B Venkataraju S/O. Late G Byrappa Vs Smt Tarabai W/O. Changanlal

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED: 04.10.2008 PASSED IN OS.NO.1299/1989 ON THE FILE OF THE XV ADDL.CITY CIVIL JUDGE, BANGALORE CITY, PARTLY DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.

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THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED ON 23.01.2026 FOR JUDGMENT COMING ON FOR PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE M.G.S.KAMAL

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CAV JUDGMENT

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(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)

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Defendant No.2 in O.S No.1299/1989 is before this Court

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being aggrieved by the Judgment and decree dated 04.10.2008 passed in the said suit on the file of XV Additional City Civil and Sessions Judge, Bengaluru City (CCH.No.3), (hereinafter referred to as 'trial Court') whereby, the trial Court while decreeing the suit for specific performance, has directed defendant Nos. 1 and 2 to execute registered deed of sale in respect of the suit schedule property in favour of the plaintiff within 6 months from the date of the judgment of the order. It has further directed plaintiff to pay a balance consideration of

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₹ 3,00,000/- to defendant No.2 on behalf of defendant No. 1, because he has paid the amount of ₹3,00,000/- to defendant

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No.1 while purchasing the schedule property under Ex.D5 dated 19.09.1996 and has further ordered that in the event of failure to execute the registered sale deed by the defendant Nos.1 and 2, the plaintiff is entitled to get the registered sale deed through the process of the Court in execution by depositing the consideration amount of ₹3,00,000/- in the Court. It is further ordered that suit filed by the plaintiff claiming ₹5,000/- as additional advance paid by him was dismissed.

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Subject matter of the suit is a site bearing No.5 situated near Hale Tolegate, Magadi Road, Bangalore-23, measuring east to west 50 feet, north to south on the eastern side 34 feet, on the western side 37 feet, bounded on the east by : the site belonging to Hajee Pasha, west by : the property belonging to Byrappa, north by : police quarters compound and south by: Magadi Road (hereinafter referred to as 'suit schedule property').

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Originally plaintiff had filed a suit for permanent injunction. The plaint was later amended on 09.10.1991 to include the prayer for direction to execute and register the deed of sale in favour of the plaintiff.

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(a) That above suit is filed by plaintiff Smt. Tarabai,

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w/o Sri Chaganlal, against defendant No.1/Smt. Yashodabai for the relief of specific performance contending inter alia that;

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(b) the defendant No.1 had entered into an agreement dated 12.03.1988 agreeing to sell the suit schedule property for a total sale consideration of ₹3,25,000/-. That in furtherance to the said sale agreement, on 12.03.1988 plaintiff had paid a sum of ₹25,000/- towards part payment of sale consideration. That the remaining sum of ₹3,00,000/- was agreed to be paid within 6 months and to obtain the registered deed of sale subject to defendant No.1 furnishing all the documents namely, (i) possession certificate from the Bangalore Development Authority, (ii) permission letter from the Urban Ceiling authorities, (iii) Khata and tax paid receipts from the Corporation etc.,

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(c) That plaintiff in addition to the above had also paid a sum of ₹5,000/- towards the necessary expenditure enabling the defendant No.1 to obtain the aforesaid documents from competent authorities, as agreed. However, there was no shara written on the sale agreement in that regard. That immediately after about a month from the date of payment of ₹5,000/-, plaintiff requested the defendant No.1 to obtain all documents

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as agreed under the agreement enabling him to pay the entire balance sale consideration of ₹3,00,000/- within the stipulated period of 6 months and to obtain the registered deed of sale. However, defendant No.1 went on postponing for one reason or the other.

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(d) The plaintiff was always ready and willing to perform his part of the contract by paying the balance sum of ₹3,00,000/- and to obtain the deed of sale. Defendant No.1 instead of complying with the demand and the request of the plaintiff started negotiating with some third parties, namely, Sri. Venkatesh/defendant No.2 for higher consideration suppressing the agreement that she had entered into with the plaintiff. In this regard plaintiff through her husband Chaganlal contacted the broker namely, Sri Giraga Reddy who had informed the plaintiff that defendant No.1 was not interested to sell the suit schedule property as she had sent a letter to him stating that some other party had approached to purchase the suit schedule property offering higher consideration amount of more than ₹4,00,000/-. Defendant No.1 had even handed over the possession of the said property to the plaintiff and had agreed to give rent of ₹101. That the rent was being collected

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by defendant No.1 from one Sri.Shivanna who was running a petty shop over the suit schedule property. Hence, the suit.

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Defendant No.1 filed her written statement;

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(a) defendant No.1 admitted that she had entered into

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an agreement of sale on 12.03.1988, for a total sale consideration of ₹3,25,000/- in respect of the suit schedule property. She further contended that on the date of agreement she received ₹25,000/- as earnest money, and the plaintiff had agreed to pay the balance consideration of ₹3,00,000/- within six months. However, payment of sum of ₹ 5,000/- by the plaintiff as claimed, is denied. It is contented that after entering into an agreement, defendant No.1 had given all the documents which were in her possession to the plaintiff’s husband/ Sri Chaganlal to pursue the matter as he voluntarily agreed to do so. But he did not take any action for the reasons best known

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to him. It is further contented there was no question of defendant getting all the documents like possession certificate etc., as the plaintiff's husband himself had undertaken to do the same. Defendant No.1 had no occasion to pursue the matter.

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(b) The allegation of defendant No.1 went on

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postponing the matter on one ground or the other is denied. That the plaintiff's husband had promised to pay a sum of ₹1,00,000/- to meet the marriage expenses of the defendant's daughter Sow.Malathi and consequent to said assurance, the date for marriage was fixed on 21.05.1989. Despite the defendant No.1 approaching the plaintiff on several occasions, the plaintiff's husband failed to fulfill his obligation, causing the defendant No.1 to seek alternate financial arrangements to ensure the marriage was solemnized as scheduled.

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(c) That after waiting for sometime defendant No.1 was constrained to cause issuance of a notice dated 27.01.1989 to the plaintiff apprising her that as no action was taken by the plaintiff's husband and as had not evinced any interest to complete the sale transaction, defendant No.1 requested all the papers must be returned to her and that she herself would rectify all the defects and on failing to comply with this, she would be forced to refund the advance amount, and thereafter to treat the agreement as cancelled. That, it is only after receiving the said notice the plaintiff caused issue of a notice through her advocate suppressing all the above facts alleging

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defendant No.1 was attempting to sell the property in favour of third party.

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(d) It is further contented that suit schedule property was in possession of one Sri Venkataraju and it is not in the possession of plaintiff’s husband. Recitals made in the agreement are written at the instance of the plaintiff’s husband and so called rent of ₹101 was to be paid was false.

