Karnataka High Court
Parasappa S/O Laxman Malayagol vs Lagamappa Gurusiddappa Adadabbi on 8 April, 2024
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R.F.A. No.100106/2016
C/W R.F.A. No.100075/2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF APRIL 2024
PRESENT
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.100106 OF 2016 C/w
REGULAR FIRST APPEAL NO.100075 OF 2023
IN RFA NO.100106 OF 2016:
BETWEEN:
1. SMT. KEMPAVVA
W/O. LAGAMAPPA ADADABBI
AGE: 46 YEARS,
OCC: AGRICULTURE,
R/O: DURADUNDI VILLAGE-591307,
TAL: GOKAK,
DIST: BELAGAVI.
2. SMT. BASAVVA
W/O. VEERABHADRA MAHALINGAPUR
AGE: 23 YEARS,
OCC: AGRICULTURE,
R/O: POGATYANATTI VILLAGE-591201,
TAL: CHIKKODI,
DIST: BELAGAVI.
3. KUMARI. SHAILAWWA
D/O. LAGAMAPPA ADADABBI
AGE: 20 YEARS,
OCC: STUDENT,
SHIVAKUMAR
HIREMATH R/O: DURADUNDI VILLAGE-591307,
Location: HIGH COURT
OF KARNATAKA
TAL: GOKAK,
DHARWAD BENCH
Date: 2024.04.15
13:08:11 +0530 DIST: BELAGAVI.
4. KUMAR. BALAPPA
S/O. LAGAMAPPA ADADABBI
AGE: 17 YEARS,
OCC: STUDENT,
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R.F.A. No.100106/2016
C/W R.F.A. No.100075/2023
R/O: DURADUNDI VILLAGE-591307,
TQ: GOKAK,
DIST: BELAGAVI,
SINCE MINOR REPRESENTED BY
HIS NATURAL GUARDIAN-MOTHER-
APPELLANT NO.1- SMT. KEMPAVVA
W/O. LAGAMAPPA ADADABBI.
5. KUMARI. ROOPAVVA
D/O. LAGAMAPPA ADADABBI
AGE: 16 YEARS,
OCC: STUDENT,
R/O: DURADUNDI VILLAGE-591307,
TAL: GOKAK,
DIST: BELAGAVI,
SINCE MINOR REPRESENTED BY
HER NATURAL GUARDIAN-MOTHER-
APPELLANT NO.1, SMT. KEMPAVVA
W/O. LAGAMAPPA ADADABBI.
...APPELLANTS
(BY SMT.P.G.NAIK, ADVOCATE)
AND:
1. SHRI. LAGAMAPPA
S/O. GURUSIDDAPPA ADADABBI,
AGE: 48 YEARS,
OCC: AGRICULTURE,
R/O: DURADUNDI VILLAGE-591307,
TAL: GOKAK, DIST: BELAGAVI.
2. SHRI. PARASAPPA
S/O. LAXMAN MALYAGOL
AGE: 38 YEARS,
OCC: AGRICULTURE,
R/O: DURADUNDI VILLAGE-591307,
TAL: GOKAK, DIST: BELAGAVI.
...RESPONDENTS
(BY SMT.BHARATI S.HANAGANDI, ADVOCATE FOR R1;
SRI.SHIVARAJ BALLOLI, ADVOCATE FOR SRI.RAMESH
I.ZIRALI, ADVOCATE FOR R2)
THIS RFA IS FILED UNDER SEC.96 R/W ORDER XLI RULE 1
AND 2 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE
DATED 15.02.2016 PASSED IN O.S.NO.62/2012 ON THE FILE OF
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R.F.A. No.100106/2016
C/W R.F.A. No.100075/2023
THE I ADDITIONAL SENIOR CIVIL JUDGE, GOKAK, DISMISSING
THE SUIT FILED FOR DECLARATION AND PARTITION.
IN RFA NO.100075 OF 2023:
BETWEEN:
PARASAPPA
S/O. LAXMAN MALAYAGOL
AGE: 45 YEARS,
OCC: AGRICULTURE,
R/O: DURADUNDI,TQ GOKAK.
