Karnataka High Court

S N Raja vs Ramaiah on 22 February, 2024

Author: M.G.S.Kamal

Bench: M.G.S.Kamal

                          1


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF FEBRUARY, 2024

                        BEFORE

          THE HON'BLE MR.JUSTICE M.G.S.KAMAL

           R.S.A.NO.1022 OF 2018 (DEC/INJ)

BETWEEN:

     S.N. RAJA
     S/O LATE SRINIVASAIAH
     AGED ABOUT 83 YEARS
     R/AT SAMETHANAHALLI VILLAGE
     HOSAKOTE TALUK
     BENGALURU RURAL DISTRICT-560 067.
                                    ... APPELLANT

(BY SRI. MADHUKAR DESHPANDE, ADVOCATE)

AND:


1 . RAMAIAH
    S/O LATE BYANNA
    AGED ABOUT 67 YEARS
    R/AT THIRUMALASETTYHALLI VILLAE
    ANUGONDANAHALLI HOBLI
    HOSAKOTE TALUK
    BENGALURU RURAL DISTRICT-560 067.

2.   SMT.SHANKARAMMA @ VANAJAMMA
     AGED ABOUT 47 YEARS,
     D/O LATE G.S.GOPAL RAO,
     R/AT SAMETHANAHALLI VILLAGE,
     HOSAKOTE TALUK,
     BENGALURU RURAL DISTRICT-560 067.
                                    ... RESPONDENTS
                             2


(BY SRI.M.V.CHANDRASHEKAR REDDY, ADVOCATE FOR R1
R2- SERVED UNREPRESENTED)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 26.03.2018 PASSED IN R.A.NO.167/2015 ON
THE FILE OF THE VII ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, AND
CONFIRM THE JUDGMENT AND DECREE DATED 14.09.2015
PASSED IN O.S.NO.253/1996 ON THE FILE OF THE
I ADDITIONAL SENIOR CIVIL JUDGE, BANGALORE RURAL
DISTRICT, BANGALORE.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
09.01.2024 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                      JUDGMENT

This appeal is by the defendant No.1 aggrieved by

Judgment and decree dated 26.03.2018 passed in

R.A.No.167/2015 on the file of VII Additional District and

Sessions Judge, Bangalore Rural District (first Appellate

Court) by which the first Appellate Court while allowing

the said appeal filed by the plaintiffs set aside the

Judgment and decree dated 14.09.2015 passed in

O.S.No.253/1996 on the file of I Additional Senior Civil

Judge, Bangalore Rural District, Bangalore (trial Court)

and declared that the plaintiff is the owner of the suit

schedule property to the extent of 1/4th share and was

thus entitled to seek equitable partition by metes and

bounds.

2. The above suit was filed by the plaintiffs for

relief of declaration and permanent injunction against the

defendants contending inter alia:

a) That the plaintiff No.1 is the son of plaintiff

No.2 and they are the joint owners of immovable

property bearing Sy.No.88 measuring 19 guntas situated

at Thirumalashettihalli Village, Anugondanahalli Hobli,

Hosakote Taluk, which was leased in their favour by its

previous owner by name G.S.Gopal Rao-defendant No.2

in the year 1972 and that the plaintiffs have been in

possession of the suit property ever since 1972 till date.

b) That the said defendant No.2 was the absolute

owner of the schedule property by virtue of Deed of

Exchange dated 19.09.1947 that was executed by one

Srinivasaiah, the father of defendant No.1.

c) That during the existence of the lease period

defendant No.2 had executed a registered deed of

mortgage in favour of the plaintiffs on 28.11.1978 by

receiving a sum of Rs.3,000/-. Thereafter, the said

defendant No.2 had executed deed of sale on 02.07.1991

in favour of plaintiff No.1 for a sale consideration of

Rs.10,000/-. Subsequent to execution of the aforesaid

documents the names of the plaintiffs were entered in

the revenue records. Thus, the plaintiffs became

absolute owners of schedule property being in

undisturbed possession and enjoyment of the same over

23 years. That they have invested amount for

improvement of the schedule property.

d) That the defendants have no right, title and

interest over the schedule property. However,

defendants had filed an appeal before the Assistant

Commissioner, Doddaballapur Sub-Division in

R.A.No.92/91-92 challenging the mutation entries

effected in the names of plaintiffs which was allowed by

order dated 24.08.1994. The plaintiffs carried the same

in writ petition No.1650/1995 before this Court. This

Court while disposing of the said writ petition observed

that the parties shall establish their right over the

schedule property in the Court of law of competent

jurisdiction. Hence, the suit.

