C N Ananda vs H R Satish
2021 Latest Caselaw 5363 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 3RD DAY OF DECEMBER, 2021

                           BEFORE

       THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                     R.S.A.No.1080/2016
                             C/W
                     R.S.A.No.1079/2016

IN RSA 1080/2016:

BETWEEN:

CHARAN KUMAR
S/O RAVIKUMAR,
AGED ABOUT 19 YEARS,
RESIDING AT NO.2857,
19TH CROSS, CAUVERY CIRCLE,
HEBBALA MYSORE CITY-570017.                ... APPELLANT

(By Sri Gangadharappa.A.V., Adv.)

AND:

1.     H.R. SATISH
       S/O RAMEGOWDA,
       AGED ABOUT 35 YERAS,
       RESIDENT OF HARURU VILLAGE,
       MYLANAYAKANAHALLI DAKLE,
       H. MOGENAHALLI POST, CHANNAPATNA TALUK,
       RAMANAGARA DISTRICT-571501.

2.     RAVIKUMAR
       S/O LATE KRISHNA JETTI,
       AGED ABOUT 49 YEARS,

3.     SMT. NAGAMMA
       W/O RAVIKUMAR,
       HOUSEHOLD WORK,
       AGED 42 YEARS,
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4.    KIRAN KUMAR. R.
      S/O RAVIKUMAR,
      AGED 21 YEARS,

      RESPONDENTS 2 TO 4 ARE
      RESIDING AT NO. 1413/1,
      JATTIGARA BEEDHI, FORT,
      CHANNAPATNA CITY,
      CHANNAPATNA,
      RAMANAGARA DISTRICT-571 501.

5.    C.N. ANANDA
      S/O. LATE NANJUNDASWAMY,
      AGED ABOUT 50 YEARS,
      RESIDENT OF KALANAGARA,
      THATTEKERE ROAD,
      CHANNAPATNA CITY,
      RAMANAGARA DISTRICT-571501.

6.    SMT. SAVITHRAMMA
      D/O. LATE KRISHNA JETTY,
      AGED ABOUT 58 YEARS,
      RESIDING AT NO.1413/1,
      JATTIGARA BEEDHI,
      FORT, CHANNAPATNA CITY,
      CHANNAPATNA,
      RAMANAGARA DISTRICT-571 501.         ... RESPONDENTS

(By Sri Keshava Murthy. B., Adv. for R1)


IN RSA 1079/2016:

BETWEEN:

C.N.ANANDA
S/O LATE NANJUNDASWAMY,
AGED ABOUT 50 YEARS,
NOW RESIDING AT KALAMMA TEMPLE STREET,
FORT, CHANNAPATNA CITY,
RAMANAGARA DISTRICT-571501.        ... APPELLANT

(By Sri G.M.Ananda, Adv.)
                                 3


AND:

1.     H.R. SATISH
       S/O RAMEGOWDA,
       AGED ABOUT 35 YERAS,
       RESIDENT OF HARURU VILLAGE,
       MYLANAYAKANAHALLI DAKLE,
       H. MAGENAHALLI POST, CHANNAPATNA TALUK,
       RAMANAGARA DISTRICT-571501.

2.     RAVIKUMAR
       S/O LATE KRISHNA JETTI,
       AGED ABOUT 49 YEARS,

3.     SMT. NAGAMMA
       W/O RAVIKUMAR,
       HOUSEHOLD WORK,
       AGED 42 YEARS,

4.     KIRAN KUMAR. R.
       S/O RAVIKUMAR,
       AGED 21 YEARS,

5.     CHARAN KUMAR
       S/O RAVIKUMAR,
       AGED ABOUT 19 YEARS,

6.     SMT. SAVITHRAMMA
       D/O. LATE KRISHNA JETTY,
       AGED ABOUT 58 YEARS,

       RESPONDENTS 2 TO 6 ARE
       RESIDING AT NO.1413/1,
       JATTIGARA BEEDHI,
       FORT, CHANNAPATNA CITY,
       CHANNAPATNA,
       RAMANAGARA DISTRICT-571 501.        ... RESPONDENTS

