Disposed

Devanna S/O Dyavaiah @ Thammaiah v. Dyavaiah S/O Rajaiah Since Dead by Lrs

Karnataka HC12 Oct 2023RSA/1415/2009

Case brief

AI extract

What is this about?

This second appeal arises from a suit for specific performance of an agreement for sale of ancestral agricultural land. The High Court allowed the appeal, set aside the first appellate court's decree for specific performance, and restored the trial court's decree for refund of earnest money with interest, considering hardship to defendants and lack of evidence of a bona fide sale.

What did the court decide?

The judgment and decree of the first appellate court for specific performance set aside; decree of trial court for refund of Rs.1,85,000 with interest at 18% p.a. from date of agreement till realizati

Devanna S/O Dyavaiah @ Thammaiah Vs Dyavaiah S/O… — Specific Performance | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 12^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE G. BASAVARAJA REGULAR SECOND APPEAL NO. 1415 OF 2009

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BETWEEN:

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SHRI DEVANNA DEAD BY LRS S/O. DYAVAIAH ALIAS THIMMAIAH, AGED ABOUT 55 YEARS,

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1.(A) SMT. GOWRAMMA W/O. LATE DYAVANNA, AGED ABOUT 54 YEARS, R/AT.- URAMARAKASALAGERE VILLAGE, KOTHAHI HOBLI, MANDYA TALUK AND DISTRICT, PIN: 571401.

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1.(B) SMT. MANJULA D. W/O. MANJUNATH S. D/O. LATE. DYAVANNA, AGED ABOUT 41 YEARS, R/AT.- NO.333, “VARUNALAYA” RAHESWARI LAYOUT, OPP: PEOPLE TREE NEAR RAILWAY GATE, CHADDEGHATTA VILLAGE, KUMBALAGODU POST, MYSORE HIGHWAY, PIN :560060.

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1.(C) SMT. REKHA RANI W/O. KAPANI, D/O. LATE. DYAVANNA, AGED ABOUT 39 YEARS, KODAGAHALLI VILLAGE, BANNUR HOBLI, T. NARASIPURA TALUK, MYSORE DISTRICT, PIN: 571101.

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NAGESH ALIAS DYAVANNA S/O. D. DYAVANNA,

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BOTH ARE R/AT.-URAMARAKASALAGERE VILLAGE, KOTHAHI HOBLI,MANDYA TALUK AND DISTRICT. …APPELLANTS (BY SRI GIRIDHAR H., ADVOCATE)

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AND:

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SRI DYAVAIAH DEAD BY LRS

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R(A) DYVANNA S/O. LATE DYAVAIAH, AGED ABOUT 50 YEARS,

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R(B) SWAMY S/O. LATE DYAVANNA AGED ABOUT 48 YEARS,

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R(C) MAHADEVAMMA W/O. MARAMADAPPA, AGED ABOUT 45 YEARS,

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ALL ARE R/AT.-URAMARAKASALAGERE VILLAGE, KOTHATHI HOBLI, MANDYA TALUK, MANDHYA DISTRICT-571402.

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R(D) NAGAMMA W/O. KUMARA AGED ABOUT 42 YEARS, HULIKERE KOPPALU, MANDYA TALUK, MANDYA DISTRICT, PIN: 571425.

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R(E) BHAGYA W/O. RUDRAPPA, AGED ABOUT 38 YEARS,

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R(F) SHYLA W/O. NAGANNA, AGED ABOUT 38 YEARS,

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R(E) AND R(F) ARE R/AT. MADALA VILLAGE, DUDDA HOBLI, MANDYA TALUK, MANDYA DISTRICT, PIN: 571405.

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…RESPONDENTS

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(BY SRI G. BALAKRISHNA SHASTRY, ADVOCATE FOR RESPONDENT NO. 1(A TO F))

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THIS REGULAR SECOND APPEAL FILED UNDER SECTION 100 OF C.P.C PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE LEARNED ADDITIONAL DISTRICT JUDGE, MANDYA IN R.A.NO.5/2009 DATED: 08.07.2009 (8^TH JULY 2009). GRANT SUCH OTHER RELIEFS AS THIS HON’BLE COURT MAY DEEM IT IN THE CIRCUMSTANCES OF THE CASE, INCLUDING THE COST OF THE APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL HAVING BEEN HEARD, JUDGMENT RESERVED ON 28.07.2023, COMING ON FOR “PRONOUNCEMENT OF ORDERS” THIS DAY THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellants, who are the defendants in OS No.149/2004 on the file of Principal Civil Judge (Sr. Dn.) and CJM, Mandya (for short, ‘the trial Court’) and respondents in R.A.No.5/2009 on the file of Additional District Judge, Mandya (for short, ‘the first Appellate Court’), have preferred this Regular Second Appeal under Section 100 of the CPC challenging the Judgment and Decree dated 08^th July, 2009 on the file of first Appellate Court.

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The parties herein are referred to as per their ranks before the Trial Court.

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The plaintiff, who is the respondent herein, filed a suit against the defendants in OS No.149 of 2004 to obtain a decree of specific performance of a contract regarding the suit schedule properties. Alternatively, the plaintiff sought a decree for the refund of the earnest money, which was said to have been paid by the plaintiff to the defendants under the agreement of sale dated July 7, 2003.

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The brief facts of the plaintiff's case are as follows: Defendant No. 1 is the father of Defendant No. 2. The defendants are the owners of the suit schedule properties. Due to their legal necessity and for the benefit of the family, they offered to sell the same. After discussions, it was agreed that the suit schedule properties would be sold to the plaintiff for a valuable consideration of Rs.2,10,000/-. The defendants then executed a registered agreement of sale dated July 7, 2003, in favor of the plaintiff, agreeing to sell the suit schedule properties. They received a sum of Rs.

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1,85,000/- as an advance amount and undertook to register the sale deed within one year. The plaintiff, having always been ready and willing to perform their part of the contract, called upon the defendants to execute the sale deed multiple times, but to no avail. A legal notice was also issued to them on July 1, 2004. Despite this, they did not execute the sale deed. Consequently, the plaintiff filed the suit seeking a decree for specific performance and, alternatively, the recovery of the advance amount of Rs. 1,85,000/- with interest at

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the rate of 24% per annum from the date of the agreement of sale until the date of payment.

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In their submitted written statement, the

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defendants present a counter-narrative to the plaintiff's claims:

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5.1. Defendants vehemently deny ever entering into an agreement of sale regarding the suit schedule properties. Instead, they assert that the plaintiff lent them a sum of Rs. 90,000, as per his own request. To

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formalize this transaction, they executed a document at the plaintiff's behest. Furthermore, they contend that they promptly repaid the borrowed amount along with interest, calculated at a reasonable rate of 12% per annum. Strikingly, they emphasize that the plaintiff has failed to return the said document and is now pursuing this lawsuit based on what they assert is a concocted and unauthorized document, which in no way indicates their willingness to sell the suit schedule properties.

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5.2. The defendants contended that the suit

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schedule properties hold a significantly higher market value than what the plaintiff claims, valuing them at over Rs. 3,500 per gunta at the time of the alleged agreement. Selling these properties, they assert, would not only render them landless but would also impose severe financial hardship. They explicitly deny the various other allegations made in the plaint.

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5.3. The defendants contend that they are not the exclusive owners of the suit schedule properties. They

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highlight the presence of other shareholders who hold legitimate legal rights to these properties. Consequently, they maintain that the concept of a specific performance decree does not apply in this case. The defendants raise questions about the stated value of the suit and call for the outright dismissal of the plaintiff's claims based on these compelling grounds.

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On the basis of above pleadings, the trial Court

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has framed the following issues:

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“1) Whether the plaintiff proves that defendant agreed to sell the suit schedule property for consideration of Rs.2,10,000/-?

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1. Whether plaintiff proves defendants on 07.07.2003 by receiving advance of Rs.1,85,000/- executed agreement of sale and agreed to execute absolute sale deed by receiving Rs.25,000/- within a year from the date of agreement?