...APPELLANT
(BY SRI. SHIVARAJ S.BALLOLI, ADVOCATE)
AND:
LAGAMAPPA GURUSIDDAPPA ADADABBI
AGE: 54 YEARS,
OCC: AGRICULTURE,
R/O: DURADUNDI, TQ: GOKAK,
DIST: BELAGAVI.
...RESPONDENT
(BY SMT. BHARATI S. HANAGANDI, ADVOCATE)
THIS RFA IS FILED U/S 96 OF CPC, PRAYING THAT THE
JUDGMENT AND DECREE PASSED IN OS NO.250/2015 (OLD OS
NO.307/2009 DATED 15.02.16) MAY KINDLY BE SET ASIDE AND
THE APPELLANT MAY KINDLY BE GRANTED DECREE OF SPECIFIC
PERFORMANCE OF CONTRACT IN RESPECT OF R.S.NO.19/7A
MEASURING 2 ACRES 31 GUNTAS OF LAND OF BADIGAWAD
VILLAGE BY ALLOWING THIS APPEAL TO PROMOTE THE ENDS OF
THE JUSTICE AND EQUITY.
THESE APPEALS HAVING BEEN HEARD AND RESERVED ON
25.03.2024 COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, E.S.INDIRESH, J., DELIVERED THE FOLLOWING:
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R.F.A. No.100106/2016
C/W R.F.A. No.100075/2023
JUDGMENT
These appeals are arising out of judgment and decree
dated 15th February 2016 in O.S.No.62/2012 c/w O.S.
No.250/2015, on the file of the I Additional Senior Civil
Judge, Gokak (for short, 'the Trial Court') dismissing the
suit filed by the plaintiffs therein.
2. For the sake of convenience, the parties in this
appeal shall be referred to as per their status and rank
before the Trial Court in O.S. No.62/2012.
3. Plaintiffs/appellants in R.F.A. No.100106/2016
have filed suit against the defendants/respondents in O.S.
No.62/2012 on the file of the Trial Court, seeking relief of
declaration and partition in respect of the suit schedule
properties. Plaintiff/appellant in R.F.A. No.100075/2023
has filed suit against defendants/respondents in O.S.
No.250/2015 on the file of the Trial Court, seeking relief of
specific performance of contract with consequential reliefs.
The plaintiff/appellant in R.F.A. No.100075/2023 has filed
another suit in O.S.No.249/2015 against the defendant
No.1/respondent No.1 in R.F.A. No.100106/2016, seeking
relief of permanent injunction. The said appellant has also
filed R.F.A. Crob. No.100004/2023 which came to be
dismissed for non-prosecution. The Trial Court, after
considering the material on record, dismissed both the
suits in O.S. No.62/2012 and O.S. No.250/2015 and
feeling aggrieved by the same, the appellants/plaintiffs
have preferred the present appeals.
(a) The plaintiffs averred in the plaint that the original
propositus Gurusiddappa and his wife Sonawwa had
four children namely, Mallappa, Lagamappa
(defendant No.1 and also husband of Plaintiff No.1 and
father of plaintiff Nos.2 to 5), Dundappa and Pundalik.
The suit schedule properties are the joint family
properties of Gurusiddappa and his sons. It is stated
that the said Gurusiddappa and his sons have
purchased land bearing Sy.No.19/7A measuring 2
acres 31 guntas situate at Badigwad Village, Gokak
Taluk, as per registered sale deed 19.08.1998 in the
name of defendant No.1 (Lagamappa). It is further
stated in the plaint that during the partition effected
between the original propositus Gurusiddappa and his
sons, schedule property was allotted to the share of
defendant No.1 and therefore, it is contended by the
plaintiffs that the schedule property is the joint family
property of the plaintiffs and defendant No.1. It is
further stated in the plaint that, there was no
necessity for the family of the plaintiffs to sell the suit
schedule property, however, the defendant No.2,
colluded with defendant No.1, fraudulently entered
into a sale agreement dated 24.05.2007, to purchase
the schedule property for a sum of Rs.6,00,000/- per
acre and therefore, it is contended by the plaintiffs
that defendant No.1 has no authority under law to
enter into agreement of sale in respect of the joint
family property and therefore, the plaintiffs have filed
O.S. No.62/2012 against the defendants before the
Trial Court, seeking relief of declaration and partition,
alleging that the sale agreement dated 25.04.2007 is
not binding on the plaintiffs. The plaintiffs got
amended the plaint and added two more properties to
the schedule property and further contended that the
suit schedule properties are the joint family properties
of plaintiffs and defendant No.1.