(By Sri Keshava Murthy. B., Adv. for R1)

      THESE REGULAR SECOND APPEALS ARE FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 09.03.2016 PASSED IN RA.NO.19/2014 ON THE FILE OF
THE III ADDL. DISTIRICT AND SESSIONS JUDGE., RAMANAGARA.,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DTD 17.02.2014 PASSED IN OS.NO.41/2012 ON THE FILE
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OF THE SENIOR CIVIL JUDGE AND JMFC., CHANNAPATTANA,
RAMANAGAR DISTRICT.

     THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR   JUDGMENT   ON   25.11.2021, COMING  ON  FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                              JUDGMENT

1. These two Regular Second Appeals are filed by

defendant no.5 and defendant no.6 challenging the

judgment and decree dated 17.02.2014 passed by the

Senior Civil Judge & JMFC, Channapatna, in

O.S.No.41/2012, which has been confirmed in

R.A.No.19/2014 by the III Addl. District & Sessions Judge,

Ramanagara, vide his judgment and decree dated

09.03.2016.

2. For the sake of convenience, the parties are referred

to by the rank assigned to them in the court at first

instance.

3. Brief facts of the case that would be relevant for the

purpose of disposal of this appeal are, the plaintiff filed

O.S.No.41/2012 before the Trial Court for the relief of

specific performance of the agreement for sale dated

10.06.2010. It is the case of the plaintiff that defendants 1

to 3 being the owners of the suit schedule property and

defendant no.2 as a representative and natural guardian of

defendant nos.4 & 5 who are her children had executed an

agreement for sale dated 10.06.2010 in respect of the suit

schedule property for a sale consideration of Rs.6,45,000/-

and under the said agreement of sale, an advance amount

of Rs.6,00,000/- was paid by the plaintiff to the

defendants and the defendants had agreed to execute the

sale deed within four months from the date of the

agreement and since they had failed to do so, the plaintiff

had filed the suit for specific performance of the agreement

for sale dated 10.06.2010.

4. The defendants after service of suit summons had

entered appearance through their learned Counsel.

Defendant no.1 had filed the written statement denying the

plaint averments and contended that the alleged sale

agreement was only a nominal deed and the signatures

were obtained in the said agreement forcibly by putting the

defendants under threat. Defendant no.6 had filed the

written statement denying the contention of the plaintiff

and he has contended that the suit schedule property was

purchased by him under the registered sale deed dated

26.09.2011 for a valuable consideration from the

defendants, and thereby he is the absolute owner in

possession of the same and accordingly prayed to dismiss

the suit.

5. On the basis of the rival pleadings, the Trial Court

framed the following issues.

Issues

1. Whether the plaintiff proves the suit agreement?

2. Whether the defendants prove that the suit schedule property has been already sold to C.N.Anand as contended?

3. Whether the plaintiff is entitled for the relief as sought for?

4. What order or decree?

6. During the course of trial, plaintiff examined himself

as PW-1 and another witness was examined as PW-2. In

support of his case, plaintiff produced and got marked 15

documents as Exs.P-1 to P-15. The defendants did not

lead any evidence nor they got any documents marked in

support of their case. The Trial Court after completion of

recording the evidence, heard the arguments addressed on

behalf of the plaintiff. No arguments were addressed on

behalf of the defendants. Thereafter, the Trial Court by its

judgment and decree dated 17.02.2014 decreed the suit

with costs directing defendants 2 to 5 & 7 to execute the

sale deed in favour of the plaintiff in respect of the suit

schedule property within one month from the date of the

judgment after receiving the balance sale consideration of

Rs.45,000/- from the plaintiff and in the event of the said

defendants failing to execute the sale deed as directed, it

was held that the plaintiff is entitled to get the sale deed

executed through the court of law. The plaintiff was

directed to deposit the balance sale consideration of

Rs.45,000/- before the Trial Court before he files the

petition for execution of the decree. Being aggrieved by the

said judgment and decree passed by the Trial Court,

defendant no.6 had filed R.A.No.19/2014 before the First

Appellate Court and the First Appellate Court dismissed

the said appeal by its judgment and decree dated

09.03.2016. Being aggrieved by the same, defendant no.5

has filed R.S.A.No.1080/2016 while defendant no.6 has

filed R.S.A.No.1079/2016.

