Dismissed

Smt G v. Gayathri Devi v Sri. T Venkatesh

Karnataka HC16 Nov 2023RSA/1382/2016

Case brief

AI extract

What is this about?

This Court allowed no interference in two regular second appeals filed jointly. The Court held that the lower courts were justified in dismissing one suit for specific performance due to concocted documents and decreeing another suit for redemption of mortgage, finding no infirmities or substantial legal questions.

What did the court decide?

Regular second appeals are found to be devoid of merit and are dismissed. Pending applications disposed of.

Smt G v Gayathri Devi Vs Sri. T Venkatesh — Succession and Inheritance | Karnataka HC (2023)

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1 - NC: 2023:KHC:40970 RSA No. 1382 of 2016 C/W RSA No. 1381 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 1382 OF 2016 (RES)

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C/W

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REGULAR SECOND APPEAL NO. 1381 OF 2016 (RES)

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IN RSA NO. 1382/2016

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BETWEEN:

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SMT. G. V. GAYATHRI DEVI, W/O A. N. SHIVAPRASAD, AGED ABOUT 55 YEARS, RESIDING AT LAKSHMI VENKATESHWARA NILAYA, 4TH CROSS, VENKATESH NAGARA, SHIMOGA - 577 201, SHIMOGA DISTRICT.

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Digitally signed by REKHA ANKAIAH Location: High Court of Karnataka

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REPRESENTED BY GPA HOLDER, SRI. A.N. SHIVAPRASAD, AGED ABOUT 58 YEARS, S/O NANJUNDAIAH, RESIDING AT LAKSHMI VENKATESHWARA NILAYA, 4TH CROSS, VENKATESH NAGARA, SHIMOGA - 577 201, SHIMOGA DISTRICT. …APPELLANT

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(BY SRI. BHADRINATH R, ADVOCATE)

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AND:

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SRI. T. VENKATESH, S/O K .VENKATESH, SINCE DECEASED BY HIS LRS,

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SMT. SUBBAMMA, W/O LATE T. VENKATESH, (SINCE DECEASED BY LRS) DIED ON 28.03.2012

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SRI. UMESH NARAYAN, S/O LATE T.VENKATESH, (SINCE DECEASED BY LRS) DIED ON 26.03.2012

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SMT. SHWETHA, AGED ABOUT 27 YEARS, W/O LATE UMESH NARAYAN,

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KUMARI. RADHA U.N, AGED ABOUT 10 YEARS, D/O LATE UMESH NARAYAN,

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MASTER SREEHARSHA U.N, AGED ABOUT 8 YEARS, S/O LATE UMESH NARAYAN,

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RESPONDENTS NO. 2 AND 3 ARE MINORS, REPRESENTED BY NATURAL MOTHER SMT. SHWETHA UMESH NARAYAN/ RESPONDENT NO.1.

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RESPONDENTS NO. 1 TO 3 ARE RESIDING AT HATIKATTE CAMO, BUKLAPURA, HETTIHALLI POST, BHADRAVATI TALUK - 577 301.

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SMT. ADILAKSHMAMMA, D/O LATE T.VENKATESH, AGED ABOUT 52 YEARS,

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SMT. JAYAMMA, D/O LATE T.VENKATESH, AGED ABOUT 46 YEARS,

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SMT. RAVANAMMA, D/O LATE T. VENKATESH, AGED ABOUT 44 YEARS,

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ALL ARE RESIDING AT BALALAKATTE, MALINA HANASAVADI POST, HOLALOOR HOBLI, SHIMOGA - 577 201, SHIMOGA TALUK, SHIMOGA DISTRICT.

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…RESPONDENTS

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(BY SRI. S.V. PRAKASH, ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.03.2016 PASSED IN R.A NO.30/2009 ON THE FILE OF THE I ADDL. DISTRICT JUDGE, SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.12.2008 PASSE IN O.S NO.206/2001 ON THE FILE OF THE I ADDL. CIVIL JUDGE (SR.DN.) AND CJM., SHIMOGA.

