Karnataka High Court

Shri Gadigeppa S/O Basappa Pujar vs Shri Iranna Alias Veeranna S/O Ramappa ... on 8 December, 2023

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                                                           NC: 2023:KHC-D:14455
                                                        RFA No. 100516 of 2018
                                               C/W RFA.CROB No. 100036 of 2022



                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                            DATED THIS THE 8TH DAY OF DECEMBER, 2023

                                                BEFORE
                        THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
                          REGULAR FIRST APPEAL NO. 100516 OF 2018 (SP)
                                                  C/W
                               RFA CROSS OBJ NO. 100036 OF 2022


                   RFA NO. *100516/2018
                   BETWEEN:

                   1.     IRANNA @ VEERANNA
                          S/O. RAMAPPA KUMBAR,
                          SINCE DECEASED BY HIS LRS

                   1.(A) SMT. BHARATI
                         W/O. IRANNA @ VEERANNA KUMBAR,
                         AGE ABOUT 50 YEARS,
                         OCC: HOUSEHOLD WORK,

                   1.(B) VINAYAK
                         S/O. IRANNA @ VEERANNA KUMBAR,
                         AGED ABOUT 27 YEARS,
                         OCC: AGRICULTURE,

SAMREEN            1.(C) KUMARI. VEENA
AYUB                     D/O. IRANNA @ VEERANNA KUMBAR,
DESHNUR                  AGED ABOUT 22 YEARS, OCC: STUDENT,
                         ALL ARE RESIDENT OF RAMAPUR VILLAGE,
Digitally signed
                         TQ: HUBBALLI, DIST: DHARWAD.
by SAMREEN                                                            ...APPELLANTS
AYUB DESHNUR
Date: 2023.12.21
13:23:48 +0530     (BY SRI. G.I. GACHCHINMATH, ADVOCATE)

                   AND:

                   1.   SRI GADIGEPPA S/O. BASAPPA PUJAR,
                        AGED ABOUT 59 YEARS,
                        OCC: KSRTC EMPLOYEE,
                        R/O.: RAYAPUR, TALUK: DHARWAD,
                        DISTRICT: DHARWAD.

                                        Corrected vide order dated
                                               15.12.2023

                                                   Sd/-
                                                 (RDHJ)
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                                   RFA No. 100516 of 2018
                          C/W RFA.CROB No. 100036 of 2022



2.   SMT. SHOBHA
     W/O. CHANNABASAPPA PUJAR,
     AGE ABOUT 58 YEARS, OCC: HOUSEHOLD WORK,
     R/O: RAYAPUR, TALUK: DHARWAD,
     DISTRICT: DHARWAD.

3.   KUMARI DIVYA D/O. CHANNABASAPPA PUJAR,
     AGE ABOUT 20 YEARS, OCC: STUDENT,
     R/O: RAYAPUR, TALUK: DHARWAD,
     DISTRICT: DHARWAD.
                                               ...RESPONDENTS

(BY SRI. D.B. KARIGAR, ADVOCATE)


     THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF THE CODE OF CIVIL PROCEDUR, PRAYING THAT, JUDGMENT AND
DECREE DATED 31.08.2018 PASSED BY THE COURT OF THIRD
ADDITIONAL   SENIOR   CIVIL   JUDGE    AND   JMFC,   HUBBALLI,
DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT
MAY KINDLY BE SET ASIDE AND REVERSED, AND THE SIT IN O.S.
NO.60/2017 MAY KINDLY BE DECREED IN FULL WITH COST
THROUGHOUT IN INTEREST OF JUSTICE AND EQUITY.


IN RFA.CROB NO. 100036/2022
BETWEEN:

1.    SHRI GADIGEPPA S/O. BASAPPA PUJAR,
      AGE: 67 YEARS, OCC: RTD KSRTC EMPLOYEE,
      R/O: RAYAPUR, TQ & DIST: DHARWAD-580009.

2.    SMT. SHOBHA W/O. CHANNABASAPPA PUJAR,
      AGE: 47 YEARS, OCC: HOUSE HOLD,
      R/O: RAYAPUR, TQ & DIST: DHARWAD-580009.

