Karnataka High Court
Sanjeevappa vs Smt Nagamma on 21 April, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.1310/2018 (SP)
BETWEEN:
SANJEEVAPPA
DEAD BY LRS
1. SRI HANUMANTHARAYAPPA
DEAD BY LRS
1(a) SMT. RAJAMMA
W/O. LATE HANUMANTHARAYAPPA
AGED ABOUT 45 YEARS
1(b) SMT. RANJITHA
D/O. LATE HANUMANTHARAYAPPA
AGED ABOUT 25 YEARS
R/O. MARASAMBODI VILLAGE
AGALI MANDAL,
MADAKASIRA TALUK
ANANTHAPURA DISTRICT
ANDHRA PRADESH
1(c) SRI PUNITH
S/O. LATE HANUMANTHARAYAPPA
AGED ABOUT 16 YEARS
SINCE MINOR
REPRESENTATED BY HIS MOTHER
AND NATURAL GUARDIAN
SMT. RANGAMMA
W/O. LATE HANUMANTHARAYAPPA
2
1(a) AND 1(c) ARE RESIDENTS OF
DODDERI VILLAGE, DODDERI HOBLI
MADHUGIRI TALUK
TUMKUR DISTRICT-572 112.
2. SRI. BHEEMARAJU
S/O. LATE SANJEEVAPPA,
AGED ABOUT 64 YEARS
FLOWER MERCHANT
R/O. BADAVANAHALLI VILLAGE,
DODDER HOBLI,
MADHUGIRI TALUK,
TUMKUR DISTRICT-572 112
3. SMT. RATHNAMMA
D/O. LATE SANJEEVAPPA,
W/O. THIMMAPPA
AGED ABOUT 64 YEARS
R/O. BOPPANADU,
SIRA TALUK,
TUMKUR DISTRICT-572 112
4. SMT. JAYAMMA
D/O. LATE SANJEEVAPPA,
W/O. RANGADHAMAPPA,
AGED ABOUT 61 YEARS
R/O. NARASAMBHOODHI VILLAGE,
AGALI MANDALA,
MADAKASIRA TALUK,
ANANTHAPURA DISTRICT
ANDHRAPRADESHA STATE-515 301.
5. SMT. SHARADAMMA
D/O. LATE SANEJEEVAPPA
W/O. NARASAPPA
AGED ABOUT 59 YEARS
R/O. CHANNANAKUNTE,
SIRA TALUK,
TUMKUR DISTRICT-572 137.
3
6. SMT.VANAJAKSHI
D/O. LATE SANJEEVAPPA,
W/O. LAKSHMANA
TEACHER,
AGED ABOUT 46 YEARS
R/O. SANTHEPETE,
SIRA TALUK,
TUMKUR DISTRICT-572 137.
7. SMT.SUNITHA
D/O. LATE SANJEEVAPPA,
W/O. LATE MUDDARAJU,
AGED ABOUT 41 YEARS
R/O. BOPPANADU,
SIRA TALUK
TUMKUR DISTRICT-572 137.
... APPELLANTS
(BY SRI G.S.VENKATASUBBA RAO, ADVOCATE)
AND:
1. SMT. NAGAMMA
W/O. LATE CHIKKARANGAPPA
AGED ABOUT 76 YEARS
R/O. DODDERI VILLAGE,
DODDERI HOBLI,
MADHUGIRI TALUK,
TUMKUR DISTRICT-572 112.
SMT. SAROJAMMA (DEAD BY LRS)
2. SRI PARAMESHWARA
S/O. LATE SMT.SAROJAMMA
AGED ABOUT 46 YEARS
R/O. KUNAGANAHALLI VILLAGE,
THONDEBAVI HOBLI,
4
GOWRIBIDANUR TALUK,
CHIKKABALLAPUR DISTRICT-561 208. ... RESPONDENTS
(BY SRI A.V.GANGADHARAPPA, ADVOCATE FOR C/R1)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 16.11.2017
PASSED IN R.A.NO.5065/2016 ON THE FILE OF THE 4TH
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MADHUGIRI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 26.09.2016 PASSED IN O.S.NO.42/2000
ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND
JMFC, MADHUGIRI.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 13.04.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. I have heard the
learned counsel for the appellants and learned counsel for the
caveator-respondent No.1.
