Karnataka High Court
Sri Joseph Kantharaj vs Smt Joseph Sunder Augustine Reddy on 20 May, 2021
Author: P.Krishna Bhat
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 20TH DAY OF MAY, 2021
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
R. F. A. No.1211/2011 (SP)
BETWEEN :
SRI JOSEPH KANTHARAJ
S/O. LATE FRANCIS KARUNAKARAN
AGED ABOUT 58 YEARS
RESIDING AT NO.2, SOUTH SECOND CROSS
OIL MILL ROAD, MARUTHISEVANAGAR POST,
BANGALORE - 560 033.
... APPELLANT
(BY SRI M.S.VENUGOPAL FOR
SRI A. KRISHNA BHAT ADVOCATE)
AND:
1. SMT. JOSEPH SUNDER AUGUSTINE REDDY
MAJOR
NO.34, LLOYDS ROAD
COOK TOWN
BANGALORE - 560 005.
2. SMT. S. AKTHARUNNISA BEGUM
D/O SYED SHAJUDDIN
AGED ABOUT 59 YEARS
3. SMT. S. NASRATHUNNISA BEGUM,
D/O. SYED SIRAJUDDIN
AGED ABOUT 57 YEARS
2
BOTH RESIDING AT NO.97, JOSEPH COLONY
OIL MILL ROAD, ARVINDANAGAR
ST. THOMAS TOWN POST
BANGALORE - 560 084.
... RESPONDENTS
(VIDE ORDER DATED 10.09.2013 SERVICE OF
NOTICE TO R1 IS HELD SUFFICIENT. R2 AND R3
ARE SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 23.04.2011 PASSED IN
O.S.NO.2089/1999 ON THE FILE OF THE XI ADDL. CITY
CIVIL JUDGE BANGALORE. (CCH-8), DISMISSING THE
SUIT FOR SPECIFIC PERFORMANCE.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD
AND RESERVED ON 17.04.2021, COMING ON 'FOR
PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Unsuccessful plaintiff in a suit for specific
performance of an agreement of sale is challenging the
correctness of the judgment and decree dated 23.04.2011
passed in O.S.No.2089/1999 by the learned XI Additional
City Civil Judge, Bangalore City (CCH-8) in this appeal.
2. The appellant was the plaintiff before the Court
below. Respondent Nos. 1, 2 and 3 in this appeal were the
defendant Nos. 1, 2 and 3 respectively before the Court
below. The parties will be referred to as per their rank
before the Court below during the course of this judgment.
3. The plaintiff instituted a suit for specific
performance against the defendants on the allegation that
he had been a tenant under one J.Anthony Swamy in
respect of the suit schedule properties since the year 1988
and on 11.06.1997, said J.Anthony Swamy executed an
agreement of sale in respect of the suit schedule properties
in favour of the plaintiff under Ex.P.1. The amount of
consideration agreed under Ex.P.1 was Rs.1,05,000/- and
out of the same, a sum of Rs.75,000/- was paid on the date
of execution of Ex.P.1. It is stated that plaintiff who was a
tenant was put in possession of the suit schedule
properties in part performance of the said agreement and
ever since then, he was in possession of the property under
Ex.P.1 in that capacity. It is further stated that the time
fixed under Ex.P.1 for the execution of sale deed by J.
Anthony Swamy was three months and balance
consideration of Rs.30,000/- was required to be paid on
demand made by the vendor and in two instalments. The
plaintiff was ready with that money. It is alleged that
during September, 1997, vendor - J.Anthony Swamy fell
seriously ill and he was admitted to Lakeside Hospital,
Bangalore, on 25.09.1997 and surgery was done on him
and finally he passed away on 01.10.1997 while he was in
the hospital. It is further alleged by the plaintiff that on
25.09.1997, defendant Nos. 2 and 3 had created a false
sale deed under Ex.D.4 in respect of the suit schedule
properties and J.Anthony Swamy had fallen ill and he
could not have executed the said document and he could
not have attended the Office of the sub-Registrar personally
for registration.
4. Defendant No.1 has remained ex parte. Defendant
Nos. 2 and 3 filed a joint written statement contending,
inter alia, that plaintiff was not entitled to purchase the
schedule property from the vendor - J.Anthony Swamy for
the reason that Ex.P.1 is later than the agreement of sale in
their favour which preceded the registered sale deed as per
Ex.D.4 and pursuant to the same, ever since 25.09.1997,
the said two defendants were the owners of the suit
schedule property. It is also stated that J.Anthony Swamy
had on 10.04.1996 received a sum of Rs.65,000/- by way
of cheque and another sum of Rs.75,000/- at the time of
registration of the sale deed and another sum of
Rs.50,000/- was paid to him by cash and further
registration amount was paid by cheque. It is further
stated that plaintiff continued to be tenant under defendant
Nos. 2 and 3 by paying rent to them. It is further stated
that the contention of the plaintiff that J.Anthony Swamy
had executed an agreement of sale dated 11.06.1997 was
rejected by the Court of Small Causes in HRC
No.1247/1998 and also in HRC No.157/2002. On the
above pleadings, learned Court below framed the following
issues :
"1. Whether the plaintiff proves that late
J. Anthoniswamy agreed to sell the suit
property for Rs.1,05,000/- and exceuted
an agreement of sale dated 11.6.1997 by
receiving an advance amount of
Rs.75,000/- ?
2. Whether the defendants prove that the
agreement of sale dated 11.6.1997 is got
up and fabricated document?
3. Whether the plaintiff proves that he
has been always ready and willing to
perform his part of the contract
4. Whether the suit is properly valued
and the court fee paid is just and proper?
5. Whether the plaintiff is entitled to the
relief of specific performance of the
contract?
6. To what order or decree?"
5. During the trial, plaintiff examined himself as
P.W.1 and he examined P.W.2 - Anand Raj and P.W.3 -
Smt. Agnes Mary who are the attestors to agreement of sale
- Ex.P.1. Ex.P.1 to Ex.P.12 were marked for the plaintiff.
Thereafter, defendant No.2 examined herself as D.W.1 and
defendant No.3 examined herself as D.W.2 and one R.
Narayana Swamy was examined as D.W.3 who is the
attestor to the sale deed dated 25.09.1997 (Ex.D.4). Exs.
D.1 to D.8 were marked for the defendant.
6. After hearing, the learned Court below
dismissed the suit with costs holding that Ex.D.4 was a
registered sale deed and therefore the burden was on the
plaintiff to prove that the said sale deed was not executed
by late J.Anthony Swamy and that the same was not a
genuine document and the said burden was not discharged
by the plaintiff. It further held that plaintiff has failed to
prove that J.Anthony Swamy could not have executed
Ex.D.4 as he was admitted to Lakeside Hospital on
25.09.1997 and also that such a case was an improvement
before the Court.
7. In this appeal respondents, though served, have
remained unrepresented.
8. I have heard the learned counsel Sri. M.S.
Venugopal for the appellant. I have perused the records
carefully.
9. Learned counsel Sri. M.S. Venugopal contended
before me that J.Anthony Swamy - the undisputed owner
of the suit schedule properties had executed an agreement
of sale in favour of the plaintiff on 11.06.1997 for a valid
consideration of Rs.1,05,000/- and out of the same, a sum
of Rs.75,000/- was paid by the plaintiff to J.Anthony
Swamy on 11.06.1997 itself. He submitted that Ex.P.1 has
been produced before the Court by the plaintiff who has
examined himself as P.W.1 and he has spoken about the
payment of consideration to J.Anthony Swamy. He has
also submitted that plaintiff by producing the original
agreement of sale and upon his evidence as well as on the
evidence of two attestors - P.W.2 and P.W.3, has proved the
due execution of agreement of sale. He further submitted
that under Ex.P.1 the plaintiff who was already a tenant in
respect of the suit schedule properties was put in
possession of the properties in part performance of the
agreement of sale and ever since then, plaintiff is in
possession of the suit schedule properties under the terms
of the agreement itself. He submitted that plaintiff has
always been ready and willing to perform his part of the
agreement. He also submitted that the sale deed put
forward by defendant Nos. 2 and 3 is a false document and
J. Anthony Swamy was not in a position to execute the sale
deed as per Ex.D.4 in view of his serious illness and further
on 25.09.1997 he was admitted for surgery to Lakeside
hospital, Bangalore, where he underwent surgery and
subsequently passed away on 01.10.1997. He submitted
that in support of the said contention, plaintiff has
produced Ex.P.2 which is a certificate issued by Lakeside
hospital and the fact of J.Anthony Swamy being admitted
to hospital on 25.09.1997 and further his death in the
hospital on 01.10.1997 has been admitted by D.W.1 and
D.W.2 as also by D.W.3. He further submitted that
defendants have put forward entirely a false case regarding
the execution of sale deed itself, payment of consideration
and also regarding an agreement of sale said to have been
executed by J.Anthony Swamy in favour of defendant Nos.
2 and 3 anterior to the sale deed - Ex.D.4. Learned
counsel took me through the pleadings, evidence and
documents exhibited and submitted that plaintiff has fully
proved his case and he is entitled to a decree of specific
performance in respect of the suit schedule properties. In
this behalf he pointed out that the evidence of D.W.1 and
D.W.2 clearly shows that they had made no enquiry
regarding Ex.P.1 dated 11.06.1997 in favour of the plaintiff
even though they were aware that plaintiff was residing in
the suit schedule premises. He submitted that the learned
Court below was entirely in error in ignoring from
consideration the admissions made in their depositions by
D.W.1, D.W.2 and D.W.3 in the earlier proceedings,
namely, HRC No. 1247/1998 and HRC No. 157/2000
(Ex.P.7 to P.12) inspite of the fact that said depositions of
these witnesses were confronted to them and they had
admitted having given such evidence.
10. In support of his various submissions, learned
counsel placed reliance on the following decisions :
1. In the case of Lala Durga Prasad and
Another Vs Lala Deep Chand and others
reported in AIR 1954 SC 75 (paragraph - 37 to
42)
2. In the case of Dwaraka Prasad Singh and
another Vs Harikant Prasad Singh and others
reported in (2000) 6 SCC 402 (paragraph -13,
14 and 15)
3. In the case of R K Mohammed Ubaidulla and
others Vs Haji C Abdul Wahab by Lrs and
others reported in (2000) 6 SCC 402
(paragraph -13, 14 and 15)
4. In the case of Ram Niwas through Lrs Vs
Bano and others reported in (2000) 6 SCC 685
(paragraph 3, 5, 7, 8 and 18)
5. In the case of Vijay A Mittal and others Vs
Kulwant Rai (Dead) through Legal heirs and
anothers reported in 2019 (3) SCC 520
(paragraph - 28, 35 to 42)
6. In the case of MMS Investments Madurai
and others vs V Veerappan and others reported
in (2007) 9 SCC 660 (paragraph 6 and 7)
7. In the case of Motilal Jain Vs Ramdasi Devi
and others reported in (2000) 6 SCC 420
(paragraph 6, 9 and 10)
8. In the case of B Santoshamma and another
Vs D Sarala and another in Civil Appeal
No.3574/2009 dated 18.09.2020 (paragraph
67 to 71
9. (2007) 6 SCC 401 - M. Venkataramana
Hebbar (Dead) by LR. Vs. M. Rajagopal Hebbar
and others.
10. (2016) 1 SCC 207 - Standard Chartered
Bank vs. Andhra Bank Financial Services
Limited and others.
11. (2016) 12 SCC 288 - Muddasani Venkata
Narsaiah (Dead) through Legal
Representatives vs. Muddasani Sarojana.
12. (2003) 8 SCC 752 - R.V.E. Venkatachala
Gounder vs. Arulmigu Viswesaraswami and
V.P. Temple and another.
13. AIR 1957 All. 1 (FB) - Shri. Ajodhya Pd.
Bhargava vs. Shri. Bhawani Shankar
Bhargava and another.
14. (2005) 7 SCC 534 - Aniglase Yohannan vs.
Ramlatha and others.
15. AIR 2012 Kar. 141 - Sri. Somanagouda
and another vs. Sri. Shamshiddin.
16. (2019) 6 SCC 233 - Beemaneni Maha
Lakshmi vs. Gangumalla Appa Rao (since
dead) by Legal Representatives.
17. (2015) 1 SCC 597 - K. Prakash vs. B.R.
Sampath Kumar.
