Krishnegowda Y N vs Shivashankar
2023 Latest Caselaw 7409 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 31ST DAY OF OCTOBER, 2023

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  R.S.A. NO.787/2018 (SP)
BETWEEN:

KRISHNEGOWDA Y.N.
S/O LATE NINGEGOWDA
AGED ABOUT 53 YEARS
R/AT CHIKKANAHALLI VILLAGE
HALEKOTE HOBLI
H.N. PURA TALUK
HASSAN-573 211

ALSO RESIDING AT:
DOOR NO.3, 1ST MAIN ROAD,
D-CROSS, GURUGUNHTE PALYA
YASHWANTHPURA
BANGALORE-560 022                             ... APPELLANT

             (BY SRI H.MANJUNATH, ADVOCATE)
AND:

1.     SHIVASHANKAR
       S/O SHIVAPPA
       AGED ABOUT 37 YEARS
       R/AT SEETHARAMANJANEYA
       TEMPLE ROAD
       UTTARA BADAVANE
       HASSAN-573 116

2.     LOKESH
       S/O SHIVAPPA
       AGED ABOUT 34 YEARS
                              2



     R/AT SEETHARAMANJANEYA
     TEMPLE ROAD
     UTTARA BADAVANE
     HASSAN-573 116                         ... RESPONDENTS

            (BY SRI YADUNANDAN N., ADVOCATE)


     THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 07.03.2018
PASSED IN R.A.NO.15/2017 ON THE FILE OF THE 5TH
ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 17.12.2016 PASSED IN O.S.NO.10/2014
ON THE FILE OF THE SENIOR CIVIL JUDGE, HOLENARASIPUR
AND ETC.


    THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON    26.10.2023 THIS  DAY, THE   COURT
PRONOUNCED THE FOLLOWING:


                     JUDGMENT

This second appeal is filed challenging the judgment

and decree dated 07.03.2018 passed in R.A.No.15/2017 by

the V Additional District and Sessions Court, Hassan.

2. The parties are referred to as per their original

rankings before the Trial Court to avoid confusion and for

the convenience of the Court.

3. The factual matrix of the case of the plaintiffs

before the Trial Court is that the defendant has expressed

his wish to sell the suit schedule property and the plaintiffs

have agreed to purchase the suit schedule property. Hence,

on 28.10.2013, the defendant has executed an agreement

of sale to an extent of 29 guntas for sale consideration of

Rs.5,80,000/- by receiving an advance amount of

Rs.10,000/- and also agreed to receive the balance sale

consideration of Rs.5,70,000/- at the time of registration

and sale deed which has to be executed within a period of

three months from the date of the agreement. It is the case

of the plaintiffs that when they personally met the

defendant and requested to execute the registered sale

deed, the defendant has given evasive reply. Therefore,

without any other alternative, the plaintiffs issued a legal

notice on 05.12.2013 calling upon the defendant to execute

the sale deed as per the sale agreement. Inspite of receipt

of the notice, the defendant did not execute the sale deed.

Thus, panchayath was held in that regard and in the

pnachayath, the defendant agreed to execute the sale deed

but, later, the defendant has dodged the execution of the

registered sale deed on one ground or the other.

Therefore, the plaintiffs have got issued another legal notice

on 20.12.2014 asking the defendant to execute the

registered sale deed and the defendant got issued a reply

notice refusing to execute the registered sale deed. Hence,

without any other alternative, the plaintiffs have filed the

suit for the relief of specific performance.

4. The defendant appeared and filed the written

statement denying the averments made in the plaint and

contended that it was only a loan transaction and not the

sale transaction. The defendant also taken the contention

that the suit schedule property is an ancestral property and

the defendant alone is not having any right to sell the suit

schedule property. It is also contended by the defendant

that he has personally met the plaintiffs and repaid the

amount of Rs.10,000/- and requested them to handover the

loan agreement but the plaintiffs have not returned the said

agreement but the defendant is at utter surprised that the

said agreement is turned as sale agreement. It is also

contended that present value of the suit schedule property

is Rs.35,000/- per gunta and hence, the defendant could

not have agreed to sell the suit schedule property at the

rate of Rs.20,000/- per gunta.