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(e) that entire agreement was one sided and intended only to defeat the rights of the defendant No.1. Defendant No.1 was owning only the suit property and she would put to greater hardship, loss and difficulty if she was directed to receive the balance sale consideration and to execute the sale deed and to get the same registered.

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(f) It is contented there is no merits in the content of plaintiff's allegation that she was always ready and willing to perform her part of the obligation. That the plaintiff had failed to do so within the time stipulated under the agreement. That she had failed to execute the sale deed within a period of 6 months after paying the balance sale consideration to the defendant No.1. As such, defendant No.1 was not obligated to execute the Sale Deed. As such, sought for dismissal of suit.

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Defendant No.2 filed his written statement

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contending inter alia ;

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(a) That he had entered into an agreement with defendant No.1 on 12.01.1988 in respect of the suit schedule property for a sale consideration of Rs.3,00,000/-. The defendant No.1 went on receiving the various sums as per her needs as she had a big family. The payment of various amount done by defendant No.2 to defendant No.1 has been endorsed on the agreement of sale. Defendant No.2 is in possession of the property in terms of the sale agreement.

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(b) That plaintiff's husband/ Chaganlal was aware of the aforesaid agreement. Plaintiff's husband has deliberately entered into suit agreement on 12.03.1988 that is one and half month subsequent to his agreement dated 12.01.1988 in the name of his wife. As such, the agreement of sale dated 12.03.1988 executed between the plaintiff and the defendant No.1 is void and it is not a concluded contract.

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(c) That the agreement dated 12.03.1988 is a result of fraud played by plaintiff's husband against the defendant No.2 to defeat his lawful rights over the suit schedule property. Hence, sought for dismissal of the suit.

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6. Based on the pleadings, trial Court framed the

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following issues:

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"(1) Whether plaintiff proves that she has paid further sum of ₹ 5,000?

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

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(3) Whether plaintiff proves that the defendant failed to perform her obligation?

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(4) Whether defendant proves that the plaintiff did not show interest, so she got issued a legal notice?

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(5) Whether the defendant proves that the object of sale is frustrated by delay?

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(6) Whether the defendant proves that Venkat Raju is in possession and decree?.

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(7) What decree or order?."

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7. Husband of the plaintiff Sri.Chaganlal examined

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himself as PW.1 and another witness Sri.Jayaram examined as PW.2 and marked 5 documents as Ex.P1 to Ex.P5. Defendant No.1/Yashodabai and defendant No.2/B Venkataraju examined themselves as DW.1 and DW.2 and marked 6 documents as Ex.D1 to Ex.D6.

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It is necessary also to note that the plaintiff Smt.Tharabai had filed another suit in O.S No. 5081/1992 seeking relief of permanent injunction claiming to be in possession of the suit property. The trial Court had taken up

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the above O.S. No.1299/1989 and O.S No. 5081/1992 for common trial and disposal. On appreciation of the evidence, the trial Court decreed the suit in O.S. No. 1299/1989 as prayed for and dismissed the suit in O.S.No. 5081/1992. The plaintiff has not chosen to file any appeal as against dismissal of her suit in O.S. No. 5081/1992.

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Aggrieved by the judgment and decree, defendant No.2 is before this Court in this appeal.

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Sri Raghuprasad B. S. learned counsel appearing for the appellant taking this Court through the records submitted;

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(a) that the trial Court erred in granting the relief of specific performance without appreciating the pleading, material evidence and the settled position of law.

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(b) that the plaintiff has not entered the witness box to prove her readiness and willingness. Plaintiff has examined her husband Chaganlal instead. The evidence of Chaganlal being the power of attorney holder of the plaintiff cannot be relied upon as he is not a competent witness to speak about readiness and willingness of the plaintiff.

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(c) that the plaintiff neither having entered the witness box nor having proved the ready and willingness in the manner known to law, the suit could not have been decreed in the light of mandatory provisions of Section 16(c) of the Specific Relief Act, 1963.

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(d) that the agreement is not a concluded agreement it is a sham agreement. That the husband of the plaintiff Chaganlal was admittedly running a pawn broker business therefore an inference has to be drawn that the agreement was in the nature of mortgage obtained by the husband of the plaintiff.

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(e) that the plaintiff has not produced any documentary evidence to justify her claim of she being ready and willing to perform her part of the contract.

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(f) Referring to Ex.P3 learned counsel pointed out that, defendant No.1 at an undisputed point of time, admittedly forwarded a communication through a middleman to the plaintiff expressing her intention of revoking the agreement on the premise of plaintiff not paying the sale consideration within the time stipulated. He submits perusal of the said document also indicate

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that the defendant No.1 was in dire need of the financial assistance to meet the marriage expenses of her daughter. Therefore, the agreement has to be construed as one having time being essence of contract.

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(g) that the plaintiff had originally filed a suit for bare injunction on 01.03.1989. However, the same was amended and converted to one for specific performance on 09.10.1991. Though, the suit agreement having been purportedly entered into on 12.03.1988, the suit for specific performance had been filed by way of amendment on 09.10.1991. Thus, the same was barred by limitation, is his submission.

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He relied upon the following judgments in support of his submissions;

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1 RAJESH KUMAR V/S ANAND KUMAR AND OTHERS reported in AIR 2024 SC 3017

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2. GURAPPA @ RAJASHEKARAPPA V/S BASAVARAJ CHENNAPPA NELAVAGI reported in 2022(1) AKR 391

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3. JANKI VASHDEO BHOJWANI AND OTHERS V/S INDUSIND BANK LTD., reported in AIR 2005 SC 439

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4. R.SHAMA NAIK V/S G.SRINIVASAIAH reported in (2025) 1 KLR 9(SC)

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5.	PYDI RAMANA @RAMULU V/S DAVARASETY MANMADHA RAO reported in AIR 2024 SC 3242
6.	C.S.VENKATESH V/S ASC MURTHY AIR 2020 SC 930 reported in
7.	PUNNY AKAT PHILIP RAJU V/S DINESH REDDY reported in ILR 2016 KAR 2252
8.	H.P.PYAREJAN V/S DASAPPA reported in AIR 2006 SC 1144
9.	V.K.RAMEGOWDA V/S T.SHANKARA CHIKKATHIMMEGOWDA AND OTHERS reported in 2025(3)AKR 706
10.	SMT NARASAMMA V/S NIRANNANILATHA MOMMEN JOHN reported in (2007)2 c vKLJ 427(DB)
11.	RAJU AND OTHERS V/S BASAAVARJUBASAVE GOWDA AND OTHERS reported in AIR 2024 KAR 210
12.	P.K.JAGANNATHA RAO V/S MURALIDHAR BHAT ] reported in 2022 AIR CC 658
13.	ALAGAMMAL AND OTHERS V/S GANESAN AND ANOTHER reported in AIR 2024 SC 604
14.	MANILAL V/S K.RAMACHANDRA RAJU reported in AIR 2024 ΚAR 303(DB)
15.	SHIVAGOPAL SAH @SAHU V/S SITARAM SARANGI reported AIR 2007 SC 1478
16.	RAHEJA CONSTRUCTIONS V/S ALLIANCE MINISTRIES reported in 1995 SUPP (3) SCC
17.	RAMAWADH DEAD BY LRS VS ACHHAIBAR
	DUBEY AND ANOTHER reported in 2000(2)SCC428

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18. RAMACHANDRA VS RAMAKRISHNAIAH 2025(3) KCCR 2726

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Sri. Y. K. Narayana Sharma, learned counsel for the

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plaintiff/respondent on the other hand submitted;

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(a) that strict rule of ready and willingness is not applicable to the facts and circumstances of the instant case. He submitted that the agreement was a contingent agreement in that the performance on the part of the plaintiff was dependent upon the performance of the terms of the agreement by the defendant No. 1.