18. (2002) 9 SCC 597 - A. Maria Angelena
(Dead) and others vs. A.G. Balkis Bee.
19. (2015) 1 SCC 705 - Zarina Siddiqui vs. A.
Ramalingam alias R. Amarnathan.
11. On the materials produced and the contentions
raised before me, the following points arise for
consideration :
1) Whether the agreement of sale - Ex.P.1
dated 11.06.1997 set up by the
plaintiff is proved in accordance with
law ?
2) Whether the sale deed dated
25.09.1997 (Ex. D.4) set up by the
defendant Nos. 2 and 3 is proved in
accordance with law ?
3) Whether the plaintiff has proved that he
was ready and willing to perform his
part of the contract under Ex.P.1 ?
4) Whether the plaintiff is entitled to a
decree of specific performance prayed
for by him ?
12. Point No.1 :
Plaintiff has pleaded in detail that on 11.06.1997, late
J.Anthony Swamy executed an agreement of sale agreeing
to sell the suit schedule properties for a consideration of
Rs.1,05,000/- and on the date of the agreement, plaintiff
had paid a sum of Rs.75,000/- to late J. Anthony Swamy
towards part consideration. He has further pleaded that on
the date of Ex.P.1, namely the agreement of sale, plaintiff
was put in possession of the suit schedule properties by
late J.Anthony Swamy in part performance of the
agreement of sale. He has also pleaded that plaintiff was in
possession of the suit schedule properties as a tenant till
the date of agreement of sale and ever since then he has
been in possession of the same in part performance of
Ex.P.1. He has also pleaded in detail the salient terms of
Ex.P.1, namely, that sale deed was to be executed within
three months; that balance consideration was to be paid in
two instalments on demand made by the vendor; and that
vendor had undertaken to withdraw HRC No.1552/1990
filed by him against the plaintiff which was pending before
the learned Judge of Small Cause, Bangalore City. Along
with the plaint he had produced the agreement of sale -
Ex.P.1.
13. Defendant No.1 had remained ex parte and
defendant Nos. 2 and 3 who are the purchasers under the
sale deed dated 25.09.1997 (Ex.D.4) have filed a joint
written statement.
14. In the said written statement, defendant Nos. 2
and 3 have stated that they had purchased the suit
schedule properties as per the sale deed dated 25.09.1997
(Ex.D.4). Even though defendant Nos. 2 and 3 have not
specifically denied the agreement of sale - Ex.P.1 of the
plaintiff, they have stated that the plaintiff was not entitled
to purchase the suit schedule properties from the late
J.Anthony Swamy for the reason that Ex.P.1 was later than
the agreement of sale which preceded the sale deed (Ex.D.4)
in their favour and as per the recitals of the sale deed -
Ex.D.4, a sum of Rs.65,000/- was paid by cheque on
10.04.1996 drawn on Syndicate Bank and subsequently a
sum of Rs.75,000/- was paid at the time of registration of
the sale deed and a sum of Rs.50,000/- by way of cash was
also paid. According to the defendants, in their written
statement, it is clear that for the purpose of snatching the
property from the defendants, plaintiff had taken up such a
contention and it was rejected by the trial Court in HRC
No.1247/1998.
15. In the evidence of P.W.1 - plaintiff, he has
deposed about the agreement of sale dated 11.06.1997
(Ex.P.1). He has also stated about the terms of Ex.P.1,
namely that the sale consideration fixed was Rs.1,05,000/-
and out of the same, Rs.75,000/- was paid at the time of
execution of Ex.P.1. and the balance amount of
Rs.30,000/- was to be paid within a period of three months
in two instalments and on demand made by the vendor -
J.Anthony Swamy. He has also spoken about the vendor -
J.Anthony Swamy putting the suit schedule properties in
possession of the plaintiff pursuant to Ex.P.1, in part
performance of the same and ever since the agreement of
sale, he continued in possession of the suit schedule
properties in that capacity. P.W.1 has further stated that
vendor - J. Anthony Swamy had fallen seriously ill and he
was admitted to hospital on 25.09.1997 and he died in the
hospital on 01.10.1997. During his evidence, Ex.P.7 which
is the deposition of defendant No.2 in HRC No.1247/1998
filed by the defendant Nos.2 and 3 against the plaintiff was
marked. Further, deposition of defendant No.3 in HRC
No.1247/1998 was marked as Ex.P.8. Deposition of
Narayan Swamy (D.W.3) who was attestor to Ex.D.4 (sale
deed dated 25.09.1997) in HRC No.1247/1998 was marked
as Ex.P.9. Similarly, deposition of defendant No.2 in HRC
No.157/2002 filed by the defendant Nos.2 and 3 against
the plaintiff was marked as Ex.P.10. Deposition of
defendant No.3 in HRC No.157/2002 was marked as
Ex.P.11. Deposition of D.W.3 in HRC No.157/2002 was
marked as Ex.P.12. There was no serious cross
examination of P.W.1 from the side of defendant No.2 and
defendant No.3 in so far as admissions made in Ex.P.7 to
P.12 are concerned. Further, defendants have not
challenged the evidence of P.W.1 during his cross
examination regarding the due execution of Ex.P.1 by the
deceased vendor - J.Anthony Swamy and payment of part
consideration by him as also his being put in possession of
the suit schedule properties in part performance of the
agreement of sale, except putting a casual suggestion that
he had created Ex.P.1 subsequent to defendants filing HRC
No.1247/1998. In other words, even though P.W.1 had
spoken about the circumstances of the vendor - J.Anthony
Swamy who was prior to the agreement of sale, his
landlord, executing the agreement of sale in his favour and
further that on the date of Ex.P.1 his making of payment of
Rs.75,000/- under the said agreement of sale and further
that in part performance of the agreement - Ex.P.1, he was
put in possession of the suit schedule property, defendants
have not chosen to challenge the said version of the
plaintiff in their cross examination. These defendants have
not chosen to cross examine P.W.1 on certain crucial
aspects of the case inspite of the fact that P.W.1 had not
only spoken about the circumstances of execution of
Ex.P.1, but also identified the signatures of J.Anthony
Swamy thereon, questioning the genuineness of the same.
16. Apart from the same, plaintiff has examined
P.W.2 and P.W.3 who are the two attestors to Ex.P.1 -
agreement of sale dated 11.06.1997. P.W.2 is one Anand
Raj and P.W.3 is Agnes Mary, who is the wife of the
plaintiff. As already noted, the original agreement of sale
was produced as Ex.P.1. A perusal of the same shows that
P.W.2 and P.W.3 had attested the same as witnesses. In
his evidence, P.W.2 has stated that on 11.06.1997, Ex.P.1
was executed by J.Anthony Swamy in favour of the plaintiff
for a consideration of Rs.1,05,000/- and a sum of
Rs.75,000/- was paid towards part consideration in his
presence on the date of execution of Ex.P.1. He has also
stated that Ex.P.1 was executed in the house of the vendor
- J.Anthony Swamy and himself and P.W.3 - the wife of the
plaintiff had attested it. During the cross examination, it
was elicited from him that as per the agreement - Ex.P.1, a
sum of Rs.75,000/- was paid by the plaintiff to the vendor
and the balance amount was agreed to be paid by the
plaintiff in two instalments. P.W.2 has further stated that
the dates of payment of the balance consideration in two
instalments have not been mentioned in Ex.P.1. There was
only a vague suggestion to P.W.2 that Ex.P.1 was a false
agreement. The relevant suggestion reads as follows :
"ªÁ¢AiÀÄÄ ¸ÀļÀÄî M¥ÀàAzÀ ¥ÀvÀæªÀ£ÀÄß §gɬĹPÉÆArzÀÄÝ
£Á£ÀÄ ¸ÀļÀÄî ¸ÁQëAiÀÄ£ÀÄß CªÀgÀ ¸ÀºÁAiÀÄPÁÌV ºÉüÀwÛzÉÝãÉ
J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è."
17. The above suggestion as put to the witness, if
anything, goes to show that defendants have not totally
denied the execution of Ex.P.1 by J.Anthony Swamy, but
according to them, it was a colourable one and in support
of the same, P.W.2 had deposed falsely, especially, when it
is read along with the written statement, where no clear
stand has been taken by the defendants, vis-à-vis, Ex.P.1.
Similarly, P.W.3 who is the wife of the plaintiff and attestor
to Ex.P.1 has also spoken about the execution of Ex.P.1
and payment of Rs.75,000/- at the time of agreement to the
vendor - J.Anthony Swamy, etc. The version of this
witness has not been seriously challenged in the cross
examination with regard to execution of Ex.P.1 and
payment of part consideration of Rs.75,000/-, etc.
18. In so far as the evidence from the side of
defendants is concerned, only evidence of D.W.1 and
D.W.2, who are defendant Nos. 2 and 3 respectively, is
material on this aspect. D.W.3 examined is stated to be the
attesting witness to sale deed dated 25.09.1997 (Ex.D.4).
He has not claimed any knowledge about the execution of
Ex.P.1, either way. Evidence of D.W.1 and D.W.2 is more
or less identical in regard to Ex.P.1. They have only stated
in their examination-in-chief that the agreement of sale
(Ex.P.1) alleged is a concocted one and got up for the
purpose of this case. They have further, in their evidence,
denied that plaintiff had entered into an agreement of sale
with J.Anthony Swamy on 11.06.1997 and plaintiff had
paid a sum of Rs.75,000/- to the vendor and further
asserted that the said plea in the plaint was totally false,
imaginary and the said sale agreement is concocted and
created for the purpose of this case. As already noticed,
there is no such specific plea in the joint written statement
filed by defendant Nos. 2 and 3. The evidence of D.Ws. 2
and 3 clearly shows that they had not made any enquiry
with J.Anthony Swamy - the vendor under Ex.D.4 and the
vendor under the agreement of sale pleaded by the plaintiff
as per Ex.P.1 about who was in occupation of the schedule
premises. They have further admitted that their mother
and younger brother were residing as tenants under the
same J.Anthony Swamy in a premises within a short
distance from the suit schedule properties and further that
their younger brother had purchased the said premises.
The learned counsel for the plaintiff has put suggestions to
D.W.1 and D.W.2 regarding Ex.P.1 and both the witnesses
have denied the same.
19. The learned trial Court has not at all dealt with
the detailed evidence placed by the plaintiff in support of
his case that on 11.06.1997, vendor - J.Anthony Swamy
had executed an agreement of sale as per Ex.P.1 in his
favour and he had paid Rs.75,000/- towards part payment
of the consideration amount and also that he was put in
possession of the suit schedule property, which was in his
occupation as a tenant till then, in part performance of the
agreement of sale. It has given a short shrift to the entire
evidence of P.W.1 to P.W.3 which was not even seriously
challenged in the cross examination on an erroneous
premise that plaintiff had not sought for cancellation of
Ex.D.4 (sale deed dated 25.09.1997); and that it was
proved that Ex.D.4 was preceded by an agreement of sale
entered into between defendant Nos. 2 and 3 on the one
side and late J.Anthony Swamy on the other much prior to
the agreement of sale - Ex.P.1 set up by the plaintiff. It
has further proceeded to draw an inference, on account of
the aforesaid two reasons, that the case of the plaintiff that
J.Anthony Swamy had executed the agreement of sale as
per Ex.P.1 is rendered doubtful and it cannot be accepted.
He has committed a serious error in proceeding to draw an
inference, and that, without any discussion of the evidence
let in by the plaintiff, by too readily accepting the
contention of defendant Nos. 2 and 3 that the plaintiff had
created Ex.P.1 in order to knock off the suit schedule
property. At any rate, I was not able to discover any
evidence on record to support such an inference. The
evidence of the plaintiff namely P.W.1, in whose favour
Ex.P.1 is stated to have been executed by J.Anthony
Swamy, supported by the evidence of two attestors - P.W.2
and P.W.3 which has gone entirely unchallenged during the
cross examination coupled with the original document -
Ex.P.1, clearly show that deceased - J.Anthony Swamy had
executed the said agreement in favour of the plaintiff. The
learned Court below has unfortunately glossed over a very
material aspect of the case that neither in the written
statement, nor in the cross examination of P.W.1 to P.W.3,
defendants have seriously challenged the fact that Ex.P.1
bore the signature of the deceased - J.Anthony Swamy
himself or the further aspect of the case like payment of
part of the consideration, namely, Rs.75,000/- at the time
of agreement - Ex.P.1 and placing the plaintiff in
possession of the suit schedule properties in part
performance of the agreement of sale.
