Shivanandappa S/O Channabasappa ... vs Hanumanthappa S/O Channabasappa ...
2022 Latest Caselaw 9001 Kant

           IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

       DATED THIS THE 17TH DAY OF JUNE, 2022

                      BEFORE
      THE HON'BLE MRS.JUSTICE K.S. HEMALEKHA
                  RSA No.918/2006
BETWEEN:

SHIVANANDAPPA,
S/O CHANNABASAPPA UKKUND,
AGED ABOUT 52 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/AT ARALIKATTI,
HIREKERUR TALUK,
HAVERI DISTRICT - 581 207.
                                       ...APPELLANT
(BY SRI. P.G.MOGALI, ADVOCATE)

AND

1.    HANUMANTHAPPA,
      S/O CHANNABASAPPA HADAGAL,
      AGED ABOUT 68 YEARS,
      R/AT ARALIKATTI,
      HIREKERUR TALUK,
      HAVERI DISTRICT - 581 207.
      SINCE DECEASED BY HIS LR'S.

1(A) CHANNABASAPPA,
     S/O HANUMANTHAPPA HADAGAL,
     AGED ABOUT 60 YEARS,
     OCC: AGRICULTURE,
     R/AT ARALIKATTI,
     HIREKERUR TALUK,
     HAVERI DISTRICT - 581 207.
                           2




1(B) SIDDAPPA,
     S/O HANUMANTHAPPA HADAGAL,
     SINCE DECEASED BY HER LR'S.

(i)    SMT. GANGAVVA,
       W/O. SIDDAPPA HADAGAL,
       AGED ABOUT 48 YEARS,
       OCC: HOUSEHOLD,
       R/O. ARALIKATTI,
       TALUK: HIREKERUR,
       DISTRICT: HAVERI,
       AS SHE DIED, THE RESPONDENT
       (B) (II) IS TREATED AS LR.,
       OF R-(B) (I) BY THE ORDER OF THE
       HON'BLE COURT DATED:27.08.2021.

(ii)   RAJU,
       S/O. SIDDAPPA HADAGAL,
       AGED ABOUT 28 YEARS,
       OCC: AGRICULTURE,
       R/O. ARALIKATTI,
       TALUK: HIREKERUR,
       DISTRICT: HAVERI.

(C)    CHANDRAPPA,
       S/O. HANUMANTHAPPA HADAGAL,
       SINCE DECASED BY HIS LR'S.,
(i)    SMT. SUMITRA
       W/O. CHANDRAPPA HADAGAL,
       AGED ABOUT 45 YEARS,
       OCC: HOUSEHOLD,
       R/O.C/O. NINGAPPA BANDARI,
       AT: GUMMANAHALLI,
       TALUK: BYADGI,
       DISTRICT: HAVERI.

(ii)   MANJAPPA,
       S/O. CHNADRAPPA HADAGAL,
                          3




      AGED ABOUT 25 YEARS,
      OCC:AGRICULTURE,
      AT: GUMMANAHALLI,
      TALUK: BYADGI,
      DISTRICT: HAVERI.

(D)   KANTESH,
      S/O. HANUMANTHAPPA HADAGAL,
      AGED ABOUT 40 YEARS,
      OCC: AGRICULTURE,
      R/O.: ARALIKATTI,
      TALUK: HIREKERUR,
      DISTRICT: HAVERI.

(E)   ERAPPA
      S/O. HANUMANTHAPPA HADAGAL,
      AGED ABOUT 45 YEARS,
      OCC: AGRICULTURE,
      R/O.ARALIKATTI,
      TALUK: HIREKERUR,
      DISTRICT: HAVERI.

(F)   MOUNESH
      S/O. HANUMANTHAPPA HADAGAL,
      AGED ABOUT 50 YEARS,
      OCC: AGRICULTURE,
      R/O. ARALIKATTI,
      TALUK: HIREKERUR,
      DISTRICT: HAVERI.

