Smt Devamma Vs Narasimha Murthy

SMT DEVAMMA W/O NINGAIAH AGED ABOUT 62 YEARS RESIDING AT ANCHEBORE GANDHINAGAR HAMLET OF DYAVASANDRA VILLAGE, HAROHALLI HOBLI KANAKAPURA TALUK RAMANAGARA DISTRICT – 562117

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…APPELLANT

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Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA

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(BY SRI. S R HEGDE HUDLAMANE, ADVOCATE) AND:

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NARASIMHA MURTHY S/O MUNIYAPPA AGED ABOUT 43 YEARS RESIDING AT NO. 30/2 IV CROSS, I MAIN BYATARAYANAPURA MYSORE ROAD BANGALORE-560026

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SMT. NAGAMMA W/O VENKATARAMANIAH AGED ABOUT 42 YEARS RESIDENT OF KODIHALLI

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NC: 2025:KHC:23871 RSA No. 1771 of 2013

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HC-KAR

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BYRAMANGALA POST BIDADI HOBLI RAMANAGARA TALUK AND DISTRICT – 562 109

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…RESPONDENTS

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(BY SRI. D.C. DEEPAK, ADVOCATE FOR R1 SRI. V. PANDURANGA NAYAK, ADVOCATE FOR R2)

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THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 20.7.2013 PASSED IN R.A.NO.13/2010 ON THE FILE OF THE II ADDL. DISTRICT & SESSIONS JUDGE, RAMANAGARA, KANAKAPURA, RAMANAGARA DISTRICT, DISMISSING THE APPEAL AND CONFIMRING THE JUDGEMENT AND DECREE DTD 2.12.2009 PASSED IN O.S.NO.90/2006 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN) RAMANAGARA.

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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 ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular second appeal is filed by the appellant challenging the judgment and decree dated 20.07.2013, passed in R.A. No.13 of 2010 by the II Additional District and Sessions Judge, Ramanagara at Kanakapura, and the judgment and decree dated 02.12.2009 passed in O.S. No.90 of 2006 by the learned Additional Civil Judge (Sr.Dn.), Ramanagara.

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For convenience, the parties are referred to based on their rankings before the Trial Court. The appellant was defendant No.2, respondent No.1 was the plaintiff and respondent No.2 was defendant No.1.

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Brief facts leading to the filing of this appeal are as follows:

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The plaintiff filed a suit against the defendants for specific performance of a contract. It is the case of the plaintiff that defendant No.1 is the absolute owner of the suit schedule property. She approached the plaintiff and agreed to sell the suit schedule property for consideration of 3,20,000/and accordingly, the plaintiff paid a sum of 2,20,000/towards the advance sale consideration and it was agreed that the balance sale consideration amount of `1,00,000/- was to be paid at the time of execution of the registered sale deed. An agreement of sale was executed on 07.12.2005 to this effect.

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The plaintiff requested defendant No.1 to execute a registered sale deed. But defendant No.1 went on to postpone the execution of the registered sale deed. The plaintiff having fed up with this delay attitude of defendant No.1, issued a legal notice on 25.01.2006 calling upon defendant No.1 to receive the balance sale consideration amount and execute a registered sale deed. Defendant No.1 neither replied to the legal notice nor executed a registered sale deed. The plaintiff was and is always ready and willing to perform her part of the contract, but defendant No.1 did not perform her part of the contract. As such, there is a breach of the terms of the agreement. Hence, a cause of action arose for the plaintiff to file a suit for specific performance of the contract. Accordingly, he prays to decree the suit.

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Defendant No.1 filed a written statement admitting the ownership over the suit schedule property. It is denied that defendant No.1 executed a sale

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agreement dated 07.12.2005 in favour of the plaintiff, agreeing to sell the suit schedule property for a sale consideration of ₹3,20,000/- and received ₹2,20,000/- towards the advance sale consideration amount. It is contended that defendant No.1 needed money for the construction of a house and sought financial assistance from the plaintiff and her friends and they obtained a signature of defendant No.1 on the blank documents and misused the said papers and created a false sale agreement. It is contended that defendant No.1 sold the suit schedule property in favour of defendant No.2, vide registered sale deed dated 23.01.2006, and hence, prays to dismiss the suit of the plaintiff.

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Defendant No.2 filed a written statement contending that at the time of purchasing the suit schedule property, defendant No.2 verified the documents and purchased the said property under a registered sale deed. Defendant No.2 is a bona fide purchaser for

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value. Hence, he prays to dismiss the suit against

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defendant No.2.

