Annappaswamy S/O Ekambarayya ... vs M Vishanaraja S/O Sohanaraj Jain

Karnataka High Court

Annappaswamy S/O Ekambarayya ... vs M Vishanaraja S/O Sohanaraj Jain on 17 November, 2025

Author: R.Devdas

Bench: R.Devdas

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                                  RFA No.100542 of 2023




IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

     DATED THIS THE 17th DAY OF NOVEMBER, 2025
                       PRESENT

          THE HON'BLE MR. JUSTICE R.DEVDAS
                         AND
     THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI

        REGULAR FIRST APPEAL NO.100542/2023 (SP)

BETWEEN:

ANNAPPASWAMY,
S/O. EKAMBARAYYA SUTTINABHAVIMATH,
AGE: 48 YEARS, OCC.: BUSINESS,
R/O. MUDIGOUDRA, 3RD HOUSE,
1ST FLOOR, NEAR DIKSHIT GAS GODOWN,
MURTHYUNJAYA NAGAR, RANEBENNUR,
DIST: HAVERI-581115.
                                           - APPELLANT
(BY SRI. S.B.HEBBALLI, ADVOCATE FOR
SRI. PAVAN HEBBALLI AND
SMT. CHITRA M.GOUNDALKAR, ADVOCATES)

AND:

1.     M. VISHANARAJA S/O. SOHANARAJ JAIN,
       AGE: 74 YEARS,
       OCC: BUSINESS AND AGRICULTURE,
       R/O. RANEBENNUR, DIST: HAVERI-581115.

2.     SMT. SHAILASHREE,
       W/O. DODDAKOTTRESH SUTTINABHAVIMATH,
       AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
       R/O. BUS STAND ROAD,
       BEHIND BUS STAND, RANEBENNUR,
       DIST: HAVERI-581115.
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                                      RFA No.100542 of 2023




3.    SMT. SAHANA W/O. SRINATH IYER,
      AGE: 33 YEARS, OCC: LECTURER,
      R/O. MANGALURU, TQ: MUDABIDRE,
      DIST: MANGALURU-574197.

4.    SMT. SANGEETA,
      W/O. DODDAKOTTRESH SUTTINABHAVIMATH,
      AGE: 29 YEARS, OCC: HOUSEHOLD WORK,
      R/O. BUS STAND ROAD, BEHIND BUS STAND,
      RANEBENNUR, DIST: HAVERI-581115.
                                        - RESPONDENTS
(BY SRI. DINESH M.KULKARNI, ADVOCATE FOR C/R1;
NOTICE TO R2 IS SERVED BUT UNREPRESENTED;
NOTICE TO R3 AND R4 IS HELD SUFFICIENT)

      THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT
AND   DECREE     DATED   04.10.2023   PASSED    IN     O.S.   NO.
304/2018 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL
JUDGE    AND     JUDICIAL    MAGISTRATE        FIRST      CLASS,
RANEBENNUR, AND DISMISS THE SUIT IN THE INTEREST OF
JUSTICE & ETC.


      THIS REGULAR FIRST APPEAL, HAVING BEEN HEARD AND
RESERVED       ON    11.11.2025,      COMING         ON       FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:


CORAM:   THE HON'BLE MR. JUSTICE R.DEVDAS

         AND

         THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
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                                       RFA No.100542 of 2023




                     CAV JUDGMENT

(PER: THE HON'BLE MR. JUSTICE R.DEVDAS) This regular first appeal is filed under Section 96 of the Code of Civil Procedure at the hands of defendant No.4 in O.S. No. 304/2018 on the file of the learned III Addl. Sr. Civil Judge & JMFC, Ranebennur (for short, 'the trial Court').

