Sushilkumar S/O Appasaheb Kodate Vs Basavaraj S/O Shankrappa Tumbaraguddi Since Deceased Y His Lrs Smt Geeta W/O Basavaraj

PREETI, D/O BASAVARAJ TUMBARAGUDDI, AGE: 16 YEARS, OCCU: STUDENT, R/O. 1^ST CROSS, GANDHINAGAR, DHARWAD-580002 (SINCE MINOR REPRESENTED BY HER NATURAL MOTHER APPELLANT NO 1 SMT GEETA, W/O BASAVARAJ TAMGBARAGUDDI )

¶25

…RESPONDENTS

¶26

(RESPONDENTS – SERVED & UNREPRESENTED)

¶27

THIS RFA IS FILED UNDER SEC. 96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD 29.11.2023 PASSED IN O.S.NO.388/2022 ON THE FILE OF THE IV ADDL. SENIOR CIVIL JUDGE AND JMFC DHARWAD, PARTLY DECREED THE SUIT FILED FOR SPECIFIC PERFORMANCE.

¶28

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

¶29

3 - NC: 2025:KHC-D:12999-DB RFA No. 100132 of 2024

¶30

HC-KAR

¶31

CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA

¶32

JUDGMENT

¶33

(PER: HON'BLE MR. JUSTICE C.M. POONACHA)

¶34

The above appeal is filed by the plaintiff calling in question the judgment and decree dated 29.11.2023 passed in O.S. No.388/2022 by the IV Additional Senior Civil Judge & JMFC, Dharwad¹ , whereunder the suit for specific performance filed by the plaintiff has been dismissed by the Trial Court.

¶35

The parties will be referred to as per their rank

¶36

before the Trial Court, for the sake of convenience.

¶37

It is the case of the plaintiff that one Basavaraj (who was originally arrayed as defendant in the suit) was the owner of the suit properties and that he had agreed to sell the same to the plaintiff for a total sale consideration of Rs.20,00,000/-. Accordingly, the plaintiff and the said Basavaraj entered into a registered agreement of sale dated 05.05.2021 whereunder the original deceased defendant agreed to sell the suit properties to

¶38

1 Hereinafter referred to as ‘the Trial Court’

¶39

4 - NC: 2025:KHC-D:12999-DB RFA No. 100132 of 2024

¶40

HC-KAR

¶41

the plaintiff for a total sale consideration of Rs.20,00,000/- and an advance of Rs.6,00,000/- was paid by the plaintiff to the said original deceased defendant on the said date. It was agreed between the parties that the registered sale deed would be executed within one month on which date the balance sale consideration of Rs.14,00,000/- was required to be paid. It is the further case of the plaintiff that he was ready and willing to pay balance sale consideration and complete the sale transaction and was following up with the original deceased defendant for the said purpose. However, the original deceased defendant was postponing the same due to various reasons. It is the further case of the plaintiff that in the month of July 2021, the original deceased defendant obtained a sum of Rs.5,00,000/- as hand loan from the plaintiff promising to pay the same within three months and issued a cheque with respect to the said hand loan transaction which was dishonoured when presented for encashment. That the plaintiff got issued a legal notice to the original deceased defendant and vide reply dated 16.09.2022, the deceased defendant refused to execute the sale deed consequent to which the plaintiff filed the suit seeking for specific performance.

¶42

5 - NC: 2025:KHC-D:12999-DB RFA No. 100132 of 2024

¶43

HC-KAR

¶44

The defendant was served with the suit summons, however, he was placed ex parte . During pendency of the suit, the original defendant having died, his wife and children were brought on record as defendants No.1(a) to 1(d). The said defendants No.1(a) to 1(d) also having been served with the suit summons did not enter appearance before the Trial Court and were placed ex parte . The defendant No.1(d) being a minor, the Trial Court appointed a court guardian on her behalf to contest the suit. The court guardian representing defendant No.1(d) filed written statement contesting the plaint averments and sought for dismissal of the suit.

¶45

5. Consequent to the pleadings of the parties, the Trial Court framed the following issues:

¶46

“1. Whether the plaintiff proves that the defendant has executed an agreement of sale on 05.05.2021 agreeing to sell the suit properties in his favour for the total sale consideration of Rs.20 lakh and out of it, he has received an amount of Rs.6 lakh as earnest money?