7. Learned Counsel appearing for defendant

no.5/appellant in R.S.A.No.1080/2016 submits that the

appellant was a minor at the time of execution of the

alleged agreement for sale dated 10.06.2010 and he was

also a minor at the time of filing the suit for specific

performance of the said agreement. He submits that the

Trial Court had not appointed any guardian on behalf of

defendant no.5 as required under Order XXXII Rule 3 CPC

which is a mandatory requirement of law, and therefore,

the impugned judgment and decree passed by the courts

below cannot be sustained in law. He submits that the

plaintiff has failed to prove his readiness and willingness

to perform his part of the contract under the alleged

agreement for sale and he also had not proved that he had

the balance amount with him, and therefore, the Trial

Court had erred in granting the relief of specific

performance. He submitted that defendants 2 & 3 who are

the parents of defendant no.5 had not properly defended

the case before the Trial Court and had not safeguarded

the interest of the minor children and they had colluded

with the plaintiff. He submitted that there was no legal

necessity for selling the suit schedule property and the

sale was not for the benefit of the family, and therefore, the

said sale is not binding on the minor defendant. In support

of his arguments, he has relied upon the judgment of the

Hon'ble Supreme Court in the case of NAGAIAH & ANOTHER

VS CHOWDAMMA (DEAD) BY LEGAL REPRESENTATIVES &

ANOTHER - (2018)2 SCC 504, Civil Appeal No.760/2020

disposed of on 28.01.2020, RAM CHANDRA ARYA VS MAN

SINGH & ANOTHER - AIR 1968 SC 954.

8. Learned Counsel for defendant no.6/appellant in

R.S.A.No.1079/2016 submits that defendant no.6 is a

bona fide purchaser of the suit schedule property having

purchased the same for valuable consideration. He

submits that the plaintiff who is aware of the sale, has

admittedly not questioned the validity of the said sale, and

therefore, they are not entitled for the relief of specific

performance. He submits that his vendors have colluded

with the plaintiff after having sold the suit schedule

property for valuable sale consideration which has resulted

in an erroneous decree granting specific performance of

the agreement in question.