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(b) That it is a settled position of law that if the defendant/vendor was required under the agreement to perform certain terms of the contract and without performing such part of the contract, the defendant cannot call upon the plaintiff to perform his part of the contract.

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(c) that despite the plaintiff issuing the notice as per Ex.P4 dated 27.01.1989 calling upon the defendant No.1 to perform her part of the contract, she has not performed any of her obligation. Therefore, the plaintiff was not required to prove about her readiness and willingness

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until and unless the defendant No.1 had performed all her part of the contract.

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(d) That the suit though initially filed for injunction, the same was amended and relief of specific performance was sought. The agreement also provided a period of 6 months for the payment of money and statutory period of 3 years has to be calculated after expiry of said 6 months. In any event, even the amendment sought for was within statutory period of 3 years, the suit was well within period of limitation.

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(e) That very issuance of notice and filing of the suit within a month thereafter has to be construed as plaintiff having proved her intention of readiness and willingness to perform her part of the contract.

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(f) That after passing of the decree as in compliance of the direction issued by the trial Court the plaintiff has deposited ₹ 3,00,000/- in the Execution Proceedings and a deed of sale has already been executed by the Court for and on behalf of defendant Nos. 1 and 2. As such, the transaction has been completed warranting no interference at the hands of this Court.

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(g) As regards competency of PW1, he submitted that PW1 is none other than the husband of the plaintiff and he had personal knowledge of the entire transactions. He submitted even the defendants in the written statement have pleaded about the involvement of the husband of the plaintiff in the entire transactions. Therefore, he is a competent witness to depose for and on behalf of the plaintiff and no in-competency can be attributed to the said witness. Contending as above, sought for dismissal of the appeal.

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He relied upon the following judgments in support of his

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case;

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1. BEEMANENI MAHA LAKSHMI VS. GANGUMALLA APPA RAO (SINCE DEAD BY LRS reported in AIR 20019 SC 3013

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2. PANDURANG GANPAT TANAWADE VS. GANPAT BHAIRU KADAM AND OHERS reported in AIR 1997 SC 464

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3. MOTILAL JAIN VS. SMT. RAMDASI DEVI AND OTHERS reported in AIR 2000 SC 2408

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4. MAHARAJ SINGH VS. KARAN SINGH (DEAD) THR. LRS. reported in AIR 2024 SC 3328

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5. P. RAMASUBBAMMA VS. V.VIJAYALAKSHMI reported in AIR 2022 SC 1793

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6. P.DAIVASIGAMANI VS. S.SAMBANDAN reported in AIR 2022 SC 5009

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7. DURGA PRASAD AND ANOTHER VS. DEEP CHAND AND OTHERS reported in AIR 1954 SC 75

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8. RAMESH CHANDRA CHANDIOK AND ANOTHER VS. CHUNI LAL SABHARWAL (DEAD) BY HIS LEGAL REPRESENTATIVES AND OTHERS reported in AIR 1971 SC 1238

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9. RATHNAVATHI AND ANOTHER VS. KAVITA GANASHAMDAS reported in 2014 AIR SCW 6288

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10. CHANDER BHAN(D) THROUGH LR SHER SINGH VS. MUKHTIAR SINGH reported in AIR 2024 SC 2267

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11. ILR 2019 KAR 1899

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Heard. Perused the records.

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The points that arise for consideration is;

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"(1) Whether the plaintiff has proved she entering into agreement of sale dated 12.03.1988 with defendant No.1 as per Ex.P2?

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(2) Whether the plaintiff in the facts and circumstances of the case has proved her readiness and willingness to perform her part of the contract?

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(3) Whether PW.1 is a incompetent witness as such the trial Court ought not to have relied upon his evidence?

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(4) Whether the defendant No.2 proves that he had entered into agreement dated 12.1.1988 and was put in possession of the property pursuant to thereof?

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(5) Whether the trial Court is justified in decreeing the suit for specific performance as sought for by the plaintiff?"

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REGARDING POINT NO.1:

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There is no dispute of the fact that defendant No.1 being the owner of suit schedule property had indeed entered into agreement of sale dated 12.03.1988 as found in Ex.P2. There is also no dispute of the fact that plaintiff having agreed to pay the sale consideration of ₹3,25,000/-, had indeed paid ₹25,000/- towards advance consideration of sale on the date of the agreement. Defendant No.1 in her written statement has admitted to these facts. As such, point No.1 is answered in the affirmative.

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REGARDING POINT NO.2:

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The dispute is only with regard to allegation made by the plaintiff that the defendant No.1 had not furnished the documents as undertaken by her in the agreement resulting in delay in plaintiff obtaining the registered deed of sale. While defendant No.1 has alleged that the plaintiff despite several requests had failed and neglected to pay the balance sale consideration as agreed. It is also contended by defendant No.1 that she had handed over all the documents as agreed on the

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very date of entering into the agreement to the plaintiff and there was nothing required on her behalf to be performed.

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Appropriate for this purpose to extract the contents

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of the agreement of sale at Ex.P2, which are as under;