3. Defendant No.1 filed written statement denying

the plaint averments and specifically contended

a) That the alleged Deed of Exchange was an

unilateral agreement executed by late Srinivasaiah in

favour of Gopal Rao and the same was not the Deed of

Exchange known under law. It is contended at the best

the said document can be termed as an agreement of

exchange but not as a Deed of Exchange. As such, it did

not confer any right, title and interest in respect of the

property sought to be exchanged either in favour of

Srinivasaiah or Gopal Rao. Consequently Gopal Rao did

not get any title in respect of property of Srinivasaiah

i.e., 15 guntas of land in Sy.No.88 or in Sy.No.223/4 of

Samethanahalli Village nor did Srinivasaiah get any title

in respect of land in Sy.No.227 of Samethanahalli Village

or in Sy.No.19 of Thirumalashettihalli Village belonging to

Gopal Rao. It is further contended that in the year 1960

land in Sy.No.227/1 which is one of the property sought

to be exchanged remained with the ownership and

possession of Gopal Rao and the said land in

Sy.No.227/2 of which he was the khathedar was notified

for acquisition for extension of Gandhi Kshetra by the

then Government of Mysore under Karnataka Land

Revenue Act under Gazette Notification dated

08.02.1960. The said notification was not challenged by

Gopal Rao and the property that was sought to be

exchanged under the document dated 19.09.1947

remained in the ownership and possession of Gopal Rao.

It is also contended that neither Gopal Rao nor

Srinivasaiah ever applied for effecting mutation entries in

terms of exchange deed dated 19.09.1947. It is also

contended that alleged deed of mortgage executed by

Gopal Rao in favour of plaintiffs did not confer any right,

title and interest over the property in question since

Gopal Rao did not have any right over the said

properties.

b) It is further contended that the suit schedule

property is a Shanubhogi Service Inam Land which

vested in the State pursuant to Villagers Officers

Abolition Act. Defendant No.1 who was one of the

service holder of the said village applied for re-grant

along with others including in respect of land Sy.No.88 of

Thirumalashettihalli Village before the Tashildar who by

order dated 23.12.1988 re-granted the schedule property

in favour of defendant No.1. Accordingly mutation

entries were incorporated superseding the earlier entries

which have become final. In view of the re-grant,

alienation made by Gopal Rao under registered sale deed

dated 02.07.1991 has become void, as the same is in

contravention of condition of prohibition of non-alienation

for 15 years. The re-grant is final and binding on Gopal

Rao who is party to the proceedings, as such plaintiffs

cannot claim title over the schedule property. Hence,

sought for dismissal of the suit.

4. Based on the pleading, trial Court framed

following issues:

"1. Whether plaintiff proves Sri. Gopal Rao became the legal owner of the suit schedule property on the basis of the deed of exchange dated:19.09.1947 executed by one srinivasaiah, the father of the defendant in favour of the vendor of the plaintiff, as alleged in the plaint?

2. Whether the plaintiff proves that they are the absolute owners of the suit schedule property, as alleged in the plaint?

3. Whether the plaintiffs prove that they are in physical possession and enjoyment of the suit schedule land and interference of the defendant as alleged in the plaint?

4. Whether the suit is bad for non-joinder of necessary parties?

5. Whether the defendant proves that he is the absolute owner of the suit schedule land as alleged in para-7 of the written statement?

6. What relief the plaintiffs are entitled?

7. What Order and Decree?".

5. Plaintiff No.1 examined himself as PW-1 and

another witness as PW-2 and exhibited 258 documents

marked as Ex.P-1 to P-258. On the other hand

defendant No.1 examined himself as DW-1 and exhibited

41 documents marked as Ex.D-1 to D-41. The trial Court

on appreciation of pleading and evidence answered issue

Nos.1 to 4 and 6 in the negative and issue No.5 in the

affirmative and consequently dismissed the suit with cost

by its Judgment and decree dated 14.09.2015.