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IN RSA NO. 1381/2016

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BETWEEN:

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SRI. A. N. SHIVARASAD, AGED ABOUT 55 YEARS, S/O NANJUNDAIAH, RESIDING AT LAKSHMI VENKATESHWARA NILAYA, 4TH CROSS, VENKATESH NAGARA, SHIMOGA - 577 201, SHIMOGA DISTRICT

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…APPELLANT

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(BY SRI. BHADRINATH R, ADVOCATE)

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NC: 2023:KHC:40970 RSA No. 1382 of 2016 C/W RSA No. 1381 of 2016

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AND:

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SRI. T. VENKATESH, S/O K .VENKATESH, SINCE DECEASED BY HIS LRS,

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SMT. SUBBAMMA, W/O LATE T. VENKATESH, (SINCE DECEASED BY LRS) DIED ON 28.03.2012

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SRI. UMESH NARAYAN, S/O LATE T.VENKATESH, (SINCE DECEASED BY LRS) DIED ON 26.03.2012

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SMT. SHWETHA, AGED ABOUT 27 YEARS, W/O LATE UMESH NARAYAN,

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KUMARI. RADHA U.N, AGED ABOUT 10 YEARS, D/O LATE UMESH NARAYAN,

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MASTER SREEHARSHA U.N, AGED ABOUT 8 YEARS, S/O LATE UMESH NARAYAN,

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RESPONDENTS NO. 2 AND 3 ARE MINORS, REPRESENTED BY NATURAL MOTHER SMT. SHWETHA UMESH NARAYAN/ RESPONDENT NO.1.

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RESPONDENTS NO. 1 TO 3 ARE RESIDING AT HATIKATTE CAMO, BUKLAPURA, HETTIHALLI POST,

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BHADRAVATI TALUK - 577 301.

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SMT. ADILAKSHMAMMA, D/O LATE T.VENKATESH, AGED ABOUT 52 YEARS,

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SMT. JAYAMMA, D/O LATE T.VENKATESH, AGED ABOUT 46 YEARS,

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SMT. RAVANAMMA, D/O LATE T. VENKATESH, AGED ABOUT 44 YEARS,

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ALL ARE RESIDING AT BALALAKATTE, MALINA HANASAVADI POST, HOLALOOR HOBLI, SHIMOGA - 577 201, SHIMOGA TALUK, SHIMOGA DISTRICT.

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…RESPONDENTS

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(BY SRI. S.V. PRAKASH, ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.03.2016 PASSED IN R.A NO.29/2009 ON THE FILE OF THE I ADDL. DISTRICT JUDGE, SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.12.2008 PASSE IN O.S NO.148/1999 ON THE FILE OF THE I ADDL. CIVIL JUDGE (SR.DN.) AND CJM., SHIMOGA.

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

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JUDGMENT

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These captioned Second Appeals are filed by the defendant in O.S.No.206/2001 assailing concurrent judgment rendered in O.S.No.206/2001, seeking redemption of mortgage as well as judgment rendered in O.S.No.148/1999 filed by the defendant seeking relief of specific performance based on an agreement to sell dated 08.03.1998. The plaintiff's suit seeking redemption of the mortgage is decreed by both the Courts and the defendant's suit seeking relief of specific performance in O.S.No.148/1999 is dismissed by both the Courts. Therefore, these two second appeals arise out of concurrent judgments rendered in O.S.206/2001 and O.S.No.148/1999.

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For the sake of brevity, the rank of the parties are referred as they are ranked before the Trial Court in O.S.NO.206/2001.

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Facts leading to the case are as under:

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The plaintiff (T.Venkatesh) has instituted a suit seeking redemption of mortgage against one Smt.G.V.Gayathri, who is the wife of the plaintiff, in O.S.No.148/1999. One A.N.Shivaprasad has filed a suit for specific performance against the plaintiff in O.S.No.206/2001, alleging that plaintiff T.Venkatesh voluntarily agreed to sell the suit land and accordingly executed an agreement to sell in favour of A.N.Shivaprasad (plaintiff in O.S.No.148/1999 seeking relief of specific performance of contract). The plaintiff in O.S.No.148/1999 contended that T.Venkatesh has received an advance amount of Rs.4,62,800/- out of the total sale consideration of Rs.7,75,000/-.

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The plaintiff's case in O.S.No.206/2001 is that

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he is the absolute owner of the suit schedule property and he has mortgaged the suit land in favour of the defendant by borrowing a hand loan of Rs.80,000/-. Therefore, the

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plaintiff claimed that he has executed a mortgage deed dated 17.04.1985, vide Ex.P.1. The husband of defendant, who is plaintiff in O.S.No.148/1999 is seeking relief of specific performance of contract.

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The plaintiff in O.S.No.206/2001, who is the owner of the suit land and the plaintiff in O.S.No.148/1999, who is seeking relief of specific performance of contract, have let in oral and documentary evidence. Both the suits were clubbed and common evidence is recorded in O.S.No.206/2001.