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1. Whether plaintiff is always ready and willing to perform his part of contract?

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1. Whether defendants prove that they borrowed Rs.90,000/- at that time plaintiff

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obtained their signature without disclosing the nature of the documents?

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1. Whether defendants prove that they repaid loan amount of Rs.90,000/- with interest at 12% per annum?

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1. Whether the Court fee paid by plaintiff is sufficient?

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1. Whether the plaintiff is entitled for the relief sought for?

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1. What decree or order?”

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7. To substantiate the case of plaintiff, the plaintiff

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examined himself as PW1, attesters to the agreement of sale as PWs2 and 3 respectively and scribe of the document as PWs4, 12 documents were marked as Exs.P1 to P12. On closure of the evidence of plaintiff, defendant No.1 examined as DW1 and two documents were marked as Exs.D1 and D2.

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On hearing the arguments of both sides considering the evidence adduced by both the parties, the Trial Court has dismissed the suit for specific performance of contract, but decreed the suit for

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alternative relief of refund of earnest money of Rs.1,85,000/- with interest at the rate of 12% per annum. Being aggrieved by this Judgment and Decree passed by the Trial Court, the appellant who is the plaintiff in original suit has preferred the regular appeal before the first appellate Court in Regular Appeal No.5 of 2009. On hearing the arguments of both sides, the first appellate Court has formulated the following points for consideration:

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“(1) Whether the plaintiff has proved that the defendants agreed to sell the suit schedule properties to him as per Ex.P.1?

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(2) Whether he has proved that he was at all material points of time been ready and willing to perform his part of the contract?

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(3) Whether he is entitled to the relief of specific performance or the alternative relief as claimed by him?

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(4) Whether he cannot maintain this appeal as he cannot be said to be aggrieved by the judgment and decree of the trial Court as contended by the respondents?

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(5) Whether judgment and decree of the trial Court call for interference?

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(6) What order?”

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The first Appellate Court has given its finding as

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under :

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Point No.1 & 2 : Affirmative.

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Point No.3 : Plaintiff is entitled to the

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relief of specific performance.

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Point No.4 : The appeal is maintainable.

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Point No.5 : Affirmative. Point No.6 : As per orders.

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In view of the above findings, the first appellate

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Court has allowed the appeal, which read as under:

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“ORDER

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The appeal is allowed;

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The judgment and decree of the trial Court are set side;

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The respondents-defendants are hereby directed to execute a registered sale deed in favour of the appellant-plaintiff in respect of the suit schedule properties, after receiving the sale consideration of Rs.25,000/-, which the appellant-plaintiff shall deposit in the trial Court within one month from to-day;

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The appellant-plaintiff is also entitled to costs of the suit and the appeal from the defendants-respondents.

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The decree for specific performance hereby granted is subject to the decision in the partition suit, if any, that may be filed as observed in para-50 of this judgment.”

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Being aggrieved by the judgment and Decree dated 08^th July, 2009 passed by the first appellate Court in Regular Appeal No.5 of 2009, defendants before the trial Court have preferred this regular second appeal.

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On hearing the arguments, this Court has passed the order dated 08.09.2010 as under:

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“ ORDER

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Heard regarding admission. Considering the grounds urged in the appeal against the impugned judgments, the following substantial questions of law arise for consideration in this appeal:

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1) Whether the first appellate court is correct in reversing the judgment of the trial court, taking into consideration a fact that is not forthcoming either by oral or documentary evidence in respect

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of the property in the absence of acceptable legal evidence.?

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2) Whether the judgment of the appellate court is sustainable in the eye of law?

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Admit.

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Interim stay as prayed for.

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Post for final hearing. ”

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Upon reviewing the order sheet, it is evident

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that this Court dismissed the appeal on April 4, 2014,

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due to the non-filing of the paper book. Subsequently, IAs 1 to 3 of 2017 were filed. On August 10, 2017, this Court made the following order:

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“ ORDER ON I.A.Nos. 1/2017 and 2/2017

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The learned counsel for the appellants has filed I.A.No.1/2017 praying to condone the delay of 1194 days in filing I.A.No.2/2017. I.A.No.2/2017 has filed seeking recall of the order dated 04.04.2014.

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Admittedly, this appeal was dismissed for nonfiling of paper book. The said judgment of dismissal dated 04.04.2014, is sought to be recalled and an opportunity is also sought to hear the counsel for the appellants on merits.

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Heard the learned counsel for the appellants as well as contesting respondents on these applications. Perused the affidavits filed in support of these applications. Being satisfied with the reasons stated therein, delay of 1194 days in filing the recalling application is condoned, I.A.Nos.1/2017 and 2/2017 are allowed subject to payment of cost of Rs.500/payable to the Registry.

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List this matter on 16.08.2017, to consider 1.A.No.3/2017 filed for stay. ”

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On 16.08.2017, this Court passed an order on IA.No.3/2017 as under :

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“ ORDER ON I.A.No.3/2017

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Sofar as, I.A.No.3/2017 is concerned, the learned counsel for the respondent would bring to the notice of this Court that the decree for refund of earnest money paid under the agreement is enlarged into decree for specific performance in R.A.No.5/2009 on the file of Additional District Court, Mandya. Thereafter, execution petition is levied and delivery of possession is secured by getting the sale deed executed in favour of the plaintiff in the original suit.

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Placing his submission on record, this Court finds that I.A.No.3/2017 filed for the relief of stay of the judgment and decree passed in R.A.No.5/2009 does not arise. Accordingly, said application is dismissed.

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List this appeal for final disposal in terms of its seniority. ”

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During the pendency of this appeal, the 1st

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respondent passed away, and his legal representatives filed an application in IA.I/2021. On March 3, 2022, this Court granted permission for the application, and subsequently, the legal representatives of respondent No.1 were added to the record. Similarly, appellant No.1 also passed away on February 27, 2022, and his legal representatives filed applications in IAs.I and II of 2022, seeking permission to be included on the record. On

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September 13, 2022, this Court passed an order permitting the legal representatives of the deceased appellant No.1 to be included on the record as appellants 1(a) to 1(c).

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I have heard the arguments on both sides.

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SUBMISSIONS ON BEHALF OF THE APPELLANTS :

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The learned counsel for the appellants contends

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that the Trial Court correctly assessed the material facts and the evidence on record in their true perspective. Without due consideration of this, the first Appellate Court unjustifiably interfered with the Judgment and Decree, which constitutes violation of law and an error of jurisdiction. The first Appellate Court erroneously asserted that there was no loan transaction between the appellants and the respondents. Furthermore, it failed to take into account the repayment of a loan amount of Rs.90,000/to the respondent/plaintiff. The first Appellate Court also made an error in concluding that there was no assertion to that effect in the written statement.

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17.1. The first appellate Court misjudged the points raised by the Trial Court regarding the suit schedule properties. The Trial Court alleged that there was an agreement to sell the properties for Rs.2,10,000/- and further observed that a sum of

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Rs.1,85,000/had been received as an advance payment, with the understanding that the registered sale deed would be executed upon receiving the remaining consideration of Rs.25,000/-. In the absence of supporting evidence presented by the plaintiff, the first Appellate Court should not have given significant weight to the plaintiff's testimony.

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17.2. The first appellate Court has placed unwarranted reliance on the plaintiff's version and the contents of document Ex.P.1. This has resulted in a miscarriage of justice. The appellant/defendants maintain that the properties in question, which were claimed by the respondent, are nothing but joint family properties. At no point did the appellants agree to sell these properties to the plaintiff. It was categorically denied that the registered Agreement of Sale dated 07.07.2003 was executed in favor of the respondent/plaintiff. When the execution of the sale agreement is disputed, the question of receiving the amount of Rs.1,85,000/- does not arise.