20. It is unfortunate that learned trial Court has
failed to notice that plaintiff has been steadfast, consistent
and unwavering in his stand, in his pleadings, deposition
and cross examination of DW1 and DW2 - that deceased
J.Anthony Swamy had executed Ex.P1 in his favour after
receiving part consideration. On the other hand defendant
Nos.2 and 3 have not specifically denied the same in the
written statement nor was there any serious challenge to
the version of PW1 on this aspect. It is all too evident that
entire case of the defendants vis-à-vis Ex.P1 is
characterized by coyness, ambivalence and desperate
attempt to extricate themselves from an impossible
situation. In the entire written statement of defendants,
there is no specific denial of execution of Ex.P1 by late
J.Anthony Swamy which is pleaded with sufficient detail in
the plaint. Even during the trial, defendants have adopted
the same approach. Emphasizing the requirement of
specific denial by a defendant in the written statement of a
material statement of fact and legal implication flowing
from the failure to do so, it has been held by the Hon'ble
Supreme Court as follows:
"31. ......Order 8 Rule 5 of the Code of Civil
Procedure, 1908 deals with this aspect,
which is reproduced hereunder:
"5. Specific denial - (1) Every allegation of
fact in the plaint, if not denied specifically or
by necessary implication, or stated to be not
admitted in the pleading of the defendant,
shall be taken to be not admitted except as
against a person under disability.''
It is a settled position of law that if an
allegation made in the plaint is not
specifically denied in the written statement, it
is treated as admitted, as was also held by
this Court in Balraj Taneja Vs Sunil Madan"
[Standard Chartered Bank Vs. Andhra
Bank Financial Services Ltd. - (2016)
1 SCC 207]
21. Further, in another decision it was observed as
follows:
"23. The said aspect can be looked from
another angle. Rules 3, 4 and 5 of Order 8 form
an integral code dealing with the manner in which
allegations of fact in the plaint should be
traversed and the legal consequences flowing
from its non-compliance. It is obligatory on the
part of the defendant to specifically deal with
each allegation in the plaint and when the
defendant denies any such fact, he must not do
so evasively but answer the point of substance. It
is clearly postulated therein that it shall not be
sufficient for a defendant to deny generally the
grounds alleged by the plaintiffs but he must be
specific with each allegation of fact (se Badat and
Co. v. East India Trading Co.)
24. Rule 4 stipulates that a defendant must not
evasively answer the point of substance. It is
alleged that if he receives a certain sum of money,
it shall not be sufficient to deny that he received
that particular amount, but he must deny that he
received that sum or any part thereof, or else set
out how much he received, and that if an
allegation is made with diverse circumstances, it
shall not be sufficient to deny it along with those
circumstances. Rule 5 deals with specific denial
and clearly lays down that every allegation of fact
in the plaint, if not denied specifically or by
necessary implication, or stated to be not
admitted in the pleading of the defendant, shall
be taken to be admitted against him."
(Emphasis supplied)
[vide GIAN CHAND & BROTHERS AND
ANOTHER v. RATTAN LAL, ALIAS RATTAN
SINGH - (2013) 2 SCC 606]
22. Taking into consideration the above, I am of the
view that learned trial Judge has entirely gone against the
weight of evidence in holding that Ex.P.1 is a concocted
document and on the other hand the evidence clearly
shows that plaintiff has successfully established that
deceased - J.Anthony Swamy had executed the agreement
of sale dated 11.06.1997 under Ex.P.1; he had paid
Rs.75,000/- towards part sale consideration; and that he
was put in possession of the suit schedule properties in
part performance of the agreement of sale Ex.P1.
23. Point No.2 :
The next question falling for consideration is, whether
Ex.D.4 - the sale deed dated 25.09.1997 set up by
defendant Nos. 2 and 3 is proved in accordance with law ?
Unfortunately, learned trial Court has not framed an issue
on this question notwithstanding the fact that plaintiff has
denied Ex.D.4 and defendant Nos.2 and 3 have asserted
the due execution of Ex.D.4. Both sides have let in
elaborate evidence and defendants have examined D.W.3 -
the attestor to Ex.D.4. Records disclose that parties were
conscious that there was material controversy in the suit
on the existence of Ex.D.4 and they have gone to trial
accordingly. Therefore, failure to frame an issue on Ex.D.4
has not caused any prejudice to the rival parties to this
proceedings.
24. The grievance of the learned counsel for the
plaintiff is that the trial Court was entirely swayed by the
fact that Ex.D.4 was a registered document, and therefore
erroneously held that there was nothing for the proponents
of Ex.D.4 to introduce by way of evidence in support of
valid execution of the said sale deed and on the other hand,
it was entirely for the plaintiff to demonstrate by evidence
that Ex.D.4 was not a valid document at all and it was not
executed by the putative vendor late J.Anthony Swamy.
25. There is no dispute about the fact that soon after
Ex.D.4 came into existence on 25.09.1997, the vendor
J.Anthony Swamy passed away on 01.10.1997 in Lakeside
Hospital, Bangalore.
26. In regard to the sale deed Ex.D.4 plaintiff has
averred in para 6 of the plaint that when he received notice
in HRC 1247/1998 instituted by defendant Nos. 2 and 3
against him before the Court of Small Causes, Bangalore,
he came to know that defendant Nos. 2 and 3 were claiming
to be owner of suit schedule properties on the strength of
Ex.D.4. It was, however, further pleaded in para 8 of the
plaint that on 25.09.1997, the date on which defendant
Nos. 2 and 3 had claimed that late J.Anthony Swamy had
executed Ex.D.4 in their favour, the said J.Anthony Swamy
was actually not in a position to execute any sale deed. It
is further averred in the plaint that by that time late J.
Anthony Swamy had fallen ill and he was not in a position
to go to Sub-Registrar's office and execute the sale deed.
The said assertion in the plaint has not been specifically
denied in the written statement except making an omnibus
statement to the effect that "The defendants further submit
that the averments mentioned in para 8 of the plaint are all
false, baseless and plaintiff is put to strict proof of the same.
.........".
27. Further, the main plank of the case of the
defendants as emerging from the written statement is that
in HRC 1247/1998 instituted by them against the plaintiff
before the Court of Small Causes, Bangalore, the agreement
of sale - Ex.P.1 set up by the plaintiff was disbelieved and
Court had accepted the sale deed Ex.D.4 and eviction was
ordered. It was also pleaded that the said position was
affirmed by this Court in HRRP No. 736/1981 by order
dated 18.10.2001. Suffice it to notice here itself that
Ex.P.3 is the copy of the order of the Hon'ble Supreme
Court of India in SLP (Civil) No.8245/2002 which arose
from the order of this Court in HRRP No. 736/1981,
wherein it was observed as follows :
ORDER
"This petition seeking special leave to file
an appeal is directed against a decree for
eviction passed in rent control proceedings
which were initiated before the Rent Controller.
The principal grievance canvassed on behalf of
the petitioners is that the findings recorded in
these proceedings may come in the way of the
petitioners prosecuting their suit for specific
performance. This apprehension is, in our
opinion, unfounded, but still we clarify that the
findings arrived at in the impugned order shall
be treated as confined in their operation to the
present proceedings and the suit for specific
performance filed by the petitioner in the Civil
Court shall be disposed of on its own merits on
the pleadings and evidence adduced in the civil
suit. Subject to this observation, the Special
Leave Petition is dismissed."
[Emphasis supplied]
28. To make the long story short, suffice it to note
that pursuant to the enactment of the Rent Act, 1999,
defendant Nos. 2 and 3 had instituted another Eviction
Petition against the plaintiff in HRC No.157/2002 and the
said proceeding culminated in the Hon'ble Supreme Court
passing an order in Civil Appeal No. 282/2010 dated
11.01.2010. The Hon'ble Supreme Court at para 11 of its
order has observed as follows :
"11. On the facts and material in this case,
we are of the view that trial Court was justified
in its decision to defer the eviction proceedings
till decision by the civil court. We therefore
allow this appeal, set aside the order of the
High Court and restore the order of the trial
court subject to the following clarifications :
(i) Nothing stated herein shall be
construed as acceptance of the claim
of the appellants that the previous
owner (Anthony Swamy) had
executed an agreement of sale in his
favour or that he is in possession in
part performance of the agreement of
sale. The specific performance suit
shall be decided on its merits with
reference to the pleadings and
evidence produced therein. Whatever
observations we have made herein is
only with reference to the issue of
deferring the eviction proceedings.
(ii) In the event of first appellant failing
in the suit for specific performance,
the respondent will be entitled to
seek restoration of her eviction
petition (HRC No.157/2002) and
pursue it in accordance with law.
(iii) Having regard to the facts and
circumstances, we request the City
Civil Court where the suit for
specific performance (OS No.2089/
1999) is pending for more than ten
years, to dispose of the same
expeditiously."
[Emphasis supplied]
29. The resultant position as emerging from the two
orders of the Hon'ble Supreme Court referred to supra is
that the finding of the trial Courts in HRC proceedings with
regard to jural relationship between the parties was for the
limited purpose of deciding the said case; not conclusive as
between the parties; and the present proceedings will have
to be strictly decided on the strength of the pleadings and
evidence let in during the trial of the case.
30. Even after the said two orders were passed by
the Hon'ble Supreme Court, defendant Nos. 2 and 3 did not
file any additional written statement. The resultant
position is that the assertion of the plaintiff in his plaint
that the alleged vendor of Ex.D.4, J.Anthony Swamy was
seriously ill and he was not in a position to execute the sale
deed on 25.09.1997 has remained uncontroverted in a
specific manner.
31. Plaintiff has stepped into the witness box and
during his evidence he has specifically stated that on
25.09.1997, the alleged date of execution of Ex.D.4, J.
Anthony Swamy was actually not in a position to go to the
office of the Sub-Registrar and execute the sale deed in
their favour. He has stated that, in fact on that day, he
was admitted to Lakeside Medical Centre and Hospital as
an inpatient where he expired on 01.10.1997. Plaintiff has
also produced Ex.P.2 - a certificate issued by Lakeside
Medical Center and Hospital, wherein it is stated that
J.Anthony Swamy, son of late Joseph Reddy was admitted
to Lakeside Medical Center and Hospital on 25.09.1997
and he expired on 01.10.1997 at 4.05 p.m. due to Diabetic
Mellitus, Septic shock and his Hospital IP. No. was
931/97-98. In the entire cross examination of P.W.1, the
authenticity of Ex.P.2 or the contents of the same has
neither been challenged nor was any suggestion or question
put regarding the same.
32. Now, let me consider what is the legal effect of
failure of defendant to cross examine PW.1 on the
authenticity or the genuineness of Ex.P2. Non-cross
examination of PW.1 when it was produced during the
evidence and spoken to by the PW1 takes away the right of
the defendant to question the authenticity or the
genuineness of the same subsequently. The legal effect of
non-cross examination of the witness when he produces a
document in proof of his assertion of certain set of facts is,
undeniably, the admission of the facts contained therein. If
it is otherwise, in law, the defendant was under a legal
obligation to interrogate and question the witness
producing documents regarding the authenticity of the
same or regarding correctness of the recitals therein. The
above position has fallen for consideration before the
Hon'ble Supreme Court and the following observation in
Muddasani Venkata Narasaiah v. Muddasani Sarojana
reported in (2016) 12 SCC 288 is very apposite. It reads as
follows:
"15. Moreover, there was no effective cross-
examination made on the plaintiff's witnesses with
respect to factum of execution of sale deed, PW.1
and PW-2 have not been cross examined as to
factum of execution of sale deed. The cross-
examination is a matter of substance not of
procedure one is required to put one's own version
in cross-examination of opponent. The effect of non
cross-examination is that the statement of witness
has not been disputed. The effect of not cross-
examining the witnesses has been considered by
this Court in Bhoju Mandal & Ors. v. Debnath
Bhagat & Ors. AIR 1963 SC 1906. This Court
repelled a submission on the ground that same was
not put either to the witnesses or suggested before
the courts below. Party is required to put his
version to the witness. If no such questions are put
the court would presume that the witness account
has been accepted as held in M/s. Chuni Lal
Dwarka Nath v. Hartford Fire Insurance Co. Ltd. &
Anr. AIR 1958 Punjab 440".