(G)   SMT. PARAVVA
      W/O. PAKEERAPPA SHIVANNAVAR,
      AGED ABOUT 55 YEARS,
      OCC: HOUSEHOLD,
      R/O. WADEYANAPURA,
      TALUK: HIREKERUR,
      DISTRICT: HAVERI.
                             4




(H)    SMT. SHANTHAVVA
       W/O. GONEPPA KURBAR,
       AGED ABOUT 30 YEARS,
       OCC: HOUSEHOLD,
       R/O. TAVARAGI,
       TALUK: HIREKERUR,
       DISTRICT: HAVERI.
                                        ...RESPONDENTS

(BY SRI. AVINASH BANAKAR, ADVOCATE FOR
R1(A,D,E,F,G) AND R1(B)(II) AND R1(C) (I AND II)-
R1(B)(II) IS TREATED AS LRS OF DECEASED R1(B)(I)-
R1(H) SERVED)
                           ***

       THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CPC,    AGAINST    JUDGMENT       AND   DECREE   DATED
16.01.2006 IN R.A. NO.29/1991 FILE OF THE CIVIL JUDGE
SENIOR DIVISION AND PRINCIPAL JMFC, RANEBENNUR,
ALLOWING     THE   APPEAL   AND    SETTING   ASIDE   THE
JUDGMENT AND DECREE DATED 17.11.1990 PASSED IN
OS 138/89 ON THE FILE OF THE CIVIL JUDGE SENIOR
DIVISION AND PRINCIPAL JMFC, RANEBENNUR


       THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, K.S.HEMALEKHA J., DELIVERED
THE FOLLOWING:
                                5




                         JUDGMENT

The present second appeal by the defendants

assailing the judgment and decree dated 16.01.2006 in RA

No.29/1991 on the file of the Civil Judge, Senior Division

and Prl. JMFC, Ranebennur, reversing the judgment and

decree dated 17.11.1990 in OS No.138/1989 on the file of

the Munsiff Hirekerur.

2. The parties herein are referred to as per their

ranking before the trial Court.

3. Suit for declaration of title, possession and

mense profits.

4. The relevant brief facts of the case are as

under:

Plaintiff is the owner of the suit schedule properties

and the property bearing RS No.85/1, measuring 1 acre 33

guntas, that the plaintiff was working as a Secretary and

defendant No.2 was the Chairman of Wadenapur GSS

Limited Society upto 1972 and that the plaintiff was under

the control of defendant No.2 when the plaintiff was

working as a Secretary, that criminal proceedings were

initiated against the plaintiff and defendant No.2 for

misappropriation of funds in the society, defendant No.2

taking advantage of the situation got sale deed registered

on 10.11.1972 without valid sale consideration in respect

of the suit schedule properties and RS No.85/1 in favour of

defendant No.1, who is none other than the son of

defendant No.2, that due to fear, implicated by defendant

No.2, the plaintiff has executed the sale deed in favour of

defendant No.1 and contended that the said sale deed is

not genuine as it was never intended to be executed and

as such, the registered sale deed executed is null and void

and is a forged one and that the cause of action arose in

the year 1975 when the defendants forcibly obtained

possession of the suit schedule properties.

5. The defendants, pursuant to the summons

issued by the trial Court, appeared and defendant No.2

filed his written statement, the same being adopted by

defendant No.1.

6. The defendants denied the plaint averments

and contended that the plaintiff has voluntarily executed

the sale deed in favor of defendant No.1 for a valuable sale

consideration of Rs.14,000/-. The contention of the

plaintiff about the criminal proceeding against the plaintiff

and defendant No.2 is admitted. However, the contention

insofar as obtaining of sale deed by force is specifically

denied. The defendants contend that the suit schedule

properties were under the ownership of the plaintiff, the

plaintiff had debts and to discharge the debts, a registered

sale deed was executed in favour of defendant No.1 and

thus contended that after the lapse of more than twelve

years, now the plaintiff cannot contend that the said sale

deed was obtained by force, undue influence,

misrepresentation and fraud. It is also specifically

contended by the defendants that the suit of the plaintiff is

barred by limitation.

