A S Mandanna vs B C Gappanna
2023 Latest Caselaw 6501 Kant

                                             -1-
                                                         NC: 2023:KHC:33231
                                                      RSA No. 1185 of 2019




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 13TH DAY OF SEPTEMBER, 2023

                                           BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                         REGULAR SECOND APPEAL NO.1185 OF 2019 (SP)

                   BETWEEN:

                   A S MANDANNA
                   AGED ABOUT 63 YEARS,
                   S/O A.M.SOMAPAP,
                   R/AT NAPOKLU VILLAGE,
                   MADIKERI TALUK,
                   KODAGU DISTRICT.
                                                              ...APPELLANT

                   (BY SRI CHANDRANATH ARIGA K, ADVOCATE)
                   AND:

Digitally signed
                   1.    B C GAPPANNA
by SHARANYA T            S/O CHENGAPPA,
Location: HIGH           AGED ABOUT 69 YEARS,
COURT OF
KARNATAKA                RESIDING AT NEAR P.H.C.,
                         NAPOKLUR,
                         MADIKERI TALUK,
                         KODAGU DISTRICT - 571 201.

                   2.    A M SOMAIAH
                         S/O A.S. MANDANNA,
                         AGED ABOUT 36 YEARS,
                         RESIDING AT NAPOKLUR VILLAGE,
                         MADIKERI TALUK,
                         KODAGU DISTRICT -571 201.
                              -2-
                                           NC: 2023:KHC:33231
                                         RSA No. 1185 of 2019




3.   A M NIRMALA
     D/O A.S. MANDANNA,
     AGED ABOUT 34 YEARS,
     RESIDING AT NAPOKLUR VILLAGE,
     MADIKERI TALUK,
     KODAGU DISTRICT 571 201.

4.   A M GOWTHAM
     S/O A.S. MANDANNA,
     AGED ABOUT 32 YEARS,
     RESIDING AT NAPOKLUR VILLAGE,
     MADIKERI TALUK,
     KODAGU DISTRICT 571 201.


                                               ...RESPONDENTS
(BY SRI BHARGAV G, ADVOCATE)


     THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 09.04.2019
PASSED IN R.A.NO.12/2014 ON THE FILE OF THE
PRINCIPAL DISTRICT JUDGE, KODAGU AT MADIKERI AND
ETC.

     THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                    JUDGMENT

This appeal is listed for admission. Heard the

learned counsel appearing for the respective parties.

2. The factual matrix of the case of the

plaintiff/respondent No.1 before the Trial Court that the

NC: 2023:KHC:33231 RSA No. 1185 of 2019

appellant herein had entered into an agreement of sale

dated 15.10.2003 agreeing to sell 'B' schedule property

which consists a room adjacent to the suit 'A' schedule

property for Rs.1,35,000/- and also there was an

agreement in respect of 'A' schedule property vide sale

agreement dated 18.09.1999 and he has received an

entire sale consideration and hence, he bound to execute

the sale deed. Defendant No.1 appeared before the Trial

Court and filed the written statement contending that both

the agreements are rank forged documents and the

plaintiff has created both the documents. Defendant No.1

further contend that he has not received any amount of

Rs.4,25,000/- on 18.09.1999 and an amount of

Rs.1,35,000/- on 15.10.2003 in respect of the agreement

which is the subject matter of the suit. During the

pendency of the suit, on the application filed by the

plaintiff, defendant Nos.2 to 4 are also impleaded who are

the children of defendant No.1 and they also filed the

written statement denying the averments of the plaint.

The Trial Court based on the pleadings of the parties,

NC: 2023:KHC:33231 RSA No. 1185 of 2019

framed the issues as well as additional issue and allowed

the parties to lead their evidence. The Trial Court having

considered both oral and documentary evidence placed on

record answered Issue Nos.1 to 3 as affirmative and

additional issue as negative. Being aggrieved by the

judgment and decree of the Trial Court, appeals were

preferred by defendant No.1 and defendant Nos.2 to 4 in

R.A.Nos.12/2014 and 27/2014. The First Appellate Court

having considered the grounds urged in both the appeals

formulated the points and answered point Nos.2 to 4 as

affirmative and point Nos.1 and 5 as negative and

confirmed the order the Trial Court and hence, the present

second appeal is filed before this Court.