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While the Trial Court correctly considered these aspects, the First Appellate Court failed to appreciate them in their true perspective. The First Appellate Court completely overlooked these crucial aspects, warranting intervention by this Court. The First Appellate Court arrived at a conclusion by solely relying on Ex.P1. However, no corresponding material was presented by the respondent/plaintiff to substantiate the agreement to sell. The First Appellate Court mistakenly placed undue reliance on the evidence of PW2 and accepted his version without considering the cross-examination regarding the loan transaction between the appellants and the respondent herein. Simply because the suggestion was denied, the First Appellate Court should not have concluded that there was proof of the execution of Ex.P1. Consequently, the First Appellate Court arrived at an erroneous conclusion that amounts to a miscarriage of justice.

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17.3. Furthermore, the First Appellate Court, when deciding the matter related to the loan from the respondent, disregarded the categorical assertion made in paragraph 7 of the written statement. The First Appellate Court incorrectly held that there were no assertions to that effect. As a result, the entire order setting aside the judgment of the Trial Court in Original Suit No.149 of 2004 is flawed. The Judgment and Decree of the First Appellate Court suffer from irregularities. It is also argued that the First Appellate Court exceeded its jurisdiction by re-evaluating the evidence and reaching an erroneous conclusion that there was no loan transaction between the appellants and the respondent. This observation by the First Appellate Court is both erroneous and illegal.

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17.4. Additionally, it is important to note that the First Appellate Court accorded significant weight and importance to the oral testimony of the plaintiff even though discrepancies were observed in relation to the

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loan transactions. The First Appellate Court, inappropriately, presumed that there was no loan transaction and that the appellants did not repay the loan. Consequently, the Judgment of the First Appellate Court is not just flawed but also exhibits a clear and unmistakable error on its face. The First Appellate Court relied on the evidence of PWs3 and 4, who stated their ignorance when suggested that they were unaware of the loan transaction. This is a critical aspect that strikes at the heart of the matter. Accepting the testimony of PWs3 and 4 is detrimental to the case presented in court. The First Appellate Court should, in light of this, have rejected the evidence provided by PWs3 and 4. Consequently, the reliance placed by the First Appellate Court on the evidence of PWs3 and 4 is both illegal and misguided.

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17.5. The appellants assert that there was no agreement to sell as alleged by the plaintiff. According to their version of events, the appellants were merely asked

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to authenticate their signatures, which they did. The appellants received only Rs.90,000/-, and this sum was paid along with interest at a rate of 12% per annum. In such circumstances, it is not reasonable for the Court to conclude that the respondent/plaintiff had paid an advance amount of Rs.1,85,000/- and agreed to pay the remaining Rs.25,000/- within one year from that date. Therefore, the First Appellate Court's observations are in direct contradiction to the evidence and documentation presented in court. The first appellate Court ought to have rejected the contention of the plaintiff that he was ready and willing to perform his part of contract in the absence of agreement to sell nor denial of the agreement alleged to have executed by the appellant/defendants. Thus, the finding of the first appellate Court is unsustainable in the eye of law. Further, it is submitted that the first appellate Court has grossly erred in reversing the order of the Trial Court in the light of property being the ancestral property and existence of other co-parceners. The Court further erred in non-fixing

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of the consideration amount for the grown up trees viz., Honge, tamarind and neem trees. The worth of the property is more than Rs.3,500/- per gunta and accordingly, the property shall cost more than Rs.3,00,000/-. In the absence of adequate consideration, the Court ought to have refused to decree the suit for specific performance same is not considered by the first Appellate Court.

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17.6. Furthermore, it is important to note that the daughters of defendant No.1 did not provide their consent for the execution of the agreement of sale on their behalf. The plaintiff himself has acknowledged that they had a close relationship with the defendant's family and were fully aware that the defendants did not have absolute ownership of the properties in question. Despite this knowledge, the plaintiff entered into the agreement in question, which, according to our contention, pertains solely to a financial transaction between the plaintiff and defendant No.1. If indeed the plaintiff had paid an

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amount of Rs.1,85,000/-, there should have been no obstacle in taking possession of the properties. Moreover, the defendants did not receive any title deed or revenue records with regard to the suit schedule properties, making it impossible to determine whether these properties were self-acquired, ancestral, or part of a Hindu Undivided Joint Family estate. This lack of intention to execute an Agreement of Sale for the suit schedule properties should have been taken into account by the First Appellate Court. Regrettably, the First Appellate Court did not consider the plaintiff's failure to obtain the title deeds and revenue records for the suit schedule properties. The plaintiff has not obtained the genealogical tree from the defendants at the time of execution of the agreement of sale. If really the plaintiff has purchased the suit schedule properties, he ought to have insisted the defendants to produce the genealogical tree, but they have not done so. It is admitted fact that the suit schedule properties are ancestral properties. Knowing that fully well, the plaintiff has entered into this

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agreement only with defendant Nos.1 and 2. This conduct of the plaintiff reveals that he is not a bonafide purchaser. Further it is submitted that the plaintiff was not ready and willing to perform his part of contract as contemplated under Section 16 of the Specific Relief Act, 1963. The plaintiff has not taken any steps for a period of one year and only in the month of July, has issued notice to the defendants to perform their part of contract. The defendants suitably sent a reply to the notice. Despite, plaintiff filed suit for specific performance of contract, which is not maintainable under law.

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17.7. With regard to hardship is concerned, it is submitted that except these agricultural lands, the defendants and their family members who are already brought on record as appellant Nos.1(a) to 1(c) have no other agricultural landed properties to eke out their livelihood. The entire family of the defendants is depending upon the agriculture income and there is no other avocation to the defendants. Therefore, if the

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impugned Judgment and Decree passed by the first Appellate Court is confirmed, much hardship and inconvenience would be caused to the appellants. This Court has got discretionary power under Section 20 of the Specific Relief Act, 1963 to consider the hardship caused to the defendants. The first appellate Court has also observed that the other co-sharers have right in the suit schedule properties. This finding given by the first Appellate Court has not been challenged by the respondents. The first Appellate Court has failed to appreciate the evidence on record in its proper perspective and the finding of the first appellate Court is opposed to law and facts. Hence, sought for allowing this appeal.

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17.8 To substantiate his argument, he relied on the following decisions:

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(i) In the case of Vareed Jacob v. Sosamma Geevargese and Others , reported in AIR 2004 SC 3992 .

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(ii) In the case of P. Daivasigamani v. S. Sambandan , reported in AIR 2022 SC 5009 .

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(iii) In the case of Smt. Anitha Vaz vs. Sri M. Rangappa since dead by his L.Rs and another , reported in ILR 2007 KAR 3625 .

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SUBMISSIONS ON BEHALF OF RESPONDENTS/PLAINTIFFS:

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On the contrary, the learned counsel representing respondent Nos. 1(a) to 1(f) argued that on 04.04.2014, the appeal was dismissed due to nonfurnishing of paper books. Subsequently, in 2015, the respondent filed an execution petition, marked as Ex.P.No.9/2015, before the Trial Court to execute the Judgment and Decree passed by the first appellate Court. It is worth noting that the appellants engaged an advocate on 02.11.2015 and filed their objections on 21.03.2016.The Executing Court appointed a Court Commissioner to oversee the execution of the Sale Deed. Consequently, the Sale Deed was executed in favor of the respondent, and a delivery warrant was issued on 20.06.2017, with possession being handed over on

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10.07.2017. It is important to mention that the first appellant sadly passed away on 06.02.2021. An application, IA.I/2017, was submitted to seek the condonation of a delay of 1194 days in filing an application to recall the order dated 04.04.2014. This Court approved the application on 10.08.2017. On 03.03.2022, the legal representatives of the respondent were added to the record. As of now, the respondents are in possession of the suit schedule properties.In light of these circumstances, the appellants have failed to establish any grounds that warrant interference with the impugned Judgment and Decree issued by the first appellate Court.