(b) On service of notice, the defendants entered
appearance and filed written statement. Defendant
No.1, has stated in his written statement, supporting
the contention of the plaintiffs. During the pendency of
the suit, he got amended the written statement and
averred that he has availed loan of Rs.2,50,000/- from
the defendant No.2 by agreeing to repay the same
with interest at 2% per month and as such, the
defendant No.1 took up a contention that he had
signed the sale agreement dated 25.04.2007 on the
pretext as loan security document.
(c) Defendant No.2 filed written statement denying the
averments made in the plaint and took up a specific
contention that the defendant No.1 had entered into
an agreement of sale, to sell the schedule property for
a sum of Rs.6,00,000/- per acre and has received
advance sale consideration of Rs.2,50,000/-. He
further stated that, the suit filed by the plaintiffs is a
collusive suit and accordingly sought for dismissal of
the suit. The defendant No.2 has filed additional
written statement, reiterating the averments made in
the earlier written statement.
(d) The Trial Court, based on the pleadings on record,
formulated the following issues and additional issue for
its consideration:
"Issue No.1:- Whether the plaintiffs prove that item No.1
of suit property is ancestral joint family
property?
Issue No.2:- Do they prove that they have got 1/5th share
each?
Issue No.3:- Whether the plaintiffs prove cause of action?
Issue No.4:- Whether the plaintiffs are entitled for relief
as prayed?
Issue No.5:- What order or decree?
Additional
Issue No.1:- Whether the suit is bad for non joinder of
necessary parties?
Additional
Issue No.2:- Whether the suit is not maintainable in view
of non-inclusion of properties bearing R.S.
No.9 of Ganeshwadi village?
Additional
Issue No.3:- Whether the court fee paid is insufficient?
5. Facts in R.F.A. No.100075/2023
(a) The plaintiff has filed R.A. No.87/2016 before the
District and Sessions Court, Belagavi, challenging the
judgment and decree dated 15th February 2016 in O.S.
No.250/2015. Thereafter, the said appeal was
withdrawn from the said Appellate Court and
transferred to this Court in terms of order dated
14.11.2017 in C.P. No.100178/2016. Hence, the
appeal was renumbered before this Court as R.F.A.
No.100075/2023.
(b) It is the case of the plaintiff that, plaintiff has entered
into a registered sale agreement dated 25.04.2007
(Ex.D.11) with defendant (defendant No.1 in O.S.
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No.62/2012). It is the case of the plaintiff that suit
schedule property belongs to defendant and as
defendant is in need of money for legal/family
necessity, received advance sale consideration of
Rs.2,50,000/- out of total sale consideration of
Rs.3,33,000/- to sell the schedule property. It is
further stated in the plaint that plaintiff was ready and
willing to perform his part of obligation under sale
agreement, however, defendant is trying to avoid and
further failed to execute the registered sale deed. It is
also contended by the plaintiff that the plaintiff has
filed suit in O.S. No.261/2007 (new O.S.
NO.249/2015) against the defendant seeking relief of
permanent injunction and the same is pending
consideration. Hence, the plaintiff has filed suit in O.S.
No.250/2015 seeking relief of specific performance of
sale agreement against the defendant. The plaintiff
has filed rejoinder to the written statement denying
the averments made in the amended written
statement.
