Allowed

Sri T M Siddaraju v. Sri T S Rajashekhara Murthy

Karnataka HC16 Oct 2024RSA/150/2013

Case brief

AI extract

What is this about?

In a second appeal, the High Court of Karnataka allowed the appeal and restored the trial court's decree for specific performance. The court held the first appellate court erred in reversing the decree based on the unregistered status of the agreement or lack of part performance, as Section 53-A of the Transfer of Property Act was not applicable. The appellant was granted relief with costs.

What did the court decide?

First appellate judgment and decree set aside; judgment and decree of Trial Court restored; appeal allowed with costs.

Sri T M Siddaraju Vs Sri T S Rajashekhara Murthy — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC:41877 RSA No. 150 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16^TH DAY OF OCTOBER, 2024 BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 150 OF 2013 (SP)

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BETWEEN:

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SRI T.M. SIDDARAJU, S/O MAHADEVAPPA, AGED ABOUT 37 YEARS, THALLUR VILLAGE, JAYAPURA HOBLI, MYSORE TALUK.

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… APPELLANT

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(BY SRI K.CHANDRANATH ARIGA, ADVOCATE)

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AND:

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SRI T.S. RAJASHEKHARA MURTHY, S/O LATE SIDDAPPA, AGED ABOUT 67 YEARS,

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SMT. NAGAMMA, W/O RAJASHEKARA MURTHY, AGED ABOUT 53 YEARS,

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Digitally signed by ANUSHA V Location: High Court of Karnataka

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SRI T.R. MANJUNATHA, AGED ABOUT 32 YEARS, S/O RAJASHEKARA MURTHY,

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RESPONDENTS NO.1 TO 3 ARE R/A THALLUR VILLAGE, JAYAPURA HOBLI, MYSORE TALUK - 570 024.

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SMT. MANJULA, W/O SHANTHA MURTHY, AGED ABOUT 42 YEARS, DOOR NO.CH-11,4^TH CROSS, 5^TH MAIN, JAYANAGARA, MYSORE - 570 014.

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SMT GEETHA, W/O DORE SWAMY, AGED ABOUT 40 YEARS,

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2 - NC: 2024:KHC:41877 RSA No. 150 of 2013

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HULLAHALLI VILLAGE, NANJANGUD TALUK, MYSORE DISTRICT - 571 301.

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SMT. AMBUJA, W/O SHIVAMURTHY, AGED ABOUT 38 YEARS, MUSAMBAYANAHALLI VILLAGE, VARUNA HOBLI, MYSORE TALUK - 570 024.

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…RESPONDENTS

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(BY SRI N.KUMAR, ADVOCATE FOR R4 TO R6; R1, R2 & R3 ARE SERVED)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 9.11.2012 PASSED IN R.A.NO.243/2012 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-IV, MYSORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 9.4.2012 PASSED IN O.S.NO.934/2005 ON THE FILE OF JUDGE, COURT OF SMALL CAUSES AND SENIOR CIVIL JUDGE, MYSORE.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging judgment and decree dated 09.11.2012 passed by Presiding Officer, FTC-IV, Mysuru, in RA.no.243/2012, this second appeal is filed.

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Sri K Chandranath Ariga, learned counsel for appellant submitted, appeal was by plaintiff in O.S.no.934/2005 filed for relief of specific performance of agreement of sale dated

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3 - NC: 2024:KHC:41877 RSA No. 150 of 2013

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30.01.2005 executed by defendants no.1 to 3 in favour of plaintiff in respect of 'suit property' i.e., 2 acres out of total extent of 7 acres of land bearing Sy.no.57 situated at Thalur village, Jayapura Hobli, Mysuru Taluk, bounded East by land of T.P. Nanjundappa, West by Government Gani, North by Remaining portion of land owned by defendants and South by Road. Suit property belonged to defendant no.1 and defendants no.2 and 3 are wife and son of defendant no.1 respectively. On 30.07.2005 an agreement of sale was executed in respect of said property in favour of plaintiff for a total consideration of Rs.2,60,000/-. After receiving advance amount of Rs.1,00,000/- and agreeing to execute registered sale deed within three months by receiving balance sale consideration. It was submitted when defendant had sought more time than stipulated in agreement, plaintiff got issued legal notice dated 20.10.2005 calling upon defendants no.1 to 3 to come forward and execute registered sale deed by receiving balance sale consideration. Said notice was served on 24.10.2005. When defendants failed to comply, suit was filed on 22.11.2005.

