Karnataka High Court
Krishnananda vs Smt. Kuppamma on 5 March, 2022
Bench: M.G.S. Kamal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05th DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
R.S.A.No.2525 OF 2006
C/W
R.S.A. No.2543 OF 2006
IN R.S.A.No.2525 OF 2006
BETWEEN:
1. KRISHNANANDA
S/O LATE NARAYANA SHEIT
AGED ABOUT 45 YEARS
2. MANJUNATHA VITTALA SHEIT
S/O LATE VITTALA SHEIT
AGED ABOUT 56 YEARS
3. SUNIL KUMAR
S/O LATE NARAYANA SHEIT
AGED ABOUT 45 YEARS
4. SRIDHARA
S/O LATE NARAYANA SHEIT
AGED ABOUT 27 YEARS
5. VIMALA
D/O LATE NARAYANA SHEIT
AGED ABOUT 40 YEARS
APPELLANTS 1 TO 5 ARE
R/O 3RD CROSS
DURGI GUDI
SHIMOGA CITY.
6. BHAVANI SHANKAR
S/O RUTHER SHEIT
MANAKAMI
2
AGED ABOUT 55 YEARS
R/O SAHYADRI COLONY
PUNE ROAD, SIRSI TOWN
SHIMOGA CITY - 577 201.
APPELLANTS NOS. 1, 2 , 5 & 6
ARE REPRESENTED BY THEIR POWER OF
ATTORNEY HOLDER
SRI SUNIL KUMAR
THE APPELLANT NO.3 HEREIN.
... APPELLANTS
(BY SRI. S.V. PRAKASH, ADVOCATE(P/H)
AND:
1. SMT. KUPPAMMA
W/O DHARMANNA
AGED ABOUT 57 YEARS
2. SMT. KENCHAMMA
W/O LATE CHIKANNA
AGED ABOUT 80 YEARS
3. HANUMANTHAPPA
SINCE DEAD, REP. BY LRS
3(a) RENUKAMMA
W/O LATE HANUMANTHAPPA
AGED ABOUT 40 YEARS
3(b) NANJUNDI
S/O LATE HANUMANTHAPPA
AGED ABOUT 18 YEARS
3(c) LATHA
D/O LATE HANUMANTHAPPA
AGED ABOUT 16 YEARS
3(d) PAVITHRA
D/O LATE HANUMANTHAPPA
AGED ABOUT 14 YEARS
ALL ARE R/AT
THREEMURTHY NAGAR NEAR
VENKATARAMANA SWAMY
3
NAVELI, SHIMOGA CITY
R3(C), R3(D) ARE MINORS
REPRESENTED
BY MOTHER GUARDIAN
3(A) RENUKAMMA
AMENDMENT CARRIED OUT
V/O DATED:19.07.2001
4. SMT. JAYAMMA
W/O NAGAPPA
AGED ABOUT 48 YEARS
5. SMT. LAKSHMI
W/O NAGAPPA
AGED ABOUT 39 YEARS
6. SMT. SHARADA
W/O SIDDESH
AGED ABOUT 37 YEARS
7. KUM. CHANDRIKA
D/O LATE CHIKANNA
AGED ABOUT 35 YEARS
ALL ARE R/O NAVILE VILLAGE
SHIMOGA TALUK & DIST -577 201.
... RESPONDENTS
(BY SRI. R.V.JAYAPRAKASH, ADVOCATE FOR R1(P/H)
SRI. S.P. KULKARNI, ADVOCATE FOR R2, R4 TO R7
R3(A&B)-SERVED UNREPRESENTED
R3(C&D)-MINORS REP. BY R3(A&B)
THE REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED
24.03.2006 PASSED IN R.A. NO. 10/2002 ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE (SR.DN) & CJM, SHIMOGA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED:19.12.2001 PASSED IN OS.NO.704/1991 ON THE
FILE OF THE I ADDITIONAL CIVIL JUDGE (JR. DN), SHIMOGA.
4
IN R.S.A.No.2543 OF 2006
BETWEEN:
1. KENCHAMMA
W/O CHIKKANNA
AGED ABOUT 79 YEARS
2. HANUMANTHAPPA
S/O LATE CHIKKANNA
AGED ABOUT 44 YEARS
SINCE DEAD REP. BY LRS
2(a) RENUKAMMA
W/O LATE HANUMANTHAPPA
AGED ABOUT 40 YEARS
2(b) NANJUNDI
S/O LATE HANUMANTHAPPA
AGED ABOUT 18 YEARS
2(c) KUM.LATHA
D/O LATE HANUMANTHAPPA
AGED ABOUT 16 YEARS
2(d) KUM.PAVITHRA
D/O LATE HANUMANTHAPPA
AGED ABOUT 14 YEARS
ALL ARE R/O
NAVILE VILLAGE
SHIMOGA TQ & DISTRICT
LR'S 2(C) AND 2(D) ARE MINORS
REPRESENTED BY LR NO.2(A)
AMENDMENT CARRIED OUT AS PER
V/O DATED:19.07.2001
3. SMT JAYAMMA
W/O NAGAPPA
AGED ABOUT 47 YEARS
4. SMT LAKSHMI
W/O NAGAPPA
AGED ABOUT 38 YEARS
5
5. SHARADA
W/O SIDDESHA
AGED ABOUT 36 YEARS
6. KUM CHANDRIKA
D/O LATE CHIKKANNA
AGED ABOUT 34 YEARS
ALL ARE MAJORS
R/O NAVILE VILLAGE
SHIMOGA TALUK - 577 201.
... APPELLANTS
(BY SRI. R. GOPAL, ADVOCATE(P/H)
AND:
1. SMT. KUPPAMMA
W/O DHARMANNA
AGED MAJOR
R/O NAVILE
SHIMOGA TALUK - 577 201.
2. KRISHNANANDA
W/O NARAYANA SHEIT
AGED MAJOR
R/O 3RD CROSS
DURGIGUDI
SHIMOGA - 577 201.