9. Per contra, learned Counsel appearing for the

plaintiff/respondent submits that prior to filing the suit, a

legal notice was issued to the defendants calling upon

them to execute necessary sale deed pursuant to the

agreement for sale dated 10.06.2010. The defendants have

issued a reply to the same not only denying the agreement

for sale, but also denied the receipt of amount of

Rs.6,00,000/- under the said agreement. They also

contended that the value of the suit schedule property is

more than Rs.10 lakhs, and therefore, it cannot be

believed that the agreement for sale was executed for a

sum of Rs.6,45,000/- and there was no necessity for

defendants 1 to 5 to agree to sell their property for such a

low price. He submits that after the suit was filed on

22.09.2011, the Trial Court has granted an ad interim

order of temporary injunction restraining defendants 1 to 5

from alienating the suit schedule property and inspite of

the same, they have executed a registered sale deed dated

26.09.2011 in favour of defendant no.6 and since the sale

deed is executed in favour of defendant no.6 during the

pendency of the suit, the same is hit by Section 52 of the

Transfer of Property Act, 1882 (for short, 'T.P.Act'), and

further the said sale deed has been executed in violation of

the ad interim order of temporary injunction granted by

the Trial Court, and therefore, there is no necessity for the

plaintiff to challenge the said sale deed executed in favour

of defendant no.6. He submits that in the reply notice

which has been issued on behalf of defendants 1 to 5, it

has been specifically contended that defendants 1 to 5

have not executed any sale agreement in favour of the

plaintiff and they have not received the amount of

Rs.6,00,000/- under the said agreement. He submits that

since the plaintiff has paid a sum of Rs.6,00,000/- out of

the agreed amount of Rs.6,45,000/- under the agreement

for sale dated 10.06.2010, it can be safely presumed that

the plaintiff had the means to pay the balance amount of

Rs.45,000/- to defendants 1 to 5, and further, after the

disposal of the suit on 17.02.2014, as directed by the Trial

Court, the plaintiff has deposited the amount of

Rs.45,000/- before the Trial Court on 19.03.2014, and

subsequently, had filed an execution case before the Trial

Court since the defendants who were directed to execute

the sale deed had not come forward to do the same.

Thereafter, the sale deed has been executed in favour of

the plaintiff through the process of the court on

13.07.2021. He has relied upon the judgment of the

Hon'ble Supreme Court in the case of SRI NARAYAN BAL &

OTHERS VS SRIDHAR SUTAR & OTHERS - AIR 1996 SC 2371

and submits that since the suit schedule property is

admittedly a joint Hindu family property and the minors

had only an undivided share in the suit schedule property,

the requirement of appointing a guardian on behalf of the

minors does not arise having regard to Section 12 of the

Hindu Minority and Guardianship Act, 1956 (for short, 'the

Act'). He has also relied upon the judgment of the co-

ordinate bench of this Court in the case of VENKATAPPA VS

VENKATASWAMY REDDY - ILR 2012 KAR 3403 and submits

that since the sale deed has been executed in favour of

defendant no.6 during the pendency of the suit, the same

is hit by Section 52 of the T.P.Act, and therefore, there is

no necessity for him to challenge the same.

10. I have carefully considered the rival arguments

addressed on behalf of the appellants/defendants and the

respondent/plaintiff and also perused the material

evidence available on record.

11. The plaintiff in order to establish his case, has

examined himself as PW-1 and also another witness was

examined as PW-2. PW-1 has reiterated the plaint

averments during the course of his examination-in-chief

and has produced the agreement for sale dated 10.06.2010

and got marked the same as Ex.P-1. It is the case of the

plaintiff that under the said agreement for sale, a sum of

Rs.6,00,000/- has been paid by him to defendants 1 to 5

out of the agreed sale consideration of Rs.6,45,000/- and

though he had called upon defendants 1 to 5 to execute

the sale deed in his favour after receiving the balance sale

consideration, they had refused to do so, and on the other

hand, they disputed the agreement contending that the

same was a nominal deed and the signatures were

obtained by threat and coercion. Therefore, it is clear that

the execution of the agreement for sale and the signatures

found in the sale agreement is not disputed by the said

defendants. Though they have contended that the

signatures were obtained in the said sale agreement under

threat and coercion, they have failed to prove the same by

adducing cogent and acceptable evidence in this regard.

12. It is also required to be noted here that only

defendant no.1 had filed the written statement and

defendants 2 & 3 had not filed any written statement

before the Trial Court though they had engaged the

services of an advocate. Further, no evidence was led on

behalf of the defendants before the Trial Court nor was any

document produced in support of their defence. Though

defendant no.5 has now raised a contention that there was

no legal necessity to sell the suit schedule property, such a

contention cannot be appreciated for the simple reason

that during the pendency of the suit, defendants 1 to 5

had executed yet another sale deed in respect of the very

same property in favour of defendant no.6.

13. There is also no merit in the contention of defendant

no.5 that the value of the suit schedule property was more

than Rs.10 lakhs and therefore it cannot be believed that

the agreement was executed by defendants 1 to 5 to sell

the suit schedule property for a consideration of

Rs.6,45,000/-, for the reason that the sale deed in favour

of defendant no.6 has been executed by defendants 1 to 5

during the pendency of the suit for a sale consideration of

Rs.4,00,000/-, which is much lesser than the agreed

amount of sale consideration in the sale agreement

executed by defendants 1 to 5 in favour of the plaintiff on

10.06.2010.