5. The Trial Court having considered the pleadings

of both the parties, framed the issues and allowed the

parties to lead their evidence. In order to prove the case of

the plaintiffs, 2nd plaintiff examined as PW1 and got marked

the documents at Ex.P1 to P20 and also examined two

witnesses as PW2 and PW3. On the other hand, the

defendant examined himself as DW1 and got marked the

documents at Ex.D1 to D8. The Trial Court having

considered both oral and documentary evidence placed on

record answered Issue No.1 as negative in coming to the

conclusion that the plaintiffs have fraudulently obtained the

signature of the defendant on the document by giving an

amount of Rs.10,000/- as a money transaction and not as a

sale transaction and hence, declined to grant any relief of

specific performance. Being aggrieved by the judgment

and decree of the Trial Court, an appeal was preferred

before the First Appellate Court. The First Appellate Court

on re-appreciation of both oral and documentary evidence

placed on record reversed the finding of the Trial Court in

coming to the conclusion that an agreement of sale was

executed by receiving part sale consideration of

Rs.10,000/- and hence, the Trial Court has committed an

error in holding that there was no agreement and the

plaintiffs have tampered and interpolated the contents of

Ex.P1 and failed to appreciate the documentary evidence.

Thus, reversed the finding of the Trial Court and decreed

the suit of the plaintiffs. Hence, the present second appeal

is filed by the defendant before this Court.

6. The main contention of the counsel for the

defendant/appellant that the First Appellate Court

committed an error in coming to the conclusion that there

was an agreement of sale dated 28.10.2013 and three

months time was fixed to execute the sale deed and notices

were exchanged and specific reply was given with regard to

denial of execution of the sale agreement and it is only a

monitory transaction of loan and Trial Court rightly

dismissed the suit in coming to the conclusion that there

was no agreement of sale and there was an interpolation in

the document and evidence is also not consistent. The

counsel further contend that the plaintiffs came to know

about selling of the property through the villagers, none of

the villagers have been examined. The counsel also would

vehemently contend that negotiation was taken place for 2

to 3 days but same is not established and inspite of the

contradictions in the evidence of plaintiffs' side, the First

Appellate Court failed to take note of the said fact with

regard to the execution of the document. PW1 says that

sale agreement papers were purchased by the defendant

but PW2 and PW3 given contra evidence stating that the

same was purchased by the plaintiffs and these

contradictions have not been considered by the First

Appellate Court. The counsel also contend that notice was

given immediately i.e., almost 1½ months from the date of

the sale agreement though time of three months was fixed

to execute the registered sale deed and the reasoning given

by the First Appellate Court is erroneous and notary register

is not summoned though claims that the same has been

signed by the defendant and only paid an amount of

Rs.10,000/- as advance sale consideration.

7. The counsel in support of his arguments relied

upon the judgment reported in (2022) 7 SCC 1 in the case

of VEENA SINGH (DEAD) THROUGH LR vs THE

DISTRICT REGISTRAR/ADDITIONAL COLLECTRO

(F/R) AND ANOTEHR and brought to notice of this Court

to paragraphs 4, 14, 39, 42, 43, 48 to 62, 66 and 69 and

having brought to notice of this Court the said paragraphs

would vehemently contend that mere execution of sale

agreement is not enough and execution of documentis

necessary to adopt a purposive construction to protect,

facilitate and achieving object of registration. The counsel

relying upon this judgment would vehemently contend that

the Apex Court held that mere signing of the sale deed with

its execution cannot be a ground to grant the relief and

approach is erroneous and cannot be upheld.

8. The counsel also relied upon the judgment

reported in 2023 (1) KLR 121 (SC) in the case of V S

RAMAKRISHNAN vs P M MUHAMMED ALI wherein the

Apex Court held that there must be a specific issue framed

on readiness and willingness on the part of the plaintiff in a

suit for specific performance before giving any specific

finding. But in the case on hand, the First Appellate Court

comes to an erroneous conclusion that need not necessary

to frame the issues and even non-framing of issues will not

come in the way to grant the relief of specific performance.