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"¸À£ï MAzÀÄ ¸Á«gÀzÀ MA¨ÉÊ£ÀÆgÀ JA§vÉÛAl£ÉÃ E¸À« ªÀiÁZïð ªÀiÁºÉ vÁjÃRÄ ºÀ£ÉßgÀqÀgÀ°è - ¨ÉAUÀ¼ÀÆgÀÄ¹n ªÀiÁUÀr gÉÆÃqÀÄ ºÀ¼ÉÃ mÉÆÃ¯ï UÉÃmï §½AiÀÄ 72/© £ÉÃ £ÀA§gï ªÀÄ£ÉAiÀÄ°è ªÁ¸ÀªÁVgÀÄªÀ ²æÃ ZÀUÀ£ï ¯Á¯ïAiÀÄªÀgÀ ¥ÀPÀÌ ¸ÀÄªÀiÁgÀÄ 36 ªÀµÀð ªÀAiÀÄ¹ì£À ²æÃªÀÄw vÁgÁ ¨Á¬ÄAiÀÄªÀjUÉ ¨ÉAUÀ¼ÀÆgÀÄ ¹n vÁåUÀgÁd£ÀUÀgÀ ¨Á¯Áf gÀ¸ÉÛ 221/1 £ÉÃ £ÀA§gï ªÀÄ£ÉAiÀÄ°è ªÁ¸ÀªÁVgÀÄªÀ ²æÃ ©.JA. ªÀÄÄ¤¸Áé«ÄgÁªïAiÀÄªÀgÀ ¥Àwß AiÀÄ±ÉÆÃzÁ ¨Á¬Ä DzÀ £Á£ÀÄ §gÉ¬Ä¹PÉÆlÖ ¤ªÉÃ±À£À ±ÀÄzÀÝ PÀæAiÀÄzÀ CqÁé£ïì PÀgÁj£À PÀæªÀÄ K£ÉAzÀgÉ ¨ÉAUÀ¼ÀÆgÀÄ ¹n ªÀiÁUÀrgÀ¸ÉÛ ºÀ¼É mÉÆÃ¯ï UÉÃmï §½¬ÄgÀÄªÀ £ÀªÀÄä ¨Á§ÄÛ SÁ° ¤ªÉÃ±À£ÀªÀ£ÀÄß £Á£ÀÄ vÁjÃRÄ 25.05.1964gÀ°è 1199 £ÉÃ £ÀA§gï jf¸ÀÖgÀÄ PÀæAiÀÄ ¥ÀvÀæzÀ ªÀÄÆ®PÀ ¥ÀqÉzÀÄPÉÆArgÀÄvÉÛÃ£É. ¨ÉAUÀ¼ÀÆgÀÄ PÁ¥ÉÆðgÉÃµÀ£ïgÀªÀgÀÄ EzÀPÉÌ ºÀ¼É 15/ B ºÉÆ¸À 5£ÉÃ £ÀA§gï zÁR¯É r £À¤ßAzÀ vÁjÃRÄ 18-10-65 gÀ°è 6977£ÉÃ £ÀA gÀ¹Ã¢AiÀÄ°è 7.93 gÀÆ UÀ¼À£ÀÄß vÁjÃRÄ 01.05.70 gÀ°è 3772 ªÀÄvÀÄÛ 3773£ÉÃ £ÀA§gï gÀ¹Ã¢UÀ¼À ªÀÄÆ®PÀ gÀÆ.309-75 gÀÆ ªÀÄvÀÄÛ 35.20 gÀÆ¥Á¬ÄUÀ¼À£ÀÄß PÀAzÁAiÀÄPÁÌV ¥ÀqÉzÀÄPÉÆAqÀÄ PÀlÖqÀ PÀlÖ®Ä LP 1350/707 vÁ 6-8-1970 £ÉÃ £ÀA§gï ¯ÉÊ¸À£ïì ¸ÀºÀ PÉÆnÖzÀÝgÀÄ £ÀAvÀgÀ F ¸ÀévÀÄÛ ¨ÉAUÀ¼ÀÆgÀÄ qÉªÀ®¥ïªÉÄAmï CxÁjnUÉ M¼À¥ÀnÖgÀÄªÀÅzÀjAzÀ SÁvÉ ªÀiÁrgÀÄªÀÅzÀÄ vÀ¥ÉàAzÀÄ CzÀ£ÀÄß ªÀeÁªÀiÁrgÀÄªÀÅzÁV B23.PR 47 /76-77 vÁjÃRÄ 22-9-76£ÉÃ £ÀA§gï £ÉÆÃnÃ¸ÀÄ §A¢vÀÄÛ. F £À£Àß ¸ÉÊn£À »A¨sÁUÀzÀ ¥ÀÆªÀð ¥À²ÑªÀÄ 50 CrUÀ¼À GvÀÛgÀ zÀQët 50+57 Cr C¼ÀvÉAiÀÄ eÁUÀªÀ£ÀÄß vÁ 22.11.1975 gÀ°è ²æÃ gÁªÀÄ¥ÀÄgÀA ¸À¨ïjf¸ÁÖçgïgÀªÀgÀ 1£ÉÃ §ÄPï£À 431£ÉÃ ªÁå®åA 247 jAzÀ 250£ÉÃ ¥ÀÄlUÀ¼À°è 245£ÉÃ £ÀA§gÁV jf¸ÀÖgï DVgÀÄªÀ PÀæAiÀÄ ¥ÀvÀæPÀ ªÀÄÆ®PÀ ²æÃ ºÀAiÀiÁvï ¥ÁµÀ JA§ÄªÀªÀjUÉ PÀæAiÀÄPÉÌ PÉÆmÁÖ ªÀÄÄA¨sÁUÀzÀ JAzÀgÉ ªÀiÁUÀr gÉÆÃrUÉ ®UÀvÁÛV ¥ÀÆªÀð¥À²ÑªÀÄ 50 CrUÀ¼ÀÄ GvÀÛgÀ zÀQët 34+37 Cr C¼ÀvÉAiÀÄ ¤ªÉÃ±À£ÀªÀ£ÀÄß G½¹PÉÆAqÀzÉÝ EzÀgÀ°è ¥ÀÆªÀðzÀ PÀqÉ 5 CUÀ® £ÀªÀÄUÀÆ ²æÃ ºÀAiÀiÁvï ¥ÁµÀ gÀªÀjUÀÆ NqÁqÀ®Ä PÁªÀÄ£ï ¥Áå¸ÉÃeï ©lÄÖPÉÆArgÀÄvÉÛÃ£É. F ¸ÀéwÛ£À ªÉÄÃ¯É ©rJ AiÀÄªÀjUÉ PÁ£ÀÆ¤£ÀAvÉ C¢üPÁgÀ E®è¢zÀÝgÀÆ CªÀgÀ PÉÆÃjPÉAiÀÄAvÉ £À£Àß §½¬ÄzÀÝ Mjf£À¯ï PÀæAiÀÄ ¥ÀvÀæ PÀAzÁAiÀÄzÀ gÀ¹Ã¢UÀ¼ÀÄ ªÀÄvÀÄÛ J£ïPÀA¨Éæ¸ï ¸Ànð¦üÃPÉÃlÄUÀ¼À£ÀÄß ¥ÀqÉzÀÄ F ¸ÉÊlÄ £À£ÀUÉ ©lÄÖ PÉÆnÖgÀÄªÀÅzÁVAiÀÄÆ ºÉÃ½ £À¤ßAzÀ vÁ 14.07.1977gÀ°è gÀÆ 566/- £ÀÄßö 24489£ÉÃ £ÀA§gï ZÀ®£ï ªÀÄÆ®PÀªÀÇ vÁjÃRÄ 20.07.77gÀ°è gÀÆ 1696/£ÀÄß 35243£ÉÃ £ÀA§gï ZÀ®£ï ªÀÄÆ®PÀªÀÇ ¥ÀqÉzÀÄPÉÆArgÀÄvÁÛgÉ. ©rJAiÀÄªÀgÀÄ ªÉÄÃ®ÌAqÀ DzsÁgÀzÀ°è PÉ®ªÀÅ £ÀÆå£ÀvÉUÀ½gÀÄªÀÅzÀ£ÀÄß ¸Àj¥Àr¸À¨ÉÃPÉAzÀÄ vÁ 1-8-1977 gÀ°è Cfð PÉÆnÖgÀÄvÉÛÃ£É EzÀgÀ ªÉÄÃ¯É ©rJ AiÀÄªÀjAzÀ AiÀiÁªÀ GvÀÛgÀªÀÇ §A¢gÀÄªÀÅ¢®è ªÀÄvÀÄÛ £ÀÆå£ÀvÉUÀ¼À£ÀÄß ¸Àj¥Àr¹gÀÄªÀÅ¢®è. ªÉÄÃ®ÌAqÀAvÉ £Á£ÀÄ G½¹PÉÆArgÀÄªÀ ¤ªÉÃ±À£ÀªÀ£ÀÄß £À£ÀUÉ