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(c) After service of notice, defendant entered appearance
and filed written statement denying entire averments
made in the plaint. It is the specific contention of the
defendant that there was no necessity for him to
negotiate for selling the suit property and as such,
denied the averments made in the plaint. During the
pendency of the suit, the defendant got amended the
written statement and contended that the schedule
property is the joint family property. It is further
contended by the defendant that, he has received
Rs.2,50,000/- as loan from the plaintiff and as such,
as a security for the said sum, an instrument was
prepared by plaintiff in the style of "agreement of
sale" and accordingly, contended that the suit is
devoid of merits and liable to be dismissed.
(d) The Trial Court, based on pleadings on record,
formulated the following issues:
"Issue No.1:- Whether the defendant proves that the
agreement dated: 25.4.2007 is not an
absolute agreement of sale to sell the land
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bearing Sy.No.19/7A measuring 2Ac-31 Gs
of Badigwad village and the agreement
dated: 25.4.2007 is executed as security to
the loan availed by defendant from the
plaintiff?
Issue No.2:- Whether the plaintiff proves that he is ready
and willing to perform his part of contract?
Issue No.3:- Whether the defendant further proves that
he is ready to pay Rs.2,50,000/- together
with the interest @ 2% per annum from
25.4.2007 to till its realisation?
Issue No.4:- Whether the plaintiff is entitled for relief
sought for?
Issue No.5:- What order or decree?"
6. After consolidation of the suits, the Trial Court
recorded common evidence in O.S. No.62/2012. In order
to establish their case, plaintiffs have examined three
witnesses as P.W.1 to P.W.3 and marked 22 documents as
Exs.P.1 to P.22. Defendants have examined six witnesses
as D.W.1 to D.W.6 and marked 77 documents as Exs.D.1
to D.77. The Trial Court, after considering the material on
record, by its judgment and decree dated 15.02.2016,
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dismissed all the three suits viz., O.S. No.62/2012, O.S.
No.249/2015 (old O.S. NO.261/2007), and O.S.
No.250/2015 (old O.S. NO.307/2009). Further, it is
declared that the defendant in O.S. No.250/2015 was
directed to refund the advance sale consideration amount
of Rs.2,50,000/- with interest at the rate of 15% per
annum from the date of sale agreement. Feeling aggrieved
by the same, aforementioned appeals are filed by the
respective parties.
7. We have heard Smt. P.G. Naik, learned counsel
appearing for appellants in RFA No.100106/2016, Sri.
Shivaraj S.Balloli, appearing for respondent No.2 in RFA
No.100106/2016 and appellant in RFA No.100075/2023,
Smt. Bharathi S.Hanagandi, appearing for respondent No.1
in RFA No.100106/2016 and respondent in RFA
No.100075/2023.
8. Smt. P.G.Naik, learned counsel appearing for
the appellants argued that there is no dispute with regard
to the fact that the suit schedule property is the joint
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family property of plaintiffs and defendant No.1. It is
further contended by the learned counsel appearing for the
appellants that, the Trial Court misconstrued the facts and
passed the impugned judgment and decree on the premise
that defendant No.2, as one of the family members of
plaintiffs and defendant No.1, and therefore, sought for
interference of this Court. She further contended that,
defendant No.2, is not a co-owner or sharer of the joint
family properties and therefore, she contended that, the
finding recorded by the Trial Court requires interference by
this Court.
9. Nextly, Smt. P.G.Naik, learned counsel
appearing for the appellants further contended that finding
recorded by the Trial Court on issue Nos.1 and 3 is
contrary to law as the Trial Court presumed that there is
only one schedule property and therefore sought for
setting aside the impugned judgment and decree passed
by the Trial Court.
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10. Per contra, Sri. Shivaraj S.Balloli, learned
counsel appearing for respondent No.2 - agreement holder
contended that, defendant No.1 had executed sale
agreement date 25.04.2007 and two years' time was fixed
under the said agreement for performance of the terms of
the contract. He further pleaded that, defendant No.1
(agreement holder) failed to comply with the terms and
conditions of the agreement of sale and as such, the Trial
Court ought to have decreed the suit in O.S. No.250/2015
and accordingly, sought for interference of this Court.
