Smt Vanjakshi Vs Smt Hombamma

(BY SRI LOKESH BOOVANAHALLI, ADVOCATE) AND: SMT HOMBAMMA, W/O SWAMY GOWDA, AGED ABOUT 61 YEARS, R/O.NAYAKANAHALLI VILLAGE, KATTAYA HOBALI, HOLENARASIPURA TOWN, PRESENTLY R/AT GURUKRUPA, NETHAJI ITI COLLEGE, ASHOKA ROAD, HASSAN DISTRICT - 573201.

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…RESPONDENT (BY SRI M N UMASHANKAR, ADVOCATE FOR C/R) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 2.11.2012 PASSED IN R.A.NO.138/2011 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-II, HASSAN, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 18.7.2011 PASSED IN OS.NO.247/2008 ON THE FILE OF SENIOR CIVIL JUDGE, ARKALGUD.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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This second appeal is arising from the divergent finding in a suit for specific performance of contract. This appeal is by the plaintiff. The suit for specific performance is filed on 08.11.2004 to enforce the agreement for sale dated 30.10.2001.

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The suit property is an agricultural land measuring 3 acres comprised in two survey numbers. Suit properties are described as Survey No.7/2 measuring 1 acre 29 guntas and Survey No.9/4 measuring 1 acre 11 guntas. In all property measuring 3 acres in Madalapura village, Arkalgud Taluk is the suit property.

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The plaintiff claims to have paid Rs.35,000/out of Rs.85,000/- consideration amount agreed to be paid under the alleged agreement for sale dated 30.10.2001. The plaintiff also claims to be in possession of property on the premise that the possession was handed over on the date of agreement for sale itself.

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The defendant contested the suit, denied the

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execution of agreement for sale and further took a contention that she had borrowed loan of Rs.25,000/from the plaintiff with an assurance that she would repay the loan amount with 18% interest per annum within one year from the date of borrowing. The defendant contends that she had signed on two blank stamp papers as a security for the said loan.

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It is also contended that despite repayment of the loan amount, the blank stamp papers have not been returned and same have been misused as an agreement for sale.

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The Trial Court after recording the evidence from both sides concluded that the agreement for sale dated 30.10.2001 is proved by the plaintiff and the plaintiff was ready and willing to perform her part of the contract.

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The Trial Court rejected the defendant's

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contention that defendant signed on blank stamp papers as a security for the loan, and the same were misused by the plaintiff. And accordingly, the Trial Court decreed the suit for specific performance of the contract.

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Aggrieved by the aforementioned judgment and

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decree, the defendant filed an appeal.

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First Appellate Court reversed the judgment and decree passed by the Trial Court. First Appellate Court has held that the suit is not barred by limitation but held that the agreement for sale is not proved. And consequently dismissed the suit.

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Hence, the present second appeal.

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This appeal was admitted on 16.01.2020 to answer the following substantial question of law:-

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"Whether the lower appellate Court is justified in exercising discretion under Section 20 of the Specific Relief Act to deny specific performance of the suit agreement on the

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ground that Ex.P1 was suspicious though the defendant had admitted the signature found on Ex.P1?"

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After going through the substantial question of law framed above, the materials placed on record and the contentions raised, this Court is also of the view that the following substantial questions of law relating to the proof of the agreement for sale and readiness and willingness to perform the part of the contract by the plaintiff are required to be framed as First Appellate Court has held that the agreement for sale dated 30.10.2010 is not proved. Hence, the following questions of law are framed:

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"i) Whether the plaintiff has established execution of agreement for sale dated 30.10.2001.

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ii) Whether time was the essence of the contract.

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iii) Whether the plaintiff has proved her readiness and willingness to perform her part of the contract."

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Learned counsel for the appellant and

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respondent are heard on all the substantial questions of law framed above.

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Learned counsel for the plaintiff/appellant would

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raise the following contentions:-

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14.1 The signature of the defendant on the

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agreement for sale is not disputed and same is admitted in specific terms by saying that the signatures on the blank stamp papers were misused.

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14.2 The possession of the suit property was handed

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over to the plaintiff under the agreement for sale and the plaintiff was always ready and willing to perform her part of the contract.

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14.3 The defendant postponed the execution of sale deed on the premise that the plaintiff is also in possession and there is no urgency for the plaintiff to insist for registered sale deed.

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14.4 Merely because 2^nd page of the agreement for sale does not bear the signature of the vendor, the agreement for sale cannot be said to be not proved as the reference to the property agreed to be sold can be ascertained even without reference to the schedule of the property described in 2^nd page of the agreement for sale.

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14.5 The witness examined on behalf of the plaintiff has given evidence on the point that the plaintiff was always ready and willing to perform her part of the contract and approached the defendant on many occasions and the defendant postponed the execution of sale deed on the premise that there is no urgency in view of the fact that the plaintiff is already in possession of the property.

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14.6 The witness examined on behalf of the defendant has admitted that the plaintiff is not residing in the place where she was residing before the execution of the agreement, and she is residing in a different place which would demonstrate that the defendant has handed

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over the possession of the property pursuant to the agreement for sale.