3.    KUMARI DIVYA D/O. CHANNABASAPPA PUJAR,
      AGE: 21 YEARS, OCC: STUDENT,
      R/O: RAYAPUR, TQ & DIST: DHARWAD-580009.
                                        ...CROSS OBJECTORS

(BY SRI. D.B. KARIGAR, ADVOCATE)
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                                     RFA No. 100516 of 2018
                            C/W RFA.CROB No. 100036 of 2022



AND:

1.   SHRI IRANNA @ VEERANNA S/O. RAMAPPA KUMBAR,
     SINCE DECEASED BY HIS LRS

1.   SMT. BHARATI W/O. IRANNA @ VEERANNA KUMBAR,
     AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
     R/O: RAMAPUR VILLAGE, HUBBALLI TALUKA,
     DHARWAD DISTRICT-5800024.

2.   VINAYAK S/O. IRANNA @ VEERANNA KUMBAR,
     AGE: 27 YEARS, OCC: AGRICULTURE,
     R/O: RAMAPUR VILLAGE, HUBBALLI TALUKA,
     DHARWAD DISTRICT-580024.

3.   VEENA D/O. IRANNA @ VEERANNA KUMBAR,
     AGE: 25 YEARS, OCC: STUDENT,
     R/O: RAMAPUR VILLAGE, HUBBALLI TALUKA,
     DHARWAD DISTRICT-580024.
                                              ...RESPONDENTS


       THIS RFA CROSS OBJECTION UNDER ORDER 41 RULE 22 R/W

S 151 OF THE CIVIL PROCEDURE CODE, PRAYING TO SET ASIDE THE

IMPUGNED JUDGMENT AND DECREE WHICH IS PASSED AGAINST

THE DEFENDANTS/CROSS OBJECTORS BY THE HON'BLE IIIRD

ADDITIONAL SENIOR CIVIL JUDGE & J M F C, HUBBALLI, IN ITS OS

60/2017 DATED 31.08.2018.



       THIS APPEAL AND CROSS OBJECTION HAVING BEEN HEARD

AND RESERVED ON 29.09.2023, COMING ON FOR PRONOUNCEMENT

OF JUDGMENT, THIS DAY, THE COURT PASSED THE FOLLOWING:
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                                     RFA No. 100516 of 2018
                            C/W RFA.CROB No. 100036 of 2022



                             JUDGMENT

Plaintiff in Original suit has preferred this appeal

being aggrieved and dissatisfied by the judgment and

decree passed in O.S.No.60/2017 dated 31.08.2018 by

the III Additional Senior Civil Judge and JMFC, Hubballi.

2. During the pendency of this appeal, the plaintiff

in original suit died and his legal representatives are

brought on record in the shape of appellant Nos.1(A) to

1(C). Accordingly, cause title came to be amended.

3. Parties to this appeal are referred to as per

their rank before the Trial Court for the purpose of

convenience and to avoid confusion.

4. That original plaintiff i.e., Iranna @ Veeranna

S/o. Ramappa Kumbar filed the suit against defendants

seeking the relief of Specific Performance of agreement of

sale dated 10.04.2007 in respect of suit schedule

properties comprising agricultural lands bearing

R.S.No.16/2 measuring 03 acres and R.S.No.16/3

measuring 06 acres, both situated at Chavaragudda

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Village, Taluka Hubballi, Dist: Dharwad (hereinafter

referred to as `suit schedule properties'), alleged to have

been executed by the defendants in his favour with an

alternative prayer to return the earnest money of

Rs.8,00,000/- together with interest at the rate of 18%

per annum till its realization.

5. It is the case of the plaintiff that, defendant

No.2 is the wife of deceased Channabasappa who is the

own brother of defendant No.1. Defendant No.3 is the

minor daughter of defendant No.2. It is stated that, all

these defendants are the joint owners and in possession

and enjoyment of the suit schedule properties.

6. It is alleged by the plaintiff that, the defendants

wanted to sell the suit schedule properties for their legal

necessity. When the plaintiff approached to purchase the

said properties, defendants agreed to sell the same for a

consideration of Rs.15,00,000/-. The original plaintiff

agreed to purchase the same for the said consideration

amount. As a token, he advanced the money in part

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C/W RFA.CROB No. 100036 of 2022

performance of the contract and paid Rs.8,00,000/- to

defendant Nos.1 and 2. They acknowledged the same.