2. The factual matrix of the case of the plaintiff before
the Trial Court is that, defendant No.1 is the absolute owner of
the suit schedule property and he had acquired the suit schedule
property under a registered sale deed dated 12.01.1995 and
defendant No.1 has offered to sell the suit schedule property and
the plaintiff agreed to purchase the same for a sale consideration
of Rs.63,000/- and accordingly, the defendant No.1 received the
advance amount of Rs.5,000/- and executed sale agreement in
favour of the plaintiff. In the agreement of sale, it was
mentioned that the plaintiff shall get the registered sale deed
within three months by paying balance sale consideration
amount of Rs.58,000/-. The plaintiff, after securing the balance
consideration, approached the defendant No.1 to execute the
sale deed, but, the defendant No.1 demanded more
consideration and refused to execute the sale deed. Hence, the
plaintiff got issued the legal notice dated 24.12.1999 asking the
defendant No.1 to be present in the Sub-registrar office on
10.01.2000. The defendant No.1 refused to execute the sale
deed. On the other hand, the defendant No.1, colluding with
defendant No.2, who in his wife's name conducting civil disputes
for the last 20 years against the plaintiff and inspite of
knowledge of agreement in favour of the plaintiff, got executed
nominal sale deed dated 10.01.2000. As on that date, the
defendant No.1 had no saleable interest and by virtue of sale
deed, no right, title and possession passed to defendant No.2.
On coming to know about nominal sale deed, the plaintiff got
issued notice to both the defendants to execute the sale deed in
her favour. The defendants failed to execute the sale deed and
defendant No.1 had not taken the notice but, defendant No.2
though received the notice, has not given any reply. Hence,
filed the suit seeking the relief of specific performance.
3. Pursuant to the suit summons issued to both the
defendants, they appeared through their counsel and filed the
written statement and in their written statement, except
admitting that defendant No.1 was the owner, all other
averments are denied. It is their contention that, defendant
No.1 has not at all executed any agreement in favour of the
plaintiff and her signatures have been forged and the alleged
agreement has been concocted. It is contended that, on
17.08.1999, the defendant No.1 entered into an agreement with
defendant No.2 to sell the suit property for a sum of Rs.55,000/-
and received advance amount of Rs.5,000/- and pursuant to the
said agreement, executed sale deed on 01.01.2000 and put
defendant No.2 in possession. By virtue of the sale deed, the
mutation has been accepted in the name of defendant No.2 and
RTC entries have been changed to his name and he is in
enjoyment of the suit schedule property. Since, the alleged
agreement in favour of the plaintiff false, there was no need to
reply. Hence, prayed the Court to dismiss the suit.
4. Based on the pleadings, the Trial Court has framed
the issues with regard to whether there was a sale agreement in
favour of the plaintiff and received earnest money of Rs.5,000/-
and whether defendant No.1 has executed nominal sale deed in
favour of defendant No.2 and the sale deed is null and void and
the same is not binding. In view of the defence taken by the
defendants in the written statement, issues are also framed with
regard to whether the defendant proves that the plaintiff has
forged the signature of defendant No.1 on the alleged agreement
of sale as contended and whether the plaintiff has been and is
still ready and willing to perform her part of the contract and
whether the plaintiff is entitled for the relief of specific
performance.
5. In support of the contention of the plaintiff, she
examined the power of attorney holder as P.W.1 and other three
witnesses as P.Ws.2 to 4 and got marked the documents as
Exs.P1 to P4. On the other hand, the defendant No.2 examined
his power of attorney holder as D.W.1 and two attestors as
D.Ws.2 and 3 and got marked the documents Exs.D1 to D11.
6. The Trial Court, having considered the material on
record, answered issue Nos.1 to 4 as 'affirmative', in coming to
the conclusion that there was a sale agreement in favour of the
plaintiff and amount of Rs.5,000/- was paid as advance money
and defendant No.1 has executed nominal sale deed in favour of
defendant No.2 and the sale deed executed by defendant No.1 in
favour of defendant No.2 is void and not binding and also comes
to the conclusion that the very contention that the plaintiff has
forged the signature of defendant No.1 on the alleged sale
agreement is not accepted and answered issue No.5 as
'negative' and granted the relief of specific performance in
favour of the plaintiff.
7. Being aggrieved by the judgment and decree of the
Trial Court granting the relief of specific performance, an appeal
is filed before the First Appellate Court in R.A.No.5065/2016.