7. The trial Court, based on the pleadings, framed

the following:

ISSUES "1. Whether the plaintiff proves that the 2nd defendant by playing fraud, coercion and misrepresentation on the plaintiff had taken a bogus sale deed dated: 10-11-1972 of the suit lands and R.S.No.85/1 in favour of the 1st defendant as alleged in para 3 of the plaint?

2. Whether the plaintiff's title still subsists in respect of the suit properties?

3. Whether the plaintiff proves that he was forcibly dispossessed from the suit lands by the defendants during 1975 as alleged?

4. Whether the 1st defendant is the bonafide purchaser for value of the suit lands from the plaintiff?

5. Whether the suit claim is barred by limitation?

6. Whether the suit is bad for mis-joinder of parties?

7. Whether the suit is maintainable without seeking cancellation of the sale deed in question?

8. Whether the plaintiff is entitled to declaration and possession relief as prayed for?

9. Whether the plaintiff is entitled to mesne profits? If so how much and at what rate?

10. Whether the suit in the present form is maintainable?

11. What decree or order ?"

8. The plaintiff, to substantiate his contention,

examined himself as PW.1 and three witnesses were

examined as PWs.2 to 4 and got marked six documents at

Exs.P.1 to P.6. On the other hand, defendant No.3

examined himself as DW.1, and four witnesses were

examined as DWs.2 to 5 and got marked five documents

at Exs.D.1 to D.5.

9. The trial Court, based on the pleadings,

evidence and material on record, dismissed the suit,

holding that the plaintiff has failed to prove the execution

of the sale deed in favor of defendant No.1 is obtained by

fraud, coercion and misrepresentation and held that the

suit of the plaintiff was barred by limitation.

10. The plaintiff being aggrieved, filed RA 29/1991

before the First Appellate Court seeking to set aside the

judgment and decree of the trial Court.

11. The First Appellate Court framed the following

points for consideration:-

POINTS "1. Whether appellant/ plaintiff proves that, the IInd defendant obtained the bogus sale deed dated:10/11/1972 in respect of the suit lands in favour of Ist defendant by playing fraud, misrepresentation and coercion?

2. Whether appellant/ plaintiff proves that, he is having the title over the suit properties?

3. Whether appellant/ plaintiff proves that, he was forcibly dispossessed from the suit land by the defendants respondents in the year 1975?

4. Whether Ist defendant-respondent is the bonafide purchaser of the suit land?

5. Whether defendant/ respondents proves that the suit filed by the appellant/ plaintiff is barred by limitation?

6. Whether defendant/ respondent proves that, the suit filed by the plaintiff/ appellant is bad for misjoinder of parties?

7. Whether defendant-respondent proves that, suit is not maintainable without seeking the cancellation of the registered sale deed?

8. Whether appellant/ plaintiff proves that, he is entitled for the relief as prayed for ?

9. Whether appellant/ plaintiff is entitled for mesne profits ?

10. Whether the suit filed by the appellant/ plaintiff is maintainable in the present form ?

11. Whether Judgment and decree passed by the lower court, in O.S. 138/89 is in justified?

12. What order or decree ?"

12. In the appeal by the plaintiff, the First

Appellate Court reversed the judgment and decree of the

trial Court, and allowed the appeal by decreeing the suit of

the plaintiff declaring that the registered sale deed dated

10.11.1972 executed in favour of defendant No.1 is null

and void and that the plaintiff is entitled to recovery of

possession of the suit schedule properties from defendant

No.1.

13. Aggrieved by the judgment and decree of the

First Appellate Court the defendants have preferred the

present appeal.

14. This Court, vide order 05.06.2006, has

admitted the appeal on the following substantial questions

of law:-

1. Whether the first appellate Court justified in holding that the suit is not barred by limitation

2. Whether the First Appellate Court was justified in holding that Ex.P.1 was obtained by coercion, fraud and misrepresentation?

3. Whether the First Appellate Court has rightly appreciated the evidence on record?

15. Heard learned counsel for the appellant Sri

P.G.Mogali and the learned counsel for the respondent Sri

Avinash Banakar.