7. It is further stated that to that effect,

defendants executed agreement of sale on 10.04.2007 in

favor of the plaintiff in the presence of witnesses. At the

time of execution of the said agreement of sale, defendant

No.3 was a minor. Therefore, it was agreed by the

defendants to get the permission of the competent Court

to sell the suit schedule properties. It is also agreed to

get the boundaries fixed. It is alleged that, though there

was an understanding between the plaintiff and

defendants with regard to getting permission from the

competent Court as well as to fix the boundaries, but

defendants, failed to comply the same. They did not

perform their part of contract. There was a repeated

demand by the plaintiff to execute the sale deed by

receiving the balance consideration amount. Therefore, he

wrote a letter on 08.10.2016 calling upon the defendants

to execute the sale deed as per agreement of sale dated

10.04.2007. But defendants did not bother to the said

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letter. Therefore, plaintiff issued legal notice to the

defendants and called upon them to execute the sale deed

by receiving the balance sale consideration amount. The

plaintiff was and is ever ready to perform his part of

contract. But, inspite of that, defendants did not execute

the sale deed. Therefore original plaintiff filed the suit

before the Trial Court seeking the aforesaid relief.

8. Pursuant the suit summons, all the defendants

appeared before the Trial Court. It is contended by

defendant Nos. 1 and 2 that, they are the owners of suit

schedule properties. But deny that they have executed the

agreement of sale in the manner stated by the plaintiff. It

is further contended that suit schedule properties are

ancestral joint family properties of defendant Nos.1 to 3.

9. A specific contention is taken by the defendants

that these defendant Nos. 1 and 2 borrowed a loan of

Rs.5,000/-(Rupees Five Thousand) from the plaintiff.

They agreed to repay the same. Subsequently it was

repaid to the plaintiff. But the plaintiff taking advantage

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of the situation created an alleged agreement of sale to

knock off the suit valuable schedule properties. Therefore,

as there is no agreement of sale, question of claiming

relief of specific performance by the defendants do not

arise at all. Therefore, these defendant Nos.1 and 2

prayed to dismiss the suit.

10. On attaining the majority, defendant No.3

independently contested the suit and filed written

statement denying all the assertions made in the plaint. It

is her contention that the suit schedule properties are the

ancestral joint family properties and she has got share in

the said properties. There was no occasion for the

defendant Nos.1 and 2 to raise the loan from the plaintiff

and also there was no legal necessity for defendants to

raise the loan. It was a minor's properties, there was no

intention to sell the suit schedule properties. The plaintiff

with an intention to harass the defendants has filed the

false suit against defendants which is opposed to the

provision of the Indian contract Act. Therefore, defendant

No.3 also prayed to dismiss the suit.

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C/W RFA.CROB No. 100036 of 2022

11. Based upon the aforesaid rival pleadings of both

the parties, learned Trial Court framed the following

issues.

"Issues

1. Whether the plaintiff proves that the defendants being owners of suit properties agreed to sell them in his favour for Rs.1,50,000/- per acre for their legal and bonafide necessity and received Rs.8,00,000/- as earnest money from him and executed a deed of agreement of sale on 10.04.2007 in his favour?

2. Whether the plaintiffs prove that he is ever ready and willing to perform his part of contract?

3. Whether the suit of the plaintiffs is filed within limitation period?

prove that they had received Rs.50,000/- from the plaintiff and handed over a blank stamp paper duly signed by them as a security for repayment of money and repaid said amount, but plaintiff has created blank bond paper as agreement of sale?

5. Whether defendant No.3 proves that suit properties are ancestral and joint family

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properties and defendants Nos.1 and 2 have no absolute right to sell the suit properties in favour of the plaintiff?

6. Whether the plaintiff is entitled for the relief of specific performance of contract or for refund of money with interest as prayed?

7. What order or decree?"

12. Before the Trial Court, to substantiate the case

of the plaintiff, he himself entered the witness box as PW.1

and also examined two witnesses to prove the agreement

of sale in the shape of P.Ws.2 and 3 by name Shri.

Hanamanthappa S/o. Bhemappa Boomannavar and Shri.

Vijayanand S/o. Mohanarao Pai respectively. On behalf of

the plaintiff, EX.P.1 to P.13 were marked.

13. As against this evidence of the plaintiff,

defendant No.1 entered the witness box as DW.1. On

behalf of the defendants Ex.D.1 mutation register was

marked.

14. The learned Trial Court on hearing the

arguments and on perusing the evidence placed on record

by both plaintiff and defendants answered issues Nos.1 to

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3 and 5 in the affirmative. Issue No.6 partly in the

affirmative and issue No.4 in the negative and ultimately

decreed the suit of the plaintiff in-part rejecting the claim

of Specific Performance of Contract and directed the

defendants to refund the earnest money of Rs.8,00,000/-

(Rupees Eight Lakh Only) together with interest at the rate

of 6% per annum from the date of filing till its realization.