3. MANJUNATHA VITTALA SHEIT
S/O VITTAL SHEIT
AGED ABOUT 56 YEARS
R/O 3RD CROSS
DURGIGUDI
SHIMOGA CITY -577 201.
4. SUNILKUMAR
S/O NARAYANA SHEIT
AGED MAJOR
R/O 3RD CROSS
DURGIGUDI
SHIMOGA CITY -577 201.
6
5. SRIDHARA
S/O NARAYANA SHEIT
REPRESENTED BY GUARDIAN
NEXT FRIEND-SUNIL KUMAR
R/O 3RD CROSS
DURGIGUDI
SHIMOGA CITY - 577 201.
6. SMT. VIMALA
D/O NARAYANA SHEIT
AGED MAJOR
R/O 3RD CROSS
DURGIGUDI
SHIMOGA CITY - 577 201.
7. BHAVANISHANKAR
S/O RUTHER SHEIT
AGED MAJOR
R/O SAHYADRI COLONY
POONA ROAD
SIRSI TOWN - 581 401.
... RESPONDENTS
(BY SRI. R.V. JAYAPRAKASH, ADVOCATE FOR R1
SRI. S.V. PRAKASH, ADVOCATE FOR R2 TO R7
THE REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED
24.03.2006 PASSED IN R.A. NO. 11/2002 ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE (SR.DN) & CJM, SHIMOGA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED:19.12.2001 PASSED IN OS.NO.704/1991 ON THE
FILE OF THE I ADDITIONAL CIVIL JUDGE (JR. DN), SHIMOGA.
THESE APPEALS BEING HEARD AND RESERVED FOR
JUDGMENT, COMING ON PRONOUNCEMENT OF JUDGMENT, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
7
JUDGMENT
Regular Second Appeal No.2525/2006 is filed by the
appellants/defendants Nos.7 to 11 and Regular Second
Appeal No.2543/2006 is filed by the appellants/defendants
Nos.1 to 6 against the concurrent findings and conclusions
rendered in Judgment and decree dated 24.03.2006 passed
in R.A. No.10/2002 and R.A.No.11/2002 respectively on the
file of The Additional Civil Judge & CJM (Sr.Dn), Shimogga
(hereinafter referred to as the 'First Appellate Court) and in
the judgment and decree dated 19.12.2001 passed in
O.S.No.704/1991 on the file of The I Additional Civil Judge
(Jn.Dn), Shimogga (hereinafter referred to as the 'Trial
Court') .
2. Parties are referred to as per their ranking before
the trial Court.
3. Plaintiff-Smt.Kuppamma w/o Sri.Dharmanna,
filed the above suit originally against defendant Nos. 1 to 6
namely, Smt.Kenchamma, Sri.Hanumanthappa, Smt.
Jayamma, Smt.Lakshmi, Smt. Sharada and Kum. Chandrika
being the wife and children of one Sri Chikkanna seeking
relief of specific performance of an agreement of sale dated
22.9.1975 and for consequential relief of permanent
injunction, contending inter alia that;
(a) Sri.Chikkanna, husband and
had borrowed a sum of Rs.900/- from Sri.
Dharmanna-husband of the plaintiff in the
year 1969 by executing a deed of
Usufructuary mortgage in respect of his land
measuring 2 Acres 31 guntas in Sy.No.44/2,
Navile Village and had delivered the physical
possession of the said land in terms thereof.
That during the subsistence of said mortgage,
Chikkanna sold 2 acres out of 2 acres 31
guntas of land in favour of said Sri.
Dharmanna under two deeds of sale dated
20.05.1974 and 21.10.1974. The unsold
portion of land measuring 31 guntas
remained in possession of husband of the
plaintiff -Dharmanna. The said 31 guntas of
land is referred to as the suit schedule
property.
(b) Thereafter, Chikkanna the
husband and father of the defendant Nos.1 to
6 executed an agreement of sale dated
22.09.1975 in favour of the plaintiff as
desired by her husband, agreeing to sell the
aforesaid 31 guntas of land for a sale
consideration of Rs.900/- out of which a sum
of Rs.600/- was paid on the date of the
agreement and remaining Rs.300/- was
agreed to be paid at the time of execution of
the deed of sale which was postponed, as
there was prohibition for registration of
documents conveying immovable properties.
That after removal of such prohibition
whenever the plaintiff makes a demand, the
said Chikkanna would come and execute the
deed of sale. That after some times, upon the
request of Chikkanna remaining part of sale
consideration of Rs.300/- was also paid on
02.12.1976 which has been acknowledged in
the said agreement of sale. Plaintiff was
permitted to have her name entered into the
revenue records based on the agreement of
sale. That possession of the suit schedule
property, which was already in possession of
the husband of the plaintiff was agreed to be
treated as possession with the plaintiff and
her husband as a part performance of the
agreement.
(c) That said Sri.Chikkanna died
about 10 to 12 years prior to filing of the suit.
Since a year prior to filing of the suit
defendant Nos.1 and 2 were having an eye
on the schedule property. That during
December, 1990, the plaintiff's husband
being desirous of selling part of his property
applied and obtained certified copy of RTC
extract in respect of land in Sy.No.44/2. Only
then, plaintiff and her husband learnt about
the revenue entries made in respect of the
suit schedule property substituting name of
the defendant No.1 with that of the name of
the plaintiff. Immediately, thereafter the
plaintiff preferred an appeal before Assistant
Commissioner, Shimogga and the said appeal
was pending consideration in PDA
No.105/1990-91.
(d) Plaintiff's husband having learned
about the hostile attitude of the defendants
demanded for an execution of deed of sale.
Though, the defendants initially agreed to
execute the deed of sale, failed to fulfill their
promise. In the meanwhile, husband of the
plaintiff-Dharmanna passed away on
03.04.1991. Being embolden by the death of
the plaintiff's husband, defendants refused to
execute the deed of sale and threatened to
take the possession of the property. In
furtherance of their intention, defendant No.1
also filed a suit for injunction in
O.S.No.390/1991.