¶47

2. Whether the plaintiff further proves that he has always been ready and willing to perform his part of contract?

¶48

6 -

¶49

NC: 2025:KHC-D:12999-DB RFA No. 100132 of 2024

¶50

HC-KAR

¶51

3. Whether the plaintiff is entitled to the specific performance of agreement of sale dated 05.05.2021 as sought for?

¶52

4. What order or decree?”

¶53

The plaintiff examined himself as P.W.1 and got marked Exs.P.1 to P.9. No oral or documentary evidence was adduced on behalf of the defendants. The Trial Court, by its judgment and decree dated 29.11.2023 recorded a finding that the agreement between the parties being a registered one, the plaintiff has adequately proved the execution of the same. With regard to readiness and willingness, the Trial Court recorded a finding that the plaintiff proved his readiness and willingness to complete his part of the contract, but however,since the original defendant had died during the pendency of the suit, the Trial Court granted the alternative relief of refund of earnest money of Rs.6,00,000/- together with interest at 10% per annum. Being aggrieved, the plaintiff has preferred the above appeal.

¶54

Heard the submissions of the learned counsel for the

¶55

appellant/plaintiff.

¶56

7 - NC: 2025:KHC-D:12999-DB RFA No. 100132 of 2024

¶57

HC-KAR

¶58

The notice issued to respondents No.1 to 4 in the present appeal has been served and they have remained unrepresented.

¶59

It is the contention of the learned counsel for the appellant/plaintiff that the Trial Court having recorded a finding that the plaintiff has proved the agreement of sale dated 05.05.2021 and has also proved his readiness and willingness to complete his part of the sale transaction, has erred in denying the relief of specific performance. Hence, he seeks for allowing of the present appeal and granting of the relief sought for.

¶60

The submissions of the learned counsel for the appellant-plaintiff have been considered, and the materials on record including the records of the Trial Court have been perused.

¶61

The question that arises for consideration in this

¶62

appeal is:

¶63

Whether the Trial Court was justified in refusing the relief of specific performance as sought for by the plaintiff?

¶64

8 - NC: 2025:KHC-D:12999-DB RFA No. 100132 of 2024

¶65

HC-KAR

¶66

It is pertinent to note here that the Trial Court has framed issued No.1 as to whether the plaintiff has proved the execution of the agreement of sale dated 05.05.2021, as also frame issued No.2 as to whether the plaintiff proves that he was ready and willing to perform his part of the contract. The Trial Court while considering the said issues has recorded a finding that the plaintiff has proved the due execution of the agreement dated 05.05.2021 (Ex.P.1). The Trial Court has further recorded a finding that the plaintiff has proved his readiness and willingness to complete his part of the sale transaction. The Trial Court has framed issue No.3 as to whether the plaintiff is entitled for specific performance of the agreement of sale dated 05.05.2021. The Trial Court while considering the said aspect of the matter as to whether the plaintiff is entitled to specific performance of the agreement of sale has held as under:

¶67

“ 8(d). It is also the contention of the plaintiff that he has been ever ready and willing to perform his part of contract as envisaged under Ex.P1. But the deceased defendant during his lifetime, he did not come forward to perform his part of contract as envisaged under Ex.P1. There is no contrary evidence on record against this averment of the plaintiff with regard to readiness and

¶68

9 - NC: 2025:KHC-D:12999-DB RFA No. 100132 of 2024

¶69

HC-KAR

¶70

willingness. Therefore, I am of the opinion that the plaintiff has been ready and willing to perform his part of contract as envisaged under Ex.P1. Though the plaintiff proves the execution of agreement of sale dated 05.05.2021 and also his readiness and willingness to perform his part of contract as envisaged under Ex.P1, but it pertinent to mention here that the suit properties are standing in the name of deceased defendant namely Basavaraj Shankrappa Tumbarguddi and he died during the pendency of this suit. Though the plaintiff brought the wife of deceased and his three children on records as defendant No.1(a) to (d), but it is not clear from the documents produced by the plaintiff that, whether the deceased defendant had only four LRs or he had any other person as his legal representative/heir. Further, defendant No.1(d) is a minor and he is represented by court guardian. The defendant No.1(d) being minor, no liability can be fixed against him. Therefore, I am of the opinion that, if the earnest money received by the deceased defendant is ordered to be returned to the plaintiff with interest at the rate of 10% from the defendant No.1(a) to (c), then the purpose would be served and the plaintiff will not to be subjected to much hardship. Therefore, having regard to the facts and circumstances of this case and in view of death of defendant during the pendency of this suit, the specific performance of agreement of sale dated 05.05.2021 with respect to the suit properties in favour of plaintiff cannot be performed, as such the plaintiff is entitled to alternative relief of refund of earnest money with interest

¶71

10 - NC: 2025:KHC-D:12999-DB RFA No. 100132 of 2024

¶72

HC-KAR

¶73

at the rate of 10% from the date of 05.05.2021 till the realization of entire amount from the defendant No.1(a) to (c)”.