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18.1. The appellants/respondents have not initiated a suit for the cancellation of the agreement on the grounds of coercion, fraud, undue influence, misrepresentation, or other similar factors. Witnesses PWs2 to 4 have clearly testified regarding the execution of the Agreement of Sale and their readiness and

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willingness to fulfill their part of the contract. The date of the agreement of sale is recorded as 07.07.2003, and a one-year period was granted to execute the registered Sale Deed. Before the completion of this one-year period, specifically on 01.07.2004, the plaintiffs issued a notice to respondent No.2 to execute the Sale Deed. This demonstrates that the plaintiffs were consistently ready and willing to perform their part of the contract.It's argued that the defendants raised an objection in their written statement, claiming that the consideration amount was very low. They cited Ex.D.2, which shows the sale of land measuring 29 guntas for Rs.80,000/- on 02.02.2006. However, it's essential to note that as per sub-section (2) of Section 20 of the Specific Relief Act, with reference to Explanation (1), the consideration amount is not the sole determining factor. Therefore, on this ground alone, this Court cannot modify or set aside the impugned Judgment passed by the first appellate Court.

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18.2. The appellants, who are the daughters of the deceased Devanna, have already filed a suit in O.S.No.626/2022 before the Principal Civil Judge, Mandya, seeking partition and separate possession of the suit schedule properties. According to Section 100 of the Code of Civil Procedure, this Court cannot interfere with finding of fact, no matter how erroneous they may seem. When interpreting documents, the contents must be considered in its entirety, and the intentions of parties should be inferred from the document itself. The Court cannot add words that the author of the document did not use.

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18.3. Furthermore, it is argued that the revenue

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entry in the father's name should be viewed as being in a representative capacity. Since the father was the 'Karta' and the 'Manager of the family,' he had the authority to execute the Agreement of Sale/Sale Deed in favor of the plaintiff.It is submitted that Amendment Act, 104 of 1976 makes it mandatory for the High Court to entertain a

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second appeal only if it involves a substantial order. In view of Section 12 of the Specific Relief Act, 1963, even if the daughter refuses to sell the property coming to her share, the father and son can execute an Agreement of Sale to the extent of their share. It is also emphasized that the grant of the relief of specific performance is discretionary and equitable. Considering the facts and circumstances of the case, the first Appellate Court decreed the suit under judicial discretion in accordance with Section 20 of the Specific Relief Act, 1963. The first Appellate Court has properly assessed the evidence on record in accordance with the law and facts. There are absolutely no grounds to interfere with the judgment and decree issued by the first appellate Court. Based on these arguments, the appeal is sought to be dismissed.

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18.4. To substantiate his argument, he relied on the following decisions :

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(a) Pakeerappa Rai Vs. Seethamma Hengsu Dead By Lrs., and Another , (2001)9 SCC 521.

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(b) C. Cheriathan Vs. P.Narayanan Embranthiri , LAWS(SC)-2008-12-147.

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(d) Veerayee Ammal vs. Seeni Ammal , (2002)1 SCC 134.

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(e) Sunil Kumar Vs. Ram Parkash , LAWS(SC)-1988-1-83.

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(f) Kartar Singh vs. Harijinder Singh and Others, AIR 1990 SC 854.

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(g) A. Abdul Rashid Khan (dead) and Others, 2001 AIR SCW 2361.

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REPLY ARGUMENT SUBMITTED ON BEHALF OF APPELLANTS:

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Learned counsel for the appellants submits that appeal was restored to its file on 10.08.2017 and this Court has condoned the delay of 1194 days in filing the application for recalling the order dated 04.04.2014. Same was not questioned/challenged by the respondent.

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As this Court has restored the appeal, the effect

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of the stay order remains in force to this day, and the respondent/purchaser cannot be considered a bona fide

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purchaser. It is worth noting that the suit properties are undeniably ancestral Hindu undivided joint family properties. The respondents, who are the father and son, were not willing to sell the entire suit schedule property. Apart from this property, the appellants do not possess any other properties. There was no intention to sell the property. Given the unique facts and circumstances of this case and the decisions cited by the learned counsel on behalf of the respondents, it is argued that these decisions are not applicable to the case at hand. On these grounds, the appeal is sought to be allowed.

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Having heard the arguments on both sides in length and on perusal of records, so also, having given anxious consideration to the arguments advanced, the following substantial questions of law are formulated by this Court:

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Whether the first appellate court is correct in reversing the judgment of the trial Court taking into consideration the fact which is not forthcoming either by oral or documentary evidence in respect

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of property in the absence of acceptable legal evidence?

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Whether the judgment of the appellate Court is sustainable in the eye of law?

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As per final order.

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After carefully examining the material placed before this Court, it is relevant to note the following:

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The plaintiff filed a suit for specific performance of a contract based on a registered Agreement of Sale dated 07.07.2003. Alternatively, the plaintiff sought the recovery of Rs.1,85,000/- along with interest at the rate of 24% per annum from the date of the Agreement of Sale on 07.07.2003 until the amount was recovered. The Trial Court dismissed the suit for specific performance without costs but decreed the suit for the refund of the earnest money deposit of Rs.1,85,000/- with costs. Additionally, interest was awarded at the rate of 12% per annum from the date of the Agreement of Sale until the date of the decree and at the rate of 6% per annum from

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the date of the decree until its realization. It is pertinent

¶188

to mention that the appellant-defendants in this appeal did not file any appeal against the Judgment and Decree passed by the Trial Court despite the Trial Court's decision to decree the suit for the recovery of the amount of Rs.1,85,000/- with interest. Consequently, there is no need to provide any findings regarding the objections raised by the defendants concerning the earnest money deposit paid by the plaintiff.

¶189

The first appellate Court has allowed the appeal as per the Judgment and Decree dated 08.07.2009 for specific performance of contract, subject to the decision in the partition suit/if any, as observed in paragraphs 44 to 50 of the Judgment. The same read thus :

¶190

“ 44. Point No.6: The learned Counsel for the respondents submitted that the respondents are not the sole owners of the suit schedule properties. In the suit agreement Ex.P.1 it is stated that the suit schedule properties are the self-acquisitions of the 1st defendant. But, inspite of it, both the defendants have jointly executed it. During the course of trial, it is brought out that the suit schedule properties are

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ancestral properties of the 1st. defendant. It has been stated by the plaintiff in the cross-examination (vide page-6) that the suit schedule properties are the ancestral properties of the 1st defendant. It is also brought out in his cross- examination that apart from the 2nd defendant the 1st defendant has two daughters viz., Manjula and Rekha. It is also brought out in the cross-examination of the 1st defendant that the suit schedule properties are his ancestral properties.

¶193

45. Now, the question is whether in view of this admission of the plaintiff himself a decree for specific performance can be granted even though the daughters of the 1st defendant have not joined the defendants in executing the suit agreement. In this connection, reference may be made to a judgment of the Hon'ble Supreme Court reported in A.I.R. 1990 S.C. 854 (KARTAR SINGH VS HARJINDER SINGH). In that case, evidence clearly disclose that the executant of the agreement of sale had only a half share in the property in question. The Hon'ble Supreme Court observed that in a situation like that the vendee had a right to apply for a partition and get the share demarcated.

¶194

46. Reference may also be made to another judgment of the Hon'ble Supreme Court reported in 2001 A.I.R. S.C.W. 2361 (ABDUL RASHID KHAN VS P.A.K.A. SHAHUL HAMID). In that case, it has been held that if the agreement of sale is executed only by some of

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the co- sharers then decree can be passed to the extent of those co-sharers.

¶197

47. By referring to the above two judgments of the Hon'ble Supreme Court and also a few more judgments, what the Court should do in a situation like this has been explained by our Hon'ble High Court in a decision reported in I.L.R. 2007 Kar. 3625 (SMT.ANITHA VAZ VS SRI M.RANGAPPA). The Hon'ble High Court found that the evidence on record in that case did not clearly disclose who were the other sharers. Then, the Hon'ble High Court observed that Court was not powerless to do justice in giving relief to a bona fide purchaser.