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In support of his contention the learned counsel for the plaintiff/appellant would refer to the judgments of the Hon'ble Apex Court in Shyam Kumar Inani vs. Vinod Agrawal and Others¹ , Shenbagam and others vs. KK Rathinavel² , U.N. Krishnamurthy (Since Deceased) THR. LRS. vs. A.M. Krishnamurthy³ , judgment of the Andhra Pradesh High Court in S. Saleem vs. Smt Palamangalam Vendamma and Others⁴ . The judgment of Punjab and Haryana High Court in Har Kaur vs. Gura Singh and Another⁵ .

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Learned counsel for the defendant/respondent would raise the following contentions:-

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16.1 The agreement for sale dated 30.10.2001 is not proved. The unnumbered 2^nd page of the alleged

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1 (2025) 3 SCC 286

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2 2022 SCC OnLine SC 71

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3 (2022) AIR SC 3361

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4 2025 SCC OnLine AP 186

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5 (1988) AIR (Punjab) 41

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agreement for sale, (on the backside of the 1^st page of the stamp papers) where the description of the property is provided does not bear the signature of the vendor. If the agreement is read without referring to the unnumbered 2^nd page, which does not bear the signature of the vendor,

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then the alleged agreement has no schedule of the property agreed to be sold. The description of the property allegedly agreed to be sold in unnumbered 2^nd page of the alleged agreement would indicate that the document is concocted.

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16.2 The scribe examined on behalf of the plaintiff in the cross examination has admitted that the defendant's husband was required to sign the numbered 2^nd page as a witness. The plaintiff has claimed that the defendant's husband was present at the time of execution of agreement for sale. However, the signature of the husband of the defendant is not found in the numbered 2^nd page of the alleged agreement for sale. This fact would

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demonstrate that the husband of the defendant was not present at the time of alleged agreement for sale.

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16.3 Alternatively, it is urged that the time was the essence of the contract as the alleged agreement for sale itself has provided that the sale deed has to be executed before March, 2002 and no action is taken before expiry of the said period.

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16.4 The readiness and willingness to prove the plaintiff's part of the contract is not established as the suit is filed on 08.11.2004 despite the agreement stipulated the completion of the transaction before March, 2002.

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This Court has considered the contentions raised at the bar and perused the records.

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Since serious dispute is raised relating to the execution of the agreement for sale, this Court has to refer to the agreement for sale marked at Ex.P1. It is noticed from Ex.P1, that unnumbered 2^nd page of the alleged agreement for sale does not bear the signature of the

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defendant. The signature of the defendant is found on the numbered 1^st and 3^rd page. However, the unnumbered 2^nd page (that is the reverse of the 1^st page of the stamp paper) which was according to the defendant was kept blank, when she signed the front page, does not bear the page number. Now the said unnumbered page of the stamp paper contains the schedule of the property which is allegedly agreed to be sold.

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The defendant contends that the signatures on 1^st page and 3^rd page were taken on the stamp papers when the stamp papers were blank and she signed the document as a security for the loan.

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This Court has perused the recital in 1^st page of the agreement for sale. The relevant portion of the recital would read as under:-

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"...........CzÁV £À£ÀUÉ ¸ÀzÀjd«ÄÃ£ÀÄ ¢£ÁAPÀ: 2-5-1978 gÀ°è 1£ÉÃ ¥ÀÄ¸ÀÛPÀzÀ, 1747 ¸ÀA¥ÀÄlzÀ, 384 £ÀA§j£À ±ÀÄzÀÝ PÀæAiÀÄzÀ ªÀÄÆ®PÀ §AzÀÄ £À£Àß ºÉ¸Àj£À°è SÁvÉ EzÀÄÝ £À£Àß ¸Áé¢üÃ£Á£ÀÄ¨sÀªÀzÀ°ègÀÄvÀÛzÉ £À£Àß zÀgÀzÀÄ ¤«ÄvÀåªÁV CAzÀgÉ £Á£ÀÄ ªÀiÁrgÀÄªÀ ¸Á®ªÀ£ÀÄß wÃj¸À®Ä UÀÈºÀPÀÈvÀåzÀ RaðUÀÆ ¸ºÁ µÀ qÉ Æå°£À °è «ªÀ j¹gÀ ÄªÀ d«ÄÃ£À £À ÄßÀ ¤ªÀÄUÉ JA¨sÀvÉÛöÊzÀÄ

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¸Á«gÀ gÀÆ¥Á¬ÄUÀ½UÉ ±ÀÄzÀÝPÀæAiÀÄPÉÌ PÉÆqÀ®Ä M¦àgÀÄvÉÛÃ£É, F ¢ªÀ¸À ªÀÄÄAUÀqÀªÁV, PÀgÁgÀÄ¥ÀvÀæ §gÉ¬Ä¹ EzÀPÉÌ ¸ÁQëºÁQgÀÄªÀªÀgÀ ¸ÀªÀÄPÀëªÀÄ £ÀUÀzÁV, ªÀÄÆªÀvÉÛöÊzÀÄ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À£ÀÄß ¥ÀqÉ¢gÀÄvÉÃ£É."