14. Defendant no.5 has raised yet another contention in

this appeal with regard to the mandatory requirement of

law for appointment of a guardian in a suit filed against

the minor under Order XXXII Rule 3 CPC. In support of

this contention of his, learned Counsel for defendant no.5

has relied upon the judgment in Nagaiah's case supra. In

the said case, the Hon'ble Supreme Court after referring to

Order XXXII Rules 1 & 3 of CPC has held that in case

where the suit is filed on behalf of the minor, no

permission or leave of the Court is necessary for the next

friend to institute the suit, whereas in the suit filed against

the minor, it is obligatory for the plaintiff to get the

appropriate guardian ad litem appointed by the court for

such minor. A guardian ad litem is a special guardian

appointed by the court in which a particular litigation is

pending to represent a minor/infant, etc., in that

particular litigation and the status of guardian ad litem

exists in that specific litigation in which appointment

occurs. In the said judgment, it has been also further held

that the decree passed against the minor defendants

cannot be set aside even where certain formalities for the

appointment of a guardian ad litem to represent the

defendant have not been observed. In the said judgment,

at paragraph 14, it has been observed as under:

"Not only, is there no provision for appointment of next friend by the court, but the permission of the court is also not necessary. However, even in respect of minor defendants, various High Courts are consistent in taking the view that the decree cannot be set aside even where certain formalities for the appointment of a guardian ad litem to represent the defendant have not been observed. The High Courts have observed in the case of minor defendants, where the permission of the court concerned under Order XXXII Rule 3 of the Code is not taken, but the decree has been passed, in the absence of prejudice to the minor defendant, such decree cannot be set aside. The main test is that there has to be a prejudice to the minor defendant for setting aside the decree."

15. There is no dispute with regard to the principle laid

down by the Hon'ble Supreme Court in Nagaiah's case

supra, with regard to the requirement of appointment of

guardian in a suit filed against the interest of the minor

defendant. But the question that would arise for

consideration in this appeal would be whether the

appointment of guardian is necessary in a case where the

minor has only a undivided share in the joint family

property and adult member/guardian is available to take

care of the interest of the minor in respect of his undivided

share in the joint family property.

16. Section 12 of the Hindu Minority and Guardianship

Act, 1956, reads as under:

"12. Guardian not to be appointed for minor's undivided interest in joint family property.- Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest:

Provided that nothing in this section shall be deemed to affect the jurisdiction of a

High Court to appoint a guardian in respect of such interest."

17. The Hon'ble Supreme Court in Narayan Bal's case

supra, has held in paragraph 5 as under:

"5. With regard to the undivided interest of the Hindu minor in joint family property, the provisions afore-culled are beads of the same string and need be viewed in a single glimpse, simultaneously in conjunction with each other. Each provision, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislative in this beneficial legislation becomes manifest. Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family property. The natural guardian of the property of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated under Section 8, whereunder his powers and duties are defined. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a

guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the Joint Hindu Family property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under sections 6 to 12 of the Act, the previous permission of the Court under Section 8 of disposing of the undivided interest of the minor in the joint family property is not required."

18. A co-ordinate bench of this Court in GANGOJI RAO &

ANOTHER VS H.K.CHANNAPPA & OTHERS - AIR 1983 KAR 222,

while considering the question whether the natural

guardians of the minor could legally and validly sell the

property of their minor wards for legal necessity or for the

benefit of the estate, has observed in paragraphs 11 & 12

as under:

"11. It is necessary for answering these points to understand and appreciate the scheme of the Act. Section 6 of the Act speaks of natural guardians of a Hindu minor. It reads:

"The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property) are -

(a) in the case of a boy or an unmarried girl -

the father, and, after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother :

XX XX XX XX XX

12. Thus, reading the above section carefully, it becomes clear that this section excludes the undivided interest of the minor -

his or her undivided interest in the joint

family property. The Legislature, in its wisdom, has used the words 'his or her undivided interest'. If the words 'Joint Family' were used in the sense of coparcenary as used in the common (Hindu) Law, it is obvious that there would be no share of a female in the Hindu coparcenary because a female member is not given any status in the coparcenary. It consists of three generations of male descendants i.e. sons, grandsons and great- grandsons of the holder of the joint property. Since the Legislature has used 'his or her undivided interest in the joint family property' and excludes it from the purview of S.6 of the Act, it becomes clear that the term 'joint family property' is used in wider sense including the shares of those female members who have a share in the joint family property e.g., the mother's share, the daughter's share etc. A joint Hindu family consists of all persons directly descended from a common ancestor, and includes their wives and unmarried daughters. This is made further clear by S.12 of the Act, which reads:

"Guardian not to be appointed for minor' undivided interest in joint family property :

Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest :

Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest."

Thus, in this Section, the Legislature has, in its wisdom, stated 'the property is under the management of an adult member of the family' and the coparcenary, in male member of the coparcenary, implying thereby that in the joint family, in the wider sense in which it is used under the Act, a female adult member can also become the manager of the family and, in that case, the Court is not competent to appoint a guardian. In fact this is different from the common (Hindu) Law concept in a coparcenary."

19. In the case on hand, it is not in dispute that the suit

schedule property is a joint family property and defendant

no.5 was a minor at the time of execution of the agreement

for sale and at the time of filing the suit for specific

performance. Admittedly, defendant no.5 had only

undivided interest in the suit schedule property. Having

regard to Section 12 of the Act and also the

pronouncement of the Hon'ble Supreme Court in Narayan

Bal's case supra and of this Court in Gangoji Rao's case

supra, I am of the considered view that in a case where the

minor defendant has only an undivided interest in the suit

schedule property, the court has no power to appoint a

guardian, more so when the parents of the minor

defendant who are the natural guardians were very much

available to take care of the interest of the said minor in

the joint family property.

20. The further contention of the learned Counsel for

defendant no.5 that the parents of the minor have not

safeguarded the interest of the minor, and there was no

necessity to sell the suit schedule property, etc., is liable to

be rejected for the reason that in the sale deed which has

been executed in favour of defendant no.6 during the

pendency of the suit, it has been mentioned that the sale

deed is being executed by defendants 1 & 3 to meet their

day to day needs and also to re-pay the hand loans availed

by them. In view of this specific statement made by

defendants 1 & 3 in the sale deed executed in favour of

defendant no.6 during the pendency of the suit, the

contention of defendant no.5 that his parents have

colluded with the plaintiff and that the agreement for sale

was made in favour of the plaintiff without there being any

legal necessity and the said sale was not for the benefit of

the minor, etc., fails, and accordingly, the said contentions

are rejected.

21. Yet another contention raised by the learned Counsel

appearing for defendant no.5 is with regard to readiness

and willingness of the plaintiff to perform his part of the

contract and also his capacity to pay the balance sale

consideration of Rs.45,000/- to the defendants. As already

observed by me, defendants 1 to 5 have not denied the

execution of the sale agreement, but have contended that

the signatures were obtained on the said deed by threat

and coercion. Therefore, the execution of the document

and the signatures found in the document are admitted.

The plaintiff has paid a sum of Rs.6,00,000/- to

defendants 1 to 5 under the said agreement. He has issued

a legal notice to the said defendants prior to the filing of

the suit, and in reply to the same, the defendants not only

refused to perform their part of the contract after receiving

the balance amount of Rs.45,000/- from the plaintiff, but

they also contended that the said sale agreement was a

nominal deed and the signatures were obtained forcibly on

the said deed. Therefore, the plaintiff has proved that he

was ready and willing to perform his part of the contract

under the agreement and it is defendants 1 to 5 who have

refused to execute the sale deed after receiving the balance

sale consideration of Rs.45,000/- from the plaintiff.