(e) That the plaintiff had fully
performed her part of contract having paid
the entire sale consideration. It was only the
said Chikkanna who had to execute a deed of
sale which was postponed due to the
prohibition contained under the Karnataka
Prevention of Fragmentation and
Consolidation of Holdings Act. These acts of
the defendants amounted refusal to perform
the terms of agreement of sale dated
22.09.1975, constraining the plaintiff to file
the suit for specific performance and for relief
of permanent injunction.
(f) That during the pendency of the
suit, defendant Nos.1 to 6 have executed
deeds of sale purportedly conveying suit
schedule property in various portions in
favour of defendant Nos.7 to 11, thereby
requiring their impleadment in the suit.
4. Defendant Nos.1 to 6 filed their written
statement denying the entire case of the plaintiff including
the averment regarding Chikkanna borrowing money from
the husband of the plaintiff and executing Usufructuary
Mortgage in the year 1969, execution of the deeds of sale
dated 20.05.1974 and 21.10.1974 by Chikkanna in favour of
husband of plaintiff conveying 2 acres, out of 2 acres 31
guntas of land. It is further contended that even if any such
deeds of sale were executed, same were not binding on
defendant Nos.1 to 6. The property was ancestral property
and defendants 2 to 6 were minors. That taking undue
advantage of minority of defendant Nos.2 to 6 and illiteracy
of defendant No.1, husband of plaintiff managed to be in
possession of the property without any rights.
5. The agreement of sale dated 22.09.1975
executed by Chikkanna in favour of the plaintiff and receipt
of sale consideration has been specifically denied. It is
further contended that even if such an agreement was in
existence, same was only concocted, fraudulent and created
for the purposes of the case. Entries of name of plaintiff in
respect of the suit schedule property has been denied. It
further specifically contented that the suit filed for specific
performance of an agreement dated 22.9.1975 is barred by
limitation and unenforceable and hence, sought for dismissal
of the suit.
6. Defendant Nos.7 to 11 in their written statement
while denying plaint averments have contended that they
are bonafide purchasers of suit schedule property for valid
consideration without any notice of the pendency of the suit
from any one. That they have been put in possession and
enjoyment of the suit schedule property and have got their
name entered into the revenue records. That their vendor-
defendant Nos.1 to 6 had never informed them about the
pendency of the suit and learnt about pendency of the suit
only when they were served with a Court summons that they
are not necessary parties to the suit and the plaintiff had
impleaded them with malafide intention of harassing and
troubling them. Hence, sought for dismissal of the suit.
7. The Trial Court based on the pleading, framed
the following issues and additional issues;
"Issues:
1. Whether the plaintiff proves that
Chikkanna desired to sell away the
portion of the land and the plaintiff's
husband purchased 2 acres of land
under the two sale deeds dated
20.05.1974 and 21.10.1974?
2. Whether the plaintiff further proves
that Chikkanna has executed an
agreement dated 22.09.1975 agreeing
to sell the remaining 31 guntas of
land?
3. Whether the plaintiff further proves
that the possession of the property
continued under the Agreement of
Sale in the hands of the plaintiff,
which was already in their possession
since 1969?
4. Whether the plaintiff proves that she
and her husband were all along ready
and willing to perform their part of
contract in having the sale deed
executed?
5. Whether the defendants prove that
the suit is clearly barred by law of
limitation?
6. Whether the plaintiff is entitled for the
reliefs sought for?
7. What decree or order?"
Additional Issues:
"1. Whether the plaintiff proves that the
defendants are liable to joint the
execution of the sale deed for having
purchased the suit schedule property
during the pendency of the suit?
2. Whether the defendants 7 to 11 prove
that they are bonafide purchasers of
this suit schedule property without
notice of the pendency of the suit and
that they are not liable to join
execution of the sale deed in the
event of decree in the suit?"
and recorded evidence.
8. Plaintiff has examined herself as PW1 and
exhibited 20 documents marked as Ex.P1 to Ex.P20. One
Sri.Sunil Kumar and Smt.Kenchamma have been examined
as DW1 and DW2 and exhibited 8 documents marked as
Ex.D1 to Ex.D8.
9. Trial Court on appreciation of evidence decreed
the suit as prayed for by its judgment and decree dated
19.12.2001. Being aggrieved by the same, defendant Nos.7
to 11 filed regular appeal in RA No.10/2002 while defendant
Nos. 1 to 6 filed RA No.11/2002.
10. The first appellate Court on re-appreciation of
evidence by its common judgment and order dismissed both
the appeals in RA No.10/2002 filed by the defendant Nos.7
to 11 and RA No.11 /2002 filed by the defendant Nos. 1 to 6
confirming the judgment and decree passed by the trial
Court dated 19.12.2001 in O.S.No.704/1991.
11. Aggrieved by the said judgment and decree and
concurrent findings rendered, defendant Nos.7 to 11 have
filed present RSA No.2525/2006 and defendant Nos. 1 to 6
have filed RSA No.2543/2006. This court by its order dated
29.08.2011 admitted the aforesaid appeals to consider the
following substantial questions of law;
"(1) Whether the courts below were
justified in decreeing the suit filed on
27.07.1991 seeking for specific
performance of agreement of sale
dated 22.09.1975?
OR
Whether the suit filed for specific
performance of agreement of sale
dated 22.09.1975 was barred by
limitation under Article 54 of the
Limitation Act?
(2) Whether the trial Court was correct in
holding agreement to sell dated
22.9.1975 has been proved by the
plaintiff on a comparison of signatures
under Section 73 of the Evidence Act
and holding that same has been
proved?
(3) Whether the courts below were
justified in decreeing the suit without
considering relevant provisions of
Section 20 of the Specific Relief Act."