33. It has to be noticed that it was only later during
the arguments that a case was sought to be built regarding
the non-genuineness of Ex.P.2 by suggesting that time of
the admission appearing on the face of Ex.P.2 was an
interpolation and, therefore, the whole of the contents of
Ex.P.2 is a product of fabrication which was too readily
accepted by the learned Court below without so much as
scrutinizing the evidence as to whether, during the trial,
there was any doubt raised so as to enable the plaintiff to
offer further and more evidence on the said aspect. This is
required to be appreciated further from the fact that
defendant No.2 when examined as D.W.1 has clearly
admitted that J.Anthony Swamy had undergone major
operation and only after that he died and she has also
stated that the surgery was performed on 26.09.1997 and
he died on 01.10.1997. That, she had no qualms in
tweaking the date of admission of J.Anthony Swamy to the
Hospital, is apparent from what she had to say further
during her cross examination which reads as follows :
"...... I do not remember that in Ex.P.10 on
12.02.2004 at page 14 "It is true to say that I
have also given the deposition to the effect that
on 25th morning of September, 1997,
Antonyswamy was admitted into the hospital". I
do not remember that I have also deposed
therein that said Antonyswamy have admitted
at Lakeside Hospital and he had undergone
treatment and had consequently breathed his
last breath. ........"
[Emphasis supplied]
Ex.P10 referred to above is the deposition of this
defendant No.2 (DW.1) in HRC No.157/2002. As could be
seen there from, this witness has categorically admitted in
the earlier proceedings that J.Anthony Swamy was
admitted to Hospital on the morning of 25.09.1997.
Besides, Ex.P.2 was earlier produced in HRC No.157/2002
instituted by these defendants against the plaintiff and it
was marked as Ex.R.3. D.W.2 (who is defendant No.3) has
categorically admitted during cross examination that she
had admitted the correctness of Ex.P.2 in the said
proceedings.
34. It is the definite case of the defendants as could
be seen from the endorsement on Ex.D.4 that it was
presented for registration before the Sub-Registrar,
Bangalore North Taluk between 3.00 p.m. and 4.00 p.m. on
25.09.1997 by the vendor J.Anthony Swamy himself. The
admission of DW.1 as extracted above and that of D.W.2 in
HRC No.157/2002 clearly gives a lie to the assertion of the
defendants that J.Anthony Swamy had appeared before
the Sub-Registrar for the purpose of execution of Ex.D.4
and presentation of the document for registration on
25.09.1997. If he was admitted to the Hospital on
25.09.1997 in the morning, as could be seen from the
deposition of D.W.1 which is marked as Ex.P.10 and was
also confronted to her, it was impossible for J.Anthony
Swamy, who was to die soon on account of serious and
debilitating illness, to have gone to the office of Sub-
Registrar for the purpose of execution of the sale deed and
presentation of the document for the purpose of
registration. At any rate, defendants have not placed any
evidence of definitive nature to show that notwithstanding
the fact that J.Anthony Swamy was admitted to hospital in
the morning, he had bestirred himself to go to the Sub-
Registrar's office to accomplish this one last mission of his
life. Learned trial Court has failed to refer to this aspect of
the evidence presented during the trial.
35. The further affirmation of the fact that in all
human probability, J.Anthony Swamy could not have
appeared before the Sub-Registrar and he would not have
executed the sale deed and presented Ex.D.4 for
registration is forthcoming from the evidence of D.W.3, the
alleged attestor to Ex.D.4. In the affidavit filed in lieu of his
examination-in-chief, D.W.3 the attestor of Ex.D.4 has
stated that :-
" .... I have signed the said sale deed as
attesting witness and in my presence the said
J.Anthony Swamy - the vendor of these
defendants had executed the sale deed in favour
of these defendants before the Sub-Registrar and
thereafter he died on 01.10.1997 and he is no
more and at the time of registration of the sale
deed, the said J.Anthony Swamy was in a sound
and disposing state of mind."
[Emphasis supplied]
36. D.W.3 has admitted during his cross examination
that he is a land developer and he is an agriculturist. He
further admitted that he had given evidence in HRC
No.1247/1998 instituted by the defendant Nos. 2 and 3 for
eviction against the plaintiff. He has stated that he had
been knowing J.Anthony Swamy since about 25 years. He
has further deposed as follows :
"...... ºÉZï.Dgï.¹.£ÀA.1247:1998 PÉù£À £À£Àß
ºÉýPÉAiÀÄ°è CAvÉÆÃt ¸Áé«ÄAiÀÄ£ÀÄß MAzÀÄ ¢£À ªÀiÁvÀæ £ÉÆÃrzÉÝ
JAzÀÄ ºÉýzÉÝ JAzÀgÉ ¤d. ¸ÀzÀj PÉù£À°è £Á£ÀÄ PÉÆnÖgÀĪÀ ¸ÁQë
ºÉýPÉ ¤.¦.12gÀAvÉ EzÉ. ¢£ÁAPÀ 26-9-1997gÀAzÀÄ £Á£ÀÄ
Hj£À°è £À£Àß ¸ÉÊlÄUÀ¼À §UÉÎ PÉ®¸À ªÀiÁqÀÄwÛzÉÝ JAzÀÄ ¤.¦. 12
gÀ°è ºÉýgÀÄvÉÛãÉ. JAzÀgÉ ¤d. ¤.¦.12gÀ ªÀÄÄRå «ZÁgÀtÂAiÀÄ°è
£À£Àß ¸ÀªÀÄPÀëªÀÄ PÀæAiÀÄzÀ ºÀtªÀ£ÀÄß ¥ÁªÀw ªÀiÁqÀ¯ÁVvÀÄÛ JAzÀÄ
ºÉýgÀÄvÉÛãÉ. ¤.¦- 12gÀ £À£Àß ¥Án ¸ÀªÁj£À°è 1 ®PÀë 90 ¸Á«gÀ
gÀÆ.UÀ¼À£ÀÄß ¸ÀªÀÄPÀëªÀÄ PÉÆnÖgÀĪÀÅ¢®è ªÀÄvÀÄÛ 1 ®PÀë 90 ¸Á«gÀ
gÀÆ.UÀ¼À£ÀÄß AiÀiÁªÀ gÀÆ¥ÀzÀ°è PÉÆnÖgÀÄvÁÛgÉ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è
JAzÀÄ ºÉýgÀÄvÉÛ£É. £À£Àß ¥ÁnÖà ¸ÀªÁj£À°è ¢£ÁAPÀ 25-09-
1997PÉÌ CªÀgÀÄ ºË¹Öl®£À°è Cräl DVÎzÀÝgÀÄ. jf¸ïÖµÀ£ÀUÉ
§A¢gÀ°®è. CªÀjUÉ vÀÄA¨Á SÁ¬Ä¯ÉUÀ¼ÀÄ EgÀĪÀÅzÀjAzÀ
ºË¹Öl®£À°è Cräl DVÎzÀÝgÀÄ. ¤.¦.12 (J) £ÀAvÉ ºÉýPÉ
PÉÆnÖgÀĪÀÅ¢®è. "
37. It is necessary to make reference to the portion
of the evidence of this D.W.3 who was examined as P.W.3
in HRC No.1247/1998. The portion marked as Ex.P.12(a)
reads as follows :
"25-9-97 PÉÌ CªÀgÀÄ ºÁ¸Ààl®£À°è Cräl DVÎzÀÝgÀÄ.
jf¸ïÖµÀ£ÀUÉ §A¢gÀ°®è. CªÀjUÉ vÀÄA¨Á SÁ¬Ä¯ÉUÀ¼ÀÄ
EgÀĪÀÅzÀjAzÀ ºÁ¸Ààl®£À°è Cräl DVÎzÀÝgÀÄ."
The above also casts serious doubt about J.Anthony
Swamy executing the sale deed - Ex.D.4 on 25.09.1997 as
claimed by the defendants.
38. In the face of such overwhelming evidence, the
learned trial Court has grievously erred in stretching its
imagination to absurd levels when it observed that -
"............. So the probability of late
J.Anthonyswamy admitted into hospital on
25.09.1997 after the execution and registration of
Ex.D.4 cannot be ruled out" and "........... So the
probability of late J.Anthonyswamy even after his
admission into lakeside Hospital as an inpatient on
25.9.1997 coming out of the hospital for the
purpose of execution and registration of the sale
deed Ex.D.4 cannot be ruled out."
[vide paragraphs 14 & 15
of the impugned judgment]
39. And, what was the perceived difficulty for the
learned trial Court to accept the admissions made by DW.1
in the previous proceedings ? Let me present it in its own
words:-
"13. The learned counsel for the plaintiff
has argued that as per Ex.P.10, the deposition of
the 2nd defendant in HRC No.157/2002 at para
No.14, the 2nd defendant has admitted that late
J.Anthonyswamy was admitted into hospital in
the morning of September 1997. But it is relevant
to note that it is not the case of the plaintiff that
late J.Anthonyswamy was admitted into
hospital as an inpatient in the morning of
25.9.1997 and further it is pertinent to note that
the 2nd defendant (DW.1) has not been
confronted with the relevant portion of Ex.P.10.
Thus, Ex.P.10 the deposition of DW.1 in
HRC.NO.157 of 2002, which is an earlier
statement cannot be made use of by the plaintiff
in its entirety in this case. Therefore, I hold that
the plaintiff has failed to prove as to at what
time on 25.9.1997 late J.Anthonyswamy was
admitted into hospital as an inpatient."
[Emphasis supplied]
40. The approach of the learned trial Court is
fraught with grave misapprehension of law. According to
its position, since the relevant portion in Ex.P10
constituting material admission was not confronted to
DW.1, it could not be used in this proceedings. What is
this 'confronting' about? Indisputably, Ex.P10 is the
deposition of DW.1 in HRC No.157/2002 wherein herself
and DW.2, her sister were petitioners and plaintiff was the
respondent and relief sought in the proceedings was his
eviction from the suit schedule premises. The point about
'confronting' previous statements is really grounded on
Sections 145, 155 and 157 of Evidence Act subject to
Section 17 and Section 21 of the same Act. A careful
perusal of the said provisions show that they are
disembodied incarnation of principles of Natural Justice.
In practical terms - in its application,
"16. ................There can be no hard and
fast rule. All that is required is that the witness
must be treated fairly and be afforded a
reasonable opportunity of explaining the
contradictions after his attention has been
drawn to them in a fair and reasonable manner.
..................... The matter is one of substance
and not of mere form. "
[Bhagwan Singh v. State of Punjab - AIR
1952 SC 214]
41. The previous depositions of DW.1, DW.2 &
DW.3 were all marked during the evidence of PW.1 [Ex.P7
to Ex.P12] and that they were so was not at all disputed
during the cross examination. Further, DW.1 admitted
during the cross examination that EX.P10 was indeed her
deposition in HRC No.157/2002. As extracted herein
above when the specific portion of the admission in Ex.P10
was shown to D.W.1, her response was one of amnesia - "I
do not remember" and not one of denial. At the beginning
of cross examination of DW.1, when learned counsel for
the plaintiff attempted to confront her with a portion of
Ex.P7 - her deposition in HRC No.1247/98 - her learned
counsel objected to such 'confronting' on the ground that
Ex.P7 and Ex.P10 had already been marked and therefore
it was unnecessary. In that view of the matter, it is clear
that 'substance' of the requirement of 'confronting' has
been satisfied and reason found by the learned Court
below for disregarding the admission is misconceived.
42. There is yet another reason for holding this
view of learned Court below untenable. In almost similar
fact situation, Hon'ble Supreme Court explained the legal
position as follows:
"8. There is no merit even in the contention that
because these three statements-Exs. G, G2 and
H-had not been put to the first plaintiff when he
was in the witness box or to the eighth
defendant although he had discreetly kept away
from giving evidence, they cannot be used
against him. Counsel drew our attention to
Section 145 of the Indian Evidence Act. There is
a cardinal distinction between a party who is the
author of a prior statement and a witness who is
examined and is sought to be discredited by use
of his prior statement. In the former case an
admission by a party is substantive evidence if it
fulfill the requirements of Section 21 of the
Evidence Act; in the latter case a prior statement
is used to discredit the credibility of the witness
and does not become substantive evidence. In
the former there is no necessary requirement of
the statement containing the admission having
to be put to the party because it is evidence
proprio vigore: in the latter case the Court cannot
be invited to disbelieve a witness on the strength
of a prior contradictory statement unless it has
been put to him, as required by Section 145 of
the Evidence Act. This distinction has been
clearly brought out in the ruling in Bharat Singh
v. Bhagirathi case. This Court disposed of a
similar argument with the following
observations:
"Admissions are substantive evidence by
themselves, in view of Sections 17 and 21 of the
Indian Evidence Act, though they are not
conclusive proof of the matters admitted. We are
of opinion that the admissions duly proved are
admissible evidence irrespective of whether the
party making them appeared in the witness box
or not and whether that party when appearing
as witness was confronted with those
statements in case it made a statement contrary
to those admissions. The purpose of
contradicting the witness under Section 145 of
the Evidence Act is very much different from the
purpose of proving the admission. Admission is
substantive evidence of the fact admitted while a
previous statement used to contradict a witness
does not become substantive evidence and
merely serves the purpose of throwing doubt on
the veracity of the witness. What weight is to be
attached to an admission made by a party is a
matter different from its use as admissible
evidence."