11. Insofar as the contentions raised by the
plaintiffs in O.S.No.62/2012 is concerned, Sri. Shivaraj
S.Balloli submitted that, the defendant No.1 had entered
into an agreement of sale dated 25.04.2007, in favour of
defendant No.2 in respect of the subject matter of the suit
for legal and family necessity and therefore, the plaintiffs
in O.S. No.62/2012 cannot be permitted to urge that the
sale agreement was entered into for some vexatious
reason and not for family necessity and as such, sought for
dismissal of the appeal in RFA No.100106/2016.
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12. In the light of the submissions made by the
learned counsel for the parties and the finding recorded by
the Trial Court, the following points arise for consideration:
i) Whether the plaintiffs in O.S. No.62/2012
prove that they are entitled for a share in the
suit schedule properties?
ii) Whether the plaintiff in O.S. No.250/2015
prove that the plaintiff is entitled for specific
performance of sale agreement dated
25.04.2007 (Ex.D.11)?
iii) Whether the judgment and decree passed by
the Trial Court in O.S.No.62/2012 and in O.S.
No.250/2015 is just and proper?
iv) What order?
13. In the light of the submissions made by the
learned counsel appearing for the parties, case of the
plaintiffs in O.S.No.62/2012 is that the plaintiffs and
defendant No.1 constitute joint family and the schedule
property has been inherited by defendant No.1 from his
father Gurusiddappa, and further, there was partition
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between the said Gurusiddappa and his sons and the
schedule property was allotted to the share of defendant
No.1. It is also the case of the plaintiffs that there was no
necessity for defendant No.1 to enter into a sale
agreement dated 25.04.2007 in respect of the suit
schedule property with defendant No.2 and accordingly
sought for share in the suit schedule properties. Defendant
No.1 supported the contention of the plaintiffs and took up
a contention that he had availed loan of Rs.2,50,000/-
from the defendant No.2 with interest at the rate of 2%
per month and for security of the said sum, the defendant
No.1 had affixed signature on the document, however,
defendant No.1 was unaware of the said document, which
was styled as "Sale Agreement". On the other hand, the
defendant No.2 contended that an agreement of sale was
executed by defendant No.1 in favour of defendant No.2 by
receiving advance sale consideration of Rs.2,50,000/- out
of total consideration of Rs.3,33,000/- and therefore,
contended that it is the obligation on the part of defendant
No.1 to comply with the terms and conditions stipulated in
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the sale agreement. It is apt, at this stage, to say that,
defendant No.2 in O.S.No.62/2012 filed O.S.No.250/2015
(old O.S.No.307/2009), seeking relief of specific performance
of contract based on the sale agreement dated 25.04.2007.
If the plaintiff in O.S. No.250/2015 succeeds in the suit, and
then only the relief sought for by the plaintiffs in O.S.
No.62/2012 would be looked into to devolve share of the
plaintiffs in the suit schedule properties. Therefore, this Court
is of the opinion that the adjudication of O.S. No.250/2015 is
to be considered on priority before considering the
averments made by the parties in O.S. No.62/2012.