16. Learned counsel for the appellant canvassed

that the suit of the plaintiff is barred by limitation as to the

sale deed as per Ex.P.1 is executed on 10.11.1972 and the

suit is filed on 09.11.1984 and the contention of the

plaintiff that Ex.P.1 was obtained by coercion, fraud and

misrepresentation is not sustainable as the execution of

the sale deed is admitted by the plaintiff in his pleadings.

It is specifically contended, that the plaintiff was in debt

and to discharge the debt, the plaintiff had willfully

executed the registered sale deed in favour of defendant

No.1 for a valuable consideration of Rs.14,000/- as

mentioned in the sale deed and that the debt was

discharged by defendant No.2 and as such, the sale deed

executed in favour of defendant No.1 is genuine and not

obtained by fraud, coercion or misrepresentation. It is

further contended that the suit of the plaintiff is barred by

limitation as per Article 58 of the Limitation Act. It is

further contended that the trial Court on analyzing and

considering the factual aspects, has rightly dismissed the

suit of the plaintiff, while the First Appellate Court, by

misconstruing the facts and evidence on record, has

allowed the appeal of the plaintiff and decreed the suit

holding that Ex.P1, the registered sale deed dated

10.11.1972 was obtained by fraud, coercion and

misrepresentation. This according to learned counsel for

the appellant, is not in consonance with the judgments of

the Hon'ble Apex Court. To buttress his submission,

learned counsel for the appellant relied upon the following

judgments:

(a) (2009) 5 SCC 713 in the case of Vimal Chand Ghevarchand Jain and Others.

(b) (1999) 3 SCC 573 in the case of Vidhyadhar -vs- Manikrao and Another.

(c) (1995) 1 SCC 198, in the case of Smt. Ramti Devi -vs- Union of India.

(d) ILR 1999 KAR 1524 in the case of A.V.

               Rangacharya         &     Another       -vs-
               Pillanjinappa & Another.

       (e)     2019 (4) KCCR 3891 in the case of M/s.

Durga Projects and Infrastructure Pvt. Ltd., Bengaluru -vs- Sri. S.Rajagopala Reddy and Others.

17. The appellant also sought to produce certain

documents by filing I.A.No.1/2022 for additional evidence

to show the aspect that the sale deed dated 10.11.1972 is

duly acted upon. Documents sought to be produced are as

under:

1. Copy of ME No.1387 dt: 15-11-1972

2. Copy of ME No.1563 dt: 19-10-1981

3. Copy of RTC of Sy. No.83/3A & B

4. Copy of RTC of Sy. No.62/1A

5. Copy of RTC of Sy. No.49/4

6. Copy of RTC of Sy.No.49/2

7. Copy of RTC of Sy.No.89/1A

8. Copy of RTC of Sy.No.85/1

Urging these grounds, the appellant sought to allow

the appeal.

18. Per contra, learned counsel for the

respondent/plaintiff would contend that the sale deed was

executed by practising fraud, coercion and

misrepresentation on the plaintiff and that there was no

passing of valid sale consideration in favour of the plaintiff

and as such, the registered sale deed is not a genuine one.

It is further averred that the First Appellate Court, rightly

considering the evidence of DWs.1 and 2 has decreed the

suit of the plaintiff holding that the suit is not barred by

limitation. The learned counsel contends that the suit of

the plaintiff is not barred by limitation, as Article 65 of the

Limitation Act is applicable, as the plaintiff is seeking

possession and in light of the same, the suit would be well

within limitation and accordingly, sought to answer the

substantial questions of law in favour of the plaintiff. To

substantiate his contention, learned counsel for the

respondent relied upon the following judgments:

(i) 2022 AIAR (Civil) Supreme Court of India in the case of Kewal Krishan -vs- Rajesh Kumar and Others .Etc.,

(ii) 2010 SCC Online KAR 501 in the case of Electronics and Controls -vs- KIADB, Bangalore.

(iii) Unreported judgment in RFA 1830 of 2014 in the case of Smt. Umavati and Another -vs- Ananda Poojary and others.

