Dismissed

A S Mandanna v. B C Gappanna

Karnataka HC13 Sept 2023RSA/1185/2019

Case brief

AI extract

What is this about?

Regular Second Appeal against a decree for specific performance of a sale agreement. The appellant contended that no partition occurred before selling ancestral joint family property. The High Court held that since the father was the karta and the room sold was distinct and divisible, the decree stood good, dismissing the appeal.

What did the court decide?

The appeal was dismissed; the decree for specific performance of the sale agreement was upheld.

A S Mandanna Vs B C Gappanna — Specific Performance | Karnataka HC (2023)

¶1

1 - NC: 2023:KHC:33231 RSA No. 1185 of 2019

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 13^TH DAY OF SEPTEMBER, 2023

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE H.P.SANDESH

¶6

REGULAR SECOND APPEAL NO.1185 OF 2019 (SP)

¶7

BETWEEN:

¶8

A S MANDANNA AGED ABOUT 63 YEARS, S/O A.M.SOMAPAP, R/AT NAPOKLU VILLAGE, MADIKERI TALUK, KODAGU DISTRICT.

¶9

…APPELLANT

¶10

(BY SRI CHANDRANATH ARIGA K, ADVOCATE)

¶11

AND:

¶12

Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

¶13

B C GAPPANNA S/O CHENGAPPA, AGED ABOUT 69 YEARS, RESIDING AT NEAR P.H.C., NAPOKLUR, MADIKERI TALUK, KODAGU DISTRICT – 571 201.

¶14

A M SOMAIAH S/O A.S. MANDANNA, AGED ABOUT 36 YEARS, RESIDING AT NAPOKLUR VILLAGE, MADIKERI TALUK, KODAGU DISTRICT -571 201.

¶15

2 - NC: 2023:KHC:33231 RSA No. 1185 of 2019

¶16

A M NIRMALA D/O A.S. MANDANNA, AGED ABOUT 34 YEARS, RESIDING AT NAPOKLUR VILLAGE, MADIKERI TALUK, KODAGU DISTRICT 571 201.

¶17

A M GOWTHAM S/O A.S. MANDANNA, AGED ABOUT 32 YEARS, RESIDING AT NAPOKLUR VILLAGE, MADIKERI TALUK, KODAGU DISTRICT 571 201.

¶18

…RESPONDENTS

¶19

(BY SRI BHARGAV G, ADVOCATE)

¶20

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 09.04.2019 PASSED IN R.A.NO.12/2014 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, KODAGU AT MADIKERI AND ETC.

¶21

THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶22

J U D G M E N T

¶23

This appeal is listed for admission. Heard the

¶24

learned counsel appearing for the respective parties.

¶25

The factual matrix of the case of the

¶26

plaintiff/respondent No.1 before the Trial Court that the

¶27

3 - NC: 2023:KHC:33231 RSA No. 1185 of 2019

¶28

appellant herein had entered into an agreement of sale dated 15.10.2003 agreeing to sell ‘B’ schedule property which consists a room adjacent to the suit ‘A’ schedule property for Rs.1,35,000/- and also there was an agreement in respect of ‘A’ schedule property vide sale agreement dated 18.09.1999 and he has received an entire sale consideration and hence, he bound to execute the sale deed. Defendant No.1 appeared before the Trial Court and filed the written statement contending that both the agreements are rank forged documents and the plaintiff has created both the documents. Defendant No.1 further contend that he has not received any amount of Rs.4,25,000/on 18.09.1999 and an amount of Rs.1,35,000/- on 15.10.2003 in respect of the agreement which is the subject matter of the suit. During the pendency of the suit, on the application filed by the plaintiff, defendant Nos.2 to 4 are also impleaded who are the children of defendant No.1 and they also filed the written statement denying the averments of the plaint. The Trial Court based on the pleadings of the parties,

¶29

4 - NC: 2023:KHC:33231 RSA No. 1185 of 2019

¶30

framed the issues as well as additional issue and allowed the parties to lead their evidence. The Trial Court having considered both oral and documentary evidence placed on record answered Issue Nos.1 to 3 as affirmative and additional issue as negative. Being aggrieved by the judgment and decree of the Trial Court, appeals were preferred by defendant No.1 and defendant Nos.2 to 4 in R.A.Nos.12/2014 and 27/2014. The First Appellate Court having considered the grounds urged in both the appeals formulated the points and answered point Nos.2 to 4 as affirmative and point Nos.1 and 5 as negative and confirmed the order the Trial Court and hence, the present second appeal is filed before this Court.