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The Trial Court has answered issue Nos. 1 and 2 in the negative in O.S.No.148/1999. While answering the said issues in the negative, the Trial Court held that the plaintiff in O.S.No.148/1999 has failed to prove the due execution of the sale agreement alleged to have been executed by the plaintiff on 08.03.1998, vide Ex.D.14. The Trial Court, while answering issue No.2 framed in O.S.No.148/1999 in negative, also held that plaintiff has

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failed to substantiate that defendant (plaintiff in O.S.No.206/2001) had agreed to execute a registered sale

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deed within two months. The plaintiff (in O.S.No.148/1999) claimed that the loan availed by the defendant from Mahalakshmi Finance was cleared by himself was also negatived by the Court below. The Trial Court, while examining the documents relied on by the plaintiff in O.S.No.148/1999, found on meticulous examination that the suit agreement, vide Ex.D.14 and the alleged payments, vide Ex.D.13 are tampered and concocted documents. The Trial Court has elaborately examined the documents relied on by the plaintiff in O.S.No.148/1999. Taking note of the documentary evidence let in by the plaintiff in O.S.No.148/1999, the Trial Court has recorded a categorical finding that agreement is not proved and the alleged payment made under the disputed suit agreement is also not substantiated by the plaintiff in O.S.No.148/1999. Consequently, the suit for specific performance filed in O.S.No.148/1999 is dismissed.

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The plaintiff in O.S.No.206/2001 is seeking redemption of mortgage executed in favour of one Gayathri Devi, who is the wife of the plaintiff in O.S.No.148/1999. The defendant in O.S.No.206/2001 though admitted the mortgage transaction, however contended that the plaintiff in O.S.No.206/2001 having availed loan of Rs.80,000/-, approached her husband (who is plaintiff in O.S.No.148/1999) and requested her husband to further give a sum of Rs.35,000/- by way of a hand loan to enable the plaintiff in O.S.No.206/2001 to clear the outstanding loan availed from Mahalakshmi Finance. The defendant contended that her husband accepted plaintiff's request and stood as a security in respect of the loan availed by the plaintiff in O.S.No.206/2001 from Mahalakshmi Finance. The defendant claimed that her husband has cleared the loan borrowed by the plaintiff, which amounts to Rs.40,800/-. It is also alleged that plaintiff has again approached defendant's husband and taken a sum of Rs.80,000/- to clear of debts and therefore, contended plaintiff having

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11 - NC: 2023:KHC:40970 RSA No. 1382 of 2016 C/W RSA No. 1381 of 2016

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availed a hand loan post executing mortgage deed has totally availed a sum of Rs.7,75,000/- and accordingly, executed an agreement to sell by receiving an advance amount of Rs.4,62,800/- and hence, sought for dismissal of the suit filed in O.S.No.206/2001 seeking redemption of mortgage.

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The Trial Court, having given its anxious consideration to the voluminous documents placed on record by the parties, has come to the conclusion that plaintiff in O.S.No.148/1999 has failed to establish and prove the alleged agreement to sell executed by T.Venkatesh (plaintiff in O.S.No.206/2001). While

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answering issues against the plaintiff in a suit for specific performance, the Trial Court has held that the documents on which the plaintiff in O.S.No.148/1999 has placed reliance are concocted documents, and they are tampered. Therefore, the Trial Court held that the alleged suit agreement is not proved and the alleged payment made under the disputed suit agreement is also not

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substantiated by the plaintiff in O.S.No.148/1999. In the suit filed by the plaintiff in O.S.No.206/2001, the Trial Court held that plaintiff has succeeded in proving that he is entitled to seek redemption of mortgage. While answering issue No.2 in the affirmative in O.S.No.206/2001, the Trial Court held that plaintiff has succeeded in proving that possession was delivered to the defendant in O.S.No.206/2001 pursuant to the execution of a mortgage deed dated 17.04.1985. The defendant's claim in O.S.No.206/2001 that her husband has cleared plaintiff's loan availed from Mahalakshmi Finance and that her husband has cleared loan with interest of Rs.40,800/was also negatived by the Courts.

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Feeling aggrieved by the judgment and decree in O.S.No.148/1999, the plaintiff in O.S.No.148/1999 preferred an appeal before the Appellate Court in R.A.No.29/2009. The defendant in O.S.No.206/2001

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feeling aggrieved by the judgment and decree rendered in

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O.S.No.206/2001 preferred an appeal in R.A.No.30/2009 questioning the decree for redemption of mortgage.