¶198

Para-18 of the judgment is very enlightening and it reads as follows:

¶199

"Where the agreement of sale of a family property made by the kartha of the family is challenged by the members of the family on the ground of want of legal necessity and the prospective purchaser is not able to establish the legal necessity, the agreement is enforceable to the extent of share of the contracting party in the family property. In that event, if that share is ascertainable, the decree that can be passed would be in respect of the share of the seller in the property and the purchaser may be asked to apply for partition and get the share demarcated. There may be cases where the members of the seller's family object to the specific performance sought for,

¶200

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but for want of requisite particulars like the properties owned by the family or where the right of the member of the seller's family is not certain, the court may not be in a position to determine whether the claimants have share in the property. Where court finds that the agreement entered into by the plaintiff for purchase of the property is bonafide, but is not certain about the claim of the objector, it would be oppressive to grant partial decree and ask the purchaser to institute a suit for partition to carve out the share of the seller. In such cases, if the plaintiff is already in possession of the property or has been put in possession of the property in part performance of the contract, it will be appropriate to meet the ends of justice to grant decree for specific performance of the agreement as a whole directing that the sale shall be subject to the decision in any subsequent suit for partition in the family. In that event, the alienation in furtherance of specific performance has to be considered, as sale of the right of the seller as may be determined in the subsequent suit."

¶202

48. Now, let me examine the facts of the case in the light of the above decision of the Hon'ble High Court in which reference is available to the cases of ABDUL RASHID KHAN as also KARTAR SINGH. There is no doubt as to who are all the co-sharers. The 1st defendant has two daughters apart from the 2nd

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defendant. It is admitted that the suit schedule properties are ancestral properties. In view of the recent amendment to the Hindu Succession Act, the daughters are also coparceners, But, a few questions would arise for consideration. As on the date of agreement of sale ie.. 7.7.2003, the Central amendment had not yet come into force. We were governed by the Karnataka amendment to the Hindu Succession Act. According to the Karnataka amendment, if the marriage of the daughters had taken place, prior to the commencement of the Amendment of the Act i.e., 30.7.1994, the daughters were not entitled to a share in it. When exactly the marriage of the daughters of the 1st defendant took place is not clear from the evidence. It is suggested to the plaintiff in the cross-examination that their marriage took place about 6-7 years prior to his deposition ie., September, 2007. He has denied the suggestion and has stated that the marriage took place about 8 or 9 years prior to that. With such vague evidence, it would be difficult to say when exactly the marriage of the daughters of the 1st defendant took place. If their marriage had taken place prior to the commencement of the Karnataka Amendment, then as on the date of the suit agreement they were not entitled to a share in the suit schedule properties. The only two sharers viz.. defendants 1 and 2 could have validly executed the agreement.

¶205

49. Supposing the marriage of the daughters had not taken place prior to the Karnataka Amendment, then

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another question would arise whether this agreement of sale which has come into effect prior to the Central Amendment is saved. It is because as per the proviso to sub-sec.(1) of Sec.6 of the Hindu Succession Act as amended by the Central Act 39/05, the amendment will not affect or invalidate an alienation or any disposition which has taken place prior to 20.12.2004. Whether an agreement of sale can be said to be an alienation for purpose of proviso also needs to be considered.

¶208

50. Further, as observed by the Hon'ble High Court in Smt. ANITHA VAZ's case, if the agreement of sale is executed by the Kartha of the family for legal necessity, it binds the other sharers. Whether in this case, the agreement of sale was for legal necessity may also need a consideration. In a suit for specific performance like this, it may be difficult to examine all these aspects. I, am, therefore, of the opinion that all these questions can be left open to be decided in a properly constituted partition suit, if any, to be filed by the members of the family of the defendants. Therefore, following the judgment in Smt.ANITHA VAZ' case only a decree for specific performance could be granted to the plaintiff. It has been observed towards the end of the judgment in ANITHA VAZ's case (vide page-3640) that if a suit were to be filed for partition subsequently in respect of the property covered by the agreement of sale and other family members and the plaintiff were to be made a party to the suit, the sale shall be subject to the decision in

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respect of the share of the 1st defendant in the family properties. In view of all this, I pass the following:

¶211

ORDER

¶212

The appeal is allowed;

¶213

The judgment and decree of the trial Court are set side:

¶214

The respondents-defendants are hereby directed to execute a registered sale deed in favour of the appellant-plaintiff in respect of the suit schedule properties, after receiving the balance sale consideration of Rs.25,00000, which the appellant-plaintiff shall deposit in the trial Court within one month from today:

¶215

The appellant-plaintiff is also entitled to costs of the suit and the appeal from the defendants-respondents.

¶216

The decree for specific performance hereby granted is subject to the decision in the partition suit, if any, that may be filed as observed in para-50 of this judgment. ”

¶217

24. A perusal of the judgment of the first appellate

¶218

Court makes it clear that the finding of the trial Court has

¶219

not been challenged by the respondents. Hence, the finding given by the first appellate Court regarding the share of daughters of Devanna has not been disputed by

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the respondents. Upon examining the evidence presented by both sides, it is evident that the plaintiffs have clearly admitted that the suit properties are ancestral Hindu undivided joint family properties of the defendants and their family members. In view of the recent decision of the Hon'ble Apex Court in the case of Vineeta Sharma v. Rakesh Sharma reported in (2020)9 SCC 1, the daughters, who have now come on record as legal representatives of defendant No.1, are entitled to an equal share in the suit schedule properties. Appellant Nos.1(a) to 1(c) are entitled to an equal share as well. The plaintiff's case is that one Devanna and Nagesh executed this registered Agreement of Sale in favor of the respondents. At the time of the execution of the Sale Deed, appellant Nos.1(a) to 1(c), the deceased Devanna, and Nagesh each had a 1/5^th share in the suit schedule properties. The first appellate Court formed an opinion that the daughters are entitled to a share in the suit schedule properties. Upon reviewing the material presented before this Court and considering the decision

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of the Hon'ble Apex Court in the case of Vineeta Sharma (supra), this Court has concluded that appellants 1(a) to 1(c) and others have equal share in the suit schedule properties. It is relevant to mention here that it is admitted fact that appellants have filed suit in O.S.No.626/2022 on the file of Principal Civil Judge, Mandya for partition and separate possession, same is pending before the said Court. Under the given set of circumstances and findings, I am of the considered opinion that defendant Nos.1 and 2 are not willing and ready to execute the registered sale deed in favour of defendants to the extent of share of the daughters of the defendant No.1.

¶224

Now, I need to analyze the evidence on record to determine whether document Ex.P1, the registered Agreement of Sale executed by Sri Devanna in favor of the defendants, is merely a nominal Sale Deed executed solely for the purpose of securing the amount of Rs.1,85,000/- borrowed by the defendants, as held by

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the Trial Court or to ascertain whether this document was executed by the defendants in favor of the plaintiff with the intention to sell the suit schedule properties. Upon a careful examination of Ex.P.1, the registered Agreement of Sale, it becomes evident that description (4) of the suit schedule properties is provided with boundaries and extent. However, this agreement does not mention the standing crops or trees growing on the said land. The plaintiffs did not make any claim or assertion regarding the standing crops or trees in the suit schedule properties.