9. The counsel also relied upon the judgment

reported in 2022 (1) KLR 328 in the case of C S LALITHA

vs T V GOVINDARAJ AND OTHERS and brought to notice

of this Court that when the defendant disputed the very

signature, firstly, the burden is on the plaintiff to prove the

same and the same has not been proved by leading cogent

evidence and the case of the plaintiff regarding very

execution and payment of sale consideration is doubtful and

the same is not on the consensus ad-idem and the plaintiff

had failed to prove that it is a valid contract. The counsel

also brought to notice of this Court to the elaborate

discussion made in this judgment.

10. The counsel also relied upon the judgment

reported in 2023 (1) KLR 413 (SC) in the case of DESH

RAJ AND OTHERS vs ROHTASH SINGH wherein

discussed with regard to recovery of earnest money.Prayer

for refund of earnest money need to be made in plaint,

unless a plaintiff specifically seeks the refund of the earnest

money at the time of filing of the suit or by way of

amendment, no such relief can be granted to him. Hence,

the counsel relying upon this judgment would vehemently

contend that this Court has to set aside the judgment of the

First Appellate Court and consequently, dismiss the suit of

the plaintiff.

      11.    The        counsel   for   the    respondents    in    his

arguments        would     vehemently     contend     that   the   sale

agreement has been entered into between the parties.                 A

time of three months was stipulated to execute the

registered sale deed and paid the advance sale

consideration of Rs.10,000/-. The parties have entered into

the sale agreement on 28.10.2013 after the talks held

between the parties for 4 to 5 days. It is also agreed to

execute the sale deed within three months but when the

defendant refused to execute the registered sale deed,

within a span of one month and one week, notice was

issued i.e., on 05.12.2013 and the same was served and

untenable reply was given and the Trial Court having taken

note of the material on record erroneously comes to the

conclusion that there was an interpolation and fraud. The

counsel also would vehemently contend that EC was applied

prior to the agreement of sale and the same was produced

before the Court and one of the son of defendant is also a

contesting witness to the document and the document of

patta book was also delivered at the time of entering into

the agreement. All these documents were also produced

before the Court and earlier to that there was a sale

agreement and the same was cancelled. The judgments

which have been relied upon by the counsel for the

appellant are not applicable to the facts of the case on

hand.

12. In reply to the arguments, the counsel for the

appellant would vehemently contend that when the

respondents contend that panchayat was held, not

examined any panchayatdar and with regard to the

escalation of price of property, no cross-examination in that

regard and only denied the signature made in Kannada and

the same has not been proved and the First Appellate Court

not met the reasoning given by the Trial Court while

reversing the finding and hence, it requires interference.

13. Having heard the learned counsel appearing for

the respective parties, this Court while admitting the appeal

has framed the following substantial question of law:

"Whether the appellate Court, in arriving at its

conclusion on the due execution of the sale

agreement, has overlooked material evidence

and circumstances, which if considered, would

result in a finding other than the fining arrived

by the appellate Court."

14. Having considered the substantial question of

law framed by this Court and also considering the material

on record and the grounds urged in the appeal by both the

counsel, this Court has to reanalyze the material on record.

It is case of the plaintiffs before the Trial Court that an

agreement of sale was executed on 28.10.2013 and also

time was fixed to execute the registered sale deed as three

months but before that, the defendant refused to execute

the sale deed. On the other hand, it is the contention of

the defendant that it was only a loan transaction and he

had borrowed an amount of Rs.10,000/- and the same is

fraudulently converted as sale agreement and there is a

interpolation of signature of defendant and he had made

the signature only in English. The plaintiffs in order to

prove the very execution of the sale agreement produced

the document of sale agreement which is marked as Ex.P1.