14. In order to understand the relationship between
the parties, it is relevant to extract the genealogy of family
of plaintiffs and defendant No.1, which reads as under:
Gurasiddappa
= Sonavva
Mallappa Lagamappa Dundappa Pundalik
=Kempawwa
(Plff. 1)
Basawwa Shilavva Balappa Roopawwa
(Plff. 2) (Plff. 3) (Plff. 4) (Plff. 5)
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15. Subject matter of the sale agreement dated
25.04.2007 (Ex.D.11) is land bearing Sy.No.19/7A
measuring 2 acres 31 guntas and the said document
is registered before the competent Registrar at
Gokak. It is stated in the sale agreement that, the
defendant No.1 (vendor) agreed to sell the
aforementioned property in favour of defendant No.2
(purchaser) for legal necessity. In order to disprove
the said aspect, plaintiffs have produced registered
sale deeds Exs.P.3 to P.5 executed by Gurusiddappa and
defendant No.1 along with his brothers which
would establish the fact that there was no legal
necessity for defendant No.1 to sell the schedule
property for family benefit. Be that as it may,
pursuant to the execution of sale agreement dated
25.04.2007, defendant No.2 has not produced
any document to establish that he was ready and
willing to purchase the suit schedule property by
producing the relevant document. It is also to be
noted that, no notice has been issued by defendant
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No.2 to defendant No.1, calling upon defendant No.1 to
perform the terms and conditions stipulated in the sale
agreement dated 25.04.2007. In addition to this, nothing
is stated in the plaint in O.S. No.250/2015 nor in the
evidence by defendant No.2 to establish that defendant
No.2 was always ready and willing to perform his part of
the contract by repaying the balance sale consideration
amount. In this regard, it is relevant to cite the judgment
of the Hon'ble Supreme Court in the case of VijayKumar
and Others Vs. Om Parkash reported in AIR 2018 SC
5098. Paragraphs 7 & 8 read as under:
"7. In order to obtain a decree for specific
performance, the plaintiff has to prove his readiness
and willingness to perform his part of the contract
and the readiness and willingness has to be shown
through out and has to be established by the plaintiff.
In the case in hand, though the respondent-plaintiff
has filed the suit for specific performance on 29th
April, 2008, the respondent-plaintiff has not shown
his capacity to pay the balance sale consideration of
Rs.22,00,000 (Rupees Twenty Two Lakhs). In his
evidence, the respondent- plaintiff has stated that he
has borrowed the amount from his friends and kept
the money to pay the balance sale consideration. As
rightly pointed out by the Trial Court, the respondent-
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plaintiff could not produce any document to show that
he had the amount of Rs.22,00,000 (Rupees Twenty
Two Lakhs) with him on the relevant date; nor was
he able to name the friends from whom he raised
money or was able to raise the money. Further more,
as rightly pointed out by the Trial Court, the
respondent-plaintiff could have placed on record his
Accounts Book, Pass Book or the Statement of
Accounts or any other negotiable instrument to
establish that he had the money with him at the
relevant point of time to perform his part of the
contract. We are, therefore, in agreement with the
view taken by the Trial Court that the respondent-
plaintiff has not been able to prove his readiness and
willingness on his part.
8. The relief for specific performance is purely
discretionary. Though the respondent-plaintiff has
alleged that he was ready and willing to perform his
part of the contract, the First Appellate Court ought
to have examined first whether the respondent-
plaintiff was able to show his capacity to pay the
balance money. In our considered view, the First
Appellate Court as well as the High Court has not
properly appreciated the evidence and the conduct of
the parties. The First Appellate Court as well as the
High Court, in our view, was not right in reversing the
judgment of the Trial Court and the impugned order
cannot be sustained and liable to be set aside."
(Emphasis supplied)
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16. It is also relevant to cite the judgment of the
Hon'ble Supreme Court in the case of Sukhwinder Singh
Vs. Jagroop Singh and Anr. reported in AIR 2020 SC 4865.
Paragraph 9 of the said judgment reads as under:
"9. The suit being the one for specific
performance of the contract on payment of the
balance sale consideration, the readiness and
willingness was required to be proved by the plaintiff
and was to be considered by the Courts below as a
basic requirement if a decree for specific performance
is to be granted. In the instant case though the
defendant No.2 had denied the agreement as also the
receipt of the earnest money, the same would not be
of consequence as the agreement claimed by the
plaintiff is with the defendant No.1 and the contention
of the defendant No.2 to deny the same is without
personal knowledge on that aspect. However, even in
the absence of the defence put forth, the plaintiff was
required to prove his readiness and willingness and
that aspect of the matter was to be considered by the
Courts below. In the present case though the plaintiff
examined himself as PW1, as also PW2 and PW3, the
document writer, and the witness to the agreement
who stated with regard to the execution of the
agreement, the evidence to prove the readiness and
willingness with regard to the resources to pay the
balance sale consideration is insufficient. In the
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absence of denial by the defendant No.1, even if the
payment of Rs.69,500/ and the claim by the plaintiff
of having gone to the office of Sub Registrar on
15.06.2004 is accepted, the fact as to whether the
plaintiff had notified the defendant No.1 about he
being ready with the balance sale consideration and
calling upon the plaintiff to appear before the Sub
Registrar and execute the Sale Deed was required to
be proved. From among the documents produced and
marked as Exhibit P1 to P9 there is no document to
that effect, more particularly to indicate the
availability of the balance sale consideration as on
15.06.2004 and as on the date of filing the suit.
