Karnataka High Court
Smt. Yellamma W/O Fakkirappa Walikar vs Sri. Mahadevappa S/O Mallappap ... on 30 October, 2025
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NC: 2025:KHC-D:14674
RSA No. 100650 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 30TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 100650 OF 2017 (SP)
BETWEEN:
1. SMT. YELLAMMA W/O. FAKKIRAPPA WALIKAR,
AGE: MAJOR, OCC. HOUSEHOLD CUM AGRICULTURE,
R/O. DHUMMAWAD, TQ. KALAGHATAGI,
DIST. DHARWAD, PIN CODE: 580001.
2. SRI. MANJUNATH S/O. FAKKIRAPPA WALIKAR,
AGE: MAJOR, OCC. AGRICULTURE,
R/O. DHUMMAWAD, TQ. KALAGHATAGI,
DIST. DHARWAD, PIN CODE: 580001.
...APPELLANTS
(BY SRI. S.M. KALWAD, ADVOCATE)
AND:
SRI. MAHADEVAPPA S/O. MALLAPPA TOPALAGATTI,
Digitally
signed by
AGE: MAJOR, OCC. AGRICULTURE,
YASHAVANT
YASHAVANT NARAYANKAR R/O. GAMBYAPUR, TQ. KALAGHATAGI,
NARAYANKAR Date:
2025.11.03
14:55:11
DIST. DHARWAD, PIN CODE: 580001.
+0530
...RESPONDENT
(BY SRI. S.S. HEGDE, ADVOCATE FOR
SRI. S.R. HEGDE, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 18.12.2014 MADE IN
R.A.NO.232/2010 PASSED BY THE COURT OF THE PRINCIPAL
DISTRICT SESSIONS JUDGE, DHARWAD BY ALLOWING THE APPEAL
FILED BY THE APPELLANT AND THEREBY CONFIRMING THE JUDGMENT
AND DECREE DATED 30.06.2010 MADE IN O.S.NO.252/ 2001 PASSED
BY THE COURT OF II ADDL. SENIOR CIVIL JUDGE SITTING AT
KALAGHATAGI IN THE INTEREST OF JUSTICE AND EQUITY.
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NC: 2025:KHC-D:14674
RSA No. 100650 of 2017
HC-KAR
THIS APPEAL, COMING ON FOR ORDERS THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI) Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent.
2. This appeal arises out of the judgment and decree dated 18.12.2014 in R.A.No.232/2010 passed by learned Principal District and Sessions Judge, Dharwad whereby the judgment and decree dated 30.06.2010 in O.S.No.252/2001 passed by the Senior Civil Judge, Kalaghatagi, for refund of earnest money paid under an agreement of sale was modified and the defendants were directed to execute the sale deed by paying ten times additional amount than the agreed sale consideration.
3. The learned counsel appearing for the appellants submits that the alleged first agreement between the parties was as per Ex.P.1 dated 02.06.1997, under which it was stated that a sum of ₹5,000/- was received as an earnest amount of the total sale consideration of ₹50,000/- from the plaintiff. Thereafter, the -3- NC: 2025:KHC-D:14674 RSA No. 100650 of 2017 HC-KAR defendant No.1, who happens to be the mother of the defendant No.2, approached the Court in a G & WC No.17/1997 before the Principal Civil Judge and CJM, Dharwad and prayed for granting permission to alienate the property in favour of the plaintiff. It is contented that the Court had allowed such alienation by order dated 29.06.2002. In the meanwhile, the defendant No.1 is alleged to have entered into supplementary agreement as per Ex.P.2 on 19.10.2000 and the sale consideration was enhanced from ₹50,000/- to ₹52,000/- and an additional sum of ₹27,000/- was paid on that day. Subsequently, the plaintiff filed suit for specific performance contending that he was always ready and willing to perform his part of the contract but the defendants have not executed the sale deed and issued a legal notice and ultimately he filed the suit before the Trial Court seeking specific performance of the agreement of sale.
4. The learned counsel appearing for the appellants/defendants now submits that the First Appellate Court, modified the judgment of the Trial Court and directed the defendants to execute the sale deed in favour of the plaintiff. It is submitted that as on the date of the alleged second agreement -4- NC: 2025:KHC-D:14674 RSA No. 100650 of 2017 HC-KAR Ex.P.2, the G & WC Court had not yet granted the permission to alienate the property and therefore, the defendant No.1 could not have entered into any agreement as per Ex.P.2 with the plaintiff. On that ground, the alleged agreements for alienation are non-est and they could not have been relied by the Trial Court and the First Appellate Court.
5. The second prong of the argument is that, the defendants had taken the contention that it was a transaction in respect of the mortgage and therefore, the Courts below could not have construed the Ex.P.1 or Ex.P.2 as an agreement. Hence he seeks indulgence of this Court.