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Upon service of summons, defendants no.1 to 3 entered appearance and filed written statement denying execution of agreement of sale, but admitted receipt of legal

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NC: 2024:KHC:41877 RSA No. 150 of 2013

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notice dated 21.10.2005. They claimed to have issued reply

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notice. They disputing readiness and willingness on part of plaintiff and claimed that value of land was around 12 lakhs per acre and stated that they were agreeable for sale of land at said price. During pendency of suit defendant no.1 died. Defendants no.4 to 6 daughters who were brought on record as legal representatives in addition to defendants no.2 and 3. Defendants no.4 to 6 filed separate written statement stating that suit property was part of property originally belonging to father of defendant no.1. Defendants no.4 to 6 constituted Hindu Undivided Family along with defendants no.1 to 3 and had a share in suit property. Agreement of sale executed behind their back not binding on them and therefore null and void. They also stated about suit for partition filed before Prl. Judge, Small Causes and Senior Civil Judge, Mysuru.

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Based on pleadings, trial Court framed following issued and additional issue:

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1) Whether the plaintiff proves that the defendant has ene4red into an agreement of sale of suit property on 30.07.2005 for sale consideration of Rs.2,60,000/-?

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2) Whether the plaintiff further proves that he has paid a sum of Rs.1,00,000/- t6o defendant as advance amount?

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5 - NC: 2024:KHC:41877 RSA No. 150 of 2013

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3) Whether the plaintiff further proves that he is ready and willing to perform his part of contract?

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4) Whether the defendants prove that the agreement of sale is a concocted document?

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5) Whether the plaintiff is entitled for the reliefs sought for?

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6) What Order or Decreed?

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ADDITIONAL ISSUES:

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1) Whether the defendants No.4 to 6 prove 5 that the suit schedule property is the joint family property of the defendants no.1 to 6?

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2) Whether the defendants No.4 to 6 prove that they have a share in the said property?

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Thereafter plaintiff examined himself and three others

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as PWs 1 to 4 and got marked Exs.P.1 to 15. Defendants no.1 and 4 were examined as DWs 1 and 2 and no documentary evidence was adduced. On consideration, trial Court answered issues no.1 to 3 and 5 in affirmative, issue no.4, additional issues no.1 and 2 in negative and issue no.6 by decreeing suit and directing defendants to execute registered sale deed in favour of plaintiff within two months by receiving balance sale consideration of Rs.1,60,000/-. Aggrieved by same, defendants no.4 to 6 preferred RA no.243/2012. Main grounds urged in appeal were that trial Court had failed to appreciated that there

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6 - NC: 2024:KHC:41877 RSA No. 150 of 2013

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was serious lacunae in Ex.P.1-Agreement of sale and same was

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doubtful in nature. No finding was given to come to conclusion on issue no.3 in affirmative. Reference to deposition in O.S.no.477/2009 for decreeing suit was contrary to conclusion in said suit that suit property was joint family property. Even contention that judgment and decree passed by trial Court was contrary to facts and evidence on record.

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Based on contentions, first appellate Court raised

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following points for consideration:

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1) Whether the plaintiff proves the execution of suit agreement to sell at Ex.P.1 by defendants No.1 to 3 by receiving advance amount of Rs.1,00,000/- as alleged in the plaint?

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2) Whether the plaintiff was ready and willing to perform his part of the contract?

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3) Whether plaintiff can maintain the suit based on the unregistered agreement to sell dated 30.07.2005?

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4) Whether the judgment and decree passed by the trial Court is capricious, illegal and call for interference by the appellate Court?

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5) What order?

