Second appeal by heirs of a deceased vendor against a decree for specific performance of a registered sale agreement. The court held that pendency of a separate partition suit did not bar the decree, since the vendor had alienable rights and his share-sale would bind co-sharers, and dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:10389 RSA No. 1267 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1267 OF 2018 (SP)
BETWEEN:
SINCE DECEASED REP. BY LRs
Digitally signed by SUMA B N Location: High Court of Karnataka
ALL ARE R/AT CHIKKAMANDYA VILLAGE, KASABA HOBLI, MANDYA DISTRICT-571 401.
…APPELLANTS
AND:
SRI RAJESH S/O C R SHANKAR AGED ABOUT 40 YEARS R/AT CHIKKAMANDYA VILLAGE KASABA HOBLI MANDYA DISTRICT-571 401.
…RESPONDENT
(BY SRI. ANAND K.V., ADVOCATE FOR SRI. ROHITH GOWDA, ADVOCATE)
RSA FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 17.02.2018 PASSED IN R.A.NO.122/2013 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANDYA, DISMISSING THE APPEAL AND UPHOLDING THE JUDGMENT AND DECREE DATED 04.09.2013 PASSED IN O.S.NO.79/2009 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, MANDYA. TRAIL COURT DECREED THE SUIT. APPELLATE COURT DISMISSED THE APPEAL. THE SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Legal representatives being class-II heirs of appellant No.1 are before this Court after death of defendant No.2Doddathayamma aggrieved by the judgment and decree dated 04.09.2013 passed in O.S.No.79/2009 on the file of
the Principal Civil Judge, Mandya (hereinafter referred to as 'Trial Court' for short) which was confirmed by the
judgment and order dated 17.02.2018 passed in R.A.No.122/2013 on the file of the I Addl. Senior Civil Judge and CJM, Mandya (hereinafter referred to as 'First Appellate Court' for short).
deed of sale, consequently plaintiff caused issue of notice calling upon the defendants to execute and register the deed of sale by receiving balance sale consideration of Rs.25,000/-.
the plaint averments and also denied the very execution of sale agreement and receipt of sale consideration of Rs.50,000/- out of Rs.75,000/- as contended in the plaint. It is contended that one K.M.Ramesha, S/o Marigowda is the son of his sister of defendant No.1 and by name one Sri. Naga, S/o Chikkannappana Boraiah who is also another relative of defendant No.2 had taken both
NC: 2024:KHC:10389 RSA No. 1267 of 2018
defendants to the Office of the Sub-Registrar on the alleged date of agreement for the purpose of change of katha of the schedule property from the name of the mother of the defendant No.1 in their favour. Defendants affixing their signatures and executed document under bonafide belief that the said documents are required for the purpose of change of katha without noticing the contents of the said document.
the said property is more than 5 Lakhs at the time of entering into the agreement. That plaintiff colluding with the witnesses had concocted the documents. It is also contended that there was already a suit in O.S.No.25/2009 filed in respect of the very same property
by the niece of the defendant No.1 seeking partition and separate possession of the property and that the plaintiff and defendants in the present suit were also party to the said suit in O.S.No.25/2009 and the said suit is pending consideration. Hence, sought for dismissal of the same.
filing of the suit in O.S.No.25/2009. It is contended that suit property originally belonging to the mother of the defendant No.1 namely, Siddalingamma who during her lifetime had executed a Will on 12.07.1989. In terms of which, defendant No.1 and his brother Ramakrishna had acquired the title and interest over the suit schedule property. That Siddalingamma along with Ramakrishna had also sold 28 guntas of land in favour of one Venkatesha and for the remaining property, defendant No.1 had executed a sale agreement in favour of the plaintiff. That the Ramakrishna had obtained change of katha in respect of portion of the property which acquired by him. That defendants being owners of 26.08 guntas of land executed a sale agreement with respect to 13.08 guntas of land. Allegation for creation of said agreement
produced by the witness is denied by the plaintiff and sought for allowing of the suit.