Further, in compliance of the direction issued by the Trial

Court which had disposed of the suit on 17.02.2014, the

plaintiff has deposited the balance amount of Rs.45,000/-

before the Trial Court on 19.03.2014. This would further

go to show that the plaintiff was not only read and willing

to perform his part of the contract, but he had also the

financial capacity to pay the balance amount of

Rs.45,000/- to his vendors. The judgment of the Hon'ble

Supreme Court relied upon by the learned Counsel for

defendant no.5 in Sukhwinder Singh's case (Civil Appeal

No.760/2020) supra, is, therefore, not applicable to the

facts and circumstances of the present case and it is a

settled position of law that the judgment can be relied

upon as a precedent only if the same is applicable to the

fact situation of the case on hand.

22. Learned Counsel for defendant no.6 has contended

that the plaintiff is not entitled for the relief of specific

performance without there being a challenge to the sale

deed executed in favour of defendant no.6 and also for the

reason that defendant no.6 is a bona fide purchaser of the

suit schedule property. The suit was filed on 22.09.2011

and the Trial Court on the application filed by the plaintiff

under Order XXXIX Rules 1 & 2 of CPC had granted an ad

interim order of temporary injunction restraining the

original defendants from alienating the suit schedule

property. Inspite of the said order, within four days

thereafter, i.e., on 26.09.2011, the original defendants 1 &

3 have executed the sale deed in favour of defendant no.6.

From a perusal of the sale deed, it is seen that the said

sale deed has been executed only by defendants 1 & 3,

though it is the admitted case of defendant no.6 that the

suit schedule property is the joint family property of

defendants 1 to 5. Further, the suit schedule property has

been sold under the sale deed dated 26.09.2011 in favour

of defendant no.6 for a sale consideration of

Rs.4,00,000/-, whereas the agreement for sale which was

executed in favour of the plaintiff was for Rs.6,45,000/-

and out of the same, a sum of Rs.6,00,000/- was already

paid by the plaintiff to defendants 1 to 5. Therefore, it is

very clear that only to defeat the suit claim, the original

defendants had executed the sale deed in favour of

defendant no.6. Since the sale deed is executed during the

pendency of the suit and also in violation of the ad interim

order of temporary injunction restraining the original

defendants from alienating the suit schedule property, the

said transaction is hit by Section 52 of the T.P.Act, and

therefore, there is no requirement for the plaintiff to

question the said sale deed. The co-ordinate bench of this

Court in Venkatappa's case supra, has held that the sale

deed executed after the institution of the suit is hit by the

principles of lis pendence as provided under Section 52 of

the T.P.Act and whatever transaction that is made during

the pendency of the suit is subject to the result of the suit

and there is no necessity for the plaintiff to seek any relief

for setting aside the sale deed in view of Section 52 of the

T.P.Act. I am in respectful agreement with the said

judgment rendered by the co-ordinate bench of this Court,

and therefore, the contention of the learned Counsel for

defendant no.6 that unless the validity of the sale deed

executed in his favour is challenged, the plaintiff is not

entitled for the relief for specific performance is liable to be

rejected.

23. Further, having regard to the fact that the suit

schedule property has been purchased under the sale deed

for a much lesser sale consideration compared to the

agreement for sale and also having regard to the fact that

all the original defendants had not come forward to

execute the sale deed in favour of defendant no.6, it can be

safely held that defendant no.6 is not a bona fide

purchaser of the suit schedule property and only to defeat

the suit claim, a sale deed was executed in his favour,

which otherwise is hit by the principles of lis pendence as

provided under Section 52 of the T.P.Act.

24. Under the circumstances, I am of the considered

view that the Trial Court as well as the First Appellate

Court on due appreciation of oral and documentary

evidence available on record, have rightly decreed the suit

of the plaintiff and the said finding of fact concurrently

rendered by the courts below does not call for interference

by this Court in exercise of its power under Section 100

CPC. It is settled position of law that unless a substantial

question of law arises for consideration, the finding of fact

recorded by the courts below cannot be interfered by this

Court in exercise of its power under Section 100 CPC. On

a overall appreciation of the arguments addressed on

behalf of the appellants and the entire evidence available

on record, no substantial question of law arises for

consideration in these appeals which warrant admission of

these appeals. Accordingly, I decline to entertain these

appeals. These regular second appeals are, therefore,

dismissed.

Sd/-

JUDGE

KK