6. So far as the delay of 877 days in filing the appeal is concerned, it is contented that the defendants were unaware, of the judgment of the First Appellate Court and therefore, the delay has been properly explained by the appellants and as such the delay can be condoned.
7. It is pertinent to note that this Court by order dated 19.07.2024 had directed the parties to make their submissions on merit and I.A.No.1/2018 seeking condonation of delay was kept in abeyance.
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NC: 2025:KHC-D:14674 RSA No. 100650 of 2017 HC-KAR
8. Coming to the merits of the case, it is pertinent to note that the only question that was available before the First Appellate Court was whether the discretion exercised by the Trial Court in ordering refund of the earnest money and refusing to grant the specific performance was proper or not. Obviously, the defendants had not approached the First Appellate Court questioning the finding on Ex.P.1 and Ex.P.2. In that view of the matter, the validity of Ex.P1 and Ex.P.2 as held by the Trial Court remain intact. Even otherwise, no fault can be found in respect of the finding of the Trial Court so far as Ex.P.1 and Ex.P.2 are concerned. It is pertinent to note that though Ex.P.1 can be ascribed with the allegation that it was a transaction of mortgage or otherwise, Ex.P.2 cannot be discarded. It is pertinent to note that after Ex.P.1 was executed on 02.06.1997, the defendant No.1, who happens to be the natural guardian of the defendant No.2 at that time, had approached the Court in G&WC No.17/1997 and had deposed before the Court as per Ex.P8. In Ex.P.8, she makes a categorical admission about her intention to alienate the property. Evidently, the G&WC petition, the copy of which is produced at Ex.P.7, shows that it was filed on 21.10.1997, which is subsequent to Ex.P.1. On 12.03.1998, the -6- NC: 2025:KHC-D:14674 RSA No. 100650 of 2017 HC-KAR defendant No.1/Yellawwa appeared before the Court and deposed that she wants to sell the suit schedule property for the purpose of the educational expenses of the defendant No.2 and she has no other income. This deposition of DW1 cannot be found fault with in any way and it reiterates the intention to sell as per Ex.P.1.
9. Further, after she deposed before the Court as per Ex.P.8, she entered into an agreement of sale as per Ex.P.2 on 19.10.2000. It is pertinent to note that Ex.P.2 enhances the sale consideration amount from ₹50,000/- to ₹52,000/- and an additional sum of ₹27,000/- was received by her. Therefore, the renewed terms and conditions of the agreement of sale were on 19.10.2000. In all, the defendant had received a sum of ₹32,000/- as earnest money. Obviously, the defendants have not produced any document before the Trial Court to establish that the Court had granted permission in G. & W.C.No.17/1997 in the year 2002. Therefore, the grant of such permission to alienate, which is said to be in the year 2002 is not established by the defendants.
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NC: 2025:KHC-D:14674 RSA No. 100650 of 2017 HC-KAR
10. In the light of the above facts which are born out of records, the Trial Court as well as the First Appellate Court were justified in holding that the defendants had entered into an agreement of sale with the plaintiff and the sale consideration was agreed to be ₹52,000/-, out of which, a sum of ₹32,000/- was received by the defendants.
11. Coming to the question of discretionary relief, the Trial Court in paragraph No.19 of the impugned judgment holds that the ready and willingness of the plaintiff has been established and since it is a minor's property, the relief of specific performance being a discretionary one is to be exercised in favour of the minor. It is pertinent to note that it refers to a document as Ex.D1 and Ex.P10, which are non-existent. In paragraph No.19 of the Trial Court holds as below:
"Taking into consideration the scope of the relief of Specific Performance and by virtue of the limitations provided u/s 20 of the Specific Relief Act, it is in appropriate to grant the relief of specific performance. Moreover that relief is discretionary relief it must be reasonable and guided by judicial principles. When the nature of Ex.P.10 is void abinitio invariably does not -8- NC: 2025:KHC-D:14674 RSA No. 100650 of 2017 HC-KAR warrant the kind of relief as specific performance. Hence it is appropriate only to grant the refund of the earnest amount of Rs.30,000/- at the rate of 8% p.a. from the date of suit till its realization. This is for the reason that conduct of Ex.D.1 namely that she was aware about the permission to be obtained for the purpose of alienating the property and in spite of that the agreement as per Ex.P:1 was entered therefore interest is required to be levied for the refund of the earnest amount and accordingly this issue is answered."
