Allowed

Rukmini Sukumar v. Prema

Karnataka HC18 Apr 2024RSA/2053/2012

Case brief

AI extract

What is this about?

The High Court allowed the appeal, setting aside the lower courts' decree for specific performance. The Court held that the lower courts erred in not framing specific issues to address allegations of fraud, misrepresentation, and fabrication of the sale agreement, necessitating remand for fresh consideration.

What did the court decide?

The appeal is allowed. The judgment and decree of the Trial Court and the order of the First Appellate Court are set aside. The matter is remitted to the Trial Court to frame appropriate issues regard

Rukmini Sukumar Vs Prema — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC:15341 RSA No. 2053 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 2053 OF 2012 (SP)

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BETWEEN:

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RUKMINI SUKUMAR

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W/O SUKUMAR

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AGED ABOUT 52 YEARS

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R/O. OPP. TO SUJATHA STD BOOTH KHB COLONY, JYOTHI NAGAR CHICKMAGALUR - 577 101.

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PAVITHRA G.S. D/O SUKUMAR AGED ABOUT 30 YEARS RESIDING AT SAPTHGIRI REMAND HOME ROAD CHICKMAGALUR - 577 101.

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…APPELLANTS

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Digitally signed by SUMA B N Location: High Court of Karnataka

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(BY SRI. C.V. SRINIVASA., ADVOCATE)

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AND:

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PREMA

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W/O MAYIGOWDA, D/O D.NO. 867, SHIVARATHRESHWARA NAGAR, BANNIMANATAP B LAYOUT, MYSORE-570015

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…RESPONDENT

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(BY SRI. A. RAVISHANKAR A/W H.C. LOKESHWARI, ADVOCATE FOR RESPONDENTS)

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NC: 2024:KHC:15341 RSA No. 2053 of 2012

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 04.08.2012 PASSED IN R.A.NO.71/2012 ON THE FILE OF THE V ADDITIONL DISTRICT JUDGE, MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:13.12.2011 PASSED IN O.S.NO.1521/2006 ON THE FILE OF THE IV ADDL. SENIOR CIVIL JUDGE, MYSORE.

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

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JUDGMENT

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This appeal is filed by the plaintiffs aggrieved by the judgment and decree dated 13.12.2011 passed in O.S.No.1521/2006 on the file of IV Additional Civil Judge and J.M.F.C, Mysore (hereinafter 'the Trial Court') which is confirmed by the judgment and order dated 04.08.2012 passed in R.A.No.71/2012 on the file of V Additional District Judge, Mysore (hereinafter 'the First Appellate Court').

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The above suit in O.S.No.1521/2006 is filed by the plaintiff for relief of specific performance of contract contending inter-alia that;

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(a). The defendant is the absolute owner of the suit schedule property, which was allotted in her favour by Mysore Urban Development Authority (MUDA) on 14.07.2003.

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(b). That deed of sale in this regard was obtained by the defendant from the Mysore Urban Development Authority. The plaintiff being in need of site in Mysore city had agreed to purchase and the defendant being in need of her financial requirement had agreed to sell the suit schedule property. Accordingly, an agreement of sale dated 05.07.2006 was entered into between the plaintiff and the defendant, in terms of which the defendant had agreed to sell the suit schedule property in favour of the plaintiff for a valuable sale consideration sum of Rs.4.00,000/-. That on the very same day, plaintiff paid a sum of Rs.3.00.000/- as advance sale consideration and the defendant had agreed to receive the remaining balance sale consideration amount of Rs.1,00,000/at the time of execution and registration of the deed of sale before Sub-Registrar.

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(c). That the defendant had further agreed to execute deed of sale within 3 months from the date of sale agreement. That the plaintiff had requested on several occasions to the defendant to execute and register the deed of sale as she was ready to pay balance sale consideration of Rs.1,00,000/-. That the defendant had executed deed of gift dated 28.07.2006 in

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favour of defendant No.2, that the said deed of gift was not binding on the plaintiff. Plaintiff was always ready and willing to perform her part of the contract. That since the defendant did not comply with the requests made by the plaintiff, plaintiff had caused issue of notice calling upon the defendant to perform her part of contract. Since there was no favorable response by the defendant, plaintiff was constrained to file the suit for specific performance of contract.