¶138

21 -

¶139

FUÀ ºÀtzÀ CªÀ±ÀåPÀvÉ EgÀÄªÀÅzÀjAzÀ ¤ªÀÄUÉ ªÉÆ§®UÀÄ 3,25000/- ªÀÄÆgÀÄ ®PÀëzÀ E¥ÀàvÉÛÃzÀÄ ¸Á«gÀzÀ gÀÆ¥Á¬ÄUÀ½UÉ ±ÀÄzÀÞ PÀæAiÀÄPÉÌ PÉÆqÀ®Ä M¦à F ¢ªÀ¸À F PÉ¼ÀUÉ gÀÄdÄ ªÀiÁrgÀÄªÀ ¸ÁQëUÀ¼À ¸ÀªÀÄPÀëªÀÄ ¤«ÄäAzÀ gÀÆ.25,000/E¥ÀàvÉÛöÊzÀÄ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À£ÀÄß CqÁé£ïì DV ¥ÀqÉzÀÄPÉÆArgÀÄvÉÛÃ£É ¨ÁQ G½PÉ ªÉÆ§®UÀ£ÀÄß ¤ÃªÀÅ F¯ÁUÁ¬ÄvÀÄ 6 wAUÀ¼À M¼ÀUÁV CxÀªÁ £Á£ÀÄ ©rJAiÀÄªÀjAzÀ ¥ÉÆeÉµÀ£ï ¸Énð¦üPÉÃmï ªÀÄvÀÄÛ PÀæAiÀÄ¥ÀvÀæªÀ£ÀÄß ¥ÀqÉzÀÄ ¥ÀjäµÀ£ïUÁV Cfð ¸À°è¹zÀ JgÀqÀÄ wAUÀ¼À M¼ÀUÁV ¥ÁªÀw ªÀiÁr ¤ÃªÀÅ ¤ªÀÄä ¸ÀéAvÀ Rað¤AzÀ ¤ªÀÄä ºÉ¸ÀjUÉ DUÀ° ¤ÃªÀÅ PÀµÀÖ¥ÀqÀÄªÀ EvÀgÉAiÀÄªÀgÀ ºÉ¸ÀjUÁUÀ° jf¸Àëgï ªÀiÁr¹PÉÆ¼ÀîvÀPÀÌzÀÄÝ - F ¸ÀévÀÄÛ £À£Àß ¸ÀéAiÀiÁfðvÀªÁzÀ ¸ÀévÁÛVgÀÄvÉÛ JAzÀÄ M¦à §gÉ¬Ä¹PÉÆlÖ SÁ° ¤ªÉÃ±À£ÀzÀ ±ÀÄzÀÞ PÀæAiÀÄzÀ CqÁé£ïìPÀgÁgÀÄ ¸ÀºÀ µÉqÀÆ¯ïì - ¨ÉAUÀ¼ÀÆgÀÄ ¹n ªÀiÁUÀr gÀ¸ÉÛ ºÀ¼É mÉÆÃ¯ïUÉÃmï §½AiÀÄ ¨ÉAUÀ¼ÀÆgÀÄ¹n PÁ¥ÉÆðgÉÃµÀ£ï¤AzÀ »AzÉ 5£ÉÃ £ÀA§gÁV zÁR¯ÉVzÀÝ ¤ªÉÃ±À£ÀPÉÌ ZÀPÀÄÌ §A¢ ¥ÀÆªÀðPÉÌ ²æÃ ºÀAiÀiÁvï ¥ÁµÁAiÀÄªÀgÀ ¸ÉÊmï ¥À²ÑªÀÄPÉÌ ¯ÉÃmï ¨ÉÊgÀ¥Àà£ÀªÀgÀ ¸ÀévÀÄÛ GvÀÛgÀPÉÌ ¥ÉÆÃ°¸ï PÁélð¸ï PÁA¥Ëqï zÀQëtPÉÌ ªÀiÁUÀr gÀ¸ÉÛ F ªÀÄzsÉå EgÀÄªÀ ¥ÀÆªÀðzÀ ¥À²ÑªÀÄ 50 Cr (LªÀvÀÄÛ Cr) PÁªÀÄ£ï ¥Áå¸ÉÃeï 5 Cr ¸ÉÃj) GvÀÛgÀ zÀQët ¥ÀÆªÀðzÀ PÀqÉ 34 (ªÀÄÆªÀvÀÛ £Á®Ì) CrUÀ¼ÀÄ ¥À²ÑªÀÄzÀ PÀqÉ 37 (ªÀÄÆªÀvÉÛÃ¼ÀÄ CrUÀ¼ÀÄ) C¼ÀvÉAiÀÄ SÁ° ¤ªÉÃ±À£À F PÀgÁjUÉ M¼À¥ÀnÖgÀÄvÉÛ.MAzÀÄ ªÉÃ¼É F ¸ÉÊmï£ÀÄß FZÉUÉ AiÀiÁgÁzÀgÀÆ MvÀÄÛªÀj ªÀiÁrzÀÄÝ PÀAqÀÄ §AzÀ°è CzÀ£ÀÄß ¤ÃªÀÅ F PÀgÁj£À DzsÁgÀzÀ ªÉÄÃ¯É ¤ªÀÄä ¸ÀéAvÀ Rað¤AzÀ ©r¹PÉÆ¼Àî®Ä §zÀÞgÁVgÀvÀPÀÌzÀÄÝ"

¶140

Thus as seen above, parties had agreed that the plaintiff who has paid ₹25,000/- towards part payment of sale consideration out of the agreed sale consideration of ₹ 3,25,000/-, was required to pay the balance amount of sale consideration within 6 months or within 2 months from the date on which the defendant was required to obtain and furnish the possession certificate, sale deed, permission from the Bangalore Development Authority.