15. This is how the appellant-plaintiffs are before

this Court now challenging the said judgment after demise

of their father.

16. The record of this case do further reveal that,

defendants also have filed the RFA Crob.No.100036/2022

challenging the findings of the Trial Court with regard to

the refund of earnest money directed by the Trial Court.

As the appeal and cross objection arise out of same

judgment, counsel for both the side advanced their

arguments in both appeal and cross objection together.

Arguments

17. It is argued by the counsel for the appellants in

RFA No.100516/2018 that, though the original plaintiff

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was ever ready to perform his part of the contract by

paying the balance consideration amount, but the Trial

Court without considering the evidence placed on record

has rejected the claim of the plaintiff with regard to the

specific performance of contract. The Trial Court has held

that, the agreement of sale is duly proved in accordance

with law. But it is a jurisdictional error being committed

by Trial Court in rejecting the claim of the plaintiff with

regard to specific performance of contract. There is no

violation of any of the conditions of agreement of sale.

According to the plaintiff, he has sold another property at

Mulavi for a consideration of Rs.13,50,000/-(Rupees

Thirteen Lakhs Fifty Thousand Only) and invested the

same to purchase the suit schedule properties. Much

hardship has been caused to the plaintiff because of this

rejection. When the plaintiff has proved the agreement of

sale, the Trial Court ought not have directed to refund the

earnest money with interest at the rate of 6% per annum.

Further there is no proper reason assigned by the Trial

Court for refund of earnest money and rejecting the claim

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of the plaintiff with regard to specific performance of

contract. It was a willful default committed by the

defendants in performing their part of contract. There are

no proper reasons being assigned by the Trial Court in

rejecting the claim of the plaintiff. A presumption with

regard to the agreement of sale is not properly drawn by

the Trial Court. It is submitted that, the grounds so

mentioned in the appeal may be read as part and parcel of

his arguments. For all these reasons, it is prayed by the

learned counsel for plaintiff/appellant to allow the appeal

and set aside the impugned judgment.

18. As against this submission, learned counsel for

respondent/cross objector with all vehemence submits

that, first of all there is no financial capacity to enter into

agreement of sale by the plaintiff with the defendants. As

the defendants have borrowed a loan of Rs.5,000/-

(Rupees Five Thousand Only) from the plaintiff, taking

advantage of the situation, the plaintiff has created the so

called agreement of sale in the year 2007. The defendants

have paid the said amount to the plaintiff. Despite that

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though so called agreement of sale was of the year 2007,

but the suit was filed in the year 2017. This itself goes to

establish that the plaintiff has not approached the Court

with clean hands. To have an unlawful gain based upon

the false and fabricated documents, the original plaintiff

had filed the suit and now the legal representatives are

prosecuting the appeal.

19. It is submitted that, the very refund of the

earnest money ordered by the Trial Court is against the

pleadings of the defendants and evidence so placed on

record. There was no occasion for the defendants to sell

the suit schedule properties and there was no payment of

Rs.8,00,000/-(Rupees Eight Lakhs Only) by the plaintiff

way back in the year 2007 in the manner alleged by

plaintiff.

20. Therefore, it is submitted that, the very

direction to refund the earnest money by the Trial Court is

illegal. Therefore, the defendants are constrained to file

the cross objection challenging the said findings. In

support of respective submissions of both the sides, both

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C/W RFA.CROB No. 100036 of 2022

the counsels relied upon various pleadings, evidence both

oral and documentary.

21. I have given my anxious consideration to the

arguments of both the side. Meticulously perused the

record.

22. In view of the rival submissions of both the

side, the following points would arise for my

consideration:-

i) Whether the Trial Court has committed any illegality or perversity in denying the relief of Specific Performance of agreement of sale and the order regarding refund of earnest money, requires interference by this Court?

ii) What order?

23. It is a suit for specific performance of a contract

filed by the original plaintiff. As per the pleadings of the

plaintiff, defendants being the owners of the suit schedule

properties agreed to sell the same to the plaintiff at the

rate of Rs.1,50,000/- per acre. They had their own legal

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C/W RFA.CROB No. 100036 of 2022

and bona fide necessities. Towards part of performance of

the contract, plaintiff paid Rs.8 lakhs to the defendant as

on the date of agreement i.e. on 10.04.2007. Defendants

1 and 2 even on behalf of defendant no.3 executed the

agreement of sale on 10.4.2007 itself. It was agreed

between both plaintiff and defendants that, as defendant

no.3 was minor at the time of agreement, her right, title

and interest is involved, therefore, defendant nos. 1 and 2

had to obtain the permission of the Court under the

provisions of Guardians and Wards Act and execute the

sale deed in favour of original plaintiff. Though it was

agreed by the defendant nos. 1 and 2 to get the

permission of the Court but, they have not obtained. It is

the case of the plaintiff that, he was ever ready and willing

to perform his part of contract.