The First Appellate Court, having considered the grounds urged
in the appeal memo, formulated the point whether the impugned
judgment and decree is perverse, illegal, capricious and opposed
to law and facts and it requires interference. The First Appellate
Court, on re-appreciation of both oral and documentary evidence
placed on record, answered the said point as 'negative' and
confirmed the judgment of the Trial Court. Hence, the present
second appeal is filed before this Court.
8. The main contention of the learned counsel for the
appellants in this second appeal is that, both the Courts have
committed an error in granting the relief of specific performance
and erred in accepting the evidence of plaintiff through her
power of attorney, who had no knowledge of the agreement of
sale at all. The Trial Court also committed an error in coming
to the conclusion that the plaintiff has proved execution of the
agreement of sale, though none of the attesting witnesses to the
said agreement were not examined before the Court and failed
to take note of the specific denial of the agreement of sale. It is
also contended that the mode of proof of agreement to sell, as
provided by the plaintiff was insufficient and the Court could not
have relied upon the evidence of other witnesses, who are
admittedly not attesting witnesses to come to the conclusion
that the agreement of sale is proved. It is further contended
that mere non-production of evidence by defendants would not
either prove the agreement of sale or would contemplate that
adverse inference has to be drawn against the defendants and
the very approach of the Trial Court that the sale executed by
defendant No.1 in favour of defendant No.2 is nominal and not
binding is perverse finding.
9. It is contended that the Trial Court gravely erred in
mainly relying upon the evidence of D.Ws.2 and 3, who are
attesting witnesses to the registered sale deed, Ex.D4 and also
committed grave error in coming to the conclusion that the
plaintiff is ready and willing to perform her part of contract by
answering issue No.6. It is further contended that the First
Appellate Court also committed an error in appreciating both oral
and documentary evidence placed on record and even failed to
frame a proper point for consideration and not discussed as to
whether the relief of specific performance of agreement of sale is
required to be granted in favour of the plaintiff and also no
finding was given whether plaintiff was ready and willing to
perform her part of contract. The First Appellate Court also
erred in wrongly interpreting the evidence of the witnesses and
further erred in doubting execution of the very sale deed in
favour of the defendant No.2 which is not at all in serious
dispute and committed an error in accepting the judgment of the
Trial Court, in coming to the conclusion that there was a sale
agreement in favour of the plaintiff. The First Appellate Court
also gravely erred in comparing the signature of the parties
through naked eye which was hazardous and the very approach
of both the Courts is erroneous and this Court has to frame
substantial questions of law whether both the Courts were
justified in granting the relief of specific performance, in the
absence of any material to show that the plaintiff was ready and
willing to perform her part of contract and whether both the
Courts were justified in holding that the sale in favour of the
defendant No.2 on 01.01.2000 is nominal.
10. Learned counsel for the appellants also in his
argument would vehemently contend that the sale agreement
was allegedly executed on 14.10.1999 to the extent of 1 acre, 3
guntas for a sale consideration of Rs.63,000/- and paid advance
amount of Rs.5,000/- and balance payable was Rs.58,000/-. It
is the contention of the plaintiff that, three months time was
fixed to execute the sale deed. The counsel would submit that,
legal notice was issued on 24.12.1999 and the defendant No.1
denied the very execution of the sale agreement. Apart from
that, it is the specific contention that the plaintiff was not ready
to have the sale deed and there is no pleading with regard to the
same and also not proved the readiness and willingness and
inspite of it, both the Courts committed an error in directing the
defendants to execute the sale deed. The very finding with
regard to the readiness and willingness is without any discussion
and committed an error. The counsel would submit that, in
order to prove the sale agreement also, no material is placed as
to examination of any attesting witnesses. The counsel also
would contend that the power of attorney holder has been
examined and he was not having any personal knowledge and
both the Courts have not given any finding with regard to the fat
that the appellant is the bonafide purchaser and issue No.6 is
not discussed and regarding readiness and willingness also, the
First Appellate Court has not discussed anything. It is further
contended that the First Appellate Court also, not applied its
mind and both the Courts failed to consider the material on
record. The counsel would vehemently contend that the Trial
Court relied upon the judgment in MMS INVESTMENTS,
MADHURAI AND OTHERS VS. V. VIRAPPAN AND OTHERS
reported in AIR 2007 SC 2663 and the same is not applicable
to the facts of the case on hand.