¶141

Ex.P4 is the notice dated 27.01.1989 issued by the plaintiff through her counsel to the defendant No.1 in which reiterating the facts narrated above, it is contented that plaintiff in addition to sum of ₹25,000/- had paid another sum of

¶142

22 -

¶143

₹5,000/- towards the necessary expenditure in order to get the possession certificate from the BDA and also permission letter from the Urban Ceiling Authority. That by the said notice plaintiff has called upon the defendant No.1 to intimate about securing the documents and to receive the balance consideration of ₹3,00,000/- and to execute the deed of sale in favour of the plaintiff within 7 days from the receipt of the said notice. The said notice further calls upon the defendant No.1 that she should not alienate the suit schedule property which is in possession of the plaintiff’s husband to any other person. There is admittedly no reply issued to the said notice. Interestingly, on the very same day i.e., on 27.01.1989 the defendant No.1 has also caused issue of a notice produced at Ex.D1, contents of the said notice are extracted hereunder;

¶144

"¸À£ï MAzÀÄ ¸Á«gÀzÀ ಒಂ�ೈನೂರJA¨sÀvÉÆÛA§vÀÛ£ÉÃ E¸À« ಜನವ��ಾ�ೆ E¥ÀàvÉÛÃ¼ÀgÀ°è

¶145

¨ÉAUÀ¼ÀÆgÀÄ¹n ªÀiÁUÀr gÉÆÃqï ºÀ¼ÉÃ mÉÆÃ¯ïUÉÃmï §½AiÀÄ 72: ©

¶146

£ÀA§gÀÄ ªÀÄ£ÉAiÀÄ°è ªÁ¸ÀªÁVgÀÄªÀ ²æ ZÀUÀ¯ï¯Á¯ïರವರzsÀªÀÄð¥Àwß ��ೕಮ�

¶147

�ಾ�ಾ�ಾ�AiÀÄವ��ೆ : ¨ÉAUÀ¼ÀÆgÀÄ¹n vÁåUÀgÁd£ÀUÀgÀ 2£ÉÃ ¨ÁèPï ¨Á¯Áf gÀ¸ÉÛAiÀÄ 221:1£ÉÃ £ÀA§gÀÄ ªÀÄ£ÉAiÀÄ°è ªÁ¸ÀªÁVgÀÄªÀ AiÀÄ±ÉÆÃzÁ¨Á¬Ä DzÀ £Á£ÀÄ w½AiÀÄ¥Àr¸ÀÄªÀÅzÉÃ£ÉAzÀgÉ:-

¶148

ನನ� ¨Á§ÄÛ �ಾಗ� �ೋಡು ಹ ೇ mÉÆÃ¯ïUÉÃmï §½AiÀÄ ಮು!"ಪ$ ನಂ.5 %ೇ ನಂಬರು ಪ'ವ( ಪ�)ಮ PÁªÀÄ£ï ¥Áå¸ÉÃdÄ *ೇ� 50 ಅ�,

¶149

ಉತ.ರ ದ0ಣ ಪ'ವ(ದಕ3ೆ 34 ಆ�, ¥À²ÑªÀÄzÀ PÀqÉ 37 Cr C¼ÀvÉAiÀÄ ¸ÉÊlÄ ¤ÃªÀÅ gÀÆ. 3,25000-00 (ªÀÄÆgÀÄ ®PÀëzÀ E¥ÀàvÉÛöÊzÀÄ ¸Á«gÀ gÀÆ¥Á¬Ä)UÀ½UÉ PÀæAiÀÄPÉÌ ¥ÀqÉAiÀÄ®Ä M¦à gÀÆ.25,000-00 (E¥ÀàvÉÛöÊzÀÄ ¸Á«gÀ

¶150

23 -

¶151

gÀÆ¥Á¬Ä)UÀ¼À£ÀÄß CqÁé£Àì DV PÉÆlÄÖ vÁ 10.03.88 gÀ°è CVæªÉÄAmï §gÉ¹PÉÆArgÀÄªÀÅzÀÄ ¸ÀjAiÀÄµÉÖ. F ¸ÉÊlÄ «ZÁgÀzÀ°è CVæªÉÄAmï£À°è PÁtÂ¹gÀÄªÀ PÉ®ªÀÅ £ÀÆå£ÀvÉUÀ¼À£ÀÄß ¸Àj¥Àr¹PÉÆArgÀÄªÀÅzÁV ºÉÃ½ ¤ªÀÄä ¥ÀwAiÀÄªÀgÀÄ F DVæªÉÄAmïUÉ ¸ÁQëzÁgÀgÁzÀ ²æÃ UÉjV gÉrØAiÀgÀªÀgÀ ¸ÀªÀÄPÀëªÀÄ §AzÀÄ F ¸ÉÊnUÉ ¸ÀA§AzsÀ¥ÀlÖ DVæªÉÄAmï£À°è £ÀªÀÄÆ¢¹gÀÄªÀ J¯Áè D¸À®Ä zÁR¯É PÁUÀzÀ ¥ÀvÀæUÀ¼À£ÀÄß vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃVzÀÄÝ, EzÀÄªÀgÉ«UÀÆ K£ÀÄ PÀæªÀÄ dgÀÄV¹gÀÄvÁÛgÉA§ÄzÀ£ÀÄß w½¹gÀÄªÀÅ¢®è. C®èzÉÃ PÀ¼ÉzÀ ¢Ã¥ÁªÀ½ ªÀiÁgÀ£ÉÃ ¢ªÀ¸À 2£É CqÁé£ïì gÀÆ.1,00,000/-UÀ¼À£ÀÄß PÉÆqÀÄªÀÅzÁV ºÉÃ½ CzÀ£ÀÄß ¸ÀºÀ PÉÆnÖgÀÄªÀÅ¢®è. MAzÀÄ ªÉÃ¼É ¤ÃªÀÅ AiÀiÁªÀ PÀæªÀÄªÀ£ÀÄß dgÀÄVzÀ¸ÉÃ EzÀÝ°è ¸ÀA§AzsÀ¥ÀlÖ J¯Áè D¸À®Ä zÁR¯É¥ÀvÀæUÀ¼À£ÀÄß ªÁ¥À¸ÀÄì ªÀiÁrzÀ°è J¯Áè £ÀÆå£ÀvÉUÀ¼À£ÀÄß £Á£ÉÃ ¸Àj¥Àr¸ÀÄvÉÛÃªÉ. F £ÀÆå£ÀvÉUÀ¼À£ÀÄß ¸Àj¥Àr¸À®Ä ºÉZÀÄÑ ¸ÀªÀÄAiÀiÁªÀPÁ±À ¨ÉÃPÁVgÀÄvÉÛ. CµÀÖgÀªÀgÉUÉ ¤ÃªÀÅ PÁAiÀÄ®Ä EµÀÖ¥ÀqÀzÉ EzÀÝ°è ¤ÃªÀÅ ¥ÁªÀw ªÀiÁr CqÁé£ïì ªÉÆ§®UÀ£ÀÄß ªÁ¥À¸ÀÄì ¥ÀqÉAiÀÄ§ºÀÄzÁVgÀÄvÉÛ".