12. Sri.S.V.Prakash, learned counsel for the
appellants/defendant Nos.7 to 11 in RSA No.2525/2006
reiterating the grounds urged in the memorandum of appeal
submitted that;
a) The suit is hopelessly barred by
limitation as it was not filed within three
years from the date of the alleged
agreement. That even in the absence of
stipulation regarding the time being
essence of contract, it is expected that
suit for specific performance has to be
filed within reasonable time. Since the
plaintiff approached after 16 years, the
suit suffers from delay and laches.
b) There was no prohibition under any
law in force as on the date of the alleged
agreement or subsequent thereto and no
such law was pointed out by the plaintiff
before the courts below. Therefore, courts
below completely erred in not considering
these important aspects of the matters.
c) When defendant Nos.1 to 6 had in
categorical terms denied the execution of
agreement of sale by late Chikkanna
including denying his signature, it was
incumbent upon the plaintiff to have
adduced valid and acceptable evidence by
examining attesting witnesses to the
document and also examining the expert
to prove the signature of late Chikkanna.
d) The trial Court ought not have invoked
the powers under Section 73 of the
Evidence Act to compare the signatures in
Ex.P2 with other documents without
seeking the opinion of Hand writing
experts and said approach of the trial
Court is contrary to the law laid down by
the Apex Court.
e) The schedule property being an
ancestral property could not have been
sold by Chikkanna when admittedly
defendant Nos.2 to 6 were minors without
there being any legal necessity or benefit
of the family.
f) There was no evidence with regard to
readiness and willingness on the part of
the plaintiff right from the date of an
agreement which the courts below failed
to take into consideration.
g) The findings of the courts below with
regard to the possession of plaintiff and
her husband is perverse and without any
evidence. Therefore, granting of decree of
permanent injunction is unsustainable.
h) Merely because plaintiff has
established her right under the
agreement, the courts are not bound to
grant specific performance as it is a
discretionary relief without reference to
Section 20 of the Specific Relief Act.
i) The Courts below have not considered
that defendant Nos.7 to 11 were bonafide
purchasers for valuable consideration
without notice of agreement of sale and
pending of the suit.
Therefore, he submits the substantial question of law
raised in the matter needs to be answered in favour of the
appellants/defendant Nos.7 to 11.
13. He relied upon the following judgments in
support of his case.
1. K.S. Vidyanadam and others vs.
Vairavan (AIR 1997 SC 1751)
2. Manjunath Anandappa Urf. Shivappa
Hanasi vs. Tammanasa & Ors.-
(2003 (3) Supreme 248)
3. Sharanappa (deceased) by Lrs vs.
Sumitrabai and Another
(2004(3) KCCR 1476)
4. V.S.Munirathanam, Since deceased
by L.Rs vs. P.Sundaram, since
deceased by L.Rs and Ors.
(ILR 2004 KAR 2328)
5. Shivasharnappa vs. The Deputy
Commissioner, Gulbarga District and
others -(1999 (2) KCCR 866)
6. Smt. Parvathamma & Ors. vs. Smt.
Uma and ors.
(2011 (1) AIR Kar.R 615)
7. Ishwari Prasad Misra vs. Mohammad
Isa (AIR 1963 SC 1728)
8. State of Maharashtra vs. Sukhdeo
Singh and Another
(AIR 1992 SC 2100)
9. Ajit Savant Majagavi vs. State of
Karnataka - (AIR 1997 SC 3255)
10. A.C.Arulappan vs. Smt. Ahalya Naik-
(AIR 2001 SC 2783)
11. V.Muthusami (dead) by Lrs., vs.
Angammal and others
(AIR 2002 SC 1279)
12. S.Kugashankar vs. Subhash Chand
Goel and Others (ILR 2006 Kar. 3689)
13. Kadupugotla Varalakshmi vs. Vudagiri
Venkata Rao & Ors. (LL 2021 SC 104)
14. Nellikkottu Kolleriyil Madhavi vs.
Kavakkalathil Kalikutty and Others
(ILR 1997 Kar. 2632)
14. Sri.R.Gopal, learned counsel appearing for
appellants/defendant Nos.1 to 6 in RSA No.2543/2006 has
submitted that;
(a) the plaintiff has not explained
the delay of 16 years in filing the suit
seeking enforcement of her rights under
the agreement of sale.
(b) the defendant Nos.1 to 6 being
the wife and children of Sri.Chikkanna
have specifically denied his signature on
the agreement of sale. Therefore, the
plaintiff ought to have proved the
signature in the manner known to law
and in the absence the execution of
agreement has not been proved. As such,
question of granting relief of specific
performance would not arise.
(c) that courts below have not
taken into consideration the hardship
which was caused to the defendant Nos.1
to 6 while granting the discretionary relief
in favour of the plaintiff.
(d) that suit schedule property
which the plaintiff is claiming to have
purchased for Rs.900/- is much more
valuable in view of urbanization and
inflation, which factor has not been taken
into consideration by the Courts below.
Hence, he submits that substantial question of law be
answered in favour of defendant Nos. 1 to 6.
15. Sri.R.V.Jayaprakash, learned counsel for the
plaintiff justifying concurrent findings and conclusions arrived
at by the Trial Court and First Appellate Court submits;
a) That there was no specific time fixed
under the agreement of sale except
mentioning bar of registration and there is
no specific reference to any 'Act'. In
substance, it was agreed that the
deafendant would execute the deed of sale
as and when requested by the plaintiff.
b) That cause of action for the suit arose
when the defendant Nos.1 and 2 filed suit in
O.S.No.390/1991 and when their names
were entered in the revenue records.
c) that the very fact that husband of plaintiff
was put in possession of 2 acres 31 guntas
of land in terms of Usufructuary Mortgage in
the year 1969 and husband of the defendant
No.1 namely, Chikkanna having executed
two deeds of sale dated 20.05.1974 and
21.10.1974 which remained unchallenged
and undisputed would reveal that the
remaining extent of 31 guntas of land has
always been in possession of the plaintiff and
her husband. Execution of agreement dated
22.09.1975 by Chikkanna in favour of the
plaintiff has to be looked at from these
admitted facts.
d) that since the parties were in cordial
relationship, execution of agreement of sale
cannot be suspected and disputed.
e) He submits that courts are competent to
compare the signatures on the admitted
documents under Section 73 of Evidence Act
and no illegality can be found with the same.
16. He relied upon the following judgments in
support of his case.