11. In support of his argument, learned counsel for the
appellants also relied upon the judgment in B. VIJAYA
BHARATHI VS. P. SAVITRI AND OTHERS reported in (2018)
11 SCC 761 and would vehemently contend that this judgment
is aptly applicable to the facts of the case on hand and brought
to notice of this Court Para Nos.12 and 13 and contend that, in
Para No.13, the Apex Court has discussed with regard to the
judgment in M.M.S. INVESTMENTS VS. V. VEERAPPAN and
also observed that, there would be no bar for the appellant to
raise any issue on merits of the appeal on the facts of that case
except the defence of readiness and willingness as provided
under Section 16(c) of the Specific Relief Act. The counsel also
brought to notice of this Court Para No.14, wherein the Apex
Court discussed with regard to the said judgment and also
brought to notice of this Court Para No.15, wherein the Apex
Court discussed with regard to the judgment in RAM AWADH
VS. ACHHAIBAR DUBEY reported in (2000) 2 SCC 428 and
extracted relevant Para No.6, wherein discussion is made with
regard to Section 16(c) of the Specific Relief Act.
12. The counsel also brought to notice of this Court Para
No.17, wherein an observation is made that, though aware of
two conveyances of the same property, the plaintiff did not ask
for their cancellation. This again, would stand in the way of a
decree of specific performance for unless the sale made by
Defendant 1 to Defendant 2, and thereafter by Defendant 2 to
Defendant 3 are set aside and no decree for specific performance
could possibly follow.
13. The counsel also relied upon the judgment in
PADMAKUMARI AND OTHERS VS. DASAYYAN AND OTHERS
reported in (2015) 8 SCC 695 and brought to notice of this
Court Para No.11, wherein the Apex Court discussed with regard
to Clause 3 of Form 47 in Appendix A which provides that the
plaintiff has been and still is ready and willing specifically to
perform the agreement on his part of which the defendant has
had notice. The counsel also brought to notice of this Court
Para No.12, wherein an observation is made that the plaintiff has
not shown readiness and willingness which is the condition
precedent as required under Section 16(c) of the Specific Relief
Act, that has been ignored by both the Courts below, therefore,
the concurrent finding recorded by the High Court in the absence
of this important aspect of the case has not only rendered the
finding erroneous in law but the same are contrary to the
judgments of this Court.
14. The counsel also relied upon the judgment in MAN
KAUR (DEAD) BY LRS. VS. HARTAR SINGH SANGHA
reported in (2010) 10 SCC 512 and brought to notice of this
Court Para No.17, wherein the Apex Court has observed that, to
succeed in a suit for specific performance, the plaintiff has to
prove (a) that a valid agreement of sale was entered into by the
defendant in his favour and the terms thereof; (b) that the
defendant committed breach of the contract; and (c) that he was
always ready and willing to perform his part of the obligations in
terms of the contract. The counsel also brought to notice of this
Court Para No.18, wherein it is observed that, if the attorney-
holder has done any act or handled any transactions, in
pursuance of the power of attorney granted by the principal, he
may be examined as a witness to prove those acts or
transactions.
15. The counsel also relied upon the judgment in U.N.
KRISHNAMURTHY (SINCE DECEASED) THR. LRS. VS. A.M.
KRISHNAMURTHY reported in 2022 SCC ONLINE SC 840 and
brought to notice of this Court Para No.46, wherein the Apex
Court has observed that, it is settled law that for relief of specific
performance, the plaintiff has to prove the all along and till the
final decision of the suit, he was ready and willing to perform his
part of the contract. The counsel also relied upon Para No.47,
wherein the Apex Court has observed that acceptable evidence
has not been placed on record to prove his readiness and
willingness which disentitles granting the relief of specific
performance.
16. The counsel also relied upon the judgment in
MALLURU MALLAPPA (D) THR. LRS. VS. KURUVATHAPPA
AND ORS. reported in AIR 2020 SC 925 and brought to notice
of this Court that, while granting the relief of specific
performance, it is the settled position of law that an appeal is a
continuation of the proceedings of the original Court. Ordinarily,
the appellate jurisdiction involves a re-hearing on law as well as
on fact and is invoked by an aggrieved person, the judgment of
the first appellate Court must display conscious application of
mind and record findings supported by reasons on all issues and
contentions. The counsel also brought to notice of this Court
Para No.15, wherein it is observed that a first appeal under
Section 96 of the CPC is entirely different from a second appeal
under Section 100 and Order XLI, Rule 31 of the CPC provides
the guidelines for the appellate Court to decide the matter. The
counsel relying upon this judgment would vehemently contend
that the First Appellate Court has not properly exercised the
appellate jurisdiction.