24. Whereas, defendants 1 to 3 specifically contend

that they had just received Rs.5,000/- from the plaintiff

and handed over the blank papers signed by them. They

signed the blank document by way of security for having

borrowed loan from the plaintiff. They have repaid the

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C/W RFA.CROB No. 100036 of 2022

same. Therefore, it is alleged by the defendants that,

there was no occasion for the defendants to sell the suit

schedule property. It is further contended by them that,

suit schedule properties are joint family properties of the

defendants as their ancestors owned them. Defendants 1

and 2 have no absolute right to alienate the suit schedule

property in favour of the plaintiff.

25. So far as oral evidence adduced by the plaintiff,

he reiterates his pleadings in his evidence. He relies upon

Ex.P1 to P9 in support of his examination-in-chief. He has

been directed with severe cross-examination. As per his

evidence, he is the resident of Noolvi village. He is residing

near his sister's house in his native place and he is not an

agriculturist. He was running a flour mill and also doing

business. Except the said business, he was not doing any

other business. He states that, he has a property

measuring 3 acres and 24 guntas in Noolvi village in

Sy.No.262. As he could not grow the crops, therefore he

came to Ramapura and started doing business.

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C/W RFA.CROB No. 100036 of 2022

26. It is further stated by him that, suit schedule

properties Item Nos. 1 and 2 are the ancestral properties

of defendants. He further deposed that, defendant no.1

has a wife and five children. He has not enquired about

defendant nos.1 and his wife.

27. He admits with regard to averments made with

reference to agreement of sale. Within five months of

coming to Ramapura village, he started a flour mill

business through which, he used to earn Rs.400 to 500

Per day. Out of the said income, he used to maintain his

family consisting of his wife and children. As children were

studying, so whatever income he derived from his

business, he used to spend money and maintain the

family.

28. For the first time, before the Court without any

pleadings, PW.1 states that, by selling his 6 acres of land

for Rs.13,50,000/-, he used to maintain his family and

spent money towards education of his children. He has got

three brothers and sale proceeds are divided between

himself and his brothers. He has got Rs.5 lakh deposit in

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C/W RFA.CROB No. 100036 of 2022

Bank and he got the said amount by doing the business

and he has produced pass book to show that the same has

been deposited into the bank by him.

29. As stated supra, there is no evidence placed on

record by the plaintiff that, he has really deposited Rs.5

lakh in the Bank out of the sale proceeds by selling landed

property measuring 6 acres of land. He further states that,

he does not know how much money he has deposited in

the Bank.

30. Further, he states that, defendant no.3 was

minor aged 7 years as on date of agreement i.e. on

10.4.2007. Therefore, defendant nos. 1 and 2 wanted to

sell the property without waiting to get the permission of

the Civil Court to sell the property of the minor. He denies

suggestion that, as the defendants have received loan of

Rs.50,000/-from him therefore, they executed the sale

agreement. In fact, according to him, it is a security deed.

It is suggested that, defendant No.1 has paid Rs.50,000/-

to the plaintiff when plaintiff has come to his house. This

suggestion is denied by PW.1. To prove about selling of

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family properties for the aforesaid consideration,

depositing the share in his favour, no document is

produced. It is the bald say of the plaintiff without any

proof.

31. PW.2 Hanamanthappa Bhumannavar and PW.3

Sri Vijayanand Pai being the signatories to Ex.P1 had come

before the trial Court and deposed that, it was agreed

between plaintiff and defendants to execute the sale deed

for consideration of the properties at the rate of

Rs.1,50,000/- per acre. Accordingly, on 10.4.2007,

advance sale consideration of Rs.8,00,000/- was paid to

defendants. It was agreed to pay balance sale

consideration of Rs.5,50,000/- at the time of execution of

sale deed. They identify their signature on Ex.P3. They

have been cross-examined at length.

32. Though these PWs 2 and 3 were cross-

examined by the counsel for defendant, they are

consistent with regard to execution of document by

defendants 1 and 2. It is stated that, these persons were

present at the time of execution of agreement of sale. It

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is the specific defence of defendants that, they had no

legal necessity and had no occasion to enter into

agreement of sale with the plaintiff and they never

received Rs.8 lakhs.