19. Before adverting to the substantial questions of

law, I.A.No.1/2022 for producing documents by way of

additional evidence needs to be considered. The reasons

assigned by the appellant/defendant for production of the

documents stated supra is that the plaintiff himself has

produced the copy of M.E.No.1387 and the RTCs showing

the name of the defendant being entered in the record of

rights. However, the said document was not marked in the

evidence and the First appellate court decreed the suit of

the plaintiff holding that the defendant has not produced

RTCs to show possession of the suit land in his favour. This

being so, it is contended by the learned counsel for the

appellant that the documents sought to be produced are

relevant documents and necessary to decide the actual

dispute between the parties and thus sought to allow the

application I.A.No.1/2022. It is also relevant to note that

the respondent/plaintiff has not chosen to file objections to

I.A.No.1/2022. A perusal of I.A.No.1/2022 would depict

that the documents sought to be produced are the

documents after the registered sale deed dated

10.11.1972 and the said documents being not in dispute

as the plaintiff has admitted about the execution of the

sale deed and also about entering the name of the

defendant in the revenue records based on the sale deed,

and the said documents are public documents. This being

so, this Court exercises the Power under Order 41 Rule 28

of CPC and in light of the judgment of the Apex Court in

the case of Abdul Ghani Memorial Trust and Others

Vs. Bihar State Sunni Wakf Board and Others reported

in 1987 (Supp) SCC 577, wherein the Apex Court has

held that in a Second Appeal in the course of the exercise

of power under Section 100 of CPC can consider the

additional evidence and proceed to determine the matter

under law. In light of the judgment of the Apex Court, this

Court is of the considered view that I.A.No.1/2022 needs

to be allowed for proper adjudication of the lis between the

parties.

20. Having heard the learned counsel for the

parties and having perused the material on record, the

substantial questions of law need to be answered

accordingly.

21. Re: First substantial question of law:

      i)      Whether the first appellate Court justified in
              holding   that     the    suit   is    not      barred   by
              limitation?

It is the foremost contention of the appellant that

the suit of the plaintiff is barred by limitation as the

registered sale deed dated 10.11.1972 was executed by

the plaintiff in favour of defendant No.1 and the suit filed

in the year 1984 is beyond the period of limitation. It is to

be borne in mind that the execution of the sale deed dated

10.11.1972, Ex.P.1 is not disputed by the plaintiff, but the

dispute is that the execution of the sale deed was obtained

by coercion, fraud and misrepresentation and also that

there was no passing of valid sale consideration in favour

of the plaintiff. Taking this into account, the pleadings and

oral and documentary evidence needs to be considered.

22. The pleadings of the plaintiff in paragraph No.3

state that there was no loan obtained nor there was any

debt due to the society and defendant No.2 under the

threat has obtained the sale deed. The plaintiff further

stated in his plaint that the plaintiff was working as a

Secretary of Gram Seva Sahakari Sangha till 1977 and

defendant No.2 was the Chairman, defendant No.2

exercising his power as Chairman by fraud has got the sale

deed executed in favor of defendant No.1 and the sale

deed executed is nominal one never intended to be acted

upon.

23. PW.1 in his evidence stated that from 1952 till

1977 plaintiff was working as a secretary and defendant

No.2 as a Chairman and PW.1 has admitted in his cross-

examination that the plaintiff was suspended from his

service in the year 1972 due to misappropriation of funds

in the society. The plaintiff contends that at the time of the

execution of the sale deed there was no passing of valid

sale consideration in favour of the plaintiff and it was just

a promise made by defendant No.2 to pay the debts of the

plaintiff.

24. Perusal of the plaint discloses that the plaintiff

has executed the sale deed on 10.11.1972 knowing fully

well the contents of the document. The evidence of PW.1

depicts the fact that the plaintiff has signed the sale deed

before the Sub-Registrar and the contents of the document

were made known to the plaintiff and the statement of the

witnesses insofar as non-passing of consideration is of

fewer consequences as the sale deed Ex.P.1 clearly states

that Rs.14,000/- was to be paid to the Society by

defendant No.2 himself and clear the debts as evident in

Ex.P.1. The sale deed depicts that the plaintiff has incurred

debt from the Seva Sahakari Sangh and to discharge the

said debt and also to clear off the debt where he has stood

as a guarantor the sale deed was executed for Rs.14,000/-

in favour of defendant No.1. The amount of Rs.14,000/-

was to be paid by defendant No.2 directly to the Society's

loan account and to obtain the receipt for having paid the

amount.