[Emphasis supplied]
[(1974) 1 SCC 78 - Bishwanath Prasad and
others v. Dwarka Prasad and others]
43. It is necessary to point out that Ex.'G', Ex.'G2'
and Ex.'H' referred to by Hon'ble Supreme Court were the
previous depositions of plaintiff, 8th defendant and written
statement, respectively filed by the parties in an earlier
suit. Hon'ble Supreme Court has clearly held that if the
maker of the previous statement (Ex.P10) - in this case
DW.1 - is a party to the proceedings, there is no
requirement of the statement containing admission having
to be put to the party because it is evidence proprio vigore.
It has further held that such an admission is substantive
evidence if it fulfils the requirement of Section 21 of the
Evidence Act. In so far as other witnesses are concerned,
prior contradictory statement is required to be put to them
before a Court can be asked to disbelieve him on that
basis. In this case DW.1 has admitted that Ex.P7 and
Ex.P10 are her depositions in the two HRC cases filed by
her against the plaintiff apart from the fact that specific
portion containing the admission has been extracted in her
evidence as DW.1. Similarly, during the cross examination
of DW.3, the specific portion containing admission was
marked as Ex.P12(a).
44. The defendant Nos. 2 and 3 in their written
statement have claimed that Ex.D.4 was preceded by an
agreement of sale which was anterior to the agreement of
sale - Ex.P.1 dated 11.06.1997 set up by the plaintiff.
However, true to the character of the case of defendant Nos.
2 and 3, the date of such agreement of sale executed by
J.Anthony Swamy in their favour has not at all been
disclosed. Even in Ex.D.4 there is absolutely no reference
to any agreement of sale entered into between the parties,
much less, the date of such agreement of sale.
45. During the trial, defendant No.2 who examined
herself as D.W.1 has stated that there was a written
agreement of sale dated 05.08.1992. She has further
stated that in the sale deed dated 25.09.1997 there is a
reference to the agreement dated 05.08.1992 and there is a
recital for payment of Rs.45,000/-. She has admitted that
Ex.P.7 was her deposition in HRC No.1247/1998 and
Ex.P.10 was her deposition in HRC No.157/2002. Perusal
of her cross examination in these proceedings shows that
when the learned counsel for the plaintiff wanted to
specifically draw the attention of this witness to portions of
Ex.P.7 and P.10, her learned counsel objected to the same
stating that said depositions were already marked in these
proceedings, thereby suggesting that confronting specific
portions of evidence was not required. It was therefore,
apparent defendant No.2 had no objection to the plaintiff
relying on the contents of her depositions in HRC
No.1247/1998 and HRC No. 157/2002 which were between
the same parties and that she had, by choice, forgone any
right of offering explanations to her previous depositions as
per Exs. P.7 and P.10. In Ex.P.7, during her deposition she
had stated that the sale agreement was written on
05.08.1992 and she paid part consideration of Rs.45,000/-
by way of cheque on that day. She has also further stated
that :
"........ It is true to say that I have deposed
before the Court in Ex.P.10 in HRC No.157/2002
that after the payment of Rs.45,000/- I have
paid part payment of Rs.10,000/- in instalments
for four times. I have also deposed of having
endorsing the said fact on the agreement of sale.
It is not stated in the sale deed to the effect of
above said four instalment payments. .......".
46. It is now necessary to make a reference to
the written statement filed by this witness along with
D.W.3 on the aspect of alleged payment of
consideration. The plea in this behalf is at para 5 of
the written statement and it reads as follows :
"........ as per the recitals of the sale deed
of defendants wherein on 10.04.1996 the sum of
Rs.65,000/- cheque drawn on Syndicate Bank
and subsequently sum of Rs.75,000/- who have
paid at the time of registration of the sale deed
and a sum of Rs.50,000/- by way of cash and
payment of registration amount by cheque ......"
47. A close reading of the pleadings show that the
case of the defendants was that a sum of Rs.65,000/- was
given by way of cheque to the vendor on 10.04.1996 and a
sum of Rs.75,000/- was paid at the time of registration of
the sale deed and a sum of Rs.50,000/- was paid by way of
cheque. The timing of payment of this third part of
payment of Rs.50,000/- is delightfully kept open without
mentioning the date in the written statement. Defendants
have filed this written statement with the aid, advice and
assistance of a learned counsel and it is impossible to
believe that non-mentioning of the date of payment of
Rs.50,000/- was due to oversight.
48. Now, if one peruses the sale deed - Ex.D.4, it is
mentioned that total consideration is Rs.1,90,000/- and
out of the same, a sum of Rs.65,000/- was paid by way of
cheque bearing No.071874 dated 10.04.1996 drawn on
Syndicate Bank, Lingarajpuram Branch, Bangalore.
Rs.75,000/- was paid by way of cash before the witnesses.
Ex.D.4 does not specifically mention the date of payment of
the second instalment of Rs.75,000/-. Interestingly as per
the recital in Ex.D.4, Rs.50,000/- to make up the total
consideration of Rs.1,90,000/- was paid by way of cheque
bearing No.071878 dated 26.09.1997 drawn on Syndicate
Bank, Lingarajpuram Branch, Bangalore, before the Sub-
Registrar. The specific mention that this last portion of
Rs.50,000/- was paid in the presence of Sub-Registrar
strongly suggests that the second instalment of
Rs.75,000/- was not paid before him and therefore the
averment in the written statement that the said
Rs.75,000/- was paid at the time of registration would not
be true. Besides, there is no reference in Ex.D.4 to the
agreement of sale dated 05.08.1992 and payment of
Rs.45,000/- on that day by cheque and payment of
Rs.10,000/- each on four occasions subsequently. If the
said versions of D.W.1 were to be truthful, the arithmatics
would all go horribly wrong and total consideration would
go to Rs.1,90,000 + Rs.45,000 + Rs.40,000 (Rs.10,000 x 4
times) = Rs.2,75,000/- rendering the case of the defendants
dubious.
49. Perusal of the pleadings, the evidence and the recitals
in Ex.D.4 show that they bristle with so many inconsistencies
and discrepancies which render the case of the defendant that
there was indeed a sale deed executed by J.Anthony Swamy on
25.09.1997 as per Ex.D.4 improbable of acceptance. Learned
trial Court has not applied its mind to the above aspects of the
case.
50. The above view of mine is further buttressed by
certain recitals in Ex.D.4 which on the showing of the
defendants themselves are false. For example, clause No.7 of
Ex.D.4 reads as follows :
"7. The vendor has this day handed over the
peaceful vacant possession along with all
relevant documents in respect of the schedule
property to the purchasers at the time of
registration of this sale deed."
51. It is admitted at all hands that the plaintiff has
been in continuous possession of the suit schedule properties
and, if one were to go by the case of the plaintiff, he has been
in possession as a tenant in respect of the suit schedule
properties from 1988 till the date of Ex.P.1 dated 11.06.1997
and thereafter in part performance of the agreement of sale
dated 11.06.1997 and, if one were to go by the case of the
defendants, plaintiff has been in possession of the suit
schedule properties as a tenant under J.Anthony Swamy and
ever since Ex.D.4, in the same capacity under defendant Nos. 2
and 3 and they had instituted several eviction proceedings
against him which culminated in the orders by the Hon'ble
Supreme Court referred to in the earlier part of this judgment.
If that is so, the assertion in clause No.7 of the sale deed that
at the time of the execution of sale deed, vacant possession of
the suit schedule properties was handed over to defendant Nos.
2 and 3 is palpably false and no explanation is forthcoming for
making such a false assertion. The further recital in the same
clause that all relevant documents were handed over by J.
Anthony Swamy to defendant No. 2 is also false as admitted
by defendant No.2 in her evidence as D.W.1.
52. Learned trial Court was unduly carried away by
the fact that since sale deed Ex.D4 was a registered
document, it carried an aura of invincibility, and, therefore
the defendants did not have the obligation to prove the
execution of the same in accordance with law. It has
observed in Para 11 of the judgment that -
"...............Since the sale deed dated 25.9.1997,
which is in question is a duly registered document,
the burden will be on the plaintiff that the said sale
deed is not executed by late J.Anthony Swamy and
the same is not a genuine document".
53. Learned trial Court has totally ignored the fact
that in the plaint itself, at the earliest stage of the
proceedings, plaintiff has very clearly averred that
J.Anthony Swamy, the vendor had fallen ill and he was not
in a position to go to Sub-Registrar's office and execute
sale deed. It is too well settled to require any affirmation
that mere proof of signature of the executant to a
document or the fact that it was registered is not the same
as proving due execution of the document. When the
plaintiff has strongly asserted that the executant of Ex.D.4
was not in a position to execute the said document,
defendants were under an obligation to prove that it was so
executed as claimed by them. It is necessary to refer to the
following observations of this Court in this context:
".................. I am unable to consider the
said rule or the relevant presumption under
Section114 of the Evidence Act as an
impregnable China Wall preventing any attack
against any registered document. These
dictums have their own importance as well as
limitations. But the facts of life are not cast- iron
moulds. There is room for negligence and fraud
inside the Registrar's Office as well as outside it.
A Judge of fact will have to consider the over-all
picture as placed before him. While he should
not ignore the guidance afforded by inference of
law he will be abdicating his functions if he
ignores the facts and circumstances of the case.
A Judge who becomes an automaton and makes
rules of guidance as compelling conclusions, will
make a mockery of law. It is not necessary that
a Judge should proclaim these well accepted
propositions of law in his judgment. The fact
that the courts below have not made a fuss
about Rule 41 of the Registration Rules or to the
inference flowing therefrom will afford no
material to conclude that they were unaware or
unconscious of the same. To state these well
known and well accepted propositions would be
rather pedantic. Each case will have to be
judged on its own merits, inferences of law being
part of the over all picture.
................ Mere proof of signature of the
party to a document is not the same thing as
proving the due execution of the document."
[1958 ILR (Mysore) 263 - Narayanappa Minor
next friend Father Ramaiah vs. Lachmakka]
54. Similarly, Hon'ble Supreme Court in Om
Prakash (dead) through his Legal Representatives v.
Shanti Devi and others reported in (2015) 4 SCC 601
has observed as follows:
"6. ............... (b) that the registration of
documents does not per se, ipso facto, render it
impervious to challenge or and make its
reception automatic in curial proceedings."
55. Learned Court below has committed a serious
error in casting doubt about authenticity of Ex.P.2 even
though defendants themselves had not cross examined
P.W.1 when he had produced the same during his evidence
and got it duly proved. It has proceeded to observe at para
11 of its judgment that -
"........... Thus the evidence of the plaintiff
that on 25.9.1997 late J.Anthony Swamy was
admitted into Lakeside Hospital as an inpatient
is nothing but an improvement before the Court".
56. While making the said observation learned trial
Court has committed a serious error in as much as the
plaintiff had clearly pleaded that J.Anthony Swamy was
very ill and he was not in a position to go to Sub-
Registrar's office. In support of the said pleading, he had
produced Ex.P.2. Ex.P.2 was not a new discovery during
the course of the trial of this suit but as admitted by DW.2
(Defendant No.3) in her evidence -
"...........¤.¦.2£ÀÄß ºÉZïDgï¹ £ÀA.157/2002PÉù£À°è
£À£ÀUÉ vÉÆÃj¹zÀÝgÀÄ ªÀÄvÀÄÛ £Á£ÀÄ CzÀ£ÀÄß M¦àPÉÆArzÉÝ JAzÀgÉ ¤d
ªÀÄvÀÄÛ CzÀ£ÀÄß D PÉù£À°è JPïì Dgï-3 JAzÀÄ UÀÄgÀÄvÀÄ
ªÀiÁqÀÀ¯ÁVzÉ JAzÀgÉ ¤d."