17. The counsel also relied upon the judgment in
MURTHY AND OTHERS VS. C. SARADAMBAL AND OTHERS
reported in (2022) 3 SCC 209 and brought to notice of this
Court Para Nos.62 and 63, wherein the Apex Court has discussed
as to how the regular first appeal is to be disposed of by the
appellate Court/High Court and counsel also would contend that
the Apex Court also observed that, Rule 31 mandates that the
judgment of the appellate Court shall state the points for
determination, the decision thereon, the reasons for the decision
and where the decree appealed from is reversed or varied, the
relief to which the appellant is entitled.
18. Learned counsel appearing for the appellants,
referring all these judgments would vehemently contend that,
first of all, the plaintiff has not complied with Section 16(c) of
the Specific Relief Act and both the Courts failed to consider the
material on record and the First Appellate Court also not
exercised the appellate jurisdiction in a proper perspective.
Hence, it requires interference at the hands of this Court.
19. Per contra, learned counsel appearing for the
caveator- respondent No.1 would vehemently contend that the
defendant No.2 is none other than the brother of the plaintiff.
The counsel would submit hat, in terms of the sale agreement,
three months time was fixed to execute the sale deed. The
defendant No.2 was having the knowledge of sale in favour of
the plaintiff. The counsel also would submit that, before the
period of three months mentioned in the sale agreement, legal
notice was issued and in the legal notice, directed the defendant
No.1 to come and execute the sale deed. The evidence is very
clear that, she went to Sub-registrar office in terms of the legal
notice issued in the month of December itself and defendant
No.1 did not turn up. The plaintiff specifically pleaded in Para
No.5 of the plaint that, she was ready and willing to perform her
part of contract and in Para No.10 also, pleaded that she was
always ready and willing to perform her part of contract. Now,
the counsel cannot contend that no pleading and proof with
regard to the same and the very issuance of the legal notice
itself is a proof with regard to readiness and willingness and
notice was issued within three months and hence, cannot
contend that the plaintiff was not always ready and willing to
perform her part of contract.
20. The counsel also would contend that, in the written
statement, there is total denial of the execution of the sale
agreement, including the signature and it is contended that, sale
agreement was forged. The son of the defendant No.1 filed the
written statement and in Para No.4, there is an admission
regarding execution of the sale agreement. The very contention
that the sale agreement has not been proved cannot be
accepted. When there is an admission regarding execution of
the sale agreement in the written statement itself, they cannot
find fault with the same.
21. The counsel would vehemently contend that, P.W.1
is none other than the son of the plaintiff and he had the
knowledge about the sale transaction and hence, there was no
bar in examining the power of attorney holder. The counsel also
would submit that, the witnesses are also examined in support of
the case of the plaintiff i.e., P.W.2, the scribe, P.W.3, attestor
and P.W.4 is the son of the attestor since, the attestor was no
more. The P.W.1 has given reason for non-examination of his
mother and having given the reason that he was very much
present at the time of sale transaction and hence, cannot find
fault with the same and the P.W.1 had complete knowledge of
the transaction. In the cross-examination, there is a total denial
and no suggestion in the cross-examination with regard to the
capacity is concerned. P.W.1 has not tendered himself for cross-
examination since, he is also an attesting witness to the sale
deed executed in favour of defendant No.2 by the defendant
No.1. The scribe has died and hence, his son has been
examined. D.W.1 has also denied the signature and does not
say anything that signature is forged, though took the specific
defence.
22. The counsel would vehemently contend that
defendant No.1 has not entered into the witness box and son of
the defendant No.1 has entered into the witness box and in the
cross-examination, he categorically admitted with regard to the
previous litigation and they are not in good terms with the
plaintiff and though denies the signature but, identifies the same
and hence, the same is marked as Ex.P1(a). D.W.2 also in the
cross-examination admits the signature of defendant No.1.