¶152

That on perusal of the aforesaid notice dated 27.01.1989 produced at Ex.D1, it appears that the defendant No.1 had handed over all the original records which were in her possession to the plaintiff. It is further contended that the plaintiff had not taken any action. That apart the plaintiff had also not paid further sum of ₹1,00,000/- as promised. The said notice further calls upon the plaintiff that if no action was taken and if all the records were returned, defendant No.1 would herself rectify all the defects which would take further time and that if the plaintiff was not willing to wait till such time, plaintiff was at liberty to receive back the advance amount paid to the defendant No.1.

¶153

Holistic reading of the contents of the agreement of sale of dated 12.03.1988 at Ex.P2 and the contents of notices at Ex.P4 and Ex.D1 both are dated 27.01.1989 would indicate

¶154

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¶155

that the defendant No.1 was required to furnish certain documents as noted above and though the plaintiff had issued notice calling upon the defendant No.1 to perform her part of the contract, on the very same day the defendant No.1 has called upon the plaintiff to return the so called documents submitted by her and asking her if the plaintiff was not ready to wait till the defendant No.1 rectified all the defects with an option to receive back the advance amount. Clearly, defendant No.1 has apart from admitting to entering into agreement and receiving the advance sale consideration had also admitted that she would, rectify all the defects and convey the property after obtaining the documents which would take time. This in any event cannot be construed as defendant No.1 cancelling the agreement for non-performance of terms of contract by the plaintiff. It would only indicate the defendant No.1 herself had sought for extension of time. The language employed above justifies this reasoning.

¶156

As rightly pointed out by learned counsel for the plaintiff/respondent No.1 relying upon the judgment of the Apex Court in the case of BEEMANENI MAHA LAKSHMI VS. GANGUMALLA APPA RAO, SINCE DECEASED BY LRS. reported in AIR 2019 SC 3013 once a finding is recorded by

¶157

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¶158

the trial Court and the High Court that the vendor did not perform her part of the contract, failure on the part of the vendee to demonstrate that she was having sufficient money with her to pay the balance sale consideration is not of much consequences. The facts and circumstances of the case as narrated above would clearly indicate that the defendant No. 1 had not only failed to perform her part of the contract but had even sought for extension of further time to perform her part of the contract. In the circumstances, the plaintiff requiring to plead and prove her readiness and willingness to perform her part of the contract in the stricto sensu would not apply.

¶159

Infact, plaintiff who had issued notice dated 27.01.1989 as per Ex.P4, had specifically called upon the defendant No.1 to perform her part of the contract and to execute the deed of sale by receiving balance sale consideration of ₹ 3,00,000/- within a period of 7 days. The said notice has not been replied by the defendant No.1. Soon thereafter the plaintiff has filed the suit in O.S.No.1299/1989 on 01.03.1989 initially for permanent injunction has subsequently sought amendment of the same.

¶160

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¶161

22. Though a plea of limitation is raised, this Court

¶162

however is of the considered view that said plea is not acceptable for the following reasons;

¶163

(i) The suit in O.S.No.1299/1989 was initially filed on 01.03.1989 for relief of injunction. The amendment for the same was allowed on 27.09.1991 seeking relief of specific performance.

¶164

(ii) The agreement of sale entered into between the parties is dated 12.03.1988. The time for performance fixed in the agreement is six months or on obtaining the possession certificate and sale deed from the BDA. Thus, the time was not the essence of the contract and it was contingent upon happening of certain events. In any event the time cannot be considered as the essence of the agreement in view of the contents of notice at Ex.D1 dated 27.01.1989 issued by the defendant No.1, wherein she had sought extension of time to procure the documents and requested the plaintiff either to wait till such time or to seek refund of amount paid.

¶165

(iii) Therefore, the contention that time is the essence of the contract cannot be made applicable in the instant case.

¶166

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¶167

The other aspect of the matter which heavily relied

¶168

upon by the counsel for the defendant No.2/appellant is to the letter dated 28.10.1988 at Ex.P3. The said letter apparently addressed to one Reddy, who had facilitated the said transaction. Perusal of the said document indicate that the defendant No.1 had requested said Sri. Reddy to convey her requirement of money to the husband of the plaintiff. The said letter also indicates defendant No.1 requiring money to meet the marriage expenses of her daughter and for her other domestic requirements. The said letter also do not in any manner whatsoever would indicate that she was intending to cancel the agreement except stating that she wanted higher sale consideration. The said letter is therefore is of no consequences for the defendant No.2/appellant. However, it only reaffirms the fact that the plaintiff, her husband and the defendant No.1 were in constant touch and intended to continue the transaction.

¶169

Trial Court at para 22 of its judgment has taken note of the oral and documentary evidence produced by the parties and has also come to the conclusion that the contention of defendant No.1 of she having delivered the said documents to plaintiff was unbelievable. The trial Court has further held

¶170

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¶171

that defendant No.1 not having complied with the terms and conditions of the agreement as she was expected to obtain necessary permission from the CITB, income tax clearance certificate etc., which are required for the purpose of execution of the registered sale deed, she had committed default in complying with the terms and conditions of the agreement.

¶172

In the light of the aforesaid factual aspect of the matter and the settled position of law, this Court is inclined to accept the submission made by learned counsel for the plaintiff in the light of judgment of the Apex Court in the case of BEEMANENI MAHA LAKSHMI (supra) that when there is a failure on the part of the vendor in performing her part of the contract, failure on the part of the vendee to demonstrate that she was having sufficient money with her to pay the balance sale consideration is of no consequences.

¶173

Nonetheless, the plaintiff was permitted by the trial Court to pay the sum of ₹3,00,000/- at the time of execution of the deed of sale as extracted in the decree passed above. There is no dispute of the fact that the plaintiff has indeed paid the sum of ₹3,00,000/- and with the assistance of the Court a sale deed has been executed. Thus, the averments contained in the notice at Ex.P4, plaint and payment of ₹3,00,000/- by the

¶174

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¶175

plaintiff in furtherance to the order passed by the trial Court read in the light of contents of the agreement of sale at Ex.P2 and notice at Ex.D1 issued by the defendant No.1 expecting plaintiff to wait till she obtains the document would only indicate that the requirement of plaintiff to pleading and proving readiness and willingness and if there is any discrepancy thereof could not change the situation. Hence, points No.2 is answered in affirmative.