57. Now, what is the legal consequence of the
defendants either not objecting to the marking of Ex.P.2 or
non cross-examining P.W.1 on the genuineness of the
same or the veracity of the contents therein? If defendants
had objected to Ex.P.2 being put in evidence through
P.W.1, he would have cured the defect and produced such
evidence as would be regular. Defendants having not
cross-examined P.W.1 on Ex.P.2 and not objected to its
marking cannot now turn round and say that it was not
properly proved. Hon'ble Supreme Court had an occasion
to deal with such a contention and it observed as follows:
"20. The learned counsel for the
defendant-respondent has relied on The Roman
Catholic Mission Vs. The State of Madras & Anr.
AIR 1966 SC 1457 in support of his submission
that a document not admissible in evidence,
though brought on record, has to be excluded
from consideration. We do not have any dispute
with the proposition of law so laid down in the
above said case. However, the present one is a
case which calls for the correct position of law
being made precise. Ordinarily an objection to
the admissibility of evidence should be taken
when it is tendered and not subsequently. The
objections as to admissibility of documents in
evidence may be classified into two classes: (i)
an objection that the document which is sought
to be proved is itself inadmissible in evidence;
and (ii) where the objection does not dispute the
admissibility of the document in evidence but is
directed towards the mode of proof alleging the
same to be irregular or insufficient. In the first
case, merely because a document has been
marked as "an exhibit", an objection as to its
admissibility is not excluded and is available to
be raised even at a later stage or even in appeal
or revision. In the latter case, the objection
should be taken before the evidence is tendered
and once the document has been admitted in
evidence and marked as an exhibit, the objection
that it should not have been admitted in
evidence or that the mode adopted for proving
the document is irregular cannot be allowed to
be raised at any stage subsequent to the
marking of the document as an exhibit. The later
proposition is a rule of fair play. The crucial test
is whether an objection, if taken at the
appropriate point of time, would have enabled
the party tendering the evidence to cure the
defect and resort to such mode of proof as would
be regular. The omission to object becomes fatal
because by his failure the party entitled to object
allows the party tendering the evidence to act on
an assumption that the opposite party is not
serious about the mode of proof. On the other
hand, a prompt objection does not prejudice the
party tendering the evidence, for two reasons:
firstly, it enables the Court to apply its mind and
pronounce its decision on the question of
admissibility then and there; and secondly, in
the event of finding of the Court on the mode of
proof sought to be adopted going against the
party tendering the evidence, the opportunity of
seeking indulgence of the Court for permitting a
regular mode or method of proof and thereby
removing the objection raised by the opposite
party, is available to the party leading the
evidence. Such practice and procedure is fair to
both the parties. Out of the two types of
objections, referred to hereinabove, in the later
case, failure to raise a prompt and timely
objection amounts to waiver of the necessity for
insisting on formal proof of a document, the
document itself which is sought to be proved
being admissible in evidence. In the first case,
acquiescence would be no bar to raising the
objection in superior Court."
[Emphasis supplied]
[(2003) 8 SCC 752 - R.V.E. Venkatachala
Gounder v. Arulmigu Viswesaraswami &
V.P. Temple and another]
58. Learned trial Court ought to have noticed that
in civil proceedings parties need to only plead the facts in
support of cause of action and they need not plead the
evidence. Order VI Rule 2 of CPC reads as follows :
"2. Pleading to state material facts and not
evidence.-
(1) Every pleading shall contain, and contain
only, a statement in a concise form of the
material facts on which the party pleading
relies concise form of the material facts on
which the party pleading relies for his claim
or defence, as the case may be, but not the
evidence by which they are to be proved.
(2) Every pleading shall,, when necessary, be
divided into paragraphs, numbered
consecutively, each allegation being, so far
as is convenient, contained in a separate
paragraph.
(3) Dates, sums and numbers shall be
expressed in a pleading in figures as well as
in words."
Ex.P.2 was produced in support of the plea that
J.Anthony Swamy was ill on 25.9.1997 and he could not
have executed sale deed-Ex.D.4 and he could not have
appeared before the Sub-Registrar for presenting it for
registration on that day. Plaintiff has let in evidence in
support of the plea apart from producing Ex.P.2. Thus,
production of Ex.P.2 was merely as a piece of evidence in
support of his plea that J. Anthony Swamy was ill and
could not have executed Ex.D.4. As already pointed out
DW.1 and DW.3 have also admitted the fact that
J.Anthony Swamy was admitted to the hospital in the
morning of 29.5.1997 whereas as per the endorsement on
Ex.D4, the same was presented for registration between 3
p.m. and 4 p.m. on 25.9.1997. Ex.P12(a) also shows that
DW.3 had made admission in another proceedings between
the same parties that on 25.9.1997 J.Anthony Swamy was
admitted to the hospital and since he was very ill, he did
not appear before the Sub-Registrar on that day. Even
D.W.2 has admitted Ex.P.2 when it was shown to her
during cross-examination in a previous proceedings before
the Court where it was marked as Ex.R.3.
59. Learned trial Court has also gotten into some
kind of confusion by drawing upon the concept of
"improvement before the Court" which is essentially a
principle applicable to criminal trials. In civil proceedings,
the standard of proof is one of preponderance of
probability and the onus of proof keeps on shifting between
the parties. The rules of pleading is governed by the Code
of Civil Procedure which, as already pointed out, required
the parties only to plead the facts and not evidence. The
question of "improvement before the Court" arises only in
cases of criminal nature where the trial is based on the
charge sheet filed, which contains the previous statement
of the witnesses who are to be examined before the Court.
60. The observation of this Court in Narayanappa's
case to the effect "......... There is room for negligence and
fraud inside the Registrar's Office as well as outside it." is
fully applicable to this case as well, in view of the several
suspicious circumstances surrounding the execution of
Ex.D.4. As per the evidence of DWs.1 to 3, Ex.D.4 was
executed in the office of Sub-Registrar and it was
presented before the Sub-Registrar by the vendor J.
Anthony Swamy himself. The said circumstance is
rendered improbable in view of the weight of evidence
produced before the Court, more particularly, from the
several admissions made by the DWs.1 to 3. The
discrepancy between oral evidence and intrinsic material
available in Ex.D.4 like the payment of consideration,
handing over of vacant possession of the suit schedule
premises to defendants No.2 and 3 and handing over the
property documents to them shows that the recitals are
wholly false and the defendants have not been able to
explain as to why false recitals were made in the
document. Learned trial Court has failed to apply its mind
to the above circumstances and also fact that when Ex.P2
and the evidence thereon shows that J.Anthony Swamy
was admitted to the hospital on 25.9.1997 in the morning
with serious ailment to which he succumbed on
01.10.1997, it was for the defendant to show that he had
moved out of the hospital to office of Sub-Registrar for the
purpose of execution of Ex.D4 and presenting it for
registration on 25.09.1997. As observed by this Court in
Narayanappa's - 1958 ILR (Mysore) 263 case -
"................... From the internal evidence
available from Exhibit A, it is clear that the
recitals in the document are substantially false.
It is evidently a document made to order. The
document is said to have been executed on the
very day of the adoption. There was undue
haste in rushing things through."
[Emphasis supplied]
rendering the case of the defendants improbable of
acceptance.
61. Learned trial Judge has unfortunately missed
the whole series of tissue of lies woven by the defendants
around their case and has acted like an `automaton' and
accepted the version doled out by the defendants and in
the process totally brushed under the carpet the very
detailed evidence placed by the plaintiff in support of his
case. In the face of the above evidence, it is impossible to
hold that evidence placed before the Court probabilises the
execution of sale deed as per Ex.D.4 by deceased
J.Anthony Swamy.
62. Point No.3 :
Section 16(c) of the Specific Relief Act, 1963, makes
it incumbent on the party, who wants to enforce specific
performance of a contract, to aver and prove that he has
performed or has always been ready and willing to perform
the essential terms of the contract. In this case, plaintiff
has pleaded that he was ready and willing to perform
essential terms of his part of the contract and he has also
given evidence in support of the same which has remained
uncontroverted. Ex. P.1 is the agreement of sale executed
by vendor - J.Anthony Swamy in favour of the plaintiff on
11.06.1997. The essential terms of the agreement of sale
is payment of consideration of Rs.1,05,000/- out of which
the plaintiff had paid a sum of Rs.75,000/- on the date of
the agreement which is acknowledged in the document
itself. In so far as the payment of balance consideration of
Rs.30,000/- is concerned, the terms of Ex.P.1 is to the
effect that it should be paid within three months from the
date of the agreement and that, in two instalments and
upon the vendor - J.Anthony Swamy making a demand for
the same. The said period of three months fell on
11.09.1997. The evidence clearly shows that during the
month of September, 1997, the vendor - J.Anthony Swamy
had fallen seriously ill and he was admitted to Lakeside
Hospital, Bangalore, on 25.09.1997 and he had undergone
surgery there and subsequently he succumbed to death on
01.10.1997. Ex.P.2 is the certificate issued by the said
hospital which mentions the cause of death also. As per
the said certificate issued by the hospital, the cause of
death was Diabetic Mellitus Septic shock. The plaintiff has
stated that he could not take forward the agreement of sale
into a sale deed on account of the fact that at about the
time the expiry of three months fell, the vendor had fallen
ill and ultimately he had to be hospitalized and, as ill-luck
would have it, he died in the hospital itself. There is
nothing placed on record to indicate that the vendor had
made a demand for the payment of the balance
consideration amount of Rs.30,000/- from the plaintiff and
expressed his readiness and preparedness for executing
the sale deed.
63. It is the case of the defendants that on
25.09.1997, the vendor - J.Anthony Swamy had executed
a sale deed in their favour in respect of the suit schedule
properties as per Ex.D.4. Under Ex.P.1, the only essential
term of the agreement which was required to be performed
by the plaintiff was payment of the balance consideration
of Rs.30,000/-. The plaintiff was already a tenant in
respect of the suit schedule properties and his having
pleaded and spoken about his readiness and willingness to
perform his part of the obligation, there is no reason to
believe that he was not prepared to pay the balance
consideration on demand made by the vendor as stipulated
in Ex.P.1. In this connection it is necessary to make a
reference to the observation of the Hon'ble Supreme Court
to the following effect :
"14. ...... It is not expected from the plaintiff that
he would continue to deposit the same with the
bank all these years. What is required to be
considered is as and when he is called upon to
make the deposit, he has deposited the amount
to show his bona fides or not ? Therefore, as
such, both the learned trial court as well as the
High Court have rightly passed a decree for
specific performance."
[Emphasis supplied]
[(2019) 6 SCC 233 - Beemaneni Maha
Lakshmi vs. Gangumalla Appa Rao (since
dead) by Legal Representatives.]
64. Plea of readiness and willingness as adumbrated
in Section 16(c) of the Act is a concept relatable to an
agreement of sale which the purchaser wants to take
forward vis-à-vis his vendor, by performing his part of the
agreement and it is not an obligation at large against the
whole world. Therefore, a purchaser under an agreement
of sale like the plaintiff herein, is obliged to demonstrate
his 'readiness and willingness' only upto the point Ex.D.4
came into being. Thereafter, burden is entirely on the
subsequent purchaser like the defendants herein to plead
and establish that they are bonafide purchasers for value
without notice. Hon'ble Supreme Court had an occasion to
pronounce on the same :
"6. Questioning the plea of readiness and
willingness is a concept relatable to an
agreement. After conveyance the question of
readiness and willingness is really not relevant.
Therefore, the provision of the Specific Relief Act,
1963 (in short the 'Act') is not applicable. It is to
be noted that the decision in Ram Awadh's case
(supra) relates to a case where there was only
an agreement. After the conveyance, the only
question to be adjudicated is whether the
purchaser was a bona fide purchaser for value
without notice. In the present case the only issue
that can be adjudicated is whether the
appellants were bona fide purchasers for value
without notice. The question whether the
appellants were ready and willing is really of no
consequence.
7. Learned counsel for the appellants submitted that
since the purchasers step into the shoes of the
vendor, the question of readiness and willingness
can be pressed into service. This plea is clearly
without substance because the purchasers had to
prove that they are bona fide purchasers for value
without notice. The readiness and willingness aspect
will not give any relief to them. That being the
position, the appeal is sans merit and is dismissed.