2. For the sake of convenience the parties shall be referred to in terms of their ranking before the trial Court.

3. The plaintiff filed the suit for specific performance of registered agreement of sale dated 28.09.2015, executed by Sri Doddakotreshi, the brother of defendant No.4 and defendant No.4 himself, in favour of the plaintiff. Since Doddakotreshi died subsequently, his wife and children are arrayed as defendants No.1 to 3. In terms of the agreement of sale the vendors agreed to sell and the plaintiff agreed to purchase the suit schedule property which consisted of ground and first floor comprising of ten commercial shops and with open space for a sum of -4- RFA No.100542 of 2023 Rs.1,45,00,000/-. Under the agreement the purchaser paid advance amount of Rs.50,00,000/- and the balance amount was to be paid at the time of registration of the sale deed, subject to the condition that within two months time the vendors would get the tenants vacated from the shops. However Doddakotreshi along with his wife and children (defendants No.1 to 3) executed a sale deed in favour of the plaintiff disposing ½ share of the suit schedule property for sale consideration of Rs.72,50,000/- (being half of Rs.1,45,00,000/-, as agreed in the agreement of sale). It is also stated in the said sale deed dated 10.08.2018 that the advance amount of Rs.50,00,000/- paid under the agreement of sale forms part of the sale consideration in the sale deed and after paying the balance sale consideration of Rs.20,50,000/-, the sale deed is executed by Doddakotreshi and his family members in favour of the plaintiff.

4. Thereafter a sum of Rs.45,00,000/- are deposited into the account of the 4th defendant, at the hands of the -5- RFA No.100542 of 2023 plaintiff and his son. A notice is issued to the 4th defendant calling upon the 4th defendant to collect the balance sale consideration and execute sale deed in respect of the other half of the suit schedule property. When the 4th defendant did not come forward to execute the sale deed, suit is filed by the plaintiff with a prayer for specific performance of the registered agreement of sale dated 28.09.2015. In the alternative, prayer is also made for refund of earnest money of Rs.45,00,000/- along with damages of Rs.55,00,000/- with interest at the rate of 18% p.a. from the date of agreement till realization. The suit is decreed by the trial Court while directing defendant No.4 to execute registered sale deed in favour of the plaintiff in respect of half share in the suit schedule property, within two months from the date of the order. The plaintiff was also directed to deposit the balance sale consideration of Rs.27,50,000/- before the Court on or before 30.10.2023.

RFA No.100542 of 2023

5. Learned counsel Sri S.B. Hebballi appearing for the appellant/ defendant No.4 contended that having regard to the terms and conditions of the agreement, there is no provision for severability of the contract. Therefore, it was not permissible for the plaintiff to have got a sale deed executed at the hands of Doddakotreshi with regard to one half of the suit schedule property. In terms of the agreement, the plaintiff was required to pay the balance sale consideration to the vendors after the vendors got the shop premises vacated from the tenants and till date the tenants have not been vacated. Therefore, it is contended that there is no cause of action for filing the suit and seeking directions for specific performance of the contract. It was also pointed out that the suit schedule property is not definite, therefore, on the ground of uncertainty of the suit schedule property, the suit should have been dismissed.

6. It is further contended that the advance amount of Rs.50,00,000/- which was paid under the agreement could -7- RFA No.100542 of 2023 not have been considered as part of the sale consideration while executing the sale deed at the hands of Doddakotreshi disposing of one half share of the suit schedule property. No permission was taken by the plaintiff from the 4th defendant before appropriating the said advance amount, completely in favour of his brother Sri Doddakotreshi. It is further contended that the claim of the plaintiff regarding payment of Rs.45,00,000/- into the bank account of defendant No.4 is denied by defendant No.4. It was contended before the trial Court that a sum of Rs.30,00,000/- and Rs.10,00,000/- was deposited into the bank account of defendant No.4 by Sri Sunil Jain, the son of the plaintiff, who had nothing to do with the transaction. It was contended by defendant No.4 that the said sum was paid by Sri Sunil Jain as a loan to defendant No.4 and therefore the same could not be taken as part payment towards the agreement in question. It was also contended that defendant No.4 transferred Rs.45,00,000/- which was deposited into his bank account to his brother Doddakotreshi, on his directions. It was -8- RFA No.100542 of 2023 therefore contended that the plaintiff cannot claim that he has paid Rs.45,00,000/- as part payment towards the sale consideration under the agreement in question. It was also contended that payment was made by a firm named 'Apsara Fashion' which belonged to the plaintiff's son and not to the plaintiff. Therefore it was contended that the claim of the plaintiff regarding part payment of Rs.45,00,000/- in favour of defendant No.4 should be held as not proved. At any rate, it was contended by defendant No.4 that there was no consensus ad idem to execute sale deeds in two parts under the agreement in question.