25. This being so, having known about the contents

of the sale deed on 10.11.1972 itself, the plaintiff filed the

suit for declaration that the sale deed executed is void as

the same was obtained by fraud, coercion and

misrepresentation beyond the period of limitation. Further,

the evidence of PWs.2 to 4 is not much help to establish

the case of the plaintiff. The plaintiff had contended that

the sale deed executed on 10.11.1972 is obtained by

fraud, coercion and misrepresentation and ought to have

filed the suit within three years from the date of

registration as the registration was well known to the

plaintiff on 10.11.1972 itself. The Limitation Act prescribes

the period of limitation to file the suit and Article applicable

in the present case are Articles 56 and 58 of the Limitation

Act, which read as under:-

56. To declare the forgery of Three When the issue or an instrument issued or years registration becomes registered. known to the plaintiff

58. To obtain any other Three When the right to sue declaration years first accrues.

26. The suit being for declaration of the title based

on fraud, coercion and misrepresentation as per Articles 56

and 58 the suit ought to have been filed within three years

from the date of registration known to the plaintiff or when

the right to sue first accrues. A perusal of the pleadings

and evidence of PWs.1 to 4 establishes the fact that the

execution of the sale deed was very much within the

knowledge of the plaintiff and no initiation was made by

the plaintiff either by filing any police complaint against

the defendants on the ground that the sale deed was

obtained by coercion, fraud and misrepresentation. This

having not been done and no action being forthcoming on

behalf of the plaintiff, the plaintiff after a prolonged period

of more than 12 years cannot contend that the sale deed

executed on 10.11.1972 is obtained by fraud, coercion and

misrepresentation. In light of Articles 56 and 58 of the

Limitation Act, the suit of the plaintiff is barred by

limitation and accordingly, substantial question of law is

answered against the plaintiff. It is also relevant to note

here that the plaintiff to come within the purview of

limitation sought to contend that the defendant has

illegally taken possession in the year 1975 and if the year

of dispossession is taken into account, then as per Article

65, the suit is filed within 12 years. This contention of the

plaintiff is not sustainable for the reasons that no materials

are forthcoming to show that the plaintiff was dispossessed

in the year 1975, on the contrary, Ex.P.1 the sale deed

depicts that the possession was delivered as on the date of

registration itself and the documents produced along with

I.A. No.1/2022 by the appellant in the present appeal,

which is not disputed by the respondent/plaintiff, shows

the entry of the name of the appellant/plaintiff in the

revenue records under the execution of the sale deed

dated 10.11.1972 in the year 1972 itself.

27. The evidence of DW.2 which is been relied

upon by the plaintiff to contend that the suit is within

limitation as DW.1 in his evidence contended that he owns

the properties since 14 years and considering the date of

evidence, 14 years would be that the plaintiff was in

possession till 1976. This contention of the plaintiff is not

acceptable for the reason that stray sentences in the

evidence of DW.2 cannot be considered to make the suit

well within limitation. The plaintiff has to stand or fall on

his pleadings and not on the weaknesses of the defendant.

Given the undisputed fact in totality, the period of

limitation needs to be considered from the date of

execution of the registered sale deed dated 10.11.1972

and the contention of the plaintiff that Article 65 applies to

the present facts is not acceptable as the Articles to be

applied are Articles 56 and 58 of the Limitation Act.

28. The judgment relied upon by the plaintiff-

respondent in the case of Electronics and Control stated

supra, does not apply to the facts and circumstances of the

present case and also since as per Ex.P1 the registered

sale deed mentions the delivery of possession in favour of

defendant No.1 on 10.11.1972 itself and thus, the plaintiff

without any specific pleading and material cannot contend

that the plaintiff was dispossessed in the year 1975.

29. For the reasons stated supra, the suit of the

plaintiff is barred by limitation and the first substantial

question of law is answered against the plaintiff.