Despite the same, merely based on the oral
testimony of PW1, the Courts below have accepted
the case put forth by the plaintiff to be ready and
willing to complete the transaction."
(Emphasis supplied)
17. It is also relevant to cite the judgment of the
Hon'ble Supreme Court in the case of C.S.Venkatesh Vs.
A.S.C. Murthy reported in (2020)3 SCC 280. Paragraphs
15 to 20 of the said judgment read as under:
"15. The next question for consideration is in
relation to compliance of Section 16(c) of the Act by
the plaintiff. Though a question was raised before the
trial court that there are no pleadings as regards the
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plaintiff's readiness and willingness to perform the
contract, the trial court has rightly held that there is
sufficient compliance of Section 16(c) of the Act to
the extent of pleadings. Therefore, the question to be
considered is whether the plaintiff was ready and
willing to perform his part of the contract.
16. The words "ready and willing" imply that
the plaintiff was prepared to carry out those parts of
the contract to their logical end so far as they depend
upon his performance. The continuous readiness and
willingness on the part of the plaintiff is a condition
precedent to grant the relief of performance. If the
plaintiff fails to either aver or prove the same, he
must fail. To adjudge whether the plaintiff is ready
and willing to perform his part of contract, the court
must take into consideration the conduct of the
plaintiff prior, and subsequent to the filing of the suit
along with other attending circumstances. The
amount which he has to pay the defendant must be
of necessity to be proved to be available. Right from
the date of the execution of the contract till the date
of decree, he must prove that he is ready and willing
to perform his part of the contract. The court may
infer from the facts and circumstances whether the
plaintiff was ready and was always ready to perform
his contract.
17. In N.P. Thirugnanam v. R. Jagan Mohan
Rao, it was held that continuous readiness and
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willingness on the part of the plaintiff is a condition
precedent to grant of the relief of specific
performance. This circumstance is material and
relevant and is required to be considered by the court
while granting or refusing to grant the relief. If the
plaintiff fails to either aver or prove the same, he
must fail. To adjudge whether the plaintiff is ready
and willing to perform his part of the contract, the
court must take into consideration the conduct of the
plaintiff prior to and subsequent to the filing of the
suit along with other attending circumstances. The
amount of consideration which he has to pay to the
defendant must necessarily be proved to be available.
18. In Pushparani S. Sundaram v. Pauline
Manomani James, this Court has held that inference
of readiness and willingness could be drawn from the
conduct of the plaintiff and the totality of
circumstances in a particular case. It was held thus:
"5....So far these being a plea that they were
ready and willing to perform their part of the
contract is there in the pleading, we have no
hesitation to conclude, that this by itself is not
sufficient to hold that the appellants were ready
and willing in terms of Section 16(c) of the
Specific Relief Act. This requires not only such
plea but also proof of the same. Now examining
the first of the two circumstances, how could
mere filing of this suit, after exemption was
granted be a circumstance about willingness or
readiness of the plaintiff. This at the most could
be the desire of the plaintiff to have this
property. It may be for such a desire this suit
was filed raising such a plea. But Section
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16(c) of the said Act makes it clear that mere
plea is not sufficient, it has to be proved."