33. Learned trial Court based on the evidence of

PWs. 1 to 3, pleadings and documents, has come to the

conclusion that, plaintiff was able to prove the execution of

agreement of sale marked at Ex.P3. But as per the

defence of defendants, it was just a security deed for

having borrowed the loan from the plaintiff.

34. In the light of these rival contentions, now we

have to ascertain that, was it a money transaction

between plaintiff or agreement of sale?

35. So far as documentary evidence is concerned,

PWs.2 and 3 are the signatories to Ex.P.1. PW.1 and

defendant nos. 1 and 2 also have put their signatures on

the said document. PWs.2 and 3 have identified their

respective signatures. While marking Ex.P3, no objections

were raised by the defendants. That means they admit

their signatures on Ex.P3 but, they contend that as they

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received Rs.50,000/- from the plaintiff as loan amount, for

that, by way of security, they have signed the document.

They deny the contents of Ex.P3. According to them, they

have not executed any agreement of sale as alleged by

the plaintiff.

36. Ex.P4 is letter issued by the plaintiff to the

defendants dated 18.10.2016. Exs.P5 and 6 are the postal

receipts. Ex.P7 is the legal notice issued to them to

execute the sale deed. Ex.P8 and P9, the postal

acknowledgements. These documents are not disputed by

the defendants.

37. On scrupulous reading of the evidence placed

on record by the plaintiffs and defendants as stated supra,

defendant nos. 1 and 2 have not obtained the permission

from the Court to sell the schedule properties owned by

the minor i.e. defendant no.3. It is on record that,

defendants made an attempt to get the permission from

the Civil Court. To prove the same, plaintiff has produced

Ex.P10, certified copy of the petition filed under Sections 8

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and 9 of the Guardians and Wards Act seeking permission

to sell the properties of minor.

38. In this petition, it was recited that, Smt.Shobha

the mother of defendant No.3 was representing her minor

daughter Kumari Divya has filed the petition seeking

permission to sell the minor's property. They have the

financial difficulty. Therefore, they want to sell the

property of the minor. The allegation made in the plaint

averments do establish that, defendant no.2 sought

permission of the Court to sell the schedule property but,

till date, no permission was obtained by her.

39. Ex.P11 is the certified copy of Order Sheet

maintained by in the Guardian and Wards Court in G & WC

No.18/2007 on the file of Prl.Civil Judge (Sr.Dvn.),

Dharwad. It reveals that, said G & WC petition came to be

dismissed for default by the Court as per the orders dated

08.07.2010. That means even after dismissal of the said

petition, no steps have been taken by defendant nos. 1

and 2 to get it restored.

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40. It is argued by the counsel for defendants that,

as there was no intention to sell the schedule property

therefore, the said petition was not prosecuted even after

its dismissal. For this, there is no answer given by the

plaintiff.

41. The defendants were examined as DWs. 1 and

2. They have reiterated the contentions in the written

statement. It is their specific contention that, there was no

occasion for the defendants to sell the schedule property

and no such agreement of sale as per Ex.P3 was executed

as alleged by the plaintiff. It was blank stamp paper and

on that document they borrowed loan of Rs.50,000/- from

the plaintiff. To that effect, they have executed the said

documents as security deed.

42. DW.2 has been cross-examined by the plaintiff

at length. He identifies the signature of defendant no.2 on

the said document. DW.2 is none else than defendant

no.3-Divya Channabasappa Pujar in the suit. After

attaining the majority, she entered the witness box and

stated that, the properties are the joint family properties

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and they have no intention to sell the schedule properties.

According to her evidence, whatever the transaction

entered in between the plaintiff and defendants nos. 1 and

2 is not an agreement of sale but, it is just a security deed

for having obtained loan. She has been cross-examined by

the counsel for the plaintiff. She has pleaded ignorance

regarding Ex.D1 mutation entry which is standing in the

name of family.

43. In the case on hand, when the plaintiff seeks

relief of specific performance, title of the defendants who

alleged to have executed agreement of sale have to be

established. It was minor's property to some extent.

Though permission was sought by way of petition, it was

dismissed for default. No further steps were taken to get it

restored. Defendant no.3 on attaining majority, has filed

her pleadings and stated in her evidence that, she has no

intention to sell the family properties. It is for the plaintiff

to prove that, he is entitled for such relief. Thus, as

matter of right, plaintiff is not entitled for such

discretionary relief.