Aggrieved by the same, plaintiffs preferred regular

appeal in R.A.No.167/2015 before the First Appellate

Court. Considering the grounds urged in the

memorandum of appeal, the first appellate Court framed

following points for its consideration:

"1. Whether the impugned judgment and decree is perverse, capricious or illegal?

2. Whether the judgment and decree passed by the trial court in O.S.No253/1996 is called for any interference by this appellate court?

3. What Order?".

6. On re-appreciation of evidence, the first

appellate Court answered point Nos.1 and 2 in the

affirmative and consequently allowed the appeal and set

aside the Judgment and decree passed by the trial Court

and declared that the plaintiff is owner of the suit

schedule property to the extent of 1/4th share therein.

Being aggrieved by the same, defendant No.1 is before

this Court.

7. This Court by order dated 10.05.2018 admitted

the appeal to consider the following substantial questions

of law:

"Whether the father of the Defendant No.1 unilaterally, by way of exchange, transferred his ownership of immovable property of another property?

Whether Section 118 of Transfer of Property Act. 1882 recognizes unilateral exchange of properties?".

8. Sri. Madhukar Deshpande, learned counsel for

the appellant reiterating the grounds urged in the

memorandum of the appeal submitted that:

a) That the alleged Deed of Exchange dated

19.09.1947 is an unilateral document which was never

acted upon between the parties thereto. The said

document not being in accordance with law, did not

confer any title in favour defendant No.2. When the

defendant No.2 himself had no right, title and interest

over the suit schedule property he could not have

conveyed anything to the plaintiffs.

b) Defendant No.2 had no land left in his

ownership. He was owning 33 guntas of land in Sy.No.70

which he had already sold as such sale deed dated

02.07.1991 executed by him in favour of the plaintiffs is

void and illegal.

c) That the trial Court had rightly come to the

conclusion of deed of exchange dated 19.09.1947 is not

in accordance with the provisions of section 118 of the

Transfer of Property Act, 1982 which the first appellate

Court without even adverting to the said reasoning of the

Trial Court has come to the conclusion that deed of

exchange was valid and subsistent.

d) That the First appellate Court grossly erred in

decreeing the suit by moulding the relief and holding that

the plaintiff is entitled to seek equitable partition of 1/4th

share in the land in Sy.No.88 of Thirumashettahalli

Village without appreciating the fact that partition to be

ordered either between the members of the family or the

co-owerns, joint owners or between the purchasers or

joint family warranting existence of joint ownership. That

in the instant case defendant Nos.1 and 2 are not the

owners of suit schedule property. The sale deed executed

defendant No.2 in favour of the plaintiff on 02.07.1991 is

not binding on the defendant No.1. As such the First

Appellate Court could not have decreed for partition.

e) That the re-grant order dated 31.10.1986 was

made in favour of four different and separate families of

(1)defendant No.1, (2)defendant No.2, (3)Srinivas Rao

and (4)S.Nagesh. Without appreciating the same the first

appellate Court erred in ordering equitable partition.

f) That the first appellate Court has not taken into

consideration of non-availability of land in Sy.No.88 for

partition. The allotment of 1/4th share in favour of the

plaintiff is erroneous and passed without taking into

consideration the measurement of land in Sy.No.88.

g) The moulding of the relief could have been

granted if the plaintiff had established the right over the

property and in absence of the same, a suit for

declaration could not have been converted into suit for

partition.

h) Learned counsel relied upon the following

judgment in support of his submission:

1. Commissioner of Income Tax, Bombay Vs

Rasiklal Manaklal and others reported in AIR 1989 SC

2. M/s.Trojan and Co Vs R.M.N.N Nagappa Chetiyar

reported in AIR 1953 SC 235

3. Bacchaj Nahar Vs Nilima Mandal and Another

reported in (2008) 17 SCC 498

Thus, learned counsel for the appellant seeks for

allowing of the appeal.