¶227

During the pendency of the suit, the plaintiff filed a complaint against the defendants, as evidenced by Ex.P10, a copy of the complaint, filed against the defendants. This complaint was also accompanied by an endorsement issued by the Sub-Inspector of Police, Rural Police Station, Mandya, regarding the cutting of standing crops in the suit schedule properties. In addition to this, the plaintiff submitted an application before the Trial

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Court on 09.08.2004 under Order XXXIX Rule 1 and 2,

¶230

read with Section 151 of the Code of Civil Procedure, against the defendants, requesting them not to cut or remove the standing trees in the suit schedule properties. These trees included 3 tamarind trees, one Gobbali tree, 1 Byala tree, 4 Neem trees, 1 Baage tree, and 14 Honge trees in Sy.Nos.8/1 and 9/1 situated at Uaramarakasalagere village, Kothathi Hobli, Mandya, as well as Sy.No.7 measuring 22 guntas. The trial Court granted the injunction against the defendants, preventing

¶231

them from cutting and removing the standing trees in the suit schedule properties until the suit's resolution. Additionally, the plaintiff presented photographs of the trees standing on the suit schedule properties. Moreover, during the examination-in-chief, P.W.1 clearly stated that there were standing trees on the suit schedule properties. Defendant No.1 also mentioned the standing trees in the suit schedule properties in his written statement and provided his testimony as DW1. It is apparent that the aforementioned trees were indeed present on the suit

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schedule properties, but there is no reference to them in Ex.P1. The plaintiff did not provide any explanation for this omission in the pleadings or evidence, nor did they clarify why the standing trees, open well, and pump-set were not mentioned in the schedule of Ex.P1. This significant omission regarding the failure to mention the standing trees, open well, and pump-set raises doubts about the intention of the defendants to execute the Agreement of Sale Ex.P1 in favor of the plaintiff.

¶234

It is an admitted fact that the suit schedule properties are ancestral Hindu undivided joint family properties. P.W.1 has clearly acknowledged this fact in his evidence. Furthermore, he has affirmed his knowledge about the daughters of defendant No.1, Devanna. P.W.1 has also explicitly stated in his testimony that he owns property adjacent to the suit schedule properties, and he is aware of the existence of trees on the suit schedule properties as on the date of the Agreement of Sale. He additionally admits that the value

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of the trees is not included in the suit schedule properties.

¶237

If the plaintiff indeed had the intention to purchase the suit schedule properties from the defendants, who were well-acquainted with the family, the plaintiff should have sought the signatures of the daughters of defendant No.1, who are entitled to an equal share in the suit schedule properties. However, the plaintiff obtained the signatures of only defendant Nos.1 and 2 on Ex.P1. The plaintiff has not alleged anything regarding the lack of consent or signatures from the daughters of defendant No.1 on Ex.P1. This conduct of the plaintiff appears to contradict the behavior of an ordinary prudent purchaser. Consequently, the plaintiff's conduct itself lends support to the defence of the defendants, which asserts that the defendants executed this Agreement of Sale solely as security for the loan of Rs.1,85,000/-, as ruled by the trial Court. A plain reading of Ex.P1 in paragraph No.2 it is clearly stated

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that, ”K£ÉAzÀgÉ £ÀªÀÄä ¨Á§ÄÛ £ÀªÀÄä°è r.zÁåªÀtÚ DzÀ £À£Àß ºÉ¸ÀjUÉ

¶240

¸ÀéAiÀiÁfðvÀªÁV §AzÀÄ CAzÀgÉ JA.Dgï.99/95-96 ªÀÄvÀÄÛ JA.Dgï.16/95-96gÀ ¥ÀæPÁgÀ SÁvÉAiÀiÁV ºÁ° £ÀªÀÄä ¸Áé¢üÃ£Á£ÀÄ¨sÀªÀzÀ°ègÀÄªÀ µÉqÀÆå¯ï ¸ÀévÀÛ£ÀÄß £ÀªÀÄä ¨Á§ÄÛ zÀgÀzÀÄ ¤«ÄvÀåªÁV CAzÀgÉ PÉ®ªÀÅ ªÀÄÄ¨sÉÊ¸Á®UÀ¼À£ÀÄß wÃj¸À®Ä ºÁUÀÆ ªÀåªÀ¸ÁAiÀÄzÀ RaðUÀÆ ¸ÀºÀ ¤ªÀÄUÉ UËgÀßªÉÄAmï EA¢£À ªÀiÁPÉðmï ¨É¯É 2,10,000=00 (JgÀqÀÄ ®PÀëzÀ ºÀvÀÄÛ ¸Á«gÀ) gÀÆ¥Á¬ÄUÀ½UÉ ±ÀÄzÀÞ PÀæAiÀÄPÉÌ PÉÆqÀ®Ä M¦à F §UÉÎ CqÁé£ÁìV F PÀgÁgÀÄ ¥ÀvÀæPÉÌ ¸ÁQë ºÁQgÀÄªÀªÀgÀ ªÉÆPÀÛ ¤«ÄäAzÀ £ÀUÀzÁV 1,85,000=00 (MAzÀÄ ®PÀëzÀ JA¨sÀvÉÛöÊzÀÄ ¸Á«gÀ) gÀÆ¥Á¬ÄUÀ¼ÀÄß

¶241

¥ÀqÉzÀÄPÉÆArgÀÄvÉÛÃªÉ.”

¶242

The contents of this Ex.P1 which is not disputed

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by the plaintiff clearly reveals the intention of defendants to execute the Sale Deed in favour of plaintiff. It is specifically mentioned in this document that the defendants have executed this Agreement of Sale for discharging their debts and for agricultural expenses. The defendants have clearly pleaded in the written statement that if the suit schedule properties are sold, the defendants and other share holders of the family of the defendants will become landless and will be driven to

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street. These contents of the written statement have not been disputed by the plaintiff. It is not the case of the plaintiff that the defendants and their family members have got other landed properties. If the defendants and their family members have other landed properties other than the suit schedule properties, this Court would have accept the contents of documents that the defendants have executed this Agreement of Sale in favour of the plaintiff for the purpose of discharging their debts and also for agricultural purpose. Except these suit schedule properties, defendants and their family members have not landed properties and such being the case the contents of document-Ex.P1 itself reveals that defendants have borrowed the loan of Rs.1,85,000/- only for the purpose of discharging their debts and also for the agricultural expenses i.e. the suit schedule properties. Accordingly, the contents of this Ex.P1 itself reveals as to the execution of the Agreement of Sale only for given security to the loan amount of Rs.1,85,000/- as held by the Trial Court. The first appellate Court has not

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appreciated the contents of documentary evidence which is not disputed by the plaintiff in accordance with law.

¶248

The plaintiff filed the suit on August 9, 2004. At the time of filing the suit, the plaintiff did not produce the certified copy of the current mutation extract or RTC extracts pertaining to the suit schedule property, as required under Section 132 of the Karnataka Land Revenue Act, 1964, since the suit pertains to agricultural land. The concerned ministerial officer of the trial Court should have raised office objections regarding this matter. Unfortunately, no objections were raised concerning the current mutation extract or RTC extracts related to the suit schedule property by the officer. Both Courts did not address this issue. However, it is important to note that there is no dispute between the parties regarding the ownership of these properties. Nevertheless, the plaintiff did not comply with the mandatory provisions of Section 132 of the Karnataka Land Revenue Act. The plaintiff presented Exhibit P12, RTC extracts related to the suit schedule property in Survey No.8/2, 8/1-P1, 9/1, and 7 of Uramara Kalasageri village. These RTC extracts pertain to the year 2007-08. However, the plaintiff failed to produce the

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mutation extract or RTC extract for the year 20032004.Moreover, the plaintiff did not plead anything in the plaint regarding whether the defendants had handed over the title deeds, mutation extract, or record of rights related to the suit schedule properties as of the date of the Agreement of Sale. The plaintiff also did not mention anything about this in their evidence. If the plaintiff was indeed a bona fide purchaser of the suit schedule property, they should have verified the title, mutation extract, record of rights, etc. as on the date of Registered Sale Agreement. This conduct of the plaintiff indicates that the defendants had no intention to sell the suit schedule property and had executed the registered Agreement of Sale solely as collateral security for the loan amount of Rs.1,85,000/-.

¶251

Exhibit P12-RTC extract, reveals that the suit schedule property is listed in the name of Dyavaiah, son of Devaiah, also known as Thammaiah, who is defendant No.1. The name of defendant No.2 does not appear in the RTC extract. Additionally, the names of the daughters, who are now appellants 1(a) to 1(c) in the present appeal following the death of defendant No.1, are also not mentioned in

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Exhibit P12. It is an admitted fact that the plaintiff was wellacquainted with the family of the defendants. However, the plaintiff obtained the signatures of both defendant No.1, D.Dyavanna, and Defendant No.2, Nagesh. The plaintiff has not provided any explanation as to why he obtained the signature of defendant No.2, especially when defendant No.2's name is not recorded in the revenue records. This conduct of the plaintiff also suggests that he obtained Exhibit P1, the Agreement of Sale, solely as collateral security for the loan amount.