7. Based on the pleadings the Trial Court framed
the following issues for its consideration;
NC: 2024:KHC:10389 RSA No. 1267 of 2018
1) Whether the plaintiff proves that the defendants had agreed to sell the suit schedule property for Rs.75,000/- and executed agreement to sell dated 15/2/2007 in his favour?
2) Whether the plaintiff proves that the defendants as on the above said date have received Rs.50,000/- as part sale consideration amount?
3) Whether the plaintiff proves that he is ready and willing to perform his part of the contract?
4) Whether the plaintiff is entitled for the relief as sought for?
5) What decree or order?"
two witnesses examined as PW.2 and PW.3 and exhibited
ten documents, marked as Ex.P1 to Ex.P10. Defendant No.1 got himself examined as DW.1 and one witness examined as DW.2. On appreciation of the evidence Trial
Court had answered the issue Nos. 1 to 4 in the affirmative and consequently decreed the suit directing the defendants to execute the registered deed of sale by receiving balance sale consideration of Rs.25,000/conveying the suit schedule property in favour of the plaintiff within three months.
regular appeal in R.A No.122/2013. Considering the grounds urged in the memorandum of appeal, First Appellate Court framed the following points for its consideration;
"1.Whether the impugned judgment and decree in O.S.No.79/2009 dated 04.09.2013 on the file of Prl. Civil Judge and JMFC, Mandya needs any interference.
Appellate Court answered the point No.1 in the negative and consequently dismissed the appeal confirming the judgment and decree of the Trial Court.
NC: 2024:KHC:10389 RSA No. 1267 of 2018
the appeal to consider the following substantial question of law;
"Whether the Courts below are justified in decreeing the suit for specific performance and confirming the same despite the pendency of the suit in O.S.No.25/2009"
NC: 2024:KHC:10389 RSA No. 1267 of 2018
of the original deceased defendant No.1 to execute the said agreement is also being considered in the said appeal.
the respondent justifying the judgment and decree passed by the Trial Court submits that pendency of the said suit in O.S.No.25/2009 has nothing to do with the issue involved
in the present suit and he submits that original defendants having passed on, issue with regard to the hardship cannot be considered. It is his further submission that the suit in O.S.No.25/2009 having been dismissed, nothing remains for consideration. Hence, seeks for answering the substantial question of law in favour of the plaintiff.
NC: 2024:KHC:10389 RSA No. 1267 of 2018
as the suit for partition in O.S.No.25/2009 filed by the
niece and nephew of the defendant No.1 who are the appellants 1(a) to (c) in this appeal, is pending consideration, the passing of the decree of specific performance would adversely affected the interest and therefore, Trial Court and the
First Appellate Court ought not to have passed the judgment of specific performance. The said submission cannot be countenance for more than one reason;
firstly , there is no dispute that defendant No.1 had his share, right, interest over the suit schedule property and he was capable of entering into an agreement to dispose of the property;
secondly , even if the appellants 1(a) to (c) who are plaintiffs in O.S.No.25/2009 are able to prove their share, right, title in the said suit, the alienation made by the defendant No.1 in favour of the plaintiff cannot be held to be void ab initio ; and
NC: 2024:KHC:10389 RSA No. 1267 of 2018
thirdly , even if it is held that defendant No.1 was
member of the joint family the sale to the extent of his share would be binding on the other members of the family.
the First Appellate Court have committed no error in decreeing the suit for specific performance as sought for by the plaintiff. Since there is no other grounds urged, substantial question of law is answered accordingly. Appeal is dismissed.
NC: 2024:KHC:10389 RSA No. 1267 of 2018
Notwithstanding dismissal of the appeal, it is made
clear that appellants 1(a) to (c) are at liberty to prosecute their suit in O.S.No.25/2009 and avail such remedy as may be available under law.
Sd/JUDGE
RU, List No.: 2 Sl No.: 37
1 issue framed by the court
Were the courts below justified in decreeing specific performance despite the pendency of partition suit O.S.No.25/2009 over the same property?
1 provisions across 1 enactments
Doddathayamma (deceased), rep. by LRs Vasantha R., Ashwini, Hemanth Kumar
Rajesh
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