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The Trial Court, based on the pleadings of the parties, framed the following issues for its

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consideration:

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�ಾ� �ಾ�ಾ ಸ�ತ�ನು� 1�ೇ ಪ��ಾ��ೆ ತನ�ೆ ರೂ.3.20,000/ಗ��ೆ ಕ�ಯ�ೆ� �ಾ�ಾಟ �ಾಡಲು ಒ"# ��ಾಂಕ 7-122005ರಂದು ಕ�ಯದ ಕ�ಾರು ಪತ�ವನು� ಬ�ೆದು�ೊ()�ಾ*�ೆ ಅ�ೇ �ನ ರೂ.2.20.00/-ಗಳನು� ಮುಂಗಡ�ಾ. ಪ/ೆದು�ೊಂ0ರು1ಾ � ೆ . ಎಂಬುದನು� 3ಾ4ೕತುಪ05ರು1ಾ � ೆ6ೕ?

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�ಾ� ಆತನ ಕ�ಾರು 8ಾಧ:1ೆಯನು� �ೆರ�ೇ;ಸಲು <ಾ�ಾಗಲೂ ಇ>ೆ?ಯುಳ@ವ�ಾ�.�ೆ* ಮತು� 5ದA�ೆ ಎಂಬುದನು� 3ಾ4ೕತುಪ05ರು1ಾ � ೆ6ೕ?

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1�ೇ ಪ��ಾ� BCತ Dೇ��ೆಯ Eಾ:ರ 6ರBF ��5ದಂ1ೆ �ಾ� ಮತು� ಆತನ 3ೆ�ೕGತರು 3ಾಲ �ೊ0ಸು1ೆ�ೕ�ೆ ಅಂ1ಾ Dೇ� HಾB EೇಪI JೕKೆ ತನ� ಸG ಪ/ೆದು�ೊಂಡು ನಂತರ ಅದನು� ಕ�ಯದ ಕ�ಾರು ಪತ�ವ�ಾ�. �ಾ� ಸೃM) �ಾ0�ೊಂ0ರು1ಾ � ೆ ಎಂಬುದನು� 6ೕ ಕ�ಯದ ಕ�ಾ;ನ ಷರತು�ಗಳನು� ಉಲFಂಘ�ೆ �ಾ0ರು1ಾ � ೆ ಎಂಬುದನು� 3ಾ4ೕತುಪ05ರು1ಾ � ೆ6ೕ?

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2�ೇ ಪ��ಾ� 1ಾನು �ಾವ ಸ�ತ�ನು� ��ಾಂಕ 23/1/2006 ರಂದು ಸ�ಾQವ�ೆRಂದ ಕ�ಯ�ೆ� �ೊಂ0ರು1ೆ�ೕ�ೆ ಎಂಬುದನು� 3ಾ4ೕತುಪ05ರು1ಾ � ೆ6ೕ?

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ಈ �ಾ�ೆಯBF �ೇ�ದಂ1ೆ ATUಷ) ಕ�ಾರು �ೆರ�ೇ;�ೆಯ �ಾ� �ಾ�ೆಯBF �ೇ�ದಂ1ೆ A�Uಷ) ಕ�ಾರು �ೆರ�ೇ;�ೆಯ ಪ;Dಾರ ಪ/ೆದು�ೊಳ@ಲು ಅಹU�ೇ?

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�ಾ� �ೋYU ಕZಷನI ಮೂಲಕ ಕ�ಯ ಪತ� ಬ�ೆR5�ೊಳ[@ವ ಪ;Dಾರ ಪ/ೆದು�ೊಳ@ಲು ಅಹU�ೇ?

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<ಾವ ಆ�ೇಶ ಅಥ�ಾ 0_�?

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The plaintiff, to substantiate his case, examined himself as PW-1, examined three witnesses as PWs2 to 4 and marked six documents as Exhibits P-1 to P-6. Defendant Nos.1 and 2 got examined themselves as DWs-1 and 2 and marked two documents as Exhibits D-1 to D-2.

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The Trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issue Nos.1, 2 and 5 in the affirmative, issue Nos.3, 4 and 6 in the negative and issue No.7 as per the final order. The suit of the plaintiff was decreed with costs. Defendant No.1 was directed to execute a sale deed in the name of the

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plaintiff by receiving the balance sale consideration of ₹1,00,000/- within ninety days from the date of the judgment and further declared that the sale deed dated 23.01.2006 executed by defendant No.1 in favour of defendant No.2 is null and void and not binding on the plaintiff.

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Defendant No.2, aggrieved by the judgment and decree passed in Original Suit No.90 of 2006, preferred an appeal in Regular Appeal No.13 of 2010 on the file of II Additional District and Sessions Court, Ramanagara.

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The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for its consideration:

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Whether the trial Court is justified in decreeing the suit?

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Whether the judgment and decree of the trial Court is required to be interfered with in this appeal?

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The First Appellate Court, after reassessing the verbal and documentary evidence, answered point No.1 in the affirmative and point No.2 in the negative and consequently, dismissed the appeal by judgment dated 20.07.2013 and confirmed the judgment and decree passed by the Trial Court.