(1) H.M. Krishna Reddy vs. H.C. Narayana
Reddy -(ILR 2001 KAR. PAGE 3870)
(2) Shivasharanappa vs. The Deputy
Commissioner and others-
(ILR 1999 KAR. PAGE 2042)
(3) Mohammed Ali Abdul Chanimomin vs.
Bisahemi Kom Abdulla Sab-
(AIR 1973 MYSORE PAGE 131)
(4) Guruswamy Nadar vs. P. Lakshmi
Ammal (dead) through Lrs and others-
(2008) 5 SCC PAGE 796)
(5) N.Hanumantharaya vs. Smt.Mariyamma
and Others-
(2008(1) AIR KAR.R PAGE 446)
(6) Gurudev Kaur and Others vs. Kaki and
Others-(2007 (1) SCC- PAGE 546)
(7) Sughar Singh vs . Hari Singh (dead)
through Lrs. and Others
(CDJ 2021 SC 855-
CIVIL APPEAL NO.5110/2021)
17. Heard learned counsel for the parties. Perused
the records.
18. There is no dispute with regard to the fact that
the land in Sy.No.44/2 measuring 2 Acres 31 guntas
belonged to late Chikkanna, the husband and father
respectively of defendant Nos.1 to 6. Though, the defendant
Nos.1 to 6 have in their written statement adopted the stand
of a total denial of all the transactions, the fact remains that
the transaction with regard to mortgage by Chikkanna in
favour of Dharmanna coupled with delivery of possession in
the year 1969 and subsequent execution of deeds of sale
dated 20.05.1974 and 21.10.1974 conveying 2 Acres of land
by Chikkanna in favour of Dharmanna are all in terms of
registered documents and the said registered documents
have remained unchallenged.
19. The possession of the entire extent of land
measuring 2 acres 31 guntas was handed over to
Dharmanna by Chikkanna-the husband of defendant No.1 in
terms of mortgage deed. Though subsequently 2 acres of
land out of 2 acres 31 guntas was sold, there is no evidence
of Dharmanna or his wife-the plaintiff redelivering the
physical possession of the suit schedule property to
Chikkanna during his life time or even thereafter to the
defendant Nos.1 to 6.
20. Learned counsel for the appellants fairly submitted
that there is no direct evidence with regard to this aspect of
the matter except the entries in the revenue records made in
the year 1984.
21. Ex.P2- agreement of sale was executed on
22.09.1975 in respect of suit schedule property being 31
guntas of land remained unsold after execution of two deeds
of sale as above.
22. Defendant No.9(a)- Sunil Kumar, who is one of the
purchasers of the suit land during the pendency of the suit
examined himself as DW1 for himself and on behalf of
defendant Nos. 7, 8, 10 & 11 except stating that defendant
Nos.7 to 11 are the bonafide purchasers for value without
notice of pendency of suit till receipt of summons, has not
spoken anything in his evidence with regard to previous
transactions between Chikkanna and Dharmanna.
23. It is seen from the records that when the matter
was posted for arguments of defendants before the trial
Court, Smt.Kenchamma- defendant No.1 reopened the case
and examined herself as DW2. Her evidence is total denial of
the case of the plaintiff. She confirms that she has alienated
31 guntas of land in favour of defendant Nos.7 to 11. During
cross-examination, she has admitted plaintiff being in
possession of the land in Sy.No.44/2. She pleads ignorance
about her husband mortgaging the property in 1969 and
executing two deeds of sale conveying 2 Acres of land in
favour of husband of the plaintiff. She also pleads ignorance
of agreement of sale with respect of remaining land
measuring 31 guntas. When a specific question has been
asked with regard to signature of her husband on the
agreement of sale dated 22.09.1975-Ex.P2 she has deposed
that "she cannot identify the signature of her husband". She
has even denied filing of suit by her in O.S.No.390/1991
against the plaintiff. She has even expressed her inability to
identify her own signature in the copy of the plaint filed by
her in O.S.No.390/1991.
24. In the aforesaid background of facts and
circumstances, the substantial question of law needs to be
answered.
Regarding Limitation - Filing of the suit on 27.07.1991
seeking for specific performance of agreement of sale
dated 22.09.1975:
25. Learned counsel for the appellants/defendants
assailed the concurrent findings of the trial Court and first
appellate Court mainly on the ground of limitation. It is their
contention that the agreement dated 22.09.1975 though did
not prescribe any time limit, the same would not give any
advantage to the plaintiff not to seek specific performance of
the same for all time to come. Further, referring to contents
of paragraph 7 of the plaint, wherein the plaintiff has
pleaded that the registration and execution of the deed of
sale could not be done in view of the prohibition contained in
the Karnataka Prevention and Fragmentation and
Consolidation of Holdings Act, learned counsel submitted
that no such prohibition was contemplated. Reference is also
made to the deposition of PW1 recorded on 14.10.1999 and
29.07.2000 regarding prohibition. It is submitted that since
there is no legal prohibition under the Act for executing and
registering the deed of conveyance, the same cannot be the
ground for not seeking specific performance of the contract
within reasonable time. Thus, it is submitted the courts
below grossly erred in entertaining the suit which is
hopelessly barred by limitation.
26. The learned counsel for the appellants has relied
upon the following judgments of Apex Court and this Court:
a) In the case of K.S.VIDYANANDAM AND OTHERS
VS. VYRAVAN (supra)., wherein the Apex Court dealing
with the urban property involving constant and continuous
raise in the value of the land, at para 11 has held as under:
"11. .......Indeed we are inclined to think
that the rigour of rule evolved by Courts that
time is not the essence of the contract in the
case of immovable properties and evolved in
times when prices and values were stable
and inflation was unknown and requires to
be relaxed, if not modified, particularly in the
case of urban immovable properties. It is
high time we do so. It further held that
while exercising its discretion, the Court
should also bear in mind that when the
properties prescribed certain time limit(s) for
taking steps by one or the other party, it
must have some significance and that the
said time limit(s) cannot be ignored
altogether on the ground that the time has
not been made the essence of contract
(regarding immovable properties).
b) In the case of MANJUNATHA ANANDAPPA urf
SHIVAPPA HANASI supra, the Apex Court taking note of
the facts in the said case that plaintiff had filed the suit
almost after six years from the date of entering into
agreement of sale and he not having brought any material
on record to show that he had ever asked Defendant No.1-
owner of the property to execute a deed of sale, and that he
filed suit only after he came to know that the suit land had
already been sold in favour of the Defendant No.3, has held
that "it was obligatory on the part of the plaintiff for
obtaining a discretionary relief having regard to Section 20 of
the Act to approach the Court within a reasonable time."