There will be no order as to costs."
[Emphasis supplied]
[(2007) 9 SCC 660 - M.M.S. INVESTMENTS,
MADURAI AND OTHERS Vs. V. VEERAPPAN AND
OTHERS]
65. As already noticed, the pleading and the
evidence let in by the plaintiff clearly shows that he was
ready and willing to perform his part of the contract,
namely to pay the balance amount of Rs.30,000/- and it
was only on account of the vendor falling seriously ill and
subsequently succumbing to the same that he could not
take the contract forward and there was no wanton failure
on his part which prevented the vendor from executing the
sale deed.
66. Point No.4 :
Now, the further question that requires to be
examined is whether the plaintiff is entitled to a decree of
specific performance of the agreement of sale dated
11.06.1997 (Ex.P.1) ? The suit was instituted by the
plaintiff on 12.03.1999 seeking specific performance of the
agreement of sale against defendant No.1 who is the sister
of deceased vendor - J.Anthony Swamy and defendant
Nos. 2 and 3 who are the subsequent purchasers under
Ex.D.4. It is evident that the suit was filed about 21
months after the agreement of sale. Even though the time
fixed under the agreement of sale for executing the sale
deed was three months from the date of the agreement,
there was a condition super added for making payment of
the balance consideration in two instalments on the
demand made by the vendor. Unfortunately, the vendor
died on 01.10.1997 due to a serious debilitating disease -
diabetes. Plaintiff has averred and deposed that defendant
did not have either wife or children and therefore he was
making anxious enquiries to find out his legal
representatives. He has also deposed that he came to
know about Ex.D.4, the sale deed in favour of defendant
Nos. 2 and 3 only after receiving the Court notice in HRC
No. 1247/1998. Thereafter, he started making enquiries
about the legal representatives of vendor and then he came
to know about existence of defendant No.1 who is sister of
the vendor. He has explained the delay in filing this suit
seeking specific performance of the agreement to sell -
Ex.P.1. Now the question is whether there was any
unreasonable delay on the part of the plaintiff in filing the
suit for specific performance so as to disentitle him from
seeking the remedy which is at once equitable as well as
statutory ?
67. In this case, as is evident from the materials
placed before the Court, the suit for specific performance
was filed within the period of limitation. Further the time
taken by the plaintiff to file this suit seeking specific
performance has not led to acquisition of any third party
interests in the suit schedule properties. The observation
of Hon'ble Supreme Court in a similar situation is
apposite.
"6. The first ground which the High Court took
note of is the delay in filing the suit. It may be apt to
bear in mind the following aspects of delay which
are relevant in a case of specific performance of
contract for sale of immovable property:
(i) delay running beyond the period prescribed
under the Limitation Act;
(ii) delay in cases where though the suit is
within the period of limitation, yet :
(a) due to delay the third parties have acquired
rights in the subject-matter of the suit;
(b) in the facts and circumstances of the case,
delay may give rise to plea of waiver or
otherwise it will be inequitable to grant a
discretionary relief.
Here none of the above-mentioned aspects
applies. That apart factually also, the High
Court proceeded on an incorrect assumption
with regard to cause of action. Ext.2 was
executed on 20-2-1977 and under it the sale
deed was to be executed on or before 19-7-
1977. The last notice was issued on 26-11-
1978 and from that date the suit was filed
only after nine months and not after more
than a year as noted by the High Court.
Therefore on the facts of this case the ground
of delay cannot be invoked to deny relief to
the plaintiff."
[(2000) 6 SCC 420 - Motilal Jain vs.
Ramdasi Devi (Smt.) and others.)]
68. In the facts placed before Court by the plaintiff,
there is no reason to hold that there was any unreasonable
delay on the part of the plaintiff to file the suit as to deny
him the relief on the said ground.
69. One of the grounds on which learned trial
Court has held the suit of the plaintiff untenable was,
according to the view of the learned trial Court, plaintiff
was obliged to seek cancellation of the sale deed - Ex.D.4
and his having not sought the said relief, suit was liable to
be dismissed. The question now is, during the currency of
the agreement of sale in respect of the suit schedule
properties which evidently has resulted in the plaintiff
continuing in possession of the suit schedule properties in
part performance of the agreement, is he obliged to seek
the relief of cancellation of sale deed - Ex.D.4 ?
70. A cursory reference to Section 19 of the Specific
Relief Act, 1963 is sufficient to dispose of the view taken by
the learned trial Court :
"19. Relief against parties and persons
claiming under them by subsequent title. -
Except as otherwise provided by this Chapter,
specific performance of a contract may be enforced
against -
(a) either party thereto;
(b) any other person claiming under him by a
title arising subsequently to the contract, except
a transferee for value who has paid his money
in good faith and without notice of the original
contract;"
[Emphasis supplied]
71. When the provisions under Section 19 of the
Act clearly provides for the mode of enforcing the
agreement of sale by seeking specific performance of the
same, an agreement purchaser like the plaintiff cannot be
obligated in law to seek any other remedy beyond what is
specifically stated in the very provision itself. There is no
dispute about the fact that Ex.D.4 is dated 25.09.1997 and
therefore it has come into existence subsequent to the
agreement of sale (Ex.P.1) in favour of the plaintiff. When
the said provision of law provides for specifically enforcing
the agreement against the defendants on account of their
acquiring interest in the suit schedule properties
subsequent to Ex.P.1, there is no warrant for holding that
the plaintiff, in addition to enforcing the agreement and
seeking specific performance of the same, is also required
to seek cancellation of the document Ex.D.4 under which
such interest was acquired by defendant Nos. 2 and 3. It
is no doubt true that defendant Nos. 2 and 3 have pleaded
in their written statement that there was an agreement of
sale executed by the vendor - J.Anthony Swamy in their
favour in respect of the suit premises anterior to Ex.P.1.
However, neither in the pleadings nor in the evidence, the
clear date of agreement of sale was disclosed. Further, in
Ex.D.4 itself there is absolutely no indication about any
agreement of sale having been executed by the vendor in
favour of defendant Nos. 2 and 3 prior to the sale deed
Ex.D.4. During the trial, various contradictory statements
have been made by D.W.1 and D.W.2 about the alleged
date of agreement of sale, namely that it was on
05.08.1992 and on 10.04.1996 and even with regard to
payment of the part of the consideration, the evidence of
D.W.1 and D.W.2 is wholly inconsistent with what has
been recited in Ex.D.4. On a detailed consideration of the
material produced by defendants on this aspect, I have
already come to the conclusion that prior agreement of sale
is not supported by evidence. It is evident on a closer
examination of the evidence let in that the agreement of
sale set up by defendant Nos. 2 and 3 in their favour is a
make believe one and only advanced so as to defeat the
claim of the plaintiff. In that view of the matter, there was
no requirement under law for the plaintiff to seek
cancellation of the sale deed - Ex.D.4 and the view taken
by the learned trial Court is wholly erroneous.
72. Plaintiff is not entitled to the relief of specific
performance of an agreement of sale against a subsequent
purchaser if the subsequent purchaser is a transferee for
value who has paid his money in good faith and without
notice of the original contract. The burden of proving the
fact that the subsequent purchaser and in this case,
defendant Nos. 2 and 3 had purchased the suit schedule
properties for value and they had paid their money in good
faith and without notice of the original contract is on such
purchasers namely defendant Nos. 2 and 3 herein. (Vide
(1973) 3 SCC 418 - Dr. Govinddas and another vs.
Shrimati Shantibai and others).
73. In this case, the evidence let in by the defendants
regarding their making payment towards consideration to
the vendor - J.Anthony Swamy is highly discrepant and
unworthy of credence. As per the sale deed - Ex.D.4, the
total consideration amount is Rs.1,90,000/-. As per the
sale deed, the payment was made in three spells beginning
from 1996. As already discussed, the first of the payments
as per the sale deed was on 10.04.1996 and it was through
a cheque for Rs.65,000/-. During the trial, D.W.1 has
given entirely different version and according to her, the
first of the payments was made on 05.08.1992 for a sum of
Rs.45,000/- and as to the manner of the payment also, her
version is divergent, namely that it was paid in hard cash
and by cheque and according to her, she had paid further
sum of Rs.40,000/- in four instalments of Rs.10,000/-
each which is contrary to what is recited in Ex.D.4.
74. Was there any good faith on the part of the
defendant in entering into the transaction ? The evidence
let in by the defendants show that suit schedule properties
are situated in the same locality where at a short distance
away from the same, the mother and younger brother of
defendant Nos. 2 and 3 were residing as a tenant under
the same landlord, namely J.Anthony Swamy. The
evidence also shows that the brother of defendant Nos. 2
and 3 had subsequently purchased the said tenement from
J.Anthony Swamy. The plaintiff had been a tenant in
respect of the suit schedule properties under the vendor -
J.Anthony Swamy ever since 1988 and yet D.W.1 frankly
admits that she had not made any enquiry with the
plaintiff regarding the nature of his possession of the
premises and at one stage she admits that her vendor had
informed her that plaintiff was in possession of the
premises and he had filed eviction proceedings against
him. She also admits that she had not entered inside the
suit schedule premises before Ex.D.4 and she was not even
able to give the description of the premises. She also
admits that she had not scrutinized the documents of title
pertaining to the suit schedule premises prior to Ex.D.4.
The recitals in Ex.D.4 regarding vendor - J.Anthony
Swamy handing over vacant possession of the suit
schedule premises to defendant Nos. 2 and 3 is
demonstrably false. Similarly, D.W.1 admits that she was
not handed over the documents pertaining to the suit
schedule premises at the time of Ex.D.4 which clearly
shows that recital in clause No.7 of the sale deed - Ex.D.4
is again blatantly false. In this state of the evidence, it can
never be said that defendant Nos. 2 and 3 are transferees
for value who had paid their money in good faith and
without notice of the original agreement of sale - Ex.P.1. A
useful reference in this behalf may be made to the
observation of the Hon'ble Supreme Court which is as
follows :
"13. In paragraph 6 of the written statement
defendants 2 to 4 stated that they had purchased
the property only after contacting the plaintiff; they
sought the permission of the plaintiff to inspect the
suit godown informing him of their intention to
purchase the same from the first defendant. The
trial court did not accept this contention and rightly
so in our opinion. In the ordinary course a
reasonable prudent person placed in the position of
the plaintiff would not have failed to mention about
the existence of the prior agreement in his favour
particularly when he is using the very same
godown as a tenant under the first defendant for
the last 20 years prior to the filing of the suit.
Similarly the defendants 2 to 4 intending to
purchase the property in possession of a tenant
would not have failed to make inquiry as to any
further interest in relation to possession or title of
the plaintiff over the suit property. It is not
uncommon that where a tenant is in possession of
the property, that too for a long time, using it for
business purpose would always like to purchase
the property getting all advantages if offered for
sale. Normally the landlord or owner of the property
would also be interested in selling the property to a
person in possession if a reasonable price is given
to avoid litigation and to have smooth transaction.
In certain statutes even provisions are made to give
first option to a tenant to purchase the property. In
such situation the defendants 2 to 4 would have
made inquiry with the plaintiff about the nature of
his possession and title under which he is in
possession on the date of sale deed (Exhibit B-1)
executed in their favour. If they had made inquiry
plaintiff would have certainly revealed about
Exhibit A-3 the prior agreement in his favour. If
such inquiry was not made it only means that the
defendants 2 to 5 willfully abstained from making
such inquiry or they grossly neglected to do so. The
defence of defendants 2 and 4 is not consistent
with regard to contacting the plaintiff and informing
of their intention to purchase the property. Once
they took a stand that they directly contacted the
plaintiff seeking his permission to inspect the suit
property and in the evidence of DW-1 it is stated
that they sent their clerk to the plaintiff seeking
permission to inspect the suit property. Neither the
name of that clerk was given nor he was examined
nor it is stated about the same in the written
statement.
As can be seen from Sections 19 (a) and (b)
extracted above specific performance of a contract
can be enforced against (a) either party thereto and
(b) any person claiming under him by a title arising
subsequent to the contract, except a transferee for
value who has paid his money in good faith and
without notice of the original contract. Section
19(b) protects the bona fide purchaser in good faith
for value without notice of the original contract. This
protection is in the nature of exception to the
general rule. Hence the onus of proof of good faith
is on the purchaser who takes the plea that he is
an innocent purchaser. Good faith is a question of
fact to be considered and decided on the facts of
each case. Section 52 of the Penal Code
emphasizes due care and attention in relation to
the good faith. In the General Clauses Act emphasis
is laid on honesty.