9. Sri.M.V. Chandrashekara Reddy, learned counsel

for the respondent justifying the order passed by the first

appellate Court submitted:

a) That in terms of deed of exchange dated

19.09.1947, father of defendant No.1 delivered the

possession of 15 guntas of land in Sy.No.88 along with

another land in favour of defendant No.2 and since the

value of the property subject matter of Deed of Exchange

less than Rs.50/- as on the said date registration of the

said document was not required.

b) That the defendant No.2 had executed

usufructuary mortgage on 20.11.1978 in respect of 19

guntas of land for a sum of Rs.3,000/- and delivered the

possession of the same to the plaintiff No.2-Byanna. That

subsequently the very same 19 guntas of land was

conveyed by defendant No.2 in favour of the plaintiff

No.1 under deed of sale dated 02.07.1991.

c) That the defendant No.2 had 1/4th undivided

share in three properties bearing Sy.Nos.19, 70 and 88

by virtue of grant made by the land Tribunal. Sy.No.88

measures 6 acres 17 guntas, 1/4th of the share therein is

equals to 1 acre.

d) Taking through the deposition of defendant No.1,

learned counsel submitted that the defendant No.1 has

admitted execution of deed of mortgage by defendant

No.2 in favour of said plaintiff No.2 Byanna. That he has

also admitted defendant No.2 was entitled for 1/4th

share in the Shanbogh Inamthi lands. That he also

admitted execution of deed of sale dated 02.07.1991 by

plaintiff No.2- Byanna and defendant No.2 in favour of

plaintiff No.1 and also with regard to possession of the

plaintiffs in respect of the said land. He also submitted

that DW.1 categorically admitted the measurement of the

land as shown in the Ex.P7 to be correct and also

accepted the same as shown in the RTC.

e) Thus referring to the aforesaid admissions of

DW.1 learned counsel submitted even according to the

DW.1 the deed of exchange had been acted upon based

on which defendant No.2 has been proved to be in

possession of 19 guntas of land in Sy.No.88.

f) As regard the contention of the appellants in the

first appellate Court moulding the reliefs in granting relief

of partition, he submitted that during the pendency of

the suit the plaintiff had filed an application seeking to

amend the plaints for relief of partition which application

was dismissed by vide Order dated 27.07.2007 said order

was carried by the plaintiff in W.P.No.15872/2007. This

Court by order dated 18.07.2011 had observed that,

"the plaintiff is entitled to seek general partition at the time of final arguments and that it is permissible for the parties to show the extent of interest they have in the property and the Court can also mould the relief, to grant the relief of partition to the extent of parties interest."

g) Learned counsel relied upon following judgments

in support of his :

1. Bhagwan Kuaur and Ors. Vs Ranjith Singh and

another reported in AIR 1990 PUNJAB AND HARYANA

89.

2. Aloka Bose Vs. Paramatma Devi and Ors

reported in AIR 2009 SC 1527.

3. Kashinath Tewari and another Vs. Makchhed

Tewari and Ors reported in AIR 1939 AII 504.

4. Dada Vaku Nikam Vs. Bahiru Hingu Nikam and

Ors. Reported in AIR 1927 Bombay 627.

5. Ram Chandra and others Vs Hari Kirtan and

another reported in AIR 2004 ALLAHABAD 345.

6. Dashrath Narayan Shinde and Ors Vs. Laxman

Gangaram Ghag and Ors reported in 2010 (4) ABR

(NOC) 384 (BOM).

7. Shivaramegowda (D) Vs. Smt.Kempamma by

LR's reported in 2020 (2) KCCR 1307.

8. Deity Pattabhiramaswamy Vs.Hanymayya and

others reported in AIR 1959 SC 57.

9. Vijay arun Bhagat and Ors. Vs. Nana Laxman

Tapkire and others (2018) 6 SCC 727.

10. Heard. Perused the records.

11. Plaintiffs filed the above suit initially seeking

relief of declaration of their ownership over the suit

schedule property which is immovable property bearing

Sy.No.88 measuring 19 guntas of Thirumalashettyhalli

Village. The plaintiffs have traced the title of the said

property from defendant No.2. Plaintiffs have relied upon

an unregistered deed of exchange dated 19.09.1947

produced at Ex.P2 claiming the same to have been

executed by Srinivasaiah father of the defendant in

favour of defendant No.2. The plaintiffs have also relied

upon a registered deed of mortgage dated 28.11.1978

produced at Ex.P1, executed by defendant No.2 in favour

of plaintiff No.2. Further plaintiffs have relied upon

registered deed of sale dated 02.07.1991 executed in

favour of plaintiff No.1 by defendant No.2 as well as

Byanna the plaintiff No.2 produced at Ex.P-3. Apart from

the aforesaid documents the plaintiffs have produced the

order dated 23.12.1988 passed by the Land Tribunal as

per Ex.P-6 granting lands in Sy.No.193 measuring 8

acres 19 guntas situated at Samethanahalli, land bearing

Sy.No.19 measuring 22 guntas, Sy.No.70 measuring 1

acres 27 guntas and in Sy.No.88 measuring 6 acres 17

guntas of Thirumalashettihalli jointly in the names of the

defendant No.2, S.Nagesha Rao, S.V.Keshavarao,

Nagarathnamma, Ramarao and others. Apart from the

aforesaid documents the plaintiffs have also produced

survey sketches and mutation register extracts and tax

paid receipts.