The Apex court having regard to the conduct of the plaintiff
held he was not entitled for discretionary relief. Referring to
its earlier Judgment in the case of Veerayee Ammal vs. Sini
Ammal (2002(1) SCC 134), the Apex Court in the aforesaid
case, has extracted its observation as under:
"11. When, concededly, the time was
not of the essence of the contract, the
appellant-plaintiff was required to
approach the court of law within a
reasonable time. A Constitution Bench of
this Hon'ble Court in Chand Rani v. Kamal
Rani(1993) 1 SCC 519 held that in case of
sale of immovable property there is no
presumption as to time being of the
essence of the contract. Even if it is not of
the essence of contract, the court may
infer that it is to be performed in a
reasonable time if the conditions are (i)
from the express terms of the contract; (ii)
from the nature of the property; and (iii)
from the surrounding circumstances, for
example, the object of making the
contract. For the purposes of granting
relief, the reasonable time has to be
ascertained from all the facts and
circumstances of the case".
c) A co-ordinate Bench of this Court in the case of
SHARANAPPA (DECEASED BY L.Rs) supra, dealing with
the suit of the plaintiff for declaration of title and injunction
and alternative relief of possession wherein the defendant
had set up a counter-claim seeking relief of specific
performance on the strength of the agreement of sale at
Ex.D1, had held that the terms of the document did not spell
any time-limit for parties. Therefore, taking advantage of
the absence of time-limit, the defendant keeps mum for
almost ten years without taking any steps to offer the
balance sale consideration and seek registration of the sale
deed. In that view of the matter, this Court had held that
the conduct of the defendant did not suggest that he was
ready and willing to perform his part of the contract.
d) Counsel for the appellant referred to the Judgment
of the co-ordinate Bench of this Court in the case of SHIVA
SHARNAPPA supra, which was with reference to the
provisions of Section 4 of the Karnataka Prevention of
Fragmentation and Consolidation of Holdings Act, 1966.
After referring to this section, the co-ordinate Bench of this
Court had held that:
"Notwithstanding anything contained in any
law or in any Judgment, decree or order of any
Court or other authroity, any transaction including
transfer, partition or substantial question of law-
division of any land entered into or effected and
any action or thing taken or done in relation to
land before the commencement of the Amending
Act and in contravention of the provisions of the
Principal Act shall notwithstanding anything
contained in the Principal Act, be not deemed to
be void merely on the ground of such
contravention."
e) In the case of SMT.PARVATHAMMA supra, co-
ordinate Bench of this Court dealing with a suit for specific
performance of a contract of sale dated 01.07.1998, wherein
the defendants having received the sale consideration of
Rs.12,000/- had agreed to execute a sale deed upon the
repeal of Karnataka Prevention of Fragmentation and
Consolidation of Holdings Act, 1966, which was repealed on
05.02.1991 and even after such repeal, the defendants had
failed to execute and register the sale deed as agreed
despite repeated demands, constraining the plaintiffs to
issue notice dated 09.10.1995, this Court in the light of the
above factual aspect of the matter held that though the Act
was repealed on 05.02.1991 and the plaintiff having
admitted to have made demand as late as 27.10.1992 ought
to have filed suit within the period of limitation while suit
was filed on 28.10.1995, was certainly barred by limitation.
27. On the other hand, learned counsel for the
plaintiff justifying the orders passed by the Trial Court and
the First Appellate Court submits that in the first place the
agreement at Ex.P2 did not refer to prohibition for
registration on account of the Karnataka Prevention of
Fragmentation and Consolidation of Holdings Act and that
such reference is made only in the plaint. He further submits
not withstanding such pleading in the plaint, in an identical
facts and circumstances of the matter, a co-ordinate Bench
of this Court in the case of H.M.KRISHNA REDDY supra, at
Paragraphs 16, 17, 18, 19 and 20 had elaborately dealt with
the ingredients of Article 54 of the Limitation Act, 1963 with
reference to ban for selling of the land under the Act, and
held that when the agreement of sale did not fix the date for
performance of the contract nor mentioned an event "certain
to happen" on the happening of which, specific performance
became due. Therefore, it was held the later part of Article
54 applies, that is, time begins to run only when the plaintiff
had knowledge of defendants' refusal to perform.
28. The principles laid down by the Apex Court and
this Court in the Judgments relied upon by the learned
counsel for appellants/defendants regarding plaintiff
approaching the Court within reasonable time are under
completely different set of facts and circumstances of the
case. Even as held by the Apex Court in the case of Chand
Rani vs. Kamal Rani reported in (1993) 1 SCC 519, the Court
may infer requirement of reasonable time (i) from the
express terms of the contract, (ii) from the nature of
property, and (iii) from surrounding circumstances.
29. In the instant case, the husband of Defendant
No.1 had executed a Usufractuary Mortgage as per Ex.P1 in
favour of the husband of the plaintiff in the year 1969 in
respect of 2 acres 31 guntas of land and possession of the
land was also delivered in terms thereof. Thereafter, in the
year 1974, the husband of the Defendant No.1, by executing
two deeds of sale, had conveyed 2 acres of land in favour of
the husband of the plaintiff. The husband of the defendant
had thereafter agreed to sell the unsold land measuring 31
guntas being the suit schedule property in favour of the
plaintiff and had received the entire sale consideration.