On perusal of Ex.P1 dated 28.10.2013 there is no dispute

with regard to the execution of the agreement but it is

termed as loan agreement by the defendant and it contains

the signature of the defendant in Kannada in all the pages

and the defendant denies the said signature and only in one

page English signature available i.e., in page 4 and the

same is admitted by the defendant and the same is marked

as Ex.P1(c). The defendant denied the very signature of

him which was there in Kannada language but not taken

any steps to prove the same stating that the said signature

not belongs to him. But he admits his signature available

as Ex.P1(c).A suggestion was made that his son is also

signed the said agreement and his signature is also marked

as Ex.P1(b) and he denies that he is not aware of the

signature of his son. It is important to note that though the

defendant denies the Kannada signature available in Ex.P1

but in the cross-examination, he says that the document of

stamp paper was bought by the plaintiffs and the plaintiffs

say that they came to know of selling of the property

through the villagers and it is rightly pointed out by the

counsel for the appellant that no such villagers were

examined.

15. It is also important to note that PW1 admits that

the suit schedule property is an ancestral property and he

also discloses that the defendant is having three children

and the villagers are not signatories to the sale agreement

but he admits that one month prior to the agreement, talks

were held. He also says that talks were held for 2 to 3 days

in the presence of the son of the defendant, advocate and

before the notary, the document was signed. The

defendant got this property in the partition. When

suggestion was made that he has got only one such

property and the same was denied. But he claims that the

defendant himself has given instructions to prepare the sale

agreement and the defendant has bought the stamp paper

in the name of plaintiff Nos.1 and 2. It is suggested that he

only bought the stamp paper and the same was denied and

he cannot tell how many pages, he has signed in the

document. He admits that both belongs to the same

community.

16. The plaintiff also examined one witness as PW2

who says in the chief-evidence that plaintiff only bought the

stamp paper but in the cross-examination, he says that he

has read the contents of the document and he is a notary

and he had obtained the signature on the register also and

in his presence only transaction was taken place and

defendant and his son were present at that time and an

amount of Rs.10,000/- was paid to the defendant and he

also collected the document from the defendant in respect

of the suit schedule property.

17. The other witness is PW3 who is also a witness

to the said transaction and he also says that the plaintiff

only bought the stamp paper and got it typed the same and

the defendant and his son was present at that time. In the

cross-examination, he admits that he is having

acquaintance only with the plaintiffs and when he came

near the Court to obtain the genealogical tree, he was

called and in his presence the document was written and in

the affidavit he has stated that he is an agriculturist and he

knows reading and writing and he also admits that in the

affidavit he has stated that he is a coolie and he admits that

agreement was prepared in the chambers of notary and

parties have signed all the pages and he also had witnessed

making the signature by the son of the defendant but he

cannot tell that to how many pages he had signed. He also

admits that he is having acquaintance with second plaintiff

and he cannot tell whether Krishnegowda had signed in

Kannada or in English.

18. On the other hand, the defendant examined

himself as DW1 who in his evidence has reiterated the

averments of written statement. In the cross-examination,

he admits the signature available in Ex.P1 which is in

English and the same is marked as Ex.P1(c) wherein he

claims that he had received only an amount of Rs.10,000/-

as loan. DW1 further admits that he has received two

notices and given reply to the same. He categorically

admits that he did not mention in his affidavit that he has

not signed the document in Kannada. It is suggested that

signature available in Kannada is also belong to him but he

denies the same and he also not admits the signature of his

son but he admits that he went twice to the house of the

plaintiffs for receiving the amount and returning the amount

and he admits that he had received the amount and signed

the document on the same day but again says in the cross-

examination that he had signed the document in the house

of the plaintiffs and on the other hand he says that he had

signed the agreement near the typing pool of Hassan Court.

It is suggested that he had also signed the register which

was maintained by the advocate Notary and the same was

denied. It is suggested that he only bought the stamp

paper and the same was denied. He also admits that when

the document was not returned after making the payment,

he was not given any complaint and he also did not demand

for return of the document from the advocate. In support of

his case, DW1 has not examined any other witnesses

except relying upon his evidence.