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(Emphasis supplied)

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The aforementioned recital in the sale deed

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would indicate that, reference is made to the property agreed to be sold in the schedule . However, the last sentence in 1^st page does not co-relate to 1^st sentence in the reverse of 1^st page. The last sentence in 1^st page is continued in 3^rd page which is typed as page No.2. This obviously leads to the inference that when the document was signed, 2^nd page contents on the reverse of 1^st page were not there. In other words, the unnumbered 2^nd page containing the schedule of the property allegedly agreed to be sold was kept blank and it appears that it was inserted later and for this reason unnumbered 2^nd page which is on the reverse of 1^st page does not bear the signature of the defendant. Hence, this Court is of the view that the alleged agreement for sale is shrouded with suspicion and same is not explained satisfactorily.

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Learned counsel for the appellant relying on the judgment of the Hon'ble Apex Court to contend that if the signature of the party is missing on one of the papers of the document containing many pages, that by itself does not invalidate the document. If the execution of the document is established then the Court can act on the said document despite the signature missing in one or other pages.

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This Court is also of the view that merely because the signature is not found in one of the pages, that by itself does not mean that the Court has to ignore the document or to conclude that the document is not executed. In certain situations despite the signature missing in one or the other page of the document the Court may still hold that the document is executed if the evidence supports such view.

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In the present case there is no continuity of the recital in page No.1 and unnumbered page No.2 of the agreement for sale marked at Ex.P1. If the document is

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perused it is very much apparent that the last sentence in the 1^st page is continued in page which is numbered as page No.2. In that event, when the defendant signed the document, there was no schedule of the property agreed to be sold.

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Though the learned counsel for the appellant would submit that the property which is agreed to be sold can be ascertained from the recital in 1^st page of the document where plaintiff's vendor has narrated the flow of title to the property, from the recital in 1^st page itself it is evident that the parties agreed to provide the schedule to the agreement for sale while entering into agreement. However, the schedule is not provided in signed page. The manner in which the document is written would clearly establish that when the document was written on 30.10.2001, the schedule was not there in the original agreement and it was inserted later.

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It is further relevant to notice that it is not the case of the plaintiff that the schedule was inserted later

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with the consent of the defendant. This contention is not raised either in the pleading or in the cross-examination of the defendant. This is one of the reasons why First Appellate Court disbelieved the agreement for sale dated 30.10.2001. Thus, this Court is of the view that the ratio laid down in the judgment of the Apex Court relied on by the appellant does not apply to the facts of the case.

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Assuming that the agreement for sale was executed by the defendant, the next question is whether the plaintiff has made out a case for grant of specific performance of contract. In other words, whether the plaintiff has established readiness and willingness to perform her part of the contract.

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It is well-settled position of law that merely because an agreement for sale is found to be valid or legal that by itself is not a ground to grant the decree for specific performance of contract. The plaintiff has to establish readiness and willingness to perform her part of the contract. In the instant case, even the agreement for

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sale dated 30.10.2001 stipulates a condition that the sale deed is executed before March, 2002. Thus, an obligation is cast on the plaintiff to pay the balance consideration amount of Rs.50,000/- deducting Rs.35,000/- for advance consideration. The plaintiff was required to show more eagerness to complete the sale transaction as the plaintiff would have derived the benefit from the possession which is said to have been transferred to the plaintiff.

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The plaintiff contends that she requested the defendant to sell the property after March, 2002 and defendant kept on postponing the execution of sale deed on the premise that the plaintiff is in possession of the property and there is no urgency for the plaintiff to insist for execution of the sale deed. This contention is little bit difficult to accept. The reason is, if at all the defendant was not in possession of the property and if at all the plaintiff had approached the defendant to accept the balance consideration amount and to execute the sale deed, the postponement of execution of sale deed by the

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defendant who allegedly is not in possession of property would not confer any benefit to the defendant.

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Assuming that the defendant has declined to execute the sale deed in the year 2002 when the plaintiff has approached, the plaintiff being in possession of the property having retained, substantial portion of the sale consideration amount agreed to be paid with herself should have shown eagerness to approach the Court seeking specific performance of the contract. However, that is not done. The plaintiff has filed the suit on 08.11.2004, almost 2 and 1/2 years after the time stipulated in the agreement for sale.

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It is undoubtedly true that in a suit for specific performance of an immovable property, the time is not the essence of the contract. However, while considering the plea relating to readiness and willingness of the plaintiff to perform her part of the contract and to assess the conduct of the plaintiff, who seeks an equitable relief of specific performance of contract, the Court can certainly look into

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the aspect to consider whether the plaintiff has really established readiness and willingness to perform her part of the contract.

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This being the position, this Court is of the view that the plaintiff in the facts and circumstances of the case has failed to establish the readiness and willingness to prove her part of the contract as the suit is filed almost 2 and 1/2 years after alleged refusal by the defendant to execute the sale deed.

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This being the position, even if the agreement is held to be valid, the relief of specific performance which is an equitable relief is not available to the plaintiff.

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For the aforementioned reasons, this Court does not find any reason to interfere with the judgment and decree passed by First Appellate Court. The substantial questions of law framed above are answered in favour of the defendant/respondent.

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