¶254

Section 20 of Specific Relief Act, 1963 which deals with Discretionary power of the Court, reads as under:

¶255

“ 20. Discretion as to decreeing specific performance.— (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.

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(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:—

¶257

(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract

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was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

¶260

(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or

¶261

(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1.—Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2.— The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.

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(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

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(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party. ”

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In the case of Ramesh Chand (dead) through legal representatives v. Asruddin (dead) through legal representatives and Another reported in (2016)1 SCC 653 , it is held that specific relief is discretion of courts, merely because it is lawful to grant specific relief, courts are not bound to grant the same. Discretion of court should not be arbitrary but needed to be guided by sound judicial principles. Specific relief cannot be granted where conduct of parties or circumstances under which contract was entered into, not being voidable, gives unfair advantage to plaintiff over defendant. At paragraph 8 of the judgment it is observed thus:

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“ 8. Section 20 of Specific Relief Act, 1963, provides that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so. However, the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles. Subsection (2) of Section 20 of the Act provides the three situations in which the court may exercise discretion not to decree specific performance. One of such situation is contained in clause (a) of sub-section (2) of the Section which provides that where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the

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contract was entered into or such that the contract though not voidable, gives the plaintiff an unfair advantage over the defendant, the decree of specific performance need not be passed. It is pertinent to mention here that in the present case, though execution of agreement dated 21.06.2004 between the parties is proved, but it is no where pleaded or proved by the plaintiff that he got redeemed the mortgaged land in favour of defendant No. 2 in terms of the agreement, nor is it specifically pleaded that he was ready and willing to get the property redeemed from the mortgage. ”

¶269

In the case of Dharmabiri Rana v. Pramod

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Kumar Sharma (dead) through legal representatives and another reported in AIR 2017 SC 5431 , at paragraph 11 of the judgment, it is observed thus:

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“ 11. The Court can order specific performance of an agreement only when it is proved that a person allegedly executing an agreement to sell has right of transferring the property. When defendants have denied their entitlement and right, title and interest in the suit property, the said question was necessary to be answered before decreeing the suit. The trial court after noticing the said pleading on behalf of the defendants did not enter into this question or returned any finding that defendants are owner of the suit property. Further, essential findings pertaining to right of the defendant to transfer the property being not there, the passing of a decree of specific performance was clearly erroneous.

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The Appellate Court has rightly set aside the decree of specific performance of contract after recording the finding that defendant No.1 is not the owner of the property. It is not proved that any power of attorney was executed so as to enable defendant No.2 to enter into agreement to sell and further the execution of agreement has also not been proved. Although, copy of alleged power of attorney dated 04.11.1986 which is admittedly an unregistered document has been filed by appellant before this Court as Annexure-P12, but both the Courts having not considered the same, it is not necessary for this Court to consider the same in this Civil Appeal. ”

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This Court, in the case of Khanderao Subbarao

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Nadagir v. Hulagavva and others reported in AIR 2003 KAR 354, at paragraph 14 of the judgment, observed thus:

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“ 14. Insofar as the exercise of discretion is concerned, the stage would have arisen only when the plaintiff had established his case and when the Court had found that the agreement was binding on the legal representative/successors to the estate of land Fakirappa or even if the property was a joint family property that it was for the family needs and necessities that it had been agreed to be sold. The trial Court though held that to the extent of share of Fakirappa, agreement could bind and could be enforced, found it not possible to direct specific performance of the entire property as the property could not be divided into such small portions and it is on this aspect that the trial Court has exercised discretion in not decreeing the suit, even to the extent of

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the share of late Fakirappa in the suit schedule property. ”

¶279

The learned counsel representing the

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Plaintiffs/respondents has contended that the defendants have urged that the suit schedule property is valuable, and if a decree for specific performance were to be granted, it would cause greater hardship and the defendants have also presented Exhibit D2, a certified copy of a Sale Deed executed by K.C. Puttegowda and his family in favor of Mahadeva on February 2, 2006. According to this Sale Deed, 28 guntas of land in Uramara Kalsageri, the village where the suit schedule property is located, was sold for a consideration of Rs. 80,000/-. When considering Exhibit P, the Agreement of Sale in question, the value of the suit schedule property would be more than Rs. 3.00 lakh. Exhibit D2 was executed in 2006, and the sale of 28 guntas of land for Rs. 80,000/- translates to a rate of Rs. 2,856/- per gunta. Based on this, the defendants argue for the dismissal of the suit.In this regard,

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the learned counsel for the respondent referred to the provisions of Explanation (1) to Section 20 of the Specific Relief Act, 1963, and cited the decisions of the Hon'ble Supreme Court in the cases of M.S. Madhusoodhanan and

¶282

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Another v. Kerala Kaumibi Private Limited and Others

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reported in AIR 2004 SC 909; and in the case of Nirmala Anand v. Advent Corporation (Private) Limited reported in AIR 2002 SC 2290 . Relying on these judgments and Section 20 of the Specific Relief Act, the Appellate court correctly observed that mere inadequacy of consideration or the fact that the contract is onerous or improvident in nature does not constitute an "unfair advantage" under clause (a) or "hardship" under clause (b) as defined in the Act. Therefore, the arguments put forth on behalf of the Plaintiffs/Respondents cannot be accepted for these reasons.

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37. Regarding the issue of hardship, the first appellate court has made it clear that the first defendant (deceased) had two daughters, in addition to the second defendant, and the suit schedule properties are ancestral in nature. The daughters are also co-parceners due to the Karnataka amendment to the Hindu Succession Act in effect at the time of the Agreement of Sale dated July 7, 2003. Furthermore, in accordance with the decision in Vineeta Sharma (supra), the

¶286

daughters are entitled to an equal share in the suit schedule property since no partition had occurred within the family of

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the defendants. Therefore, it is evident that the daughters of the deceased defendant No.1 have a one-fourth share in the suit schedule property. Defendants 1 and 2 have no authority to execute a sale deed to the extent of share belonging to the daughters. If the plaintiff's suit is decreed for specific performance of contract with respect to the shares of the deceased defendants No.1 and 2, who each have a one-fifth share in the suit schedule properties, then the division of the suit schedule properties may not be practical. The extent of the suit schedule property in Survey No.8/2 of Schedule 1 is only 16 gunta, in Survey No.8/1, it is 0.69 gunta, in Survey No.9/1, it is 26½ guntas, and in Schedule item 2 Survey No.2, it is only 22 gunta. Dividing the land to account for the shares of deceased defendants 1 and 2 would result in small, fragmented plots of land for the plaintiffs and the daughters of defendant No.1. Cultivating such small plots effectively for agriculture would be challenging for the defendants. Additionally, there are standing trees on the suit schedule lands, and an open well with a pumpset, which are not reflected in Exhibit P1, the registered Agreement of Sale. Therefore, if the land were divided based on the shares of

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defendants 1 and 2, it would cause significant hardship to the defendants. The question of hardship, if the specific performance is granted has not been considered by the first appellate court in the matter of exercise of discretionary power of grant of decree of specific performance, it is necessary that the hardship that may cause to the land owner, that too being a farmer have no other lands for cultivation and livelihood, if the decree of performance is granted is paramount consideration and the court can explore granting of suitable compensation infavour of the plaintiff.