D.W.3 also admits the signature of defendant No.1 and both the
Courts have taken note of the fact that though sale deed was
executed subsequent to the issuance of legal notice, but there
was no reference of earlier sale agreement. It is their claim
that, earlier there was a sale agreement prior to execution of
sale deed by defendant No.1 in favour of defendant No.2 and the
sale deed does not disclose the same.
23. The counsel would vehemently contend that the Trial
Court has given reasons and the finding is also based on the
material on record and no substantial question of law arises for
consideration before this Court and the First Appellate Court has
also given reasons and in elaborate discussed regarding entering
into sale agreement and also the fact that nominal sale deed was
executed in favour of his relative and the amount received is
also nominal compared to the sale consideration mentioned in
the document of sale agreement executed in favour of the
plaintiff and in the sale deed and both the Courts have taken
note of the conduct of the parties.
24. In reply to the arguments of the learned counsel for
the caveator-respondent No.1, learned counsel for the appellants
reiterate that Section 16(c) of the Specific Relief Act has not
been considered by the First Appellate Court and both the Courts
failed to consider Section 16(c) of the Specific Relief Act and
after four months, the suit is filed and discretion is not properly
exercised by the Trial Court as well as the First Appellate Court.
Hence, this Court has to frame substantial question of law.
25. Having heard the respective counsel and also on
perusal of the material available on record, the following
substantial questions of law arise for consideration before this
Court:
(1) Whether both the Courts have committed an
error in granting the relief of specific
performance without considering the pleading
and proof of compliance of Section 16(c) of the
Specific Relief Act?
(2) What order?
Point No.(1)
26. Having considered the material on record, the
judgments relied upon by the learned counsel for the appellants
(supra) and the principles laid down in the said judgments, there
is no dispute with regard to the fact that, while granting the
relief of specific performance, the basic ingredient is readiness
and willingness in obtaining the sale deed, apart from the very
execution of the sale agreement and whether the discretion has
been exercised judiciously. Keeping this question of fact and
question of law in mind, this Court has to consider the material
on record.
27. It is the contention of the plaintiff that the defendant
No.1 has executed the sale agreement in favour of the plaintiff
on 14.10.1999 for a sale consideration of Rs.63,000/- and paid
earnest money of Rs.5,000/- and balance payable is Rs.58,000/.
It is also not in dispute that, in the sale agreement, three
months time is stipulated to complete the sale transaction.
Within a period of three months, the plaintiff had caused the
legal notice against the defendants in terms of Ex.P3 i.e., on
24.12.1999. The postal receipt is produced as Ex.P4 and un-
claimed RPAD cover is produced as Ex.P5. It is also not in
dispute that copy of the sale deed is marked as Ex.P6, copy of
legal notice as Ex.P7, postal receipts as Exs.P8 and P9, un-
claimed RPAD cover as Ex.P10 and acknowledgement as Ex.P11.
28. The main contention of the defendants is that, no
such sale agreement was executed in favour of the plaintiff. It is
contended that the signature of defendant No.1 is forged and
document is concocted and in order to substantiate the same,
the defendant No.1 has not entered into the witness box and the
person, who contend that her signature is forged, ought to have
appeared before the Court and given the evidence and she fails
to appear before the Court and an issue is also framed whether
the defendant proves that the plaintiff has forged the signature
of defendant No.1 on the alleged agreement of sale and the
document of Ex.P2-sale agreement was not sent to the
Handwriting Expert to verify as to whether the signature is
forged. Apart from that, the defendant Nos.2 and 3, who have
been examined on behalf of the defendants have admitted the
signature of defendant Nos.1 and 2 and the Trial Court also,
while appreciating the material on record with regard to the
execution of the sale agreement, considered the material on
record i.e., Ex.P2-sale agreement and also relied upon the
evidence of P.W.2, who was present at the time of negotiation of
agreement of sale and P.W.4, who is the son of the scribe, who
appeared before the Court and deposed that the signature
belongs to his father and identified the same. The evidence of
P.W.2 is that, he accompanied the plaintiff to the house of the
defendant No.1 after two months of negotiation, demanding to
execute the sale deed. The defendant No.1, though agreed to
execute the sale deed at Madhugiri, she did not come to Sub-
registrar office and again, they went to Tumakuru and requested
the defendant No.1 to execute the sale deed but, she demanded
additional amount.
