entire sale consideration of a sum of `3,25,000/- agreed under the Agreement of Sale at Ex.P.8 has already been paid to the vendor/original defendant. The recital in Ex.P.8 has made it clear. Except the payment of sale consideration, the plaintiff

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was fastened with no other obligations or liabilities under the Agreement of Sale at Ex.P.8, which were required to be performed by her before the execution of the Sale Deed by vendor therein. As such, what was the obligation on the part of the plaintiff as a purchaser under Ex.P.8 she has already performed the same. Thus, the question of her further readiness and willingness would not arise, except accepting the execution of Sale Deed which was required to be executed by the original defendant. Thus, the argument of the learned counsel for the appellants on the said point is not acceptable.

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Lastly, the appellants have also taken a contention that the suit was barred by limitation. Learned counsel for the appellants contended that the suit which should have been filed within three years period, has been filed beyond the said period, as such, the suit is barred by limitation.

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Per contra , learned counsel for the respondents in

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his argument submitted that no time limit was agreed in Ex.P.8 as such, the time is not the essence of the contract.

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Since the original defendant could not get the revenue records made in his name, there is delay in filing the suit.

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A perusal of the Agreement of Sale at Ex.P.8 shows that, at Clause -2 it specifically mentions that there was no time limit specified for completion of the same. In view of the said express term, it can be inferred that time is not the essence of the contract in the instant case. According to the plaintiff, the defendant could not get Khata made in his name as such, without Khata, Sale Deed could not be executed though she was ready and willing to get the Sale Deed executed in her favour.

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As analised above, though at one place in Ex.P.8 it is stated that the Khata of the schedule property has been transferred to the name of the vendor, however, the very same vendor as DW-1 in his cross-examination has admitted as true that after the death of his father the Khata of suit schedule property has not been made in his name. Further had really the original defendant got Khata made in his name and he was paying the property tax with respect to suit schedule property, he would have necessarily produced those

¶172

¶173

R.F.A.No.2186 of 2017

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documents in order to falsify the contention of the plaintiff. However, the defendant has not made any attempt in that regard. Thus, Khata of the suit schedule property since has not been made in the name of the original defendant, who was the vendor, the plaintiff did not insist for the execution of the sale agreement at the earliest. However, as stated by plaintiff in her plaint, as well in her evidence as PW-1, she was repeatedly requesting the defendant to execute the Sale Deed in her favour. Since the defendant is said to have refused to execute the Sale Deed when the request was made by the plaintiff on 20.08.2002, the plaintiff decided to file a suit for specific performance. Accordingly, she proceeded to file the suit. Therefore, the finding of the trial Court that the suit is not barred by the limitation also cannot be found fault with.

¶175

The specific performance of contract is a discretionary relief which can be refused when there is absolutely no clear and certain evidence of proof of Agreement of Sale. In the instant case, the plaintiff has proved the existence of Agreement of Sale at Ex.P.8 in her favour and also of she

¶176

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already discharging her part of paying the full sale consideration to the vendor/original defendant. Nowhere either the original defendant or his legal representatives have contended and established of any hardship that would be caused to them in case the specific performance of the contract is granted to the plaintiff. The original defendant has already received the entire sale consideration on the very same day of the date of agreement at Ex.P.8. As such, since there being no promise which is still due for performance by the plaintiff, she has waited for the performance of the contract from the original defendant since the date of agreement i.e., 26.10.1998. Under the said circumstances, the legal representatives of original defendant, who came as defendants No.1(a) to 1(e) in the trial Court in the original suit, are required to execute the Sale Deed in favour of the plaintiff with respect to suit schedule property. As such, the finding of the trial Court in decreeing the suit cannot be found fault with and same does not warrant any interference at the hand of this Court.

¶179

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Accordingly, I proceed to pass the following order:

¶182

ORDER

¶183

The Regular First Appeal filed by the defendants No.1(b) and 1(d) (appellants) stands dismissed as devoid of merits;

¶184

Registry to transmit a copy of this judgment along with the Trial Court records to the concerned Trial Court, immediately.

¶185

Sd/JUDGE

¶186

BVK

K. S. Venkatesh v. Smt. M. Begum

Case brief

What is this about?

What did the court decide?

K. S. Venkatesh v. Smt. M. Begum

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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