12. Perusal of the Deed Of Exchange at Ex.P.2

reveal that the said document has been executed by

Srinivasaiah, father of defendant No.1 in favour of

defendant No.2 in terms of which the said Srinivasaiah

has agreed to give land in Sy.No.223/4 measuring 1 acre

20 guntas and land in Sy.No.88 measuring 32 guntas

both valuing Rs.50/- to defendant No.2 in exchange of

land in Sy.No.227 measuring 1 acre and land in Sy.No.19

measuring 6 guntas both valuing Rs.50/- belonging to

said defendant No.2. The said document also speaks

about Srinivasaiah having taken the possession of the

land.

13. Defendant No.1 apart from disputing

evidentiary value of the said document at Ex.P-2 has also

contended the said document is merely an unilateral

agreement executed by Srinivasaiah and the same was

never acted upon. It is also contented that under the said

document at Ex.P-2 defendant No.2 did not get any right,

title and interest in respect of 15 guntas of land in

Sy.No.88 or in Sy.No.223/4 belonging to Srinivasaiah,

nor did Srinivasiah get any right, title and interest in

respect of land in Sy.No.227 or in Sy.No.19 belonging to

defendant No.2. It is also contended consequently could

not have executed a registered deed of mortgage dated

20.11.1978 as per Ex.P-1 in favour of plaintiff No.2 and

said deed of mortgage is of no consequence. Similarly,

execution of deed of sale dated 02.07.1991 as per Ex.P-3

by defendant No.2 and plaintiff No.2 in favour of plaintiff

No.1 did not create or confer any rights. As regard the

revenue entries it is contended that in the appeal filed by

the defendants against the order mutating the names of

the plaintiffs, the same was allowed setting aside the

mutation entries M.R.No.15/1989-90. Writ petition filed

by the plaintiffs was also dismissed.

14. As regard the execution of deed of exchange at

Ex.P2 is concerned the said document has been executed

by Srinivasaiah the father of the defendant No.1 wherein

he has agreed to give lands in Sy.No.223/4 measuring 1

acre 20 guntas and land in Sy.No.88 measuring 32

guntas both valuing Rs.50/- to defendant No.2 in

exchange of land in Sy.No.227 measuring 1 acre and

land in Sy.No.19 measuring 6 guntas both valuing

Rs.50/- belonging to said defendant No.2.

15. Learned counsel for the appellant in furtherance

to his submissions on the substantial question of law

regarding unilateral transfer of ownership of immovable

property and its recognition under Section 118 of the

Transfer of Property Act relying upon Judgments of the

Apex Court in the cases referred to hereinabove insisted

that in order to constitute `exchange' as defined under

Section 118 of the Transfer of Property Act two persons

should be part of the document and should execute the

same in the manner provided for transfer of property by

sale. He referred to the judgment of the Apex Court in

the case of Commissioner of Income Tax, A.P. and

also in the case of Income Tax Commissioner,

Bombay (Supra) to contend that exchange is a

reciprocal transfer of interest in the immovable property.

That an exchange involves transfer of property by one

person to another. That there must be mutual transfer

of ownership of one thing for the ownership of another.

Thus, he submitted that Ex.P-2 being unilateral

document cannot be termed as an exchange.