12. The discretion which was exercised by the Trial Court was considered by the First Appellate Court in detail and after referring to various judgments, it to the conclusion that 10 times the value agreed between the parties would be a justifiable amount and there are no reasons to hold that the specific performance has to be declined. In paragraph Nos.43 and 44 of the impugned judgment of the First Appellate Court holds as below:
"43. From the above discussion it becomes clear that the Defendants had the intention to sell the suit property and with that intention they have received advance consideration of Rs. 32,000/- and this view is further supported by filing the -9- NC: 2025:KHC-D:14674 RSA No. 100650 of 2017 HC-KAR application by the Defendant No. 1 under the provisions of Guardians & Wards Act seeking permission of the Court to sell the interest of the minor. Therefore the intention of the parties was clear that the Defendants have to sell the property and the Plaintiff has to purchase the same for valuable consideration. Now that the Plaintiff has come forward to pay escalation price and therefore, the Court below is not justified in refusing decree for specific performance and only to that extent the judgment and decree of the Court requires interference by this Court and the suit of the Plaintiff for specific performance has to be decreed.
44. Now we have to see what would be the result if this Court were to accept the offer made by the learned counsel for the Appellant to pay the price ten times more than the agreed price. The agreed value as per Ex.P.2 is Rs. 52,000/- and if it is calculated ten times it comes to Rs. 5,20,000/-. Out of this Rs. 32,000/- has been paid by the Plaintiff and the remaining amount of Rs. 4,88,000/- has to be paid by the Plaintiff to the Defendants as full consideration before having the sale deed executed in his favour. For these reasons I answer point No. 2 in the negative and point No. 3 in the affirmative."
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NC: 2025:KHC-D:14674 RSA No. 100650 of 2017 HC-KAR
13. It is pertinent to note that in coming to such conclusion, it had placed reliance on the judgment in the case of Parakunnan Veetill Joshph's son Mathew vs. Nedumbara Kuruvila's son and others1 and Narayana Pillai Chandrasekharan Nair vs. Kunju Amma Thankamma2. It is worth to note that enhancement of the sale consideration amount though cannot be granted generally since the escalation of the price at a subsequent date cannot be a ground as per the provisions of Section 16 of the Specific Relief Act, 1963. The Hon'ble Apex Court in several of its judgments has slightly deviated from the said view and has tried to lean in favour of the equities. The Hon'ble Supreme Court, in the case of Satya Jain v. Anis Ahmed Rushdie3, held as under:, "39. The long efflux of time (over 40 years) that has occurred and the galloping value of real estate in the meantime are the twin inhibiting factors in this regard. The same, however, have to be balanced with the fact that the plaintiffs are in no way responsible for the delay that has occurred and their keen participation in the proceedings till date show the live interest on the part of the 1 AIR 1987 SC 2328 2 AIR 1990 Kerala 177 3 AIR 2013 SC 434
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NC: 2025:KHC-D:14674 RSA No. 100650 of 2017 HC-KAR plaintiffs to have the agreement enforced in law.
40. The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. It must however be emphasised that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance. [...]
41. The twin inhibiting factors identified above if are to be read as a bar to the grant of a decree of specific performance would amount to penalising the plaintiffs for no fault on their part; to deny them the real fruits of a protracted litigation wherein the issues arising are being answered in their favour."
(emphasis supplied)
14. In directing specific performance of the agreement, the Apex Court in Satya Jain (supra) held that sale deed must be executed for the current market price of the suit property.
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NC: 2025:KHC-D:14674 RSA No. 100650 of 2017 HC-KAR Therefore, the view taken by the First Appellate Court to enhance the sale consideration 10 times than the agreed amount cannot be found fault with in the facts and circumstances of the case.
15. The learned counsel appearing for the appellant places reliance on the judgment in the case of Sarup Chand vs. Surjit Kaur and others4 wherein it was observed that when no permission was taken from the Court to alienate the share of the minors, the agreement to sale could not be construed to have been made on behalf of the minors. Evidently, the said judgment cannot be made applicable to the facts of the present case since defendant No.1 had approached the Court and had deposed before the Court that permission may be granted and in pursuance to such deposition, the second agreement as per Ex.P2 was entered into. To say that the Court had granted the permission in the year 2002, nothing is produced before this Court to establish the same. In that view of the matter, no fault can be found with the judgment of the First Appellate Court on merit.
4 AIR 2002 Punjab and Haryana 54
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NC: 2025:KHC-D:14674 RSA No. 100650 of 2017 HC-KAR
16. I.A.No.1/2018, the affidavit filed in support of the application states that she came to know about the judgment of the Appellate Court after receiving the notice in E.P.No.17/2017. This prima facie shows that the appellants were not diligent in prosecuting or following the appeal before the First Appellate Court. The requirement of Section 5 of the Limitation Act to condone the delay i.e. to explain every day's delay has not been stated in the affidavit. Therefore, even the I.A.No.1/2018 is bereft of any merits. In the result, the following order is passed:
ORDER
i) I.A.No.1/2018 is dismissed.
ii) The appeal is dismissed.
iii) The judgment of the First Appellate Court in
R.A.No.232/2010 is confirmed.
SD/-
(C M JOSHI)
JUDGE
YAN:Para 1 to 8
SSP:Para 9 to end
CT:PA
LIST NO.: 1 SL NO.: 3