3. The learned counsel for the appellant would

vehemently contend that both the Courts have committed

an error in coming to the conclusion that there was an

agreement of sale and entire sale consideration has been

paid but fails to take note of the fact that there is no

division of the joint family property hence, defendant No.1

NC: 2023:KHC:33231 RSA No. 1185 of 2019

does not have any absolute right over the 'B' schedule

property and the Trial Court ought to have raised the issue

that whether the alleged agreement of sale can be

enforced. The counsel would vehemently contend that

when there was no partition among the members of the

joint family, the Trial Court ought not to have granted the

relief and ought to have considered the point for refund of

an earnest money but the same has not been done.

Hence, this Court has to frame substantial question of law

that whether in a suit for specific performance of an

agreement of sale, without the bifurcation and division of

the property, a specific performance can be ordered and

whether both the Courts have committed an error in

ordering for specific performance without the specific

share in favour of defendant No.1 and hence, this Court

has to admit the appeal and frame the substantial

questions of law.

4. Per contra, the learned counsel appearing for

the respondents would vehemently contend that though

NC: 2023:KHC:33231 RSA No. 1185 of 2019

the appellant took the defence that the agreement was not

executed, both the Courts have given finding that the sale

agreement was executed and sale consideration also

received. The other contention of the appellant that there

was no any partition among the members of the joint

family hence, there cannot be a direction to execute the

sale deed and the said contention cannot be accepted

since the counsel would submit that already there was an

agreement of sale in respect of 'A' schedule property and

this property i.e., 'B' schedule property is adjacent to 'A'

schedule property and also admitted that there are 18

rooms and out of that, this is the only one room, he had

entered into an agreement of sale and received the sale

consideration. The very contention of the appellant that

the earnest money needs to be refunded and the said

contention cannot be accepted. If the family is not having

other property, then this Court can exercise such

discretion. But here is the case that there are 18 rooms

and only in respect of one room, he had agreed to sell the

NC: 2023:KHC:33231 RSA No. 1185 of 2019

same to the plaintiff by executing the sale agreement and

also received the entire sale consideration.

5. Having heard the learned counsel appearing for

the respective parties and also on perusal of the material

on record it is not in dispute that the property belongs to

defendant No.1. But the very contention of the

appellant/defendant No.1 that the children of defendant

No.1 i.e., defendant Nos.2 to 4 are also having a right

over the said property. The contention also that

defendant No.1 is not having any absolute right over the

suit schedule property. It is also the contention that the

said property is an ancestral property. Having considered

the said submission, it is not in dispute that the sale

agreement is in respect of one room which is in the

upstairs measuring 20 x 10 feet and also the fact that

there are 18 rooms and out of that one room was agreed

to sell in favour of respondent No.1 herein. Though, the

appellant denied the very execution of the agreement,

both the Courts have given concurrent finding that

NC: 2023:KHC:33231 RSA No. 1185 of 2019

defendant No.1 had executed the sale agreement. Even if

there was no partition among themselves, the father being

the kartha of the family had executed the agreement of

sale in respect of one room and the very contention of the

appellant that a direction can be given for refund of

earnest money cannot be accepted since he had executed

the sale agreement and also received the entire sale

consideration. Both the Courts have given fact finding with

regard to the very execution of the sale agreement and

receipt of entire sale consideration and also the property

measures only 20 x 10 feet and other 17 rooms are in

existence and the same is also not disputed. When the

property is identifiable and entire sale consideration has

been received, the question of modifying the judgments of

both the Courts does not arise. Hence, I do not find any

grounds to comes to the conclusion that both the Courts

have committed an error in decreeing the suit of the

plaintiff. Unless any perversity is found in the order of both

the Courts, the question of invoking Section 100 of CPC

does not arise. I have already pointed that subject matter

NC: 2023:KHC:33231 RSA No. 1185 of 2019

of the suit is, in the agreement of sale, the property is

identified and the same measures 20 x 10 feet and it is

one room out of 18 rooms and the same is also divisible.

Even if any partition among the family members of

defendant No.1, in case if it is an ancestral property as

contended, in view of the agreement of sale executed by

defendant No.1 that can be appropriated in the share of

the father i.e., defendant No.1 and hence, the order of

both Courts does not requires any interference since entire

sale consideration has been received by executing sale

agreement.

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

the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

SN