30. Re: Second and Third Substantial question

of law:

(ii) Whether the first Appellate Court is justified in holding that Ex.P.1 was obtained by coercion, fraud and misrepresentation?

(iii) Whether the first Appellate Court has rightly appreciated the evidence on record?

The second and third substantial questions of law are

taken up together for the sake of convenience and to avoid

repetition of facts. It is relevant to mention that as the first

substantial question of law is answered against the plaintiff

for the reasons stated supra stating that the suit of the

plaintiff is barred by limitation, the answering of the

second and third substantial questions of law is, however,

to put an end to the litigation and giving reasoning to the

judgment and decree of the first appellate Court wherein

the first appellate Court has held that Ex.P-1 the registered

sale deed was obtained by coercion, fraud and

misrepresentation and accordingly, needs to answer the

same.

31. In light of the contentions of the plaintiff, the

words "coercion, fraud and misrepresentation" as defined

in Indian Contract Act, need to be considered which reads

as under:

Section 15 of the Indian Contract Act, 1872 defines

"coercion" reads as under:-

"15. 'Coercion' defined.- 'Coercion' is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement."

Section 17 of the said Act defines "fraud" and the

same reads as under:

"17. 'Fraud' defined.- 'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract."

Section 18 of the Indian Contract Act defines

"misrepresentation" as under:

"18. "Misrepresentation" defined.- "Misrepresentation" means and includes- (1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

(2) any breach of duty which, without an intent to deceive, gains an advantage of the person committing it, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him;

(3) causing, however innocently, a partly to an agreement, to make a mistake a to the substance of the thing which is the subject of the agreement."

32. The fraud, coercion and misrepresentation as

pleaded by the plaintiff of such nature need to be

established beyond reasonable doubt and the plaintiff has

to prove that there was a motive by the defendants to

obtain the sale deed by fraud. The evidence as it stood is

very little reliable to connect with the contention of the

plaintiff that defendant No.2 by coercion, fraud and

misrepresentation has got the execution of the sale deed

in favour of defendant No.1 without any valuable

consideration. It is further contended that the amount

mentioned to the extent of Rs.14,000/- in the sale deed is

not paid by defendant No.2 as there was no debt incurred

by the plaintiff. It is contended that because of the non-

passing of consideration amount as per the sale deed at

Ex.P1 the agreement is void. The judgment relied upon the

learned counsel for the respondent/plaintiff in Kewal

Krishan stated supra is not applicable as in the said

judgment the facts reveal that there was no sale

consideration or payment at any future date and there is

no quarrel in respect of the settled proposition that without

payment of the price and if the document does not provide

for payment of the price at a future date it is not a sale at

all in the eye of law and such sale is void.

33. The Apex court in Vidyadhar case stated

supra at para Nos.35, 36, 37 and 38 held as under:

"35. Even if the findings recorded by the High Court that the plaintiff had paid only Rs.500 to defendant 2 as sale consideration and the remaining amount of Rs.4500 which was shown to have been paid before the execution of the deed was, in fact, not paid, the sale deed would not, for that reason, become invalid on account of the provisions contained in Section 54 of the Transfer of Property Act, 1882 which provide as under:

"54. 'Sale' is a transfer of ownership in exchange for a price paid or promised or part- paid and part-promised.

Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.

It does not, of itself, create any interest in or charge on such property."

36. The definition indicates that to constitute a sale, there must be a transfer of ownership from one person to another, i.e., transfer of all rights and interests in the properties which are possessed by that person are transferred by him to another person. The transferor cannot retain any part of his interest or right in the transfer of ownership has to be for a "price paid or promised or part-paid and part-promised". Price thus constitutes an essential ingredient of the transaction of sale. The words "price paid or promised or part-paid and part-paid and part- promised" indicate that actual payment of the whole of the price at the time of the execution of the sale deed is not a sine qua non to the completion of the sale. Even if the whole of the price is not paid but the document is executed and thereafter registered, if the property is of the value of more than Rs.100, the sale would be complete.