7. Learned counsel Sri S.B. Hebballi further contended that the value of the property in question is about Rs.15 crores and it could not have been agreed to be sold at Rs.1.45 crores. This would also indicate that the advance amount of Rs.50 lakhs was not for the purpose of selling the property. It was a loan advanced to defendant No.4 and his brother who was in dire requirement of the said funds for defraying the outstanding loans obtained by Sri -9- RFA No.100542 of 2023 Doddakotreshi. There was no intention of selling the property in favour of defendant No.4. It was contended before the trial Court that the plaintiff is in the habit of entering into agreements and getting the same cancelled and that the plaintiff was doing real estate business. To drive home the fact that the plaintiff was in the habit of entering into agreements and getting the same cancelled, material have been placed before the Court.

8. It is further contended that Sri Doddakotreshi committed suicide on account of the trouble and intimidation at the hands of the plaintiff. It is submitted that the plaintiff registered an FIR against Doddakotreshi and defendant No.4 trying to intimidate the vendors to execute the sale deed in favour of the plaintiff. It is contended that if the plaintiff was aggrieved he should have filed a suit seeking specific performance of the agreement, but, the plaintiff got registered a criminal complaint against the vendors, which clearly shows the oblique motive of the plaintiff in arm twisting the vendors

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to execute a sale deed, although the agreement was nominal, for the purpose of securing the loan given by the plaintiff in favour of the vendors.

9. It was also contended by learned counsel for the appellant/ defendant No.4 that the plaintiff failed to prove readiness and willingness and therefore the trial Court could not have decreed the suit. It was also contended that having regard to the provisions contained in Sec. 20 of the Specific Relief Act, the Court should have come to conclusion, on the basis of the material available on record that the plaintiff had an unfair advantage over the defendants. The circumstances clearly indicate inequitable advantage in favour of the plaintiff to enforce the agreement. Learned counsel submitted that the trial Court has failed to appreciate the evidence on record and therefore this Court should hold that the impugned judgment and decree passed by the trial court is perverse and arbitrary.

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10. Learned counsel Sri Hebballi further contended that the trial Court has erred in coming to a conclusion that defendant No.4 failed to explain his defence as contemplated u/S 92 of the Evidence Act. It was contended that sufficient material is placed before the trial Court to support the contention of defendant No.4 that the plaintiff is a real estate dealer and he is in the habit of entering into agreements and thereafter cancelling the same. Evidence is placed on record to show such transactions at the hands of the plaintiff, to drive home the point that the registered agreement is a sham document, but the actual intention is to secure the interest of the plaintiff who offered financial assistance to Sri Doddakotreshi, since Sri Doddakotreshi was in dire need of funds.

11. In order to substantiate his contention, learned counsel Sri S.B. Hebballi sought to place reliance on the following judgments.

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1. Mayavanti Vs. Kaushalya Devi (1990) 3 SCC 1 - regarding consensus ad idem;

2. Jayakantam & Ors. Vs. Abhay Kumar (2017) 5 SCC 178; and N.P. Tirugnanam Vs. Dr. Jaganmohan Rao & Ors. AIR 1996 SC 116 - regarding discretionary power of the Court under Section 20.

3. Kartar Singh Vs. Hariginder Singh AIR 1990 SC 854 - regarding performance of a part of the contract vis-à-vis whole of the contract/ severability.

4. Canara Bank Vs. K.L. Rajgarhia 2025 INSC 1278 - regarding enforceable/unenforceable contract / severability.

12. Learned counsel Sri Dinesh M. Kulkarni appearing for the plaintiff contended that the trial Court has rightly considered the averments made in the plaint and the evidence available on record. It is submitted that since defendant No.4 has admitted in the written statement as well as the oral testimony that a sum of Rs.45 lakhs were deposited into his account by the plaintiff and / or his son, the issue regarding ready and willingness was rightly held in favour of the plaintiff. On the other hand, having regard to the conduct of defendant No.4 in admitting the receipt of Rs.45 lakhs and yet contending that the

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agreement came to an end the moment sale deed was executed by Doddakotreshi was rightly taken note of and held against defendant No.4. In this regard reliance is placed on Zarina Siddiqui Vs. A.Ramalingam alias R. Amarnathan (2015) 1 SCC 705 where it was held that "such conduct of the defendants would disentitle them to ask the Court for exercising discretion in their favour by refusing to grant a decree for specific performance".