¶74

(emphasis supplied)

¶75

It is pertinent to note that the Trial Court has noticed

¶76

that the owner of the property i.e., the original defendant died during the pendency of the suit and that his wife and children have been brought on record as defendants No.1(a) to 1(d). Although it is the vehement contention of the learned counsel for the appellant/plaintiff that there are material to demonstate that defendants No.1(a) to 1(d) are the sole surviving legal representatives of the deceased defendants, it is pertinent to note here that the Trial Court held that there is no material brought on record by the plaintiff to demonstrate that defendants No.1(a) to 1(d) are the sole surviving legal representatives of the deceased defendant. The finding recorded by the Trial Court to refuse the specific performance is ex facie erroneous and liable to be interfered with.

¶77

However, it is pertinent to note here that respondents No.1 to 4 have been served and are unrepresented

¶78

11 - NC: 2025:KHC-D:12999-DB RFA No. 100132 of 2024

¶79

HC-KAR

¶80

in the present appeal. Having regard to the same and having regard to the fact that it is expedient to afford another opportunity to the appellant/plaintiff to adduce material before the Trial Court to place on record material to demonstrate that the respondents herein are the sole surviving legal representatives of the deceased defendant, and to enable the Trial Court to re-appreciate the oral and documentary evidence on record and to consider the aspect with regard to grant of specific performance of the agreement of sale dated 05.05.2021, keeping in mind the Specific Relief (Amendment) Act of 2018, it is just and appropriate that the matter be remanded to the Trial Court. The question framed for consideration is answered accordingly.

¶81

In view of the aforementioned, the following:

¶82

ORDER

¶83

i) The above appeal is allowed;

¶84

ii) The judgment and decree dated 29.11.2023 passed in O.S. No.388/2022 by the IV Additional Senior Civil Judge & JMFC, Dharwad, is hereby set aside and the matter is remitted back to the Trial Court for fresh consideration in accordance with law;

¶85

12 -

¶86

NC: 2025:KHC-D:12999-DB RFA No. 100132 of 2024

¶87

HC-KAR

¶88

iii) The appellant/plaintiff shall appear before the Trial Court on 29.10.2025 without the requirement of any further notice being issued in this regard;

¶89

iv) After appearance of the appellant/plaintiff, the Trial Court shall issue notice to defendants No.1(a) to 1(d) and thereafter proceed further in accordance with law;

¶90

v) Until the conclusion of the proceedings before the Trial Court, the respondents herein are restrained from alienating the suit property in any manner.

¶91

Registry of this Court shall refund the Court fee paid by the appellant in the present appeal to the appellant.

¶92

The Registry shall transmit the records of the Trial Court forthwith.

¶93

Sd/(S.R. KRISHNA KUMAR)

¶94

JUDGE

¶95

Sd/(C.M. POONACHA) JUDGE

¶96

KMS List No.: 1 Sl No.: 50

Sushilkumar S/O Appasaheb Kodate v. Basavaraj S/O Shankrappa Tumbaraguddi Since Deceased Y His Lrs Smt Geeta W/O Basavaraj

Case brief

What is this about?

What did the court decide?

Sushilkumar S/O Appasaheb Kodate v. Basavaraj S/O Shankrappa Tumbaraguddi Since Deceased Y His Lrs Smt Geeta W/O Basavaraj

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Sri Sanjay S/O Sadashiv Suryavanshi Vs Smt. Ranjana W/O Shankar Shindhe

Shankrappa S/O Srimantha Laddi Vs Mallappa S/O Bhimappa Laddi

Sri Fakkirappa S/O Adiveppa Badni Vs Sri Chandrashekhargouda S/O Shivanagouda Pujar

Shiddappa S/O. Basappa Mugali Vs Shidram S/O Nirwaneppa Mugali

Smt.Kusumavathi W/O. Satappa Khemalapure Vs Sri.Ramesh S/O. Satappa Khemalapure

Ramappa S/O Hanumanthappa @ Hanmappa Bennur Vs Gouravva W/O Basappa Byadagi