¶31

The learned counsel for the appellant would vehemently contend that both the Courts have committed an error in coming to the conclusion that there was an agreement of sale and entire sale consideration has been paid but fails to take note of the fact that there is no division of the joint family property hence, defendant No.1

¶32

5 - NC: 2023:KHC:33231 RSA No. 1185 of 2019

¶33

does not have any absolute right over the ‘B’ schedule property and the Trial Court ought to have raised the issue that whether the alleged agreement of sale can be enforced. The counsel would vehemently contend that when there was no partition among the members of the joint family, the Trial Court ought not to have granted the relief and ought to have considered the point for refund of an earnest money but the same has not been done. Hence, this Court has to frame substantial question of law that whether in a suit for specific performance of an agreement of sale, without the bifurcation and division of the property, a specific performance can be ordered and whether both the Courts have committed an error in ordering for specific performance without the specific share in favour of defendant No.1 and hence, this Court has to admit the appeal and frame the substantial questions of law.

¶34

Per contra, the learned counsel appearing for

¶35

the respondents would vehemently contend that though

¶36

6 - NC: 2023:KHC:33231 RSA No. 1185 of 2019

¶37

the appellant took the defence that the agreement was not executed, both the Courts have given finding that the sale agreement was executed and sale consideration also received. The other contention of the appellant that there was no any partition among the members of the joint family hence, there cannot be a direction to execute the sale deed and the said contention cannot be accepted since the counsel would submit that already there was an agreement of sale in respect of ‘A’ schedule property and this property i.e., ‘B’ schedule property is adjacent to ‘A’ schedule property and also admitted that there are 18 rooms and out of that, this is the only one room, he had entered into an agreement of sale and received the sale consideration. The very contention of the appellant that the earnest money needs to be refunded and the said contention cannot be accepted. If the family is not having other property, then this Court can exercise such discretion. But here is the case that there are 18 rooms and only in respect of one room, he had agreed to sell the

¶38

¶39

NC: 2023:KHC:33231 RSA No. 1185 of 2019

¶40

same to the plaintiff by executing the sale agreement and

¶41

also received the entire sale consideration.

¶42

Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record it is not in dispute that the property belongs to defendant No.1. But the very contention of the appellant/defendant No.1 that the children of defendant No.1 i.e., defendant Nos.2 to 4 are also having a right

¶43

over the said property. The contention also that defendant No.1 is not having any absolute right over the suit schedule property. It is also the contention that the said property is an ancestral property. Having considered the said submission, it is not in dispute that the sale agreement is in respect of one room which is in the upstairs measuring 20 x 10 feet and also the fact that there are 18 rooms and out of that one room was agreed to sell in favour of respondent No.1 herein. Though, the appellant denied the very execution of the agreement, both the Courts have given concurrent finding that

¶44

8 - NC: 2023:KHC:33231 RSA No. 1185 of 2019

¶45

defendant No.1 had executed the sale agreement. Even if there was no partition among themselves, the father being the kartha of the family had executed the agreement of sale in respect of one room and the very contention of the appellant that a direction can be given for refund of earnest money cannot be accepted since he had executed the sale agreement and also received the entire sale consideration. Both the Courts have given fact finding with regard to the very execution of the sale agreement and receipt of entire sale consideration and also the property measures only 20 x 10 feet and other 17 rooms are in existence and the same is also not disputed. When the property is identifiable and entire sale consideration has been received, the question of modifying the judgments of both the Courts does not arise. Hence, I do not find any grounds to comes to the conclusion that both the Courts have committed an error in decreeing the suit of the plaintiff. Unless any perversity is found in the order of both the Courts, the question of invoking Section 100 of CPC does not arise. I have already pointed that subject matter

¶46

9 - NC: 2023:KHC:33231 RSA No. 1185 of 2019

¶47

of the suit is, in the agreement of sale, the property is identified and the same measures 20 x 10 feet and it is one room out of 18 rooms and the same is also divisible. Even if any partition among the family members of defendant No.1, in case if it is an ancestral property as contended, in view of the agreement of sale executed by defendant No.1 that can be appropriated in the share of the father i.e., defendant No.1 and hence, the order of both Courts does not requires any interference since entire sale consideration has been received by executing sale agreement.

¶48

In view of the discussions made above, I pass the following:

¶49

ORDER

¶50

The appeal is dismissed.

¶51

Sd/JUDGE

¶52

A S Mandanna v. B C Gappanna

Case brief

What is this about?

What did the court decide?

A S Mandanna v. B C Gappanna

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Gopalappa Vs Smt. Hanumakka

Sri Gowdara Marulappa Vs H G Shivarudrappa

Eramma Vs Kempamma

Smt Anusuyamma Vs Smt Lakshmamma @ Dodda Lakshmamma

Mariyappa Vs Gangamma

Sanjeevareddy Vs Subbareddy