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Defendant No.2, being aggrieved by the impugned judgments of the Courts below, filed this Regular Second Appeal.

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Heard the arguments of the learned counsel for defendant No.2 and learned counsel for the plaintiff.

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Learned counsel for defendant No.2 submits that defendant No.2 is a bona fide purchaser for value without notice.

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He submits that the plaintiff has sought for a relief of declaration that the registered sale deed dated 23.01.2006, executed by defendant No.1 in favour of the defendant No.2, is null and void and not binding

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on the plaintiff. It is contended that the plaintiff ought to have valid the suit under Section 24(a) of the Karnataka Court fee and Suit valuation Act and pay half of the market value of the Court fee. On the contrary, the plaintiff has not paid the Court fee on the market value of the suit schedule property. He also submits that the defendant No.1 denied the execution of the sale agreement i.e., Ex.P1. The plaintiff has failed to prove the execution of Ex.P1. He submits that the plaintiff has got created Ex.P1 only to suit his illegal claim. Both Courts below have not properly exercised the discretion under Section 20 of the Specific Relief Act. The trial Court has passed the judgment only against defendant No.1 and not against defendant No.2. Hence, on these grounds he prays to allow the appeal.

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Per contra , learned counsel for the plaintiff submits that defendant No.1 agreed to sell the suit schedule property in favour of the plaintiff for consideration of

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3,20,000/- and accordingly, the plaintiff paid a sum of 2,20,000/- and it was agreed that the balance sale consideration to be paid at the time of the registration of the sale deed. He submits that defendant No.1, to deprive the legitimate right of the plaintiff, executed a registered sale deed in favour of defendant No.2. Defendant Nos.1 and 2 are the close relatives and no consideration was passed under the alleged registered sale deed. The sale deed executed by defendant No.1 in favour of defendant No.2 is not binding on the plaintiff. Hence, on these grounds, he prays to dismiss the appeal.

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This Court, vide order dated 27.06.2016, admitted the appeal to consider the following substantial questions of law:

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Were the courts below justified in decreeing the suit for specific performance when the defendant has denied Ex.P1?

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Were the courts below justified in decreeing the suit of the plaintiff in the

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absence of readiness and willingness of the vendor under Section 16(c) of the Specific Relief Act, 1963?

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Were the courts below justified in decreeing the suit for specific performance in the facts and circumstances of the present case?

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Reg: Substantial Question of Law Nos.1 to 3:

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Substantial Question Nos.1 to 3 are interlinked and taken together for common discussion to avoid the repetition of facts.

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It is the case of the plaintiff that defendant No.1 is the absolute owner of the suit schedule property. She agreed to sell the suit schedule property for consideration of 3,20,000/and accordingly defendant No.1 received the advance sale consideration amount of 2,20,000/- It was agreed that the balance sale consideration amount was to be paid at the time of the registration of the sale deed and in this regard a sale agreement was execured on 07.12.2005. Before the expiry of the time, defendant

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No.1 executed a registered sale deed in favour of defendant No.2.

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The plaintiff came to know about the ill intention of defendant No.1 in executing the registered sale deed dated 23.01.2006 in favour of defendant No.2. The plaintiff, immediately issued a legal notice on 25.01.2006, calling upon defendant No.1 to receive the balance sale consideration amount and execute a registered sale deed. The notice was served to defendant No.1. Defendant No.1 neither replied to the legal notice nor complied with the terms and conditions of the sale agreement dated 07.12.2005.

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The plaintiff, to prove the execution of a sale agreement, produced the following documents:

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Ex.P1 is the sale agreement which discloses that the defendant No.1 agreed to sell the suit schedule property in favour of the plaintiff for consideration of `3,20,000/and received

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`2,20,000/- from the plaintiff and executed a sale agreement on 07.12.2005.

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Ex.P2 is the RTC extract which discloses that the suit schedule property was stood in the name of defendant No.1.

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Ex.P3 is the certified copy of the sale deed which discloses that defendant No.1 executed a registered sale deed in favour of defendant No.2.

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Ex.P4 is the office copy of the legal notice which discloses that the plaintiff issued a legal notice to defendant No.1 calling upon defendant No.1 to receive the balance sale consideration and execute a registered sale deed.

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Ex.P5 is the postal receipt.

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o Ex.P6 is the ledger extract.

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Further, the plaintiff also examined an attesting witness to the sale agreement. The witnesses have deposed that, defendant No.1 was a absolute owner of the suit schedule property and she agreed to sell the suit schedule property in favour of the plaintiff by

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executing Ex.P1 i.e., the sale agreement and the signature of defendant No.1 is marked as Ex.P1(a) to Ex.P1(c) and the signature of the scribe was marked as Ex.P1(d) and the signature of the attesting witnesses was marked as Ex.P1(f) and (g).