16. Per contra, learned counsel for

respondent/plaintiffs relied upon the Judgment of the

Punjab and Haryana High Court in the case of Bhagwan

Kaur and others (supra) wherein it is held that

unregistered deed of exchange can be relied upon when

it was followed by delivery of possession. He also relied

upon the Judgment of the Apex Court in the case of

Aloka Bose (supra) wherein it is held that all

agreements of sale are bilateral contracts as promises

are made by both vendor agreeing to sell and purchaser

agreeing to purchase as such, such agreements need not

be signed by both the parties and if signed only by the

vendor the same is valid and enforceable by the

purchaser. He also relied upon the Judgment of

Allahabad High Court in the case of Kashinath Tewari

and anr. to contend that even if deed of exchange which

is unregistered does not confer a legal title to the lands

covered by exchange a party to the exchange acquires

full title to the property by continuous possession for

over 12 years openly and adversely to other party to the

exchange. He also relied upon the Judgment of Bombay

High Court in the case of Dada Paku Nikam (supra) to

contend where in pursuance of an oral agreement there

has been an actual exchange of land and parties have

remained in possession ever since that date without any

question being raised the doctrine of part performance

applies and therefore bar under Section 54 of Transfer of

Property Act in reality is removed. He further referred to

Judgment of the Allahabad High Court in the case of

Ramachandra and others and the Judgment of High

Court of Bombay in the case of Dasharath Narayan

Shinde and others to contend that immovable property

value of which is less than 100/-, the transfer can be

either by registered instrument or by delivery of

property.

17. It is necessary at this juncture to refer to

Section 118 of the Transfer of Property Act which defines

the term exchange as under:

118. "Exchange" defined.- when two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "exchange".

A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.

18. Thus, second part of the section provides the

mode of transfer of property by exchange to be made in

the manner provided for the transfer of property by sale.

Appropriate also to refer to Section 54 of the Transfer of

Property Act which apart from defining the term "sale"

also provides "how the sale to be made".

"Section 54. - "Sale" defined- "sale" is a transfer of ownership in exchange for a price paid or promised or part- paid and part-promised.

Sale how made.--Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

Contract for sale.--A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.

19. Apex Court in the case of Aloka Bose (supra)

dealing with validity of an agreement signed only by one

of the parties, in a case for specific performance at

Paragraph 7 has held as under:

7. All agreements of sale are bilateral contracts as promises are made by both - the vendor agreeing to sell and the purchaser agreeing to purchase. On the other hand, the observation in S.M. Gopal Chetty (supra) that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by

a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it. Section 10 of the Act provides all agreements are contracts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the provisions of the Contract Act. The proviso to section 10 of the Act makes it clear that the section will not apply to contracts which are required to be made in writing or in the presence of witnesses or any law relating to registration of documents. Our attention has not been drawn to any law applicable in Bihar at the relevant time, which requires an agreement of sale to be made in writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter-offers by letters or other modes of recognized communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser.

There is, however, no practice of purchaser alone signing an agreement of sale.

20. The aforesaid Judgment of the Apex Court has

been relied upon by the Division Bench High Court of

Kerala in the case of VASU VS PARUKUTTY AMMA

AND OTHERS reported in 2012 SCC Online Ker.

31547 and at paragraph 15 has gone on to hold that

after the decision of the Apex Court in the case of Aloka

Bose there is no scope any more for anybody to contend

that an agreement of sale or sale deed (deed of

conveyance) executed by the prospective vendor or

vendor as the case may be, is a unilateral document or

instrument and is not a contract which can be enforced in

law.

21. Necessary at this juncture to also refer to

Sections 32 and 34 of the Registration Act, 1908 (prior to

insertion of Section 32A by Act No.48 of 2001

w.e.f.24.09.2001) and Rules 41 and 71 of the Karnataka

Registration Rules, 1965, (prior to insertion of sub-rules

(iii), (iv), (v), (vi) and (vii) w.e.f 4.4.2002). The said

provisions did not contemplate presence of the person in

whose favour the conveyance being executed at the time

of effecting the registration of the document conveyance.

It is only after the amendment to Registration Act, 1908

in the year 2001 whereby Section 32A was inserted and

amendment to Rule 71 of Karnataka Registration Rules

1965 in the year 2002 presence of buyer is made

compulsory at the time of registration of deed of

conveyance. Apex Court had an occasion to take note of

this aspect of the matter in the case of

H.P.PUTTASWAMY VS. THIMMAMMA AND OTHERS

reported in (2020) 13 SCC 125 wherein at paragraph

10 it has been held as under;