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It was submitted that defendants no.2 and 3 had not preferred appeal, though a specific ground about Ex.P.1Agreement of sale being unregistered as required under Section 17(1A) of the Registration Act was not taken or urged, first appellate Court reversed decree passed by trial Court on said

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NC: 2024:KHC:41877 RSA No. 150 of 2013

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finding. It was submitted that Ex.P.1 did not contain any recital about plaintiff being put in possession in pursuance of agreement of sale. Even in plaint no assertion was made about part performance of agreement of sale so as to attract Section 17(1A) of Registration Act. It was further submitted present appeal was admitted to consider following substantial question of law:

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"Whether the lower Appellate Court erred in law in dismissing the suit for specific performance on the ground that the suit agreement to sell being an unregistered agreement, the plaintiff-appellant herein was not entitled for specific performance of the agreement although there was nothing to show that the plaintiff had asserted that he was put in possession of the property in part performance of the agreement and Section 53-A of the Transfer Property Act was therefore applicable to the facts of the case?"

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It was submitted, in view of above, finding of first

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appellate Court was contrary to material on record and as such perverse. Therefore, sought for answering substantial question of law in favour of appellant and to allow appeal.

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Sri N. Kumar, learned counsel for respondents no.4 to 6 submitted that he had earlier filed memo for retirement, but notice was not served on parties. Therefore it was rejected. He pleaded that he has no instructions but sought to support impugned judgment and decree.

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NC: 2024:KHC:41877 RSA No. 150 of 2013

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Heard learned counsel and perused impugned judgment decree and record.

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Perusal of judgment and decree passed by trial Court would reveal that trial Court had taken into account pleadings in plaint, wherein plaintiff had stated about execution of agreement of sale on 30.07.2005 in respect suit property for a total sale consideration of Rs.2,60,000/and received Rs.1,00,000/- towards advance sale consideration and agreeing to receive balance sale consideration of Rs.1,60,000/- at time of execution of registered sale deed within three months. It has also taken note of deposition of plaintiff as PW1, PWs 2 and 3, witnesses to agreement of sale - Ex.P.1, scribe as PW4 who deposed in terms of plaint. It has given a categorical finding that no material admission was elicited during crossexamination. Though defendants denied execution of agreement of sale, trial Court referred to pleadings in plaint and stand of defendants in O.S.no.477/2009 filed by defendants no.4 to 6 against defendants no.1 to 3 and plaintiff, wherein they had stated about execution of agreement of sale in favour of present plaintiff. Trial Court also referred to judgment, wherein it was held that defendant no.1 as kartha of Joint Family has right to alienate joint family properties for legal

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9 - NC: 2024:KHC:41877 RSA No. 150 of 2013

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necessities and benefits and excluded suit property from decree of partition. It also recorded categorical finding that said judgment and decree had attained finality.

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Perusal of judgment and decree passed by first appellate Court reveals only ground for reversing judgment and decree passed by trial Court was invocation of Section 17(1A) of Registration Act and Section 53-A of Transfer Property Act, Section 53-A reads as under:

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"53A. Part performance. -Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has. in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that² ***, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

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Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."

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Indisputedly, there is no such recital in agreement of

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sale. Said aspect is neither pleaded nor existing in agreement of

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10 -

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NC: 2024:KHC:41877 RSA No. 150 of 2013

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sale. In fact, delivery of possession is amongst prayers sought in plaint. Such being case, invocation of Section 17(1-A) of Registration Act would be unsustainable and grossly contrary to material on record and as such, finding of first appellate Court on point no.3 would be perverse. In view of above substantial question of law is answered in favour of appellant. Impugned judgment and decree passed by first appellate Court is setaside. Judgment and decree passed by trial court is restored.

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Appeal is allowed with costs throughout.

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Sd/(RAVI V HOSMANI) JUDGE

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Psg*

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List No.: 1 Sl No.: 41

Sri T M Siddaraju v. Sri T S Rajashekhara Murthy

Case brief

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Sri T M Siddaraju v. Sri T S Rajashekhara Murthy

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