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During the cross examination, except for admitting the execution of the sale agreement, receipt of `2,20,000/- by Defendant No.1, nothing has been elicited from the mouth of these witnesses to discard the evidence of PW1.

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On the other hand, defendant No1 was examined as DW1, She reiterated the written statement averments in the examination-in-chief and denied the execution of the sale agreement in favour of the plaintiff, receipt of `2,20,000/- as an advance sale consideration. It is contended that defendant No.1 needed money and she approached the plaintiff and her friends for a hand loan. The plaintiff and her

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friends took the signature on the blank papers and misused the signature on the blank papers and got created the Ex.P1. It is contended that defendant No.1 never agreed to sell the suit schedule property in favour of the plaintiff.

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It is stated that defendant No.1 executed a registered sale deed in favour of defendant No.2 for valuable consideration and produced the sale deed marked as Ex.D1.

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ExD2 is the RTC extract which discloses that based on Ex.D1, the name of defendant No.2 is entered in the RTC extract.

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Defendant No.1 has taken a specific defence in the written statement as well as in the examination-inchief that the plaintiff had obtained the signatures on the blank papers and misused the documents by creating the sale agreement.

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From the overall perusal of the entire evidence on record, the plaintiff, by examining himself as PW1 and also attesting witness and scribe to the Ex.P1, has proved the execution of a sale agreement by defendant No.1.

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On the other hand, defendant No.1 has taken a defence that defendant No.1 needed money, approached the plaintiff and requested him to advance a hand loan. Accordingly, the plaintiff advanced a hand loan and obtained the signature on the blank papers. Defendant No.1 has admitted to a transaction between the plaintiff and defendant No.1. Defendant No.1 has taken a defense that the plaintiff has got created the agreement of sale.

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When the plaintiff establishes the execution of the sale agreement, by examining witnesses, the burden shifts to defendant No.1 to prove that the plaintiff

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obtained the signature on the blank papers and got

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created the sale agreement.

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Admittedly, defendant No.1 has not examined any witnesses to establish the defense of defendant No.1. Defendant No.1 on the contrary, executed a registered sale deed in favour of defendant No.2 who is none other than the mother of defendant No.1 and defendant No.1 executed a registered sale deed in favour of Defendant No.2, within one month from the date of execution of the sale agreement in favour of the plaintiff. The said sale deed was executed only with an intention to deprive the rights of the parties for specific performance of a contract.

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In a suit for specific performance of a contract, the Court is required to consider the conduct of the parties to the suit. The plaintiff, to establish that he was/is always ready and willing to perform his part of the contract, issued a legal notice on 25.01.2006 i.e.,

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within 2 months from the date of execution of the sale agreement dated 07.12.2005. Defendant No.1 did not replied to the legal notice. Thus, the plaintiff, by issuing Ex.P4, has established that the plaintiff was/is always ready and willing to perform his part of the contract. On the other hand, defendant No.1 failed to establish that the plaintiff was not ready and willing to perform his part of contract. Defendant No.1 committed a breach of the contract.

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Defendant No.2 was examined as DW2 and contended that she is a bona fide purchaser for value without notice. Defendant No.2 being a close relative of defendant No.1, defendant Nos.1 and 2 having colluded with each other, got created the registered sale deed as per Ex.D1. Defendant No.2 was well aware of the execution of the sale agreement in favour of the plaintiff. Despite the knowledge, defendant No.2 had purchased the suit schedule property under Ex.D1. Defendant No.2 has failed to

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establish that she is a bona fide purchaser for value without any notice. Thus the plaintiff has proved the execution of the sale agreement dated 07.12.2005 by defendant No.1 in favour of the plaintiff and also proved that the sale deed executed by defendant No.1 in favour of defendant No.2 is null and void and also proved his readiness and willingness. Hence, both courts below have properly considered the entire evidence on record and rightly passed the impugned judgments.

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In view of the above discussions, I answer substantial question Nos.1 to 3 in the affirmative. Accordingly, I proceed to pass the following order.

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ORDER

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i) This Regular Second Appeal is dismissed .

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ii) The judgments and decrees passed by the Courts below are hereby

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confirmed .

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iii) The learned counsel for the plaintiff on instructions, submits that the plaintiff

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is ready to pay an additional

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consideration amount of `2,00,000/-.

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iv) Submission is placed on record.

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v) The Plaintiff is directed to deposit the additional consideration amount of `2,00,000/- before the Trial Court,

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within three months from today.

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vi) No order as to the costs.

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vii) In view of the dismissal of the appeal, pending interlocutory applications, if any, do not survive for consideration and accordingly, disposed of.

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Sd/(ASHOK S.KINAGI) JUDGE

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SKS/RK/RCK CT: KVH List No.: 2 Sl No.: 3

Smt Devamma v. Narasimha Murthy

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Smt Devamma v. Narasimha Murthy

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