There remained nothing to be performed on the part of the
plaintiff as the entire sale consideration was paid. Plaintiff
and her husband continued with the possession of the
property. The cause of action of the suit arose when the
plaintiff and her husband during December, 1990 learnt
about the change of name in the revenue records and when
Defendant No.1 filed the suit in O.S.No.390/1991. These
factual aspects constrained the plaintiff to file the suit on
27.07.1991. Thus, the facts and circumstances, nature of
transaction of the matter are different and distinguishable.
Therefore, the aforesaid Judgments of the Apex Court and of
this Court referred to by the appellant would be of no avail.
30. Thus, from the facts and circumstances of the
matter and in view of the aforesaid principles of law, the trial
Court while answering issue No.5 has elaborately dealt with
regard to limitation and has taken into consideration the
filing of the suit in OS No.390/1991 by the defendant Nos.1
to 6 denying the possession of the plaintiff over the property
to be the cause of action for plaintiff to seek relief of specific
performance. The first appellate Court at paragraphs 23, 24,
25, 26 of the judgment, while dealing with the issue has
rightly come to the conclusion of the suit of the plaintiff
being within a period of limitation. No infirmity or illegality
can be found with the said reasoning.
Regarding comparison of Signature by the trial court
under Section 73 of Indian Evidence Act:
31. The Courts below have taken note of the fact that
though defendant No.1 who has been examined as DW2
denied and pleaded ignorance of her husband of having sold
2 acres of land, however in her earlier suit in
O.S.No.390/1991 she has categorically pleaded and
admitted that her husband during his life time has sold 2
acres of land to the husband of the plaintiff under registered
deed of sale dated 20.05.1974 and 21.10.1974 and had
retained 31 guntas of land. The trial Court taking into
consideration of the said admission of Defendant No.1
regarding execution of deeds of sale by her husband-
Chikkanna has compared the signatures of the said
Chikkanna found on the said deeds of sale with that of the
signature in the agreement of sale marked as Ex.P2 and has
thus come to the conclusion that signatures seen on the said
deeds of sale and the agreement of sale are similar and that
of the signature of the said Chikkanna. Thereby, the courts
below have come to the conclusion that plaintiff proved the
execution of agreement of sale and possession over the suit
schedule property.
32. Section 73 of the Evidence Act provides as
under;
"73. Comparison of signature, writing
or seal with others admitted or proved.--
In order to ascertain whether a signature,
writing or seal is that of the person by whom it
purports to have been written or made, any
signature, writing, or seal admitted or proved
to the satisfaction of the Court to have been
written or made by that person may be
compared with the one which is to be proved,
although that signature, writing, or seal has
not been produced or proved for any other
purpose. The Court may direct any person
present in Court to write any words or figures
for the purpose of enabling the Court to
compare the words or figures so written with
any words or figures alleged to have been
written by such person. 1[This section applies
also, with any necessary modifications, to
finger-impressions."
33. In view of the above provision of law providing
power to the Court to compare signature/hand writing to
strengthen its finding, the method adopted by the trial Court
as elaborately reasoned in paragraph 20 of its judgment
cannot be found fault with.
34. Counsel for the appellants relied upon the
Judgment of the Apex Court in the case of STATE OF
MAHARASHTRA vs. SUKHDEV SINGH supra in support of
his argument regarding the power of the Court to compare
the signature under Section 73 of the Act. In the said case,
the Apex Court was dealing with offence punishable under
Sections 300 and 302 of the Indian Penal Code. At
Paragraph 29 of the said Judgment, it was held that:
"It is well settled that evidence regarding
identity of author of any document can be
tendered (i) By examining the person who is
conversant and familiar with the handwriting of
such person; ii) Through testimony of an
expert who is qualified and competent to make
a comparison of the disputed writing of the
admitted writing on the scientific basis; and iii)
By the Court comparing the disputed document
with the admitted one.
In the said case, the prosecution has resorted on the second
mode by relying upon the evidence of hand-writing expert.
It is under these circumstances the Apex Court has held that
in no case can the Court base its finding solely on the basis
of hand-writing expert and has placed a heavy responsibility
on the part of the court to exercise extra care and caution
before going on such information.
35. In the case of Ajit Savant Majagavi Vs. State of
Karnataka which is yet again a case under Section 300 of
the IPC wherein dealing with Section 73, the Apex Court has
held as under:
"Section 73 does not specify by whom the
comparison shall be made. Further, looking
into the other provisions of the Act, it is clear
that such comparison cannot either be made by
Handwriting Expert under Section 45 or by
anyone familiar with the handwriting of the
person concerned as provided by Section 47 or
by Court itself. As a matter of extreme caution
and judicial discipline, the Courts should not
normally take upon itself the responsibility of
comparing the disputed signature with that of
the admitted signature or handwriting and in
the event of slightest doubt, leave the matter
to the wisdom of expert. But this does not
mean that the Court has not the power to
compare the disputed signature with the
admitted signature as this power is clearly
available under Section 73".
36. In the instant case, in the suit in O.S.No.390/1991
filed by the Defendant No.1, a specific statement is made
admitting the execution of deeds of sale by her husband in
favour of the husband of the plaintiff. The said suit was
taken up for common disposal by the Trial Court. Though it
was dismissed as not pressed, at the later stage. The deeds
of sale admitted by the Defendant No.1 therein are Ex.P9
and Ex.P.20 marked by the plaintiff. In view of the said
admission and also in view of the registered mortgage deed
executed by the husband of the Defendant No.1 in favour of
husband of plaintiff marked as Ex.P1, there were three
registered undisputed documents available before the Trial
Court. It is also on record that the Defendant No.1 had
deposed that she was not in a position to identify the
signature of her husband. She has therefore not denied the
signature found on Ex.P2. It is in these circumstances the
Trial Court had ventured to compare the signature of Ex.P2
with that of on Ex.P1, Ex.P9 and Ex.P20 and had come to a
conclusion that those signatures are similar.
37. In the aforesaid facts and circumstances of the
case and even as held by the Apex Court in the aforesaid
decisions relied upon by the appellants themselves, the
power of the Court to compare the disputed signature with
the admitted signature is clearly available under Section 73
and in the facts and circumstances of the case, appellant
cannot be heard to say that the Trial Court had no power to
compare the signatures.