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Defendant in her written statement contended that the

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plaintiff had suppressed material facts and had approached the Court on the basis of false and fabricated documents. It is contended that plaintiff who is the sister of the defendant had played fraud and cheated the defendant. In fact the husband of the plaintiff Mayigowda who is the brother-in-law of plaintiff had misused the relationship and the confidence which the defendant reposed in the plaintiff and her husband said Mayigowda. It is contended that the plaintiff's husband being a retired Revenue Inspector had settled down at Mysore City. Defendant being desirous of owning a site at Mysore had approached MUDA. The plaintiff's husband had promised to render necessary assistance in defendant getting the site

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allotted from MUDA. That plaintiff's husband took active interest in not only processing the papers and in also getting the site allotted to the defendant. But all the necessary correspondence that was made by the defendant to MUDA were through her brother-in-law i.e., the said Mayigowda. That just 2 days prior to 05.07.2006, the husband of the plaintiff had informed the defendant that MUDA will be executing the deed of sale on 05.07.2006 and asked the defendant and her husband to come to Mysore for registration. Accordingly, the defendant and her husband had come to Mysore on 05.07.2006 for registration. The husband of the plaintiff had taken them to the Addl. District Registrar office, MUDA, Mysore at 4 p.m., and presented the documents for registration and that on very same day husband of the plaintiff had taken number of signatures of the defendants on various stamp and blank papers and also certain forms. That the deed of sale was executed and registered at 4.45 p.m. The defendant's husband and the son of plaintiff namely one Satish were the witnesses to the said deed of sale. After the execution and registration of the deed of sale, husband of plaintiff Mayigowda had stated that he required signature on blank stamp papers to collect

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original deed of sale from the Office of the Addl. District Registrar and also for applying and obtaining khata of the property in the name of the defendant. It is further contended said Mayigowda further represented that he would act as power of attorney holder of the defendant for the purpose of obtaining the khata transferred in her name by making necessary application before the concerned authorities. That defendant believing the said words of the husband of plaintiff, defendant had affixed her signatures on blank stamp papers. It is further contended that defendant never agreed to sell the property to the plaintiff for Rs.4,00,000/-. The allegation of plaintiff paying a sum of Rs.3,00,000/- is also denied. It is contended that taking undue advantage of the signatures of the defendants which was obtained by the husband of the plaintiff on blank stamp papers in collusion with her husband has fabricated the agreement in order to make wrongful gain. The defendant at no point of time has entered into such agreement as claimed by the plaintiff. It is further contended that the suit schedule property has been conveyed in favour of the defendant No.2 in terms of registered deed of gift dated 28.07.2006. As such, defendant No.1 is not the owner of the suit schedule property

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NC: 2024:KHC:15341 RSA No. 2053 of 2012

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anymore. The notice that was issued by the plaintiff has been duly replied by the defendant. It is further contended that the plaintiff had assured to withdraw the said legal notice and that contrary to the said assurance, as suit has been filed.

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Defendant No.2 filed her written statement and admitted the relationship between the parties and further contended that she has become the absolute owner of the suit schedule property by virtue of registered deed of gift dated 28.07.2006 at Ex.P4 and also got transferred the khata in her name and paying the kandhayam to the Municipal City Corporation, Mysore. Defendant No.2 further contended that there was no financial necessity for the defendants to sell the suit schedule property as her husband is working as Supervisor in a reputed Institution and contended that alleged sale agreement is fabricated one. As such, sought for dismissal of the suit.

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Based on the pleadings, the Trial Court framed the following issues for its consideration:

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"1) Whether the plaintiff proves that the defendant has received advance amount of Rs.3,00,000/and executed agreement of sale on 5.7.2006?

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2) Whether the plaintiff proves that he is every ready and willing to perform her part of contract?

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3) Whether the 2nd defendant proves that the suit is bad for mis-joinder of parties?

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4) Whether the plaintiff is entitled for the relief as sought for?

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5) What Order or Decree?

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Additional Issue:-

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1) Whether the 2nd defendant proves there is no privity of contract between herself and plaintiff?"

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Three witnesses have been examined on behalf of the

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plaintiff as PW1 to PW3 and exhibited 12 documents marked as Ex.P1 to Ex.P12. Defendants got examined three witnesses as DW1 to DW3 and exhibited 11 documents marked as Ex.D1 to Ex.D11. On appreciation of the evidence the Trial Court answered issue Nos.1, 2, 4 and additional issue No.1 in the affirmative issue No.3 in the negative and consequently decreed the suit as prayed for.