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38. As previously discussed, the defendants have no other agricultural lands apart from the ones in question to sustain their livelihood. The extent of land mentioned in Exhibit P1 indicates that the defendants entered into the agreement primarily to settle their debts and for agricultural development of the suit schedule lands. Furthermore, the plaintiff in the initial complaint sought an alternative remedy of recovering Rs.1,85,000/- along with interest at the rate of 24% per annum. If specific performance of the contract is deemed unfeasible due to the extent of the suit schedule property, it is not practical to sub-divide the land. Additionally,

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the defendants had not delivered possession of the suit lands as of the date of the registered Agreement of Sale. Therefore, if a decree for specific performance were to be granted, it would cause significant hardship to the defendants. The Agreement of Sale was executed on July 7, 2003, and the plaintiff filed the suit on August 9, 2004. The suit was dismissed for specific performance but decreed for the recovery of money on November 21, 2008. Displeased with this judgment and decree by the trial Court, the plaintiff appealed in Regular Appeal No. 5 of 2009 before the Additional District and Sessions Judge, Mandya, on January 2, 2009. The first appellate court allowed the appeal and set aside the judgment and decree of the trial Court. It directed the defendants to execute a Registered Sale Deed in favor of the plaintiff for the suit schedule property after receiving the remaining sale consideration of Rs.25,000/-.

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39. Being aggrieved by this judgment and decree of the first Appellate court, this Second Appeal is presented on 15^th October, 2009. On 08^th September, 2010, this Court has admitted the appeal and formulated following substantial question of law and also granted interim stay. That on 04^th

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April, 2014, this appeal was dismissed on the ground that paper-book was not filed. Thereafter, Application in IA.I of 2017 was filed on 04^th April, 2014 and the same was allowed by this Court on 10^th August, 2017. On 16^th August, 2017, IA.III of 2017 was filed by the appellants, but the same was dismissed by this Court on the basis of the submission made by the appellants that the Execution Petition was filed by the respondent and deliver possession is also secured by getting the sale deed executed in favour of the plaintiff in the original suit. During the pendency of this case, the first appellant expired on 27^th February, 2022 and the legal representatives of the first appellant were brought on record on 03^rd September, 2022. Learned counsel appearing on behalf of the appellants submits that when the appeal is restored, all interlocutory applications and their operation during the pendency between the dismissal of the suit for default and restoration, shall stand revived and that once the dismissal is set aside, the plaintiff must be restored to the position in which he was situated as prior to dismissal of appeal for default. Therefore, it follows that the interim orders which have been passed before the dismissal would stand revived

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along with the suit when the dismissal is set aside and the suit is restored unless the Court expressly or by implication excludes operation of interim orders passed during the period between the dismissal of the appeal and its restoration. To substantiate his submissions, the learned counsel relied upon the judgment of Hon'ble Supreme Court in the case of Vareed Jacob (supra).

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40. In the case on hand, as already discussed, the stay was granted as sought for by defendants on 08^th September, 2010 and appeal was dismissed for non-filing of paper book on 04^th August, 2014. Therefore, interlocutory applications were filed and same were allowed. It is not in dispute that when the appeal was dismissed by this Court, the plaintiff had filed Execution Petition and the same was allowed by the trial Court. Since the appeal was restored to its original file by this Court, same will not affect the right of the parties. Though the executing Court has executed the sale deed in favour of the respondents, the same would not confer any right or title over the suit schedule property and the same is always subject to the decision of this Court. Hence, on this ground

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the respondents cannot take advantage of the execution of sale deed by the Court before the same attaining finality.

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41. Considering the alternative prayer of the plaintiff, the trial Court decreed the suit for the recovery of Rs.1,85,000/- along with costs and interest. It awarded interest at the rate of 12% per annum from the date of filing the suit until the date of the decree, and at the rate of 6% per annum from the date of the decree until realization. In light of the order issued by the Executing Court, the plaintiff has already taken possession of the suit schedule properties. The plaintiff has enjoyed the benefits of the suit schedule properties. Given the prevailing interest rates on Fixed Deposits in Nationalized Banks from 2003 to the present and rate of interest on commercial transactions, it is just and appropriate to decree the amount at 18% per annum from the date of the execution of the registered agreement on July 7, 2003, until its realization.

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42. Following the judgment and decree issued by the trial Court, on August 6, 2009, the plaintiff filed an application under Section 151 of the Code of Civil Procedure before the first Appellate Court. The purpose of this application was to

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seek a set-off for the amount of Rs.25,000/-, which the plaintiff was required to deposit as the balance sale consideration, against the amount of costs payable to the defendants. The costs payable to the plaintiff by the defendants amounted to Rs.36,498/-. This application was contested by the present appellants. On August 19, 2009, the Court issued an order allowing the plaintiff's application under Section 151 of the Code of Civil Procedure. It was determined that a set-off should be granted for the balance sale consideration of Rs.25,000/-, which the appellant was obligated to deposit in accordance with the judgment and decree issued by the first appellate Court and was payable to the appellant by the respondent. Therefore, with the set-off in place for the balance consideration amount of Rs.25,000/-, it is evident that the defendant/appellants are now liable to pay only the amount of Rs.1,85,000/- along with interest.

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43. Keeping in mind Order VII Rule 7 of the Code of Civil Procedure, I have carefully examined the decisions relied upon by the learned counsel appearing for the parties, so also, with an understanding that the these reliefs are the equity

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reliefs which are meant to meet the justice ultimately. Order VII Rule 7 of Code of Civil Procedure, reads as under:

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7. Relief to be specifically stated.- Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the court may think just to the same extend as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.

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One of the Latin maxims associated with equity courts is "Aequitas sequitur legem," which means "Equity follows the law." This maxim reflects the idea that while equity courts provide remedies that go beyond strict legal rules, they should still be consistent with and complementary to established legal principles. In other words, equity is not meant to be in conflict with the law but to act in harmony with it, filling in the gaps and providing remedies when the law falls short , and also based on the principles laid down in the decisions cited by the learned Counsel, I answer points 1 and 2 in the negative.

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45. In the result, I proceed to pass the following:

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O R D E R

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Regular Second Appeal under Section 100 of the Code of Civil Procedure is allowed;

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The judgment and decree dated 08^th July, 2009 passed in Regular Appeal No.5 of 2009 on the file of Additional District Judge, Mandya is set aside; Consequentially the sale deed executed by the trial court in favour of respondents/plaintiffs during the pendency of this appeal is hereby cancelled.

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Respondents 1(a) to (f), i.e. legal representatives of deceased plaintiff, are entitled for the expenses incurred towards the registration of sale deed which is paid for registration and also stamp duty with interest of 18% per annum from the date of registration of sale deed, till the realization.

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The judgment and decree passed in O riginal Suit No.149 of 2004 on the file of Principal Civil

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Judge (Sr.Dn.) and CJM, Mandya is modified as under:

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(i) The suit of the plaintiff/Respondents 1(a) to (f) against the defendants for relief of specific performance of contract is dismissed;

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(ii) The suit of the plaintiff/Respondents 1(a) to (f) for refund of earnest money of Rs.1,85,000/- is decreed with costs throughout;

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(iii) Plaintiff/Respondents 1(a) to (f) are entitled for recovery of advance of Rs.1,85,000/- from the defendants with interest at the rate of 18% per annum from the date of execution of Registered Agreement of Sale dated 07^th July, 2003 till the date of realisation;

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(iv) Defendants/appellants 1(a) to (c) and 2 are directed to deposit the above said decretal amount within 90 days from the date of decree passed by this Court;

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(v) Respondents 1(a) to (f) /Plaintiff are hereby directed the deliver the

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possession of the suit schedule properties in favour of the appellant/defendants 1(a) to (c) and 2 within 90 days from the date of decree passed by this Court;

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(vi) Registry to draw the decree accordingly and transmit the copy of this judgment and decree along with trial Court records to the concerned courts.

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(vii) Draw decree accordingly.

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Sd/JUDGE

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ckk/lnn

Devanna S/O Dyavaiah @ Thammaiah v. Dyavaiah S/O Rajaiah Since Dead by Lrs

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Devanna S/O Dyavaiah @ Thammaiah v. Dyavaiah S/O Rajaiah Since Dead by Lrs

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