13. Regarding the argument of the learned counsel for defendant No.4, regarding severability of the contract, learned counsel for defendant No.4 submitted that under Section 54 of the Transfer of Property Act sale of undivided interest by a co-sharer is not barred. In this regard reliance was placed on Ramdas Vs. Sitabai and Others (2009) 7 SCC 444, where it was held that "there could be no dispute with regard to the fact that an undivided share of co-sharer may be a subject matter of sale". The learned counsel further submitted that the plaintiff who acquired rights over one half of the suit

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schedule property under the sale deed executed by Doddakotreshi and defendants No.1 to 3, the plaintiff is entitled to seek for execution of sale deed at the hands of defendant no.4 in respect of the remaining one half portion of the suit schedule property. In the same vein, it was contended that there is no uncertainty in the description of the suit schedule property.

14. As regards the contention of the learned counsel for defendant No.4 that the plaintiff has played fraud on the defendants and therefore the plaintiff is not entitled for any relief at the hands of the Court, learned counsel for the plaintiff contended that evidence has to be placed before the Court to substantiate such allegations regarding fraud. Mere pleadings would not be sufficient to deny relief to the plaintiff. Moreover there is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on the person who leads evidence to rebut the presumption. In this regard reliance

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is placed on Prem Singh & Ors. Vs. Birbal & Ors. (2006) 5 SCC 353. Learned counsel submitted that the contention of defendant No.4 that the payment and receipt of the amount mentioned in the registered agreement of sale is a loan transaction, would be contrary to the contents of the registered sale agreement. No rebuttable evidence is placed before the Court to substantiate the contention of defendant No.4 that the amount paid and received under the agreement is a loan transaction.

15. While supporting the finding of the trial Court that defendant No.4 failed to explain his defence as contemplated u/S 92 of the Evidence Act, learned counsel for the plaintiff pointed out that the trial Court accepted the reliance placed on the judgments of the Apex Court that oral evidence in contradiction with the terms of written document cannot be adduced. Moreover Sec. 92 provides an opportunity to defendant No.4 to explain, by adducing cogent evidence to show that the real intention of executing the agreement of sale was to secure the loan

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transaction and defendant No.4 failed to produce any such evidence to prove to the contrary and therefore the trial Court rightly came to conclusion that defendant No.4 failed to explain his defence as contemplated u/S 92 of the Evidence Act. In this regard reliance is placed on Placido Fransisco Pinto (dead) by LRs & Another Vs. Jose Fransisco Pinto & Another (2024) 14 SCC 569.

16. Heard the learned counsel Sri S.B. Hebballi for the appellant/ defendant No.4, learned counsel Sri Dinesh M. Kulkarni for the respondent No.1/ plaintiff, perused the appeal memo and the original records.

17. What is noticeable is that the agreement in question, executed by defendant No.4 along with his brother late Sri Doddakotreshi is duly registered. The sale consideration is fixed at Rs.1.45 crores and advance amount of Rs.50 lakhs is paid by the plaintiff, as acknowledged in the agreement. The balance sale consideration was required to be paid by the plaintiff at the time of execution of the sale deed. The vendors had

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sought for two months time to vacate the tenants from the shops. However, late Sri Doddakotreshi, along with his wife and children (defendants No.1 to 3) executed a sale deed on 10.08.2018, transferring one half of the suit schedule property, as undivided interest of the vendors therein, in favour of the plaintiff. The plaintiff thereafter paid Rs.45 lakhs in favour of defendant No.4 and called upon him to execute the sale deed in respect of the other half of the suit schedule property. Defendant No.4 has admitted in his written statement and oral testimony that Rs.45 lakhs were deposited into his account, although Rs.40 lakhs is deposited by the plaintiff's son.

18. These facts have been rightly appreciated by the trial Court. With the above facts and the prayer made in the plaint, it cannot be contended by defendant No.4 that the principles of 'severability' would apply in the facts and circumstances of the case. Here is a case where defendants No.1 to 3, along with late Sri Doddakotreshi have already executed a sale deed in favour of the

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plaintiff, albeit, transferring 50% of the undivided interest in the suit schedule property. The prayer in the suit being specific performance of the agreement towards the other half of the undivided interest in the suit schedule property, the relief is for the whole contract and not a part of the contract. That being the position, the contention of the learned counsel for defendant No.4 regarding 'severability' and there being no such provision in the agreement, cannot be countenanced.