19. Having considered both oral and documentary

evidence placed on record it discloses that there is no

dispute with regard to the signature of the defendant

available at Ex.P1 i.e., Ex.P1(c) and the same is in English

and the same is admitted by DW1 in the cross-examination

but only contention taken by the defendant that the same is

a loan agreement. On the other hand, the First Appellate

Court re-assessed the material on record and taken note of

the documents produced by the plaintiffs before the Trial

Court. No doubt, Ex.P1 discloses that it is purchased in the

name of Shivashankar and Lokesh who are the plaintiffs but

contra evidence is given by PW1 that the same was

purchased by defendant but PW2 and PW3 say that it was

purchased by the PW1 and the document reveals that it was

purchased in the name of the plaintiffs but the document

also contains the signature in Kannada by the defendant.

Though the defendant disputes the signature which is in

Kannada, not referred the document for any hand writing

expert but he only claims that he had signed only in

English. The interpolation is not proved but Trial Court

committed an error in coming to the conclusion of

interpolation. The document at Ex.P2 is clear that the same

was obtained on 17.10.2013 that is prior to the agreement.

It is also important to note that Ex.P3 and P4 were obtained

on 13.11.2013 that is subsequent to the sale agreement.

But Ex.P5 is very clear that earlier there was a sale

agreement and the same was cancelled and this document

was obtained even prior to one week of the agreement i.e.,

on 21.10.2013. Apart from that the document of patta

book is produced and the same is marked as Ex.P7 and this

document does not contain date of issuance. The

genealogical tree which is marked as Ex.P8 discloses the

defendant family details wherein the said defendant is

having a two sons by name K Anil Kumar and K Sunil

Kumar and one daughter K Manjula (married). This

document also bears the signature of one of the son i.e.,

Anil Kumar who had signed the document of Ex.P1. This

document is also issued on 31.10.2013 i.e., immediately

after the agreement of sale. In order to show that the

plaintiffs are having money to purchase the suit property,

Ex.P9 to P14 were produced but these are the documents of

the year 2014 and not at the time of entering into an

agreement. But the First Appellate Court committed an

error in relying upon these documents stating that the

plaintiffs were having money to purchase the property as

on the date of agreement but agreement was on

28.10.2013 and these investments were made only in the

year 2014 that is subsequent to the agreement and not at

the time of agreement. When the defendant failed to

perform his part of contract, the plaintiffs issued the notices

twice and reply was given stating that it was not sale

agreement and it was only loan agreement.

20. Having perused these materials it is clear that

before entering into an agreement, documents were

obtained and given to the plaintiffs and it is also emerged

from the evidence that instructions were given to prepare

the document to PW2 who is a notary. PW3 is also a

witness to the sale agreement. These materials supports

the case of the plaintiffs and these factors has been taken

note of by the First Appellate Court while reversing the

finding of the Trial Court. The defendant by examining

himself as DW1 says that it is a loan agreement but in the

cross-examination he admits his signature at Ex.P1(c) and

when suggestion was made that his son also signed the

document for that intelligently he gives reply saying that he

is not aware of the signature of his son. But Court can

compare the signature available at Ex.P1 and also

genealogical tree which is marked as Ex.P8 and on

comparison, the Court opines that the signature available at

Ex.P1 and Ex.P8 are one and the same of his son but son

not entered into the witness box to deny the same. It is

also important to note that in one hand, DW1 says he went

to the house of the plaintiffs to give the document by

receiving the amount but on the other hand he says that he

had signed the agreement near the typing pool of the Court

and again he says that he had received the amount of

Rs.10,000/- and signed the agreement in English on the

same day and hence, DW1 has given contra evidence with

regard to the receipt of money and also signing of the

document. It is also important to note that DW1 says that

after 2 to 3 months of the said transaction, he has returned

the amount of Rs.10,000/- but before 2 to 3 months itself,

a notices were issued in terms of Ex.P16 and P19 hence,

the question of accepting the contention of DW1 that he has

repaid the amount of Rs.10,000/- cannot be accepted. The

material contradictions were also taken note of by the First

Appellate Court and rightly comes to the conclusion that

there was an agreement of sale.