¶176

REGARDING POINT NO.3:

¶177

The other contention raised by the learned counsel for the defendant No.2/appellant is with regard to competency of husband of the plaintiff to step into the witness box and depose on behalf of the plaintiff. Relying upon the judgments of Apex Court in the cases of RAJESH KUMAR, GURAPPA RAJASHEKARAPPA, JANKI VASHDEO (supra)., he submitted that readiness and willingness being a mental element, can only be explained by the person who had personal knowledge and none else, therefore he submits plaintiff not having personally entered the witness box, the evidence of defendant No.1 cannot therefore be accepted. This Court cannot accept the said submission for the reason that the Apex Court in the

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case of RAJESH KUMAR V/S ANAND KUMAR AND OTHERS

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reported in AIR 2024 SC 3017 at para 18, referring to the earlier judgment of the Apex Court in the case of MANKAUR Vs HARTAR SINGH SANGHA (2010) 10 SCC 512 has summarized the position as to who should give the evidence. The said paragraph is extracted hereunder;

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"10. xxx

¶182

18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:

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(a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.

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(b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorneyholder shall be examined, if those acts and transactions have to be proved.

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(c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.

¶186

(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorised managers/attorney-holders or persons residing abroad managing their affairs through their attorney-holders.

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(e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorneyholder to prove the transaction, and not a different or subsequent attorney-holder.

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(f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined.

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(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his “state of mind” or “conduct”, normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his “bona fide” need and a purchaser seeking specific performance who has to show his “readiness and willingness” fall under this category. There is however a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or “readiness and willingness”. Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.”

¶191

28. Clause (g) of the said paragraph makes it very clear

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that where all the affairs of the party are completely managed, transacted and looked after by the attorney, who may happen to be a close family member, as husband in the instant case, it

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may be possible to accept the evidence of such attorney even with the reference to bona fides or readiness and willingness.

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Husband of the plaintiff/Chaganlal, being power of attorney of the plaintiff, having played pivotal role in the entire transaction is emanating even from the written statement filed by defendant No.1, wherein at paragraph No.2 she has specifically pleaded that she had given the documents which were in her possession to the husband of the plaintiff to pursue the matter as he had voluntarily agreed to do so, but, she has alleged he did not take any action for the best reason known. She has further alleged that it was the husband of the plaintiff who had promised to pay ₹1,00,000/- based on which she had fixed the marriage date of her daughter as 21.05.1989. She has also pleaded that recitals in the agreement were written at the instance of the husband of the plaintiff. Even in the notice at Ex.D1 dated 27.01.1989, she has reiterated the role of husband of the plaintiff in entering into agreement and she purportedly handing over the documents to him. The letter dated 28.10.1988 at Ex.P3 addressed by the defendant No.1 to said Sri. Reddy, also indicate the defendant No.1 intended to convey her requirement for money to the husband of the plaintiff. It is not uncommon that transaction of this nature, husband could play the role and he would be privy to every minute details of the contract. There is no reason not to rely upon the evidence and the testimony of husband of the plaintiff with regard to the

¶196

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performance of the terms of the agreement. Therefore, the contention urged by the appellant that the evidence led by the husband of the plaintiff is unreliable cannot be accepted.

¶198

REGARDING POINT NO.4:

¶199

As regards the claim of the appellant /defendantNo.2 of he having entered into an agreement of sale dated 12.01.1988 produced at Ex.D4 as rightly taken note of by the trial Court there is no disclosure of the said agreement either in the agreement of sale dated 12.03.1988 produced at Ex.P2 or in the letter written by the defendant No.1 to Reddy on 28.10.1988 as per Ex.P3 or in her letter/notice dated 27.01.1989 produced at Ex.D1 issued by defendant No.1 to the plaintiff.

¶200

In the cross -examination, defendant No.1 who has examined as DW1 has deposed that she did not sign any agreement prior to Ex.P2. That there was only a talk. She has also admitted that before executing Ex.P2 she had not executed any agreement in favour of any person regarding the suit schedule property. That she do not know as to the discussions as those discussions were between the male members of the family. She was not present when her husband had a talk with

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DW.2 at Gundlupet. That she was not aware of the amounts paid by DW.2 as those things were looked after by her husband. She never had any discussion with DW.2 in this context. It was only her husband who used to take money from DW.2 and not she. That she has not signed any document in favour of defendant No.2. That her husband used to receive money and signed the document in favour of defendant No.2. In respect of suit schedule property she had not executed any document in favour of defendant No.2.

¶203

In the cross-examination by advocate for defendant No.2, she has stated that she signed Ex.D4 as and when her husband asked her to do on the respective dates, which she has repeated in the further cross-examination of the plaintiff. She has stated that personally she do not know the contents of Ex.D4. That she do not remember who had written the contents of Ex.D4 which confronted to her. She did not give instruction to prepare Ex.D4.

¶204

Defendant No.2 who has examined as DW.2 in his cross-examination admitted that in Ex.D5 deed of sale there is no mention of Ex.D4 agreement. He has admitted that he did not issued any notice pursuant to Ex.D4. He did not filed any suit pursuant to Ex.D4. That he obtained the deed of sale in the

¶205

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year 1996. He was not aware of the pendency of the suit. That Ex.D4 agreement was signed at the house of Smt. Yashoda bai. That she was present when the discussion took place in connection with the agreement. There were other persons present along with Yashoda Bai namely, Muniswamy Rao, Sathya, Smt. Vijaya but they have not signed the document.

¶207

Perusal of deposition of Yashoda Bai, DW.1 who has pleaded complete ignorance of existence of Ex.D4 and has repeatedly asserted that she was not aware of any discussions taken place in respect of said agreement as it was by her husband, the same runs contrary to the deposition of DW.2 who has asserted that the discussions of the terms of the agreement and execution of the same was done in the presence and in the house of Yashoda Bai/defendant No.1. No witness has been examined by defendant No.2 to prove the execution of Ex.D4. Execution of the said agreement has not been proved by the defendant No.2. Hence, point No.4 is answered in negative.

¶208

Ex.D5 is the deed of sale dated 19.09.1996 which has come into existence during the pendency of the suit. The same is thus hit by doctrine of lis pendency.

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In the light of reasons and analysis on point Nos.1

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to 4 as above, this Court is of the considered view that the trial Court has in the facts and circumstances of the matter has thus come to just conclusion in decreeing the suit of the plaintiff. Hence, point No.5 is answered in affirmative.

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In such circumstances, this Court does not find any merits in the appeal. Accordingly, the appeal is dismissed . Judgment and decree dated 04.10.2008 passed by the trial Court in O.S.No.1299/1989 is confirmed.

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Sd/(M.G.S. KAMAL) JUDGE

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RU

B Venkataraju S/O. Late G Byrappa v. Smt Tarabai W/O. Changanlal

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B Venkataraju S/O. Late G Byrappa v. Smt Tarabai W/O. Changanlal

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