19. The next issue would be regarding readiness and willingness. Having regard to the evidence available on record, it is clear that the plaintiff has deposited Rs.45 lakhs into the bank account of defendant No.4, as part payment towards the total sale consideration of Rs.72,50,000/-. Immediately after the deposit is made, notice is issued by the plaintiff to defendant No.4, calling upon him to collect the balance sale consideration and execute the sale deed. On failure of defendant No.4 to execute the sale deed, the suit is filed seeking specific

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performance of the agreement. It is also noticeable that no suggestion is made by defendant No.4 regarding readiness and willingness of the plaintiff to perform his part of the contract. Therefore, no fault can be found in the impugned judgment and decree, insofar as the issue regarding readiness and willingness is concerned.

20. The trial Court has rightly considered the contention of defendant No.4 that the money received by the vendors under the agreement is towards financial assistance/ loan, lent by the plaintiff, at the request of Sri Doddakotreshi. The claim of defendant No.4 that the money paid under the registered agreement is not towards part payment of the agreement to sell the suit schedule property, but it is towards loan given by the plaintiff to Sri Doddakotreshi, was rightly rejected by the trial Court, having regard to the provisions contained in Sec. 92 of the Evidence Act. As rightly pointed out by learned counsel for the plaintiff, the Hon'ble Apex Court, in the case of Placido Fransisco Pinto (supra), reiterated the position of law that the

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proviso to Sec. 92 only enables a party to prove, by placing evidence which would invalidate any document, or which would disentitle any person to any decree or order relating thereto, on the ground of fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration or mistake in fact or law. Except oral testimony that the true intent of the parties to the contract was to secure the loan given by the plaintiff to the vendors, no other cogent material was placed by defendant No.4 before the Court. Such contention raised by defendant No.4 is further belied and disproved by the execution of the sale deed by Doddakotreshi and his family members in favour of the plaintiff, thereby transferring 50% of the undivided interest in the suit schedule property to the plaintiff. It is also noticeable that no efforts are made by defendant No.4 to prove that the money received from the plaintiff was a loan transaction. For the sake of argument, if it is accepted that the transaction between the parties was a loan transaction, then defendant No.4 should have placed

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material before the Court to show that the vendors were repaying the loan along with interest to the plaintiff. The agreement in question was executed and registered on 28.09.2015 and the suit was filed by the plaintiff on 26.10.2018 and not a scrap of paper is produced by defendant No.4 to show any repayment made to the plaintiff. On the other hand, even after the plaintiff along with his son deposited Rs.45 lakhs into the bank account of defendant No.4 between 30.08.2016 to 28.03.2017, defendant no.4 did not return the said money to the plaintiff. On the contrary, defendant No.4 claims to have transferred the said amount to his brother late Sri Doddakotreshi. The trial Court therefore rightly rejected the contention of defendant No.4 regarding the stray admission of PW1 in his cross examination that Ex.P.1, the registered agreement was obtained by fraud.

21. The other contention of defendant No.4 regarding hardship and the discretion vested with the Court u/S 20(2)(c) of the Specific Relief Act, the trial Court has

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rightly rejected such contention, having noticed the law laid down by the Apex Court in Leeladhar (D) Thr. Lrs. Vs. Vijay Kumar (D) Thr. Lrs. And Others (AIR 2019 SC 4652) and a decision of this Court in Madhukar Nivrutti Jagtap and others. Vs. Smt. Pramilabai Chandulal Parandekar (Dead) Thr. Lrs. And Others. The fact that late Sri Doddakotreshi along with defendants No.1 to 3 have already executed a sale deed in favour of the plaintiff transferring 50% of the undivided interest in the suit schedule property in favour of the plaintiff, the situation has become irreversible. Although defendant No.4 has raised a contention that the market value of the suit schedule property was about Rs.10 crores as on the date of the agreement, however, no attempt is made by defendant No.4 to substantiate that contention by placing cogent material on record. Therefore the question of the Court exercising its discretion to reject the prayer for specific performance of the agreement, on the ground of hardship to defendant No.4, does not arise.

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22. Viewed from any angle, this Court does not find any infirmity in the impugned judgment and decree passed by the trial Court. Accordingly, the regular first appeal stands dismissed.

Sd/-

(R.DEVDAS) JUDGE Sd/-

(B. MURALIDHARA PAI) JUDGE bvv CT: VH