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The Appellate Court, as a final fact-finding authority, has re-assessed the entire evidence on record. The Appellate Court, having independently assessed the evidence on record, was also not inclined to accept the claim made by the plaintiff in O.S.No.148/1999 that the defendant has executed an agreement to sell in his favour. The Appellate Court has also recorded a finding of fact that the suit agreement, vide Ex.D.14, is not a genuine document. The Appellate Court has also recorded categorical findings that the upper portion of Ex.D.14, which has a stamped portion, is found to be brighter than the remaining portion. Therefore, the Appellate Court held that the suit agreement, vide Ex.D.14, is written on two different papers. The Appellate Court further, while examining the alleged payment made by the plaintiff in O.S.No.148/1999, also held that documents vide Exs.D.12

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and 13 are not genuine documents. On re-appreciation of

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the entire material on record, the appeal filed in R.A.No.29/2009 by the plaintiff in O.S.No.148/1999 was dismissed and the appeal filed by the defendant in O.S.No.206/2001 questioning the judgment and decree for redemption of mortgage in R.A.No.30/2009 was also dismissed. These concurrent findings are under challenge by the plaintiff in O.S.No.148/1999 and defendant in O.S.No.206/2001.

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Heard learned counsel appearing for the defendant in O.S.No.206/2001 as well as plaintiff in O.S.No.148/1999 and learned counsel appearing for the plaintiff in O.S.No.206/2001, who arrayed as defendant in O.S.No.148/1999. Perused the findings recorded by both the Courts below.

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The plaintiff in O.S.No.148/1999 is seeking enforcement of contract by filing a suit for specific performance based on an agreement dated 08.03.1998, which is marked as Ex.D.14. Both the Courts, on

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examining Ex.D.14, which is a suit agreement, have held that plaintiff in O.S.No.148/1999 has failed to prove the genuineness of the suit agreement vide Ex.D.14. The alleged payment vide Ex.D.13 is also disbelieved by both the Courts. Both the Courts have held that there is tampering of sale advance amount. There is tampering of payment of money under Ex.P.13. Both the Courts have concurrently held that an amount of Rs.20,000/- payment is made under Ex.D.13, but there is an insertion of Rs.1,00,000/- in both words and numerical. Referring to Ex.D.13, both the Courts have recorded a finding that suit agreement is a concocted document and the same cannot be looked into. Several adverse interferences are drawn against the plaintiff in O.S.No.148/1999. Referring to the material on record, both the Courts have also taken note of the fact that the plaintiff in O.S.No.148/1999 has collected all relevant documents of the plaintiff in O.S.No.206/2001 from Mahalakshmi Finance. Both the Courts have concurrently held that A.N.Shivaprasad, (plaintiff in O.S.No.148/1999) had no locus to collect

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original documents tendered by the plaintiff in O.S.No.206/2001 while availing loan. Referring to this clinching evidence on record, both the Courts held that the suit agreement is not proved and therefore, both the Courts have proceeded to dismiss the suit for specific performance filed in O.S.No.148/1999.

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It is a trite law that in a suit for specific performance, the conduct of the plaintiff, who is seeking enforcement of specific performance of contract has to be unblemish. In the present case on hand, several incidents reflect badly on plaintiff's conduct. If both the Courts have concurrently held that the suit agreement is not proved, then I do not find any infirmities or illegalities in the judgment rendered in O.S.No.148/1999. Neither plaintiff has succeeded in establishing the suit agreement nor has he succeeded in proving the alleged payments made pursuant to the suit agreement. Both the courts were justified in dismissing the suit in its entirety. This Court is

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more than satisfied that no interference is warranted at the hands of this Court.

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Insofar as suit filed by the plaintiff in O.S.No.206/2001 is concerned, the mortgage transaction is not in dispute. The only objection raised by the defendant in O.S.No.206/2001 is that plaintiff has entered into a sale transaction with her husband, who is the plaintiff in the connected suit bearing O.S.No.148/1999. The Trial Court has answered issue Nos.1 and 2 in the negative in a suit for specific performance bearing O.S.No.148/1999. Both the Courts were justified in decreeing the suit filed by the plaintiff in O.S.No.206/2001 seeking redemption of mortgage. The decree passed in O.S.No.206/2001 does not suffer from any infirmities. No indulgence is warranted as no substantial question of law would arise for consideration in both second appeals.

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These regular second appeals are found to be devoid of merit and therefore, liable to be dismissed. Accordingly, stand dismissed .

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NC: 2023:KHC:40970 RSA No. 1382 of 2016 C/W RSA No. 1381 of 2016

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18 -

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In view of dismissal of second appeal, all pending applications, if any, do not survive for consideration and stand disposed of.

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Sd/JUDGE

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HDK List No.: 1 Sl No.: 4 CT: BHK

Smt G v. Gayathri Devi v Sri. T Venkatesh

Case brief

What is this about?

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Smt G v. Gayathri Devi v Sri. T Venkatesh

Case brief

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