29. The evidence of P.W.4 is also clear that he is having
acquaintance with the signature of his father since, his father is
no more and there is compliance under Section 69 of the
Evidence Act. It is the contention of the learned counsel for the
caveator-respondent No.1 also that P.W.3 is the attesting
witness and he did not subject himself for cross-examination
since he is also signatory to the sale deed executed by defendant
No.1 in favour of defendant No.2. Apart from that, it is also
important to note that, though D.W.1 denied the signature in
Ex.P2-sale agreement, however, the witnesses, who have been
examined on behalf of the defendants as D.Ws.2 and 3
categorically admitted that the signature in Ex.P2 is of defendant
No.1. Hence, the Trial Court having considered the same,
discussed in Para No.21 of the judgment that the signature
marked as Ex.P2(a) is of the signature of the defendant No.1.
When such being the case, the contention of the defendant No.1
that her signature was forged on the agreement of sale does not
hold water. Hence, the Trial Court comes to the conclusion that
sale agreement was executed by defendant No.1 in favour of the
plaintiff.
30. The Trial Court also, in Para No.24 discussed with
regard to the document of Ex.D3-sale agreement, which shows
that, on the date of execution of the sale agreement, the
possession was delivered to the defendant No.2 but, D.W.1 has
deposed that, 8 to 10 days after payment being made by
defendant No.2, sale agreement was executed. But, on that
day, no payment was made. However, contrary to his evidence,
D.Ws.2 and 3 have deposed that, on the date of execution itself,
defendant No.1 has received the advance money and executed
the agreement and also delivered possession. The Trial Court
also, taken note of document of Ex.D4, wherein, there is no
recital of delivery of possession of suit land and in the sale deed
itself, it is mentioned that possession was delivered on the date
of execution of the sale deed. Hence, the Trial Court comes to
the conclusion that there was no any prior agreement before the
sale deed and if there was a sale agreement, the same would
have been mentioned in the sale deed that the amount was paid
and possession was delivered on the date of agreement itself.
Hence, the Trial Court answered issue Nos.1 and 2 as
'affirmative' and issue No.5 as 'negative'.
31. Learned counsel appearing for the appellants would
vehemently contend that, with regard to the readiness and
willingness is concerned, only in one paragraph, while answering
issue No.6, the Trial Court has given the finding that execution
of registered sale deed was postponed and later, demanded for
more sale consideration and therefore, he has issued the legal
notice. But, the fact is that, in the sale agreement, three
months time was stipulated is not in dispute and the fact that
notice was issued before the period of three months is also not
in dispute i.e., on 24.12.1999.
32. It is important to note that, the sale deed was
executed on 01.01.2000 immediately after issuance of the legal
notice and the Court has to take note of the conduct of the
defendant Nos.1 and 2 and the sale deed came into existence
within a span of one week of issuance of legal notice and also
the sale deed in favour of defendant No.2, who is none other
than the relative of defendant No.1. Hence, it is very clear that
plaintiff has proved that within a span of three months of the
date fixed for registration of the sale deed, he has issued the
legal notice i.e., on 24.12.1999 itself. Hence, the very
contention of the learned counsel for the appellants that the
plaintiff was not ready in performing her part of contract and not
complied with Section 16(c) of the Specific Relief Act cannot be
accepted. The Court has to take note of issuance of legal notice
within a period of three months of agreement as well as the
conduct of defendant Nos.1 and 2 and they cannot contend that
Section 16(c) is not complied.
33. The other contention is that the judgment of the
Apex Court in M.M.S. INVESTMENT'S case is not applicable to
the facts of the case on hand and the same cannot be accepted
and no doubt, in the principles laid down in the judgments
referred (supra), the Apex Court has discussed with regard to
Section 16(c) of the Specific Relief Act. In the case on hand,
notice is issued before three months of the specified time as per
Ex.P3 and also sale deed came into existence within a span of
one week. Apart from that, in Ex.P2, sale consideration
mentioned is Rs.63,000/- and an advance amount of Rs.5,000/-
was paid and balance payable is Rs.58,000/- and in terms of the
sale deed in favour of defendant No.2, the sale consideration is
Rs.55,000/-. Hence, it is clear that, it was only a nominal
document of sale deed inter-se between the defendant Nos.1
and 2, who happen to be the relatives. Apart from that, both
the Courts have taken note of the fact that defendant No.2 had
initiated the proceedings against the plaintiff through his wife
and he was having ill-will against the plaintiff and both of them
joined together with an intention to defeat the sale agreement
executed in favour of the plaintiff in terms of Ex.P2 contending
that signature is forged.