21. It is also important to note that DW1

categorically admits that he did not give any complaint

when original documents were not returned to him when he

had repaid the amount. All these materials were contradicts

each other. It is also important to note that suggestion was

made that when there was a partition among the family

members, he replied that no such partition was taken place

but categorically says that the wife and children are not

agreeable to sell the property and they made galata about

six months back and this admission is very clear that the

family members are not agreeable to sell the property. It is

also important to note that DW1 categorically admits that a

suit is filed by his another son Sunil Kumar in

O.S.No.87/2015 and the same is subsequent to the

issuance of notice and filing of the suit and got it decreed

the same. He also categorically admits that he has not

engaged any other counsel and the very same counsel

engaged by his son is also an advocate in the said matter

hence, it is clear that only with an intention to avoid an

enforcement of agreement, DW1 has not come forward to

execute the sale deed. Hence, I do not find any error

committed by the First Appellate Court in reversing the

finding of the Trial Court.

22. However, it is important to note that admittedly,

PW1 in his evidence categorically admits that the suit

schedule property is an ancestral property and the said

admission is elicited from the mouth of PW1 in page 5,

paragraph 3 and he also categorically admits that the

defendant himself has stated that there were five brothers

and having three children. When PW1 himself admits that

the suit schedule property is an ancestral property and DW1

also pleaded the same, defendant alone cannot execute any

sale deed when he is having two sons and one married

daughter. PW1 himself has produced Ex.P8-genealogical

tree to show that the children of the defendant are also

having coparcenary right in respect of the ancestral

property. No doubt, one of the son of defendant is also a

signatory to the said agreement of sale but he is not a

party to the said transaction and other son Sunil Kumar is

not a party to the said sale agreement. When such being

the material available on record, the very agreement

cannot be enforced by DW1 alone. It is the case of DW1

that it is the only property available to the family and

though PW1 denies the said contention, not produced any

document to show that the defendant is having other

property except the suit schedule property hence, the

question of directing the defendant to execute the sale deed

does not arise since the property is an ancestral property

and other coparceners also having right in the said

property. PW1 admitted that the property comes to the

defendant in a partition but no document is placed before

the Court hence, the agreement cannot be enforced by the

defendant alone. The suit is also filed against the present

defendant and not made the coparcener of the property as

defendants. Hence, the question of granting the relief of

specific performance does not arise and also the fact that

they are the majors is not in dispute. It is also important to

note that this agreement came into existence in the year

2013 that means after amendment to the Hindu Succession

Act. When such being the case, the daughter of the

defendant who is married is also having right in the

property in view of the judgment of the Apex Court as she

is also a coparcener in the family of the defendant. Hence,

the agreement cannot be enforced against the other family

members who are not parties to the sale agreement. It is

also important to note that the property is only 29 guntas

and sale consideration is fixed as Rs.20,000/- per gunta

and the property is also surrounded by Holenarasipura

Taluk, Halekote Hobli, Chikkanahalli village and the

transaction is of the year 2013 and the sale consideration

as pleaded in the written statement is Rs.35,000/- per

gunta but the plaintiffs have not produced any document to

show that the suit schedule property is worth for

Rs.20,000/- or Rs.35,000/- per gunta as per the market

value. Apart from that the plaintiffs have paid only an

amount Rs.10,000/- to the defendant out of the total sale

consideration of Rs.5,80,000/- hence, the Court has to take

note of this aspect into consideration while exercising the

discretion. Mere execution of sale agreement itself is not a

ground to pass an order for the relief of specific

performance and discretion has to be exercised judiciously

by considering the material on record in toto and hence the

judgment of the Trial Court is requires to be intervened with

regard to exercising the discretion is concerned and hence,

I answer the substantial question of law accordingly and the

judgments relied upon by the counsel for the appellant will

not come to the aid of the appellant.

23. In view of the discussions made above, I pass

the following:

ORDER

The appeal is allowed in part.

The judgment and decree dated 07.03.2018 passed in

R.A.No.15/2017 by the First Appellate Court is set aside

and modified. The appellant/defendant is directed to refund

the earnest money of Rs.10,000/- along with the interest at

the rate of 18% p.a. from the date of agreement i.e.,

28.10.2013 till the date of realisation.

Sd/-

JUDGE

SN