37. There is a catena of decisions of various High Courts in which it has been held that even if the whole of the price is not paid, the transaction of sale will take effect and the title would pass under that transaction. To cite only a few, in Gayatri Prasad v. Board of Revenue it was held that non-payment of a partition of the sale price would not affect the validity of the sale. It was observed that part-payment of consideration by the vendee itself proved the intention to pay the remaining amount of the sale price. To the same effect is the decision of the Madhya Pradesh High court in Sukaloo v. Punau.

38. The real test is the intention of the parties. To constitute a "sale", the parties must intend to transfer the ownership of the property and they must also intend that the price would be paid either in praesenti or in future. The intention is to be gathered from the recital in the sale deed, the conduct of the parties and the evidence on record."

Thus, applying the principles enunciated in

Vidyadhar's case stated supra, the transaction and

contents of the Sale document having been accepted, the

plaintiff is not entitled to the relief as sought for and given

the present facts the consideration amount is been

mentioned in the sale deed Ex.P.1 and the amount to be

paid on a future date is also mentioned. In light of this, the

judgment in Kewal Krishan stated supra is in another

context and not applicable to the present facts and

circumstances of the case.

34. It is relevant to note that any agreement

without consideration is void, however, a promise to

compensate for something is done or a promise to pay a

debt does not make an agreement void as contemplated

under Section 25 (2) of the Indian Contract Act, which

reads as under:

"25. Agreement without consideration, void, unless it is in writing and registered or is a promise to compensate for something done or is a promise to pay a debt barred by limitation law.- An agreement made without consideration is void, unless-

(1) it is expressed in writing and registered under the law for the time being in force for the registration of documents, and is

made on account of natural love and affection between parties standing in a near relation to each other; or unless (2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do; or unless.

(3) It is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized on that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits."

35. Section 25(3) of the Indian Contract Act

contemplates that a promise to pay even a time-barred

debt would be valid and enforceable provided it is made in

writing and signed by the person to be charged therewith.

The plaintiff contends that at the time of execution of the

sale deed there was no passing of valid consideration

amount by the defendant in favor of the plaintiff and it was

just a promise made by the defendant to pay the debts of

the plaintiff. It is contended that there was a loan of

Rs.1,365/- against the plaintiff but the sale deed showed

the consideration of Rs.14,000/- and the same was not

paid to the plaintiff. Accordingly, in light of Section 25 of

the Indian Contract Act and given the settled proposition of

law that inadequacy of amount in an agreement cannot

make the document void, this court is of the considered

view that the sale deed at Ex.P.1 is not a void document.

36. The First Appellate Court went on an

assumption that Rs.14,000/- which was to be paid by

defendant No.2 to the society was not paid, when it is

nobody's case that the said amount is not paid, it is the

contention of the plaintiff that there was no debt payable

to the society or anybody else as on the date of the sale

deed dated 10.11.1972 if this contention of the plaintiff is

accepted, it would be relevant to note that the plaintiff has

not taken any steps to challenge the sale deed when

admittedly the registration and contents of the sale deed

were well within the knowledge of the plaintiff. This being

so, the First Appellate Court without appreciating the

pleadings, evidence and material on record has concluded

that the sale deed is obtained by fraud, coercion and

misrepresentation. Given the reasons, stated supra the

First Appellate Court was not justified in holding that

Ex.P.1 was obtained by coercion, fraud and

misrepresentation.

37. Accordingly, the substantial questions of law

(ii) and (iii) framed are answered in the negative and

against the plaintiff.

38. For the reasons stated above, this Court pass

the following:

ORDER

(i) The appeal filed by the defendant is

hereby allowed.

(ii) The judgment and decree dated

16.01.2006 in RA No.29/1991 on the

file of Civil Judge Senior Division and

JMFC, Ranebennur, is hereby set

aside.

(iii)   The      judgment   and    decree          dated

        17.11.1990 in OS No.138/1989 on the

        file of Munsiff Hirekerur is hereby

        confirmed     and   the        suit   in     OS

        No.138/1989 is hereby dismissed.

(iv)    No order as to cost.




                                         Sd/-
                                        JUDGE

Pj.