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44. The alleged agreement of sale deed is dated

10.4.2007. But, the suit was filed in the year 2017 i.e.

after lapse of more than 10 years. No permission was

obtained from the Court to sell the minor's property. At

the time of agreement of sale, no possession of the

scheduled property was handed over to the plaintiff

towards part performance of the contract.

With regard to financial capacity of plaintiff:

45. As per the evidence of plaintiff, he was engaged

in Flour Mill business and earning Rs.400 to 500 per day.

He used to maintain his family comprising of his wife and

two children. He has to take care of educational expenses

of his children. For the first time before the Court, he has

stated that, he has sold his own land situated at Noolvi

village for a consideration of Rs.5,00,000/-. He has

deposited his share in the Bank. The said amount was

withdrawn by him to meet the financial expenses as well

as education expenses of his children i.e. whatever

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received by sale of his own property was utilized by him

for his family necessity.

46. He says that, he has paid Rs.8 lakhs to the

plaintiff. In view of the evidence of plaintiff, whether he

had any financial capacity to pay Rs.8,00,000/- to the

defendants, except his self-serving evidence, coupled with

evidence of PWs.2 and 3, there is no evidence. From

where he collected the said Rs.8,00,000/- to pay the same

to the defendants is not explained. When he was under

obligation to maintain his family by his meager business

income and also meet the educational expenses, how he

collected the said Rs.8,00,000/- and paid is a mystery. So

also, as per his evidence, he has sold his family property

for Rs.5,00,000/- only. The said sale proceeding was

divided amongst his brothers. What was his share and how

much he contributed and from where he pulled an amount

to the extent of Rs.8,00,000/- is not explained by him. In

the absence of his proof of financial capacity to pay the

said amount to defendant Nos.1 and 2, his pleadings and

evidence cannot be accepted. When it is a specific stand of

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defendants that they executed the document as security

deed for having borrowed loan of Rs.50,000/- from the

plaintiff, is more probable than the case of the plaintiff.

47. The defendants have filed cross-objection

denying receipt of Rs.8 lakh. They are opposing findings of

the learned trial Court on the issue of receipt of 8 lakh. In

view of evidence placed on record by both the side, it can

be stated that receipt of advance sale consideration as per

Ex.P3 is not duly proved in accordance with law.

48. In the absence of such evidence on record, as

rightly contended in the written statement and cross-

objections to this appeal, the version of the defendants is

to be accepted by holding that, they must have executed

the so called document alleged by the plaintiff not as

`agreement of sale' but in fact it is a `Security deed'.

49. Now the question comes that, by utilizing the

said document, whether plaintiffs are really entitled for

equitable, discretionary relief under the Specific Relief Act.

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In the background of discussion made above, as it is held

that, it is a security document executed by the

defendants, the question of considering the grant or

refusal of the relief of specific performance do not arise at

all. However, the law on the subject is very much made

clear in the following judgments.

50. In the judgment of Hon'ble Supreme Court in

Zarina Siddiqui vs. A.Ramalingam alias R. Amarnathan

(2015) 1 SCC 705 it is held as under:

"It is well settled that remedy for specific performance is an equitable remedy. The Court while granting decree of specific performance exercises its discretionary jurisdiction. Section 20 of the Specific Relief Act specifically provides that the Court's discretion to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with sound and reasonable judicial principles."

51. Thus, on reading the principle laid down in the

said judgment of the Apex Court, it is clear that to grant

decree of specific performance is discretionary but, not

arbitrary and the discretion must be exercised in

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accordance with sound and reasonable judicial principles.

Thus, keeping in mind the conduct of the parties, exercise

of equitable discretion has to be exercised by the trial

Court. There is execution of document in the year 2007.

The suit was filed in the year 2017. But, the said issue is

not proved by the plaintiffs. Defendants have executed the

security document for having borrowed loan of

Rs.50,000/-only. They contend that, by practicing fraud on

the defendants, the plaintiff had obtained their signature

and styled it as "agreement of sale" though it was a

security deed. It is their contention that, they have put

their signature towards the loan which they borrowed from

the plaintiff. To say that, plaintiff really advanced Rs.8

lakhs, no document is produced.

52. More so, defendant no.2 has come before the

Court contending that there was no intention to sell the

suit schedule property. Unless all the family members

being co-parceners give consent for selling the ancestral

property, defendant Nos.1 and 2 alone cannot take a

decision to sell the properties. Therefore, in view of these

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factual features, there was no authorization given to

defendant nos. 1 and 2 to sell the schedule properties.