19. Similar view has been taken by this Court
in Manjunath Anandappa v. Tammanasa and Pukhraj
D. Jain v. G. Gopalakrishna.
20. The judgment of this Court in Umabai and
Anr. v. Nilkanth Dhondiba Chavan (Dead) by LRs. and
Anr.,5 is almost similar to the case at hand where the
plaintiff had filed a suit for specific performance of
the agreement to re- convey property. The plea of
the plaintiff was that the transaction was one of
mortgage and the sale stood redeemed and the
plaintiff was discharged from the debt and he was
ready to pay the defendant the amount for the
property only in the alternative that the plea of
mortgage was not accepted by the Court, would show
that his readiness was conditional. The plaintiff did
not have any income and could not raise the amount
required for re-purchase of the property. In the
totality of the circumstances, it was held that the
plaintiff was not ready and willing to perform the
contract. The conditions laid for the specific
performance of the contract are in para 30, which is
as under:
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"30. It is now well settled that the conduct of the
parties, with a view to arrive at a finding as to
whether the plaintiff- respondents were all along and
still are ready and willing to perform their part of
contract as is mandatorily required under Section
16(c) of the Specific Relief Act must be determined
having regard to the entire attending circumstances.
A bare averment in the plaint or a statement made in
the examination-in-chief would not suffice. The
conduct of the plaintiff-respondents must be judged
having regard to the entirety of the pleadings as also
the evidences brought on records".
18. The gist of the law declared by the Hon'ble
Supreme Court in the abovementioned cases is that, in
order to grant a decree for specific performance, it is the
duty of the plaintiff to prove his readiness and willingness
to perform his part of the agreement through out the
proceedings. In the instant case, after the execution of
agreement of sale (Ex.D.11), plaintiff in O.S. No.250/2015
has not taken any steps, calling upon defendant No.1
therein to perform the obligation under the sale agreement
as well as shown material fact that he is ready to perform
his obligation under this document. That apart, since the
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execution of agreement of sale dated 25.04.2007, the
plaintiff in O.S. No.250/2015 had not made any effort to
conclude the contract by showing that, he was always
ready and willing to perform his obligation under the
agreement (See - K.Karuppuraj Vs. M.Ganesan reported in
(2021)10 SCC 777). In the absence of the material shown
by the plaintiff in O.S. NO.250/2015 that he was
continuously ready and willing to perform his obligation
under the sale agreement and as the plaintiff fails to either
to aver or prove the same, in O.S. No.250/2015, the Trial
Court rightly rejected the claim made by the plaintiff
therein. After re-appreciating the material on record,
having come to the conclusion that the suit in O.S.
No.250/2015 is liable to be dismissed, consequently, the
plaintiffs in O.S. No.62/2012 are entitled for relief of
partition and separate possession in respect of subject
matter of the suit. Therefore, we concluded that the
plaintiff in O.S. No.250/2015 fails to establish his case,
seeking relief of specific performance of agreement of sale
dated 25.04.2007, consequently, the plaintiffs in O.S.
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NO.62/2012 have made out a case for partition in the
schedule property as there is no dispute with regard to
relationship between the parties, and the points for
consideration referred to above favours the plaintiffs in
O.S. No.62/2012.
19. As we have arrived at a conclusion that the
plaintiff in O.S. No.62/2012 have substantiated their claim
for seeking partition and separate possession in respect of
the subject matter of the suit, accordingly, the plaintiffs
No.2 to 5 along with defendant No.1 in O.S. No.62/2012
are entitled for equal share in the suit schedule properties,
being members of the joint family consisting of plaintiffs
and defendant No.1.
20. In the result, we pass the following
ORDER
i) RFA No.100106/2016 is allowed.
ii) RFA No.100075/2023 is dismissed.
iii) Judgment and decree dated 15th February 2016
in O.S. No.62/2012 on the file of I Additional
Senior Civil Judge, Gokak, is set aside and the
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plaintiffs No.2 to 5 and defendant No.1 are
entitled for equal share in the suit schedule
properties.
iv) Judgment and decree dated 15th February 2016
in O.S. No.250/2015 on the file of I Additional
Senior Civil Judge, Gokak, is hereby confirmed.
v) Plaintiff in O.S. NO.250/2015 is entitled for
refund of Rs.2,50,000/- with interest as
awarded by the Trial Court from the date of the
suit till realization.
Sd/-
JUDGE
Sd/-
JUDGE
SB/KMS