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Being aggrieved by the aforesaid judgment and decree plaintiff filed an appeal in R.A.No.71/2012 before the First Appellate Court. Considering the grounds urged the First Appellate Court framed the following points for its consideration:

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"1.Whether the Respondent-Plaintiff proves that Defendant No.1 has executed agreement of sale dated 5.7.2006 agreeing to sell the suit schedule property for Rs.4,00,000/and received earnest money of Rs.3,00,000/- and Defendant has agreed to receive balance consideration amount of Rs.1,00,000/-and execute the Sale Deed within 3 months and she is entitled for the relief of specific performance of contract?

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2. Whether the Respondent-Plaintiff further proves that she has been ever ready and willing to perform her part of contract?

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3. Whether the Appellants-Defendants prove that her signatures were obtained on blank stamp paper and thereafter, the agreement of sale marked at Ex.P.5 is created by the Plaintiff?

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4. Whether the Appellants-Defendants prove that the Judgment and Decree of the Trial Court are perverse, unsustainable and Interference of this Court is required?

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5. What order?''

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On re-appreciation of the evidence, the First Appellate

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Court answered point Nos.1 and 2 in the positive and points Nos.3 and 4 in the negative and consequently dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same appellant is before this Court.

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This appeal was admitted on 25.09.2013 and substantial question of law was framed as under:

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''1) Whether the lower appellate court was right and justified in decreeing the suit of the plaintiff for specific performance and also directed to hand over vacant possession without recording a specific finding as to whether the discretion to order specific performance was necessary in the instant case?

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NC: 2024:KHC:15341 RSA No. 2053 of 2012

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2) Whether the agreement/alleged contract which was done by playing fraud, misrepresentation, coercion, undue influence can be executed lawfully?"

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Thereafter, by Order dated 18.04.2024 substantial

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questions of law were reframed as under:

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"1. Whether in the fact and circumstance of the case the Trial Court and the First Appellate Court are justified in holding that the plaintiff has proved the execution of agreement dated 05.07.2006 and payment of sale consideration as claimed by the plaintiff?

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2. Whether in the facts and circumstance of the case the Trial Court and the First Appellate Court are justified in exercising their discretionary jurisdiction in granting the relief of specific performance?"

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Sri.Srinivasa, learned counsel for the appellant taking

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through the material evidence placed by the parties before the Court, more particularly with regard to the agreement of sale dated 05.07.2006 produced at Ex.P5 submitted that a bare perusal of the signatures appearing at page No.4 of the said document particularly that of the plaintiff and a comparison with the same with the signature of the plaintiff appearing on the power of attorney at Ex.P1 would indicate that the said signatures are different and distinct. He also referred to Ex.D10 and Ex.D11 to butters his argument with regard to differences in the signatures of the plaintiff. Thus he submits that the Trial Court and the First Appellate Court ought to have exercised

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NC: 2024:KHC:15341 RSA No. 2053 of 2012

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their powers under Section 73 of the Indian Evidence Act to appreciate the contention of the defendants with regard to fabrication of the documents. Referring to the timings of the execution and registration of the deed of sale at Ex.P3 submitted that the same would belie the case of the plaintiff with regard to the defendant executing the agreement at Ex.P5 after execution and registration of the deed of sale. He referred to the deposition of plaintiff's witness in extenso including the deposition of scribe of the document to justify his contention that such an agreement could never have been entered into on the said date and timings. Thus he submits that the Trial Court and the First Appellate Court have not appreciated these aspects of the matter while adverting to the issue of proof of the agreement. Further, he referred to the reply notice, in response to the notice issued by the plaintiff. In which the defendant had in detail set forth her defence which regard to the alleged fabrication and forging of the document. He submits that considering the relationship between the plaintiff and defendant that of a sisters and dominant role played by the husband of the plaintiff who is none other than brother-in-law of the defendant, the Trial Court

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and the First Appellate Court ought to have framed appropriate issues and points with regard to proof of the document, in the absence of which the exercise of discretional power under Section 20 of the Specific Relief Act was erroneously exercised is his submission.

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Sri.A.Ravishankar, learned counsel for the respondent taking through the issues framed by the Trial Court and the point for consideration framed by the First Appellate Court also submits that the Trial Court and the First Appellate Court in the first instance have erred in not framing the proper issues. In furtherance to the averments and allegation made by the parties. That necessary particulars with regard to allegation of fraud, misrepresentation have not been provided by the defendant, as such the evidence in the absence of pleading would not fulfill the lacuna. It is his further submission that nothing prevented defendant to seek framing of appropriate issues as the defendant had totally denied the execution of said document. It is his further submission that defendant has prevaricated her stand at every stage, right from issuance of reply notice to filing of written statement, leading evidence and in the cross-examination as well as in the present appeal.