53. The Hon'ble Apex Court in catena of judgments,

have held with regard to grant of relief of specific

Performance of the contract as it is a discretionary relief to

be granted by the Court.

54. Way back in 1973 in M.L.Devendar Singh and

Others vs. Syed Khaja (1973 (2) SCC 515), the Hon'ble

Apex Court while analyzing the provisions contained in

Sections 10, 14, 22 and 23 of the Specific Relief Act, 1963

as well as corresponding provisions viz., Sections 12, 20,

21 and 22 of the specific Relief Act, 1877, has held that,

Courts are not bound to grant specific performance merely

because it is lawful to do unmindful of equities to be

balanced and despite serious inequities that may

necessarily result by granting the same. That means

discretionary relief granted by the Court in a matter where

the plaintiffs are entitled for the said relief.

55. Further, in (2010) SC 717 in the case of

Laxman Tatyaba Kankate and another vs. Taramati

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Harischandra Dhatrak, the Hon'ble Apex Court held that

the conduct of the parties, reiterated, plays an important

role. In the absence of specific evidence, it is held that,

trial Court has to draw adverse inference. If the aforesaid

principles are applied to the facts of the present case, in

the absence of specific evidence with regard to financial

capacity, the argument of plaintiffs cannot be accepted.

56. Under the Indian law, when a party complains

of the breach of a contract, it may typically seek recourse

to two distinct sets of remedies. Firstly, an aggrieved party

may claim damages for, amongst other things, placing

itself pecuniarily in the same position as if the alleged

breach never took place and the contract subsisted.

Secondly, the aggrieved party may claim specific

performance or seek injunctive relief to prevent the breach

of the contract. The remedy of damages is covered under

the Contract Act, 1872 while reliefs such as specific

performance and injunctions are governed by the Specific

Relief Act, 1963. Specific performance constitutes an

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equitable remedy granted by a court to uphold the

contractual commitments among the parties.

57. Learned trial Judge, after evaluation of the

evidence adduced by the plaintiff and defendants has

come to the conclusion that:

"....the contract being the integrated one, the conditions mentioned therein as regards obtaining the necessary permission from the civil court relating to minor's share was an essential term for execution of the contract and since such permission had not been granted, the entire contract failed and in view of not obtaining necessary certificate from competent court under Section 8 of Hindu Minority and Guardianship Act, 1956 for the purpose of selling the land on behalf of minor /defendant No.3, the entire contract is unenforceable against the defendants. However, considering that the defendant no.3 was minor at the time of execution of the agreement of sale and in view of unenforceable contract, though due execution of the agreement is proved, it will meet the ends of justice if a decree for refund of earnest money so paid by them is passed."

58. The defendants have filed their counter claim by

challenging the finding on the refund of earnest money. It

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is their contention that, they have received Rs.50,000/- as

loan. They have repaid it. To say that they have repaid

Rs.50,000/-, except the self-serving evidence of DWs.1

and 2, no evidence is placed on record. As pleaded and

spoken by defendants, they have borrowed Rs.50,000/-

and by way of security, have executed the said document

which was misused by the plaintiffs styling it as agreement

of sale. Thus, they admit about receipt of Rs.50,000/- but,

no evidence is placed on record to show about its

repayment. Thus at the most, plaintiffs are entitled for the

said Rs.50,000/- together with interest at 6% p.a. from

the date of execution of Ex.P1 till its realization from the

defendants.

59. If all the above factual features are put

together, it can be stated that trial Court has committed

an error in granting relief for refund of Rs.8,00,000/-. It

ought to have ordered to refund Rs.50,000/-with interest.

60. To this extent, appeal filed by the appellant

succeeds in part and cross objections so filed by

defendants deserves to be allowed and order for refund of

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Rs.8,00,000/- ordered by the trial Court is liable to be set

aside. Accordingly, the point for consideration are partly

answered in the affirmative. Resultantly, I pass the

following:

ORDER

(i) RFA No.100516/2018 is dismissed.

(ii) RFA.CROB 100036/2022 is allowed in-part.

(iii) Judgment and Decree passed in OS No.60/2017 by the III Addl. Senior Civil Judge and JMFC, Hubballi, is hereby set aside in part. Defendants are hereby directed to pay Rs.50,000/- to plaintiffs with interest at the rate of 6% p.a. from the date of Ex.P1 till its realization within one month from the date of decree.