"10. We find from the judgment of the Trial Court and the First Appellate Court that the respective parties had led evidence of execution and subsequent registration of the deeds but the first two courts did not reject the contention of the second set of defendants that there was no execution by Madegowda (since deceased) of the deed of sale to Manchegowda (since deceased). The case has been decided in favour of the plaintiff on the ground that the buyer was not present at the time of registration of sale deed. There is evidence to the effect that the second defendant (Manchegowda) had not come to the office of the SubRegistrar at the time of execution of the sale deed. But as per law as it stood at the material point of time, there was no necessity of presence of purchaser at the Registration Office during the registration of sale deed. The deed was executed by Madegowda and that aspect has not been disputed. The deed in question does not fall within Sections 31, 88 and 89 of the Registration Act. Section 32 of the said Act does not require presence of both parties to a deed of sale when the same is presented for registration. In such circumstances, we do not find any reason to interfere with the judgment of the High Court. The present appeal is accordingly dismissed."

22. Thus, that the conclusion that can be arrived

from the above provisions of Section 118 read with

Section 54 of the Transfer of Property Act and from the

Judgment of the Apex Court and the provisions of

Registration Act, 1908 and Rules 1965, prior to

amendment, is that conveyance of property could be

made whether immovable or movable only by vendor and

there was no requirement of purchaser joining the

execution of the deed of conveyance. Since Section 118

of the Transfer of Property Act mandates that transfer of

property by way of exchange has to be made in the

manner provided for transfer of property by way of sale,

the aforesaid position of law is squarely applicable in the

case of conveyance by way of exchange as well.

23. Another aspect of the matter is that perusal of

Ex.P-2 would reveal that Srinivasaiah had declared that

he was conveying his property by way of exchange in

favour of defendant No.2 in consideration of defendant

No.2 conveying his properties as mentioned therein. The

said document also refers to possession having been

given/delivered. As already noted value of properties is

shown as Rs.50/-. As such there was no requirement of

compulsory registration of the document. As rightly taken

note of by the First Appellate Court the value of the

properties subject matter of the said deed of exchange

shown to be Rs.50/- the same did not require

registration. Even if the contention of the defendant

No.1 that the said document at the most was an

agreement and not a concluded document creating any

right in favour of the parties thereto is to be accepted,

the fact remained that such a transaction indeed had

taken place.

24. In fact in the cross-examination recorded on

02.04.2014 defendant No.1 has admitted and identified

the signature of his father Srinivasaiah found on Ex.P2

which is marked as Ex.P2A. Such a transaction is neither

barred nor prohibited.

25. There is yet another aspect of the matter

requiring consideration regarding defendant No.2 having

share, right and title over the schedule property.

Admittedly even according to defendant No.1 possession

of the suit schedule property has been with the plaintiffs

in pursuant to deed of mortgage at Ex.P-1 and deed of

sale at Ex.P-3. It is not that defendant No.2 did not have

any pre-existing rights over the suit properties. He was

Shanbhogh having specific share in the subject property.

26. Necessary at this juncture to refer to the grant

order dated 23.12.1988 passed by the Tahsildar in the

re-grant proceedings bearing No.AJOA(1)CR89/83-84

and 207/72-73 which is produced at Ex.P6 to ascertain if

the defendant No.2 otherwise entitled for any share,

right title and interest in the suit schedule property. The

aforesaid document and Ex.P6 is relied upon even by the

defendant No.1 to justify his claim over the property. The

contents of the said Ex.P6 reveal that the re-grant was

sought and the same was granted in respect of

Sy.No.193 measuring 8 acres 19 guntas situated at

Samethanahalli, and land bearing Sy.No.19 measuring 22

guntas, Sy.No.70 measuring 1 acres 27 guntas and in

Sy.No.88 measuring 6 acres 17 guntas of

Thirumalashettyhalli jointly in the names of the

defendant No.2, S.Nagesha Rao, S.V.Keshavarao,

Nagarathnamma, Ramarao and others.

27. In the said order the defendant No.2 has been

held to be entitled for half share in land bearing

Sy.No.193, measuring 8 acres 19 guntas situated at

Samethanahalli and 1/4th share in land bearing Sy.No.19

measuring 22 guntas, Sy.No.70 measuring 1 acres 27

guntas and in Sy.No.88 measuring 6 acres 17 guntas of

Thirumalashettyhalli.