38. Thus, in view of the aforesaid factual and legal
aspect of the matter, no infirmity cannot be found with the
reasoning of the trial Court and first appellate Court in
arriving at conclusion regarding proof of execution of sale
agreement dated 22.09.1975 by the husband and father
respectively of the defendant Nos. 1 to 6 in favour of
plaintiff.
REGARDING DECREEING THE SUIT IN LIGHT OF
SECTION 20 OF THE SPECIFIC RELIEF ACT:
39. Learned counsel for the appellants/defendants
submitted that relief of Specific performance cannot be
granted as a matter of right without having regard to the
circumstances contemplated under Section 20 of the Act. He
submits that the Trial Court and the First Appellate Court
have erred in not considering the hardship that would be
caused to the appellants in granting specific performance of
the contract. In support of the submission on the question
of granting of relief of specific performance under Section 20
of the Act, the counsel for the appellant has relied upon the
Judgment of the Apex Court in the case of A.C.ARULAPPAN
supra. The Apex Court has held that if under the terms of
the contract, plaintiff gets an unfair advantage over the
defendant, the Court may not exercise its discretion in
favour of the plaintiff. So also, specific relief may not be
granted if the defendant would be put to undue hardship
which he did not foresee at the time of the agreement. If it
is inequitable to grant the relief, then also, Court would
desist from granting decree to the plaintiff. Similar
principles have been laid down by the Apex Court in the case
of V.MUTHU SWAMY supra.
40. In the instant case, as noted earlier, the question
of comparative hardship would not arise inasmuch as
Defendants 1 to 6 during the pendency of the suit have sold
the suit schedule property in several bits in favour of
Defendants 7 to 11 under different deeds of sale. The
plaintiff and her husband had made payment of entire sale
consideration on the date of entering into agreement of sale-
Ex.P2. There remained nothing to be performed on the
part of the plaintiff. It is also necessary to reiterate that
plaint schedule property being 31 guntas of land is only a
portion remained unsold after conveying 2 acres of land in
favour of the husband of the plaintiff as stated above. It can
therefore, be inferred that the husband of Defendant No.1
had intended to sell the entire land for his advantage as the
price mentioned in Ex.P2 was similar/equal to that of the
price mentioned in the said deeds of sale at Ex.P9 and
Ex.P20. In that view of the matter, Section 20 of the
Specific Relief Act cannot be pressed into service by the
appellants.
41. It is also necessary to note that on one hand, the
Defendants 1 to 6 had disputed and denied the execution of
agreement of sale-Ex.P2 and on the other, have contended
through the purchaser that the plaintiff had not shown
readiness and willingness. As noted above, since the entire
sale consideration was paid and the plaintiff and her husband
were put in possession of 2 acres 31 guntas of land which
included suit schedule property back in 1969 continued to be
possession of the property and the husband of the Defendant
No.1 had agreed categorically to execute the deed of sale as
and when requested by the plaintiff, these requiring no
terms of the agreement to be performed by the plaintiff. In
these peculiar facts and circumstances of the case, the
aforesaid decisions relied upon by the learned counsel for the
appellants/defendants are of no avail.
42. Learned counsel for the appellants/defendants also
relied upon the Judgment of Division Bench of this Court in
the case of MOHAMMED ALI ABDUL CHANIMOMIN supra
dealing with object of Section 54 of the Transfer of Property
Act, wherein at Para No.14 of the Judgment, this Court has
held as under:
14. So far as the legal aspect is
concerned, little argument is necessary to
make out that the object of Section 52 is
to subordinate all derivative interests or
all interests derived from parties to as
suit by way of transfer pendente lite to
the rights declared by the decree in the
suit and to declare that they shall not be
capable of being enforced against the
rights acquired by the decree-holder. A
transferee in such circumstances
therefore takes the consequences of the
decree which the party who made the
transfer to him would take as the party to
the suit. The principle of lis pendens
embodied in Section 52 being a principle
of public policy, no question of good faith
or bona fides arises. Such being the
position, the transferee from one of the
parties to the suit cannot assert or claim
any title or interest adverse to any of the
rights and interests acquired by another
party under the decree in suit. The
principle of lis pendens prevents anything
done by the transferee from operating
adversely to the interest declared by the
decree."
43. The similar issue was dealt with by the Apex Court
in the case of GURUSWAMY NADAR wherein it is held that:
"Normally as a public policy, once a
suit has been filed pertaining to any
subject matter of the property in order to
put an end to such kind of litigation,
principle of lis pendens has been evolved
so that litigation may finally terminate
without intervention of third party. This
is because of public policy. Otherwise, no
litigation will come to an end. Therefore,
in order to discourage that same subject
matter of property being subject to
subsequent sale to a third party, this kind
of transaction is to be checked.
Otherwise, litigation will never come to
an end.
44. In the instant case, Defendants 7 to 11 having
purchased the suit schedule property from Defendants 1 to 6
during the pendency of the suit, cannot claim to be the
bonafide purchaser as in the light of Section 2 of the
Transfer of Property Act which makes transfer pendente lite
subject to outcome of the pending suit as a matter of public
policy, the question of Defendants 7 to 11 being bonafide
purchaser cannot be countenanced.
46. For the aforesaid analysis and reasoning, the
substantial questions of law formulated in this appeal are
answered accordingly. The concurrent findings and
conclusions arrived at by the Trial Court and the First
Appellate Court are confirmed. Consequently, RSA
No.2525/2006 filed by appellants/defendant Nos.7 to 11 and
RSA No.2545/2006 filed by appellants/defendant Nos.1 to 6
are dismissed. Judgment and Decree dated 19.12.2001
passed in O.S.No.704/1991 on the file of the Trial Court and
the Judgment and Decree dated 24.03.2006 passed in
R.A.No.10/2002 and in R.A.No.11/2002 on the file of the
First Appellate Court are confirmed.
Sd/-
JUDGE
RU/bnv*