34. No doubt, the other contention is that P.W.1 is the
power of attorney holder and he was not having any knowledge,
but, the fact is that he is the son of the original plaintiff is not in
dispute and nothing is elicited in the cross-examination of P.W.1
that he was not having any knowledge about the sale transaction
and also there is no dispute with regard to Ex.D1-sale deed and
relied upon the document of Ex.D3-sale agreement but, with
regard to the terms and conditions of the sale agreement and for
having made the payment, nothing is mentioned in the sale deed
executed in favour of defendant No.2 by defendant No.1 and all
these materials are considered by the Trial Court as well as the
First Appellate Court.
35. The main contention of the learned counsel for the
appellants is also that, the First Appellate Court not considered
the material on record and point for consideration is also framed
by the First Appellate Court whether the finding of the Trial Court
is perverse, illegal, capricious and opposed to law and while
answering the said issue, the First Appellate Court also taken
note of the document of Ex.D2 and also the evidence of P.W.3
for having not tendered for cross-examination and taken note of
the fact that, he is the attesting witness to Ex.P2 and also Ex.D3
and also taken note of evidence of P.W.4, who identifies that the
signature available in Ex.P2 is of his father, who is having
acquaintance with the signature of his father in Ex.P2. The First
Appellate Court also, in detailed discussed with regard to both
oral and documentary evidence placed on record and particularly
in Para No.44, taken note of the contention of defendant No.2
that the defendant No.1 had agreed to sell the suit property on
17.08.1999 contending that, prior to execution of sale
agreement in favour of defendant No.1, there was a sale
agreement and paid advance amount of Rs.5,000/- and also
taking note of the said fact, no such reference in the document
that sale deed was executed in favour of defendant No.2 and the
same is discussed by both the Courts.
36. The First Appellate Court also, taken note of the
contention of preemptory right to sell the property to the
defendant No.2 and no such pleading and evidence as regard to
the said contention of preemptory right and the same is
discussed in Para No.45 of the judgment of the First Appellate
Court and even taken note of the admitted fact that he has filed
the suit in O.S.No.65/1997 against the plaintiff and plaintiff had
also filed the suit in O.S.No.346/1997 against him i.e., the
defendant No.2 and taken note of the earlier ill-will between the
defendant No.2 and the plaintiff and elaborately discussed both
oral and documentary evidence placed on record. Having
considered the same and also considering the principles laid
down in the judgments referred (supra), those judgments will
not come to the aid of the learned counsel for the appellants in
respect of Section 16(c) of the Specific Relief Act.
37. The other contention of the learned counsel for the
appellants that the First Appellate Court has not applied its mind
while exercising its discretion with regard to question of fact and
question of law cannot be accepted. No doubt, the First Appellate
Court has to give finding with regard to both question of fact and
question of law, the same has been considered by the First
Appellate Court, even though no point was formulated with
regard to Section 16(c) of the Specific Relief Act and the Trial
Court also, discussed in detail with regard to the readiness and
willingness. I have already pointed out that, within a period of
three months, as specified in Ex.P2, legal notice was issued and
immediately, the sale deed came into existence which was
executed in favour of defendant No.2 by defendant No.1 and the
Court has to take note of the conduct of the parties and the said
conduct is nothing but to defeat the very sale agreement which
was in existence between the defendant No.1 and the plaintiff.
38. It is also important to note that defendant No.1 took
the specific defence that her signature was forged. But, I have
already pointed out that, D.Ws.2 and 3, who are the witnesses of
defendants categorically admitted the signature of defendant
No.1 and also not made any attempt to prove the fact that
signature of defendant No.1 was forged and the document of
sale agreement was concocted. Hence, I do not find any merit in
the second appeal to reverse the findings of the Trial Court and
the concurrent finding of the First Appellate Court and no
perversity is found in both the Judgments of the Trial Court and
First Appellate Court. Accordingly, I answer Point No.1 as
'negative'.
Point No.2
39. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
In view of dismissal of the appeal, I.A.Nos.1/2019
and 2/2019 do not survive for consideration and the same
stand disposed of.
Sd/-
JUDGE
ST