15. Notice is defined in Section 3 of the Transfer
of Property Act. It may be actual where the party
has actual knowledge of the fact or constructive. "A
person is said to have notice" of a fact when he
actually knows that fact, or when, but for willful
abstention from an inquiry or search which he
ought to have made, or gross negligence, he would
have known it. Explanation II of said Section
3 reads:
"Explanation II - Any person acquiring any
immoveable property or any share or interest in any
such property shall be deemed to have notice of the
title, if any, of any person who is for the time being
in actual possession thereof."
Section 3 was amended by the Amendment Act of
1929 in relation to the definition of 'notice'. The
definition has been amended and supplemented by
three explanations, which settle the law in several
matters of great importance. For the immediate
purpose Explanation-II is relevant. It states that
actual possession is notice of the title of the person
in possession. Prior to the amendment there had
been some uncertainty because of divergent views
expressed by various High Courts in relation to the
actual possession as notice of title. A person may
enter the property in one capacity and having a
kind of interest. But subsequently while continuing
in possession of the property his capacity or
interest may change. A person entering the property
as tenant later may become usufructuary
mortgagee or may be agreement holder to purchase
the same property or may be some other interest is
created in his favour subsequently. Hence with
reference to subsequent purchaser it is essential
that he should make an inquiry as to title or interest
of the person in actual possession as on the date
when sale transaction was made in his favour. The
actual possession of a person itself is deemed or
constructive notice of the title if any, of a person
who is for the time being in actual possession
thereof. A subsequent purchaser has to make
inquiry as to further interest, nature of possession
and title under which the person was continuing in
possession on the date of purchase of the property.
In the case on hand defendants 2 to 4 contended
that they were already aware of the nature of
possession of the plaintiff over the suit property as
a tenant and as such there was no need to make
any inquiry. At one stage they also contended that
they purchased the property after contacting the
plaintiff, of course, which contention was negatived
by the learned trial court as well as the High court.
Even otherwise the said contention is self-
contradictory. In view of Section 19(b) of the Specific
Relief Act and definition of 'notice' given in Section
3 of the Transfer of Property Act read along with
explanation II, it is rightly held by the trial court as
well as by the High Court that the defendants 2 to
5 were not bona fide purchasers in good faith for
value without notice of the original contract.
16. ......... The leading case on the subject, relied
on in a number of Indian decisions is - 'Daniels v.
Davision', (1809) 16 Ves Jun 249 (B). The Lord
Chancellor held that:
"Where there is a tenant in possession under a
lease, or an agreement, a person purchasing part of
the estate must be bound to inquire on what terms
that person is in possession..........that a tenant
being in possession under a lease, with an
agreement in his pocket to become the purchaser,
those circumstances altogether give him an equity
repelling the claim of a subsequent purchaser who
made no inquiry as to the nature of his
possession"."
[Emphasis supplied]
As can be seen from the paragraph, extracted
above, that in case of contradictory evidence the
circumstances have to be kept in view in deciding
whose version is more acceptable. One of the
circumstances that was held against the
subsequent purchasers was that the parties were
residents or had shops in the same vicinity and it
was not probable that the subsequent purchasers
would not have come to know of the execution of
the agreement. In the case on hand the trial court
as well as the High Court have given reasons
based on evidence and have indicated several
circumstances for not accepting the version of
defendants 2 to 4 that they had no knowledge of
the prior agreement A-3; one of the circumstances
being that the parties are neighbours in place of
business as well as in residential locality. We have
also already referred to that briefly."
(2000) 6 SCC 402 - R.K. Mohammed Ubaidullah
and others vs. Hajee C. Abdul Wahab (D) by
LRs. and others
75. As noticed in the above decision, the plaintiff in
this case is also a tenant in respect of the suit schedule
premises and it is impossible for defendant Nos. 2 and 3 in
the ordinary course not to be aware of the fact that plaintiff
was residing in the suit schedule premises for a
considerable number of years in view of the evidence
clearly suggesting that their mother was also a tenant in
the same neighbourhood and if what they have stated is
true about Ex.D.4, not to have spoken to the plaintiff, in
which event, being a tenant who was eager to take the deal
through, he would naturally have mentioned about the
original contract namely Ex.P.1. It is observed by the
Hon'ble Supreme Court in a similar situation as follows :
"34. The equitable discretion to grant or not to grant
a relief for specific performance also depends upon
the conduct of the parties. The necessary ingredient
has to be proved and established by the plaintiff so
that discretion would be exercised judiciously in
favour of the plaintiff. At the same time, if the
defendant does not come with clean hands and
suppresses material facts and evidence and misled
the Court then such discretion should not be
exercised by refusing to grant specific
performance."
[(2000) 6 SCC 420 - Motilal Jain vs.
Ramdasi Devi (Smt.) and others.]
76. It is well settled that the remedy of specific
performance is an equitable one and the Court while
granting decree of specific performance exercises its
discretionary jurisdiction. Such exercise of discretion
should be within the parameters of Section 20 of the Act
and to be done in accordance with sound and reasonable
judicial principles. What are these principles which should
guide the Court in exercising the discretion have been
noted by the Hon'ble Supreme Court as follows :
"24. It is well settled that remedy for specific
performance is an equitable remedy. The Court while
granting decree of specific performance exercises its
discretionary jurisdiction. Section 20 of the Specific
Relief Act specifically provides that Court's discretion
to grant decree of specific performance is discretionary
but not arbitrary. Discretion must be exercised in
accordance with sound and reasonable judicial
principles.
25. The King's Bench in Rookey's Case [77 ER 209;
(1597) 5 Co.Rep.99] it is said :
'Discretion is a science, not to act arbitrarily according
to men's will and private affection: so the discretion
which is exercised here, is to be governed by rules of
law and equity, which are to oppose, but each, in its
turn, to be subservient to the other. This discretion, in
some cases follows the law implicitly; in others assists
it, and advances the remedy; in others again, it
relieves against the abuse, or allays the rigour of it,
but in no case does it contradict or overturn the
grounds or principles thereof, as has been sometimes
ignorantly imputed to this Court. That is a
discretionary power, which neither this nor any other
Court, not even the highest, acting in a judicial
capacity is by the constitution entrusted with'
26. The Court of Chancery in Attorney General vs.
Wheat [(1759) 1 Eden 177; 28 ER 652] followed
Rookey's case and observed :
'The law is clear and courts of equity ought to follow it
in their judgments concerning titles to equitable
estates; otherwise great uncertainty and confusion
would ensue. And though proceedings in equity are
said to be secundum discretionem boni vin, yet when
it is asked, vir bonus est quis? The answer is, qui
consulta partum, qui leges juraq servat. And as it is
said in Rooke's case, 5 Rep. 99 b, that discretion is a
science not to act arbitrarily according to men's will
and private affection: so the discretion which is
exercised here, is to be governed by rules of law and
equity, which are to oppose, but each, in its turn, to be
subservient to the other. This discretion, in some cases
follows the law implicitly, in others or allays the rigour
of it, but in no case does it contradict or overturn the
grounds or principles thereof, as has been sometimes
ignorantly imputed to this Court. That is a
discretionary power, which neither this nor any other
Court, not even the highest, acting in a judicial
capacity is by the constitution entrusted with. This
description is full and judicious, and what ought to be
imprinted on the mind of every judge.'
27. In Satya Jain vs. Anis Ahmed Rushdie, (2013) 8
SCC 131, at page 145, this Court observed:-
'40. ....... 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. Such a view has
been consistently adopted by this Court. By way of
illustration opinions rendered in P.S. Ranakrishna
Reddy v. M.K. Bhagyalakshmi (2007) 10 SCC 231 and
more recently in Narinderjit Singh v. North Star Estate
Promoters Ltd.(2012) 5 SCC 712 may be usefully
recapitulated.'
30. In a recent judgment dated 22.9.2014 in Civil
Appeal No. 9047 of 2014 entitled K. Prakash vs. B.R.
Sampath Kumar, this Court observed that:
'16. .........Normally, when the trial court exercises its
discretion in one way or other after appreciation of
entire evidence and materials on record, the appellate
court should not interfere unless it is established that
the discretion has been exercised perversely,
arbitrarily or against judicial principles. The appellate
court should also not exercise its discretion against
the grant of specific performance on extraneous
considerations or sympathetic considerations. It is
true, as contemplated under Section 20 of the Specific
Relief Act, that a party is not entitled to get a decree
for specific performance merely because it is lawful to
do so. Nevertheless once an agreement to sell is legal
and validly proved and further requirements for
getting such a decree is established then the Court
has to exercise its discretion in favour of granting
relief for specific performance.
18. Subsequent rise in price will not be treated as a
hardship entailing refusal of the decree for specific
performance. Rise in price is a normal change of
circumstances and, therefore, on that ground a decree
for specific performance cannot be reversed.
33. The equitable discretion to grant or not to grant a
relief for specific performance also depends upon the
conduct of the parties. The necessary ingredient has to
be proved and established by the plaintiff so that
discretion would be exercised judiciously in favour of
the plaintiff. At the same time, if the defendant does
not come with clean hands and suppresses material
facts and evidence and misled the Court then such
discretion should not be exercised by refusing to grant
specific performance."
[(2015) 1 SCC 705 - Zarina Siddiqui Vs
A.Ramalingam Alias R. Amarnathan]
77. The plaintiff had been a long standing tenant in
respect of the premises. That he was in need of that
premises for his personal purposes is beyond the realm of
any doubt. The fact that he had entered into an agreement
of sale with the owner of the premises - J. Anthony Swamy
has also been established very clearly in this case and so
also his payment of the substantial portion of the
consideration amount, namely Rs.75,000/- out of
Rs.1,05,000/- and also the fact that he was put in
possession of the premises in part performance of the said
agreement. The character and quality of the evidence
placed from the side of the defendants creates a strong
suspicion that they were indulging in speculative
investment and the participation of D.W.3 as an attestor
who is admittedly a realtor shows that the alleged
transaction - Ex.D.4 is a make believe one. Even though
substantial portion of the payment as per the recital in
Ex.D.4 is stated to be through cheques, no such Bank
statements have been produced before the Court. D.W.1
has stated that for the amount of Rs.45,000/- paid on
05.08.1992 by cheque, J.Anthony Swamy had made an
endorsement on the counter foil of the cheque book. Even
such counter foils have not been produced before the
Court. The defendants have not pleaded any hardship
which would be caused to them on account of grant of
relief of specific performance to the plaintiff. On the
entirety of materials placed before the Court, plaintiff has
made out a strong case for exercise of discretion in his
favour by granting specific performance of the contract for
sale.
78. The next question is the manner of granting of
the relief to the plaintiff after having come to the
conclusion that plaintiff is entitled to specific performance
of the contract of sale. The authorities, all of them
emanating from the Hon'ble Supreme Court, are
unanimous that both the original vendor and the
subsequent purchasers should join together in executing
the sale deed in favour of the plaintiff :
(AIR 1954 SC 75 - Lala Durga Prasad and
Another Vs Lala Deep Chand and others.
1973 (1) SCC 179 - Dwaraka Prasad Singh
and Another Vs Harikant Prasad Singh and
others.)
79. The original vendor - J.Anthony Swamy has
expired. The plaintiff has let in evidence to show that
defendant No.1 is the sole legal representative of original
vendor - J.Anthony Swamy. Under Ex.D.4, ostensibly, title
has been transferred in respect of the suit schedule
properties to defendant Nos. 2 and 3.
80. Hence, the following :
The above appeal is allowed. The judgment and
decree passed in O.S.No.2089/1999 dated 23.04.2011 by
the learned XI Additional City Civil Judge, Bangalore City
(respondent Nos. 1 to 3) are directed to execute a sale deed
in favour of the plaintiff - appellant, transferring and
conveying the property described in the schedule to the
plaint with a further direction that in the event of
defendants - respondents failing to execute the sale deed,
for execution of the sale deed by the learned trial Court on
behalf of the defendants in favour of the plaintiff, through
a Court Commissioner within three months from today.
The plaintiff - appellant is directed to deposit the balance
consideration of Rs.30,000/- before the learned trial Court
within 60 days from today.
Sd/-
JUDGE
Mgn/-