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NC: 2024:KHC:15341 RSA No. 2053 of 2012

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Thus, learned counsel appearing for the respective parties though submitted their arguments, however fairly submitted in unison that in the absence of framing of proper issues, the Trial Court and the First Appellate Court have adjudicated the matter which requires reconsideration.

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The proof of agreement in the peculiar fact circumstance in the matter without framing of appropriate issues would not meet the ends of justice. Inasmuch as framing of the issues is a intrinsic part of adversarial litigation. Though, it may be said that the parties being aware of their respective case had gone into the trial, requirement of framing of proper and specific issues is essential and imperative as the same would also depend upon the species of evidence which the parties would lead, particularly with regard to the proof of execution of the agreement.

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In the instant case on receipt of notice dated 26.09.2006 at Ex.P6 the defendant had issued a reply notice 08.11.2006 at Ex.P8 setting forth her case of plaintiff and her husband creating and fabricating the agreement dated 05.07.2003 produced at Ex.P5. The defendant has also

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NC: 2024:KHC:15341 RSA No. 2053 of 2012

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elaborately stated in the reply notice about the facts, incidental and attendant circumstances under which the husband of the plaintiff had purportedly obtained signatures on the stamp paper and the blanks papers and forms. The contents of the said reply notice at Ex.P8 have been repeated and reiterated by the defendant in the written statement. Fraud, misrepresentation and coercion have been alleged. Thus it was incumbent upon the Trial Court as well as the First Appellate Court who have framed the issues with regard to the said averments instead only formal issues in the nature of plaintiff proving receipt of Rs.3,00,000/- by the defendant as advance amount while executing the agreement of sale on 05.07.2006 and plaintiff proving his readiness and willingness on her part of the contact have been framed. This, in the considered view of this Court, Though the Trial Court and the First Appellate Court have disposed-of the case on merits, even as rightly pointed by the learned counsel for the appellant as well as the respondent, requires reconsideration.

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It is for this reason, this Court is also of considered view that the Trial Court and the First Appellate Court have erred in not framing appropriate issues specifically adverting to

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the allegation of fraud, misrepresentation and coercion, fabrication and concoction of the suit documents, leading to perversity in the judgments and decrees.

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In view of the foregoing reasons, the substantial question of law framed as above have to be answered in the negative and consequently the judgment and decree passed by the Trial Court and the judgment and order passed by the First Appellate Court are required to be set-aside by remanding the matter to the Trial Court for fresh consideration by framing appropriate issues.

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Hence, the following:

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ORDER

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I. Appeal is allowed.

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II. Judgment and decree dated 13.12.2011 passed in O.S.No.1521/2006 on the file of IV Additional Civil Judge and J.M.F.C, Mysore and

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judgment and order dated 04.08.2012 passed in

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R.A.No.71/2012 on the file of V Additional District Judge, Mysore are set-aside.

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NC: 2024:KHC:15341 RSA No. 2053 of 2012

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III. The matter is remitted back to the Trial Court. The Trial Court shall frame the issues with regard to proof of agreement in the light of the averments and allegations made by the defendant with regard to fabrication and concoction of the alleged agreement and thereafter permit the parties to lead further evidence thereon after affording sufficient opportunity in this regard and shall dispose of the matter in accordance with law.

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IV. Parties are at liberty to seek amendment to the pleadings by filing necessary application and may also file additional documents, if required and the same may be considered in accordance with law.

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V. Considering the long pendency of the matter the Trial Court shall endeavour to dispose of the matter within an outer limit of one year from the date of receipt of certified copy of this Order. Parties shall extend their necessary cooperation

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NC: 2024:KHC:15341 RSA No. 2053 of 2012

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in expeditious disposal of the matter without

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seeking unnecessary adjournment.

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Vi. Since the parties are being represented by their respective counsel, they shall appear before the Trial Court on 05.06.2024 without waiting for

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further notice.

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VI. Registry to return the records.

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Sd/JUDGE

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List No.: 1 Sl No.: 24

Rukmini Sukumar v. Prema

Case brief

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Rukmini Sukumar v. Prema

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