28. Paragraph No.8 of the said order refers to

statement made by defendant No.1 to the effect that

since the defendant No.2 has already taken half share in

Sy.No.70 while he was entitled only for 1/4th share in

Sy.No.70, he be granted lesser share in Sy.No.88. He

has further stated to Defendant No.2 had already created

a mortgage to an extent of 19 guntas of land in Sy.No.88

in favour of Munishamappa.

29. Further in the cross-examination recorded on

02.04.2014 defendant No.1 has admitted that

Srinivasiah, Narayanappa, Defendant No.2 and Srinivas

Rao belonged to Shanbogh family as sharers and that he

has admitted the contents of Ex.D4 and Ex.P6. He has

also admitted that lands subject matter of Ex.P6 were

allotted to the share of the parties as indicated therein in

that Defendant No.2 was entitled 1/4th share. Further

though he has admitted that as per Ex.P1 dated

20.11.1978 suit schedule property was mortgaged in

favour of plaintiff No.2 and that as per deed of sale dated

02.07.1991 plaintiff No.2 and G.S.Gopal Rao-Defendant

No.2 had conveyed the said property in favour plaintiff

No.1, and also admitted that the plaintiffs are in

possession of the suit property, however, he has

contended that execution of said mortgage deed and sale

deed is illegal. Similarly he has also contended that the

possession of the plaintiffs is also illegal.

30. In the light of the contents of the Ex.P6

granting 1/4th share in favour of Defendant No.2 in the

lands referred to thereunder and in the light of statement

made by defendant No.1 in the said proceedings before

the Tahsildar and also in the light of admission made by

the defendant No.1 during his cross-examination it can

be safely inferred that defendant No.2 had his vested

right and privilege in respect of the subject land which

was recognized resulting in re-grant to an extent of 1/4th

shares referred to in the said order. It also leads to

inference that he had indeed executed deed of mortgage

in respect of 19 guntas of land in respect of Sy.No.88 in

favour of the plaintiffs as per Ex.P1 dated 26.11.1978.

31. The contention of learned counsel for the

appellant that defendant No.2 had conveyed entire land

which was allotted to his share under the re-grant and

that he had not retained any land for him to execute

documents namely mortgage deed at Ex.P1 and deed of

sale at Ex.P3 in favour of plaintiffs cannot be accepted as

no material evidence in this regard has been brought on

record by the appellant. However, as already noted

contents of re-grant at Ex.P6 and the very own admission

of the defendant No.1 regarding the plaintiffs being in the

possession of suit schedule property pursuant to

mortgage deed and deed of sale, defy the said

submission made on behalf of the appellant.

32. As regards the contention of the appellants in

the first appellate Court moulding the reliefs in granting

relief of partition, learned counsel for the appellant

referred to He also referred to Judgments of the Apex

Court in the case of M/s.Trojan and Company and in

the case of Bacchaj Nahar (supra) to submit that the

First Appellate Court in the absence of pleading and proof

could not have converted the suit of declaration and

moulded the relief granting relief of partition without

there being pleading and opportunity to the defendant to

place his case.

33. Per contra, learned counsel for the

respondents relied upon the judgment of the Coordinate

Bench of this Court in the case of Shivarame Gowda

(deceased by Lrs)(supra) wherein it has held that even

the absence of prayer for a lesser relief and without there

being any amendment to the plaint the Court can pass a

decree for a lesser relief based on a oral and

documentary evidence on record.

34. It is necessary to note that as submitted by

the learned counsel for the respondents that during the

pendency of the suit the plaintiff had filed an application

seeking to amend the plaint for relief of partition which

application was dismissed vide order dated 27.07.2007

said order was carried by the plaintiff in

W.P.No.15872/2007. This Court by order dated

18.07.2011 had observed that;

"the plaintiff is entitled to seek general partition at the time of final arguments and that it is permissible for the parties to show the extent of interest they have in the property and the Court can also mould the relief, to grant the relief of partition to the extent of parties interest."

35. As such no infirmity can be found in judgment

and order passed by first appellate court moulding and

modifying the relief.

36. For the aforesaid reasons and analysis it can be

said that the finding and conclusions arrived at by the

First Appellate Court regarding transfer of ownership of

the subject property made by defendant No.2 in favour

of the plaintiff in furtherance to the transfer of ownership

made by the father of defendant No.1 under deed of

exchange, and in terms of deed of sale dated 02.07.1991

cannot be found fault with. The substantial questions of

law framed for consideration are answered accordingly.