Karnataka High Court
Shivachadrada Shivananjappa vs S S Veerappa on 23 February, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.443/2008 (PAR)
C/W.
R.S.A. NO.444/2008 (PAR)
IN R.S.A. NO.443/2008:
BETWEEN:
1. SHIVACHARADA SHIVANANJAPPA
S/O LATE SUBRAYAPPA
AGED ABOUT 58 YEARS,
2. SHIVACHARADA SRIKANTAPPA
S/O LATE SUBRAYAPPA
AGED ABOUT 46 YEARS,
3. SHIVACHARADA NANDAKUMAR
S/O SUBBAIAH
AGED ABOUT 45 YEARS,
4. SHIVACHADRADA NANJAMMA
D/O SUBBAIAH
AGED ABOUT 70 YEARS,
ALL THE ABOVE APPELLANTS ARE
R/O BALALE VILLAGE AND HOBLI,
PONNAMPET NAD,
VIRAJPET TALUK, KODAGU.
2
5. SMT. PARVATHAMMA
W/O SHIVANNA
AGED ABOUT 57 YEARS,
R/O BANNIKUPPE VILLAGE AND POST,
HUNSUR TALUK.
6. SMT. KAMALA
AGED ABOUT 50 YEARS,
R/AT KANATESUGADA VILLAGE AND POST,
PERIAPATNA TALUK,
MYSORE DISTRICT.
... APPELLANTS
[BY SRI K.CHANDRANATH ARIGA, ADVOCATE]
AND:
1. S.S. RAGHAVENDRA
S/O LATE SANNAPPA
AGED ABOUT 58 YEARS,
2. S.S. VEERAPPA
AGED ABOUT 68 YEARS,
SINCE DECEASED BY HIS LRS
2(a) SMT. KAMALAMMA
W/O LATE S.S. VEERAPPA
AGED ABOUT 65 YEARS,
2(b) SMT. SACHITRA
D/O LATE S.S. VEERAPPAA
AGED ABOUT 38 YEARS,
2(c) SMT. PAVITHRA
D/O LATE S.S. VEERAPPAA
AGED ABOUT 34 YEARS,
3
2(d) SRI SUNIL
S/O LATE S.S. VEERAPPAA
AGED ABOUT 30 YEARS,
2(e) SRI ANIL
S/O LATE S.S. VEERAPPAA
AGED ABOUT 28 YEARS,
ALL ARE RESIDENTS OF
BILIKERE VILLAGE, BILIKERE
HUNSUR TALUK, MYSORE DISTRICT .
3. SMT. SAVITHRAMMA
SINCE DECEASED BY HER LRSS
3(a) RAVIKUMAR
S/O LATE MAHADEVAPPA
AGED ABOUT 4O YEARS,
R/AT HITTINABAGILU
VILLAGE AND POST
SERICULTURAL ASST.
PERIYAPATTANA,
MYSORE DISTRICT.
SINCE DECEASED BY LRS.
3(a)(1)
SMT.SUDHA
W/O LATE S.M.RAVIKUMAR
AGED ABOUT 50 YEARS
3(a)(2) YESHUKUMAR R
S/O LATE S.M.RAVIKUMAR
AGED ABOUT 50 YEARS
3(a)(3) R. ASHWINI
S/O LATE S.M.RAVIKUMAR
AGED ABOUT 22 YEARS
4
ALL ARE R/AT BILIKERE VILLAGE & POST
MYSORE HUNSUR MAIN ROAD
HUNSUR TALUK, MYSORE DISTRICT
KARNATAKA STATE.
3(b) SMT. KUMARI
W/O SOMASHEKERA
AGED MAJOR,
R/AT CHIKKAHOSUR VILLAGE,
KUSHALNAGAR POST
SOMWARPET TALUK
KODAGU DISTRICT.
3(c) SMT. RENU @ SHANTHI
W/O CHANABASAPPA
AGE: MAJOR,
R/AT ELEVALA VILLAGE AND POST
MYSORE DISTRICT.
4. H.S. ROOPA
W/O JAGADEESH
AGED ABOUT 32 YEARS,
R/AT HITTINABAGILU VILLAGE,
PERIAPATNA.
5. H.S. MANJULA
D/O SANNAMALLAPPA
AGED ABOUT 31 YEARS,
R/AT HOSAHALLI ARENAHALLI
PERIAPATNA TALUK.
6. H.T. SANNAMALLAPPA
S/O LATE THAMMAIAH
AGED ABOUT 60 YEARS,
R/AT HOSAHALLI ARENAHALLI,
PERIAPATNA TALUK.
5
7. S.M.CHANDRASHEKAR
S/O LATE MALLAPPA
AGED ABOUT 40 YEARS
R/AT BALALE VILLAGE & HOBLI
PONNAMPET NAD,
VIRAJPET TALUK, KODAGU.
8. S.M.PRAKASH
S/O LATE MALLAPPA
AGED ABOUT 35 YEARS
SINCE DECEASED BY LRS.
8(a) SMT. RAJAMANI
W/O LATE S.M.PRAKASH
AGED ABOUT 54 YEARS
R/AT AVARTHI VILLAGE
KOPPA POST
PIRIYAPATTANA TALUK
MYSORE-571234.
8(b) SMT. S.P.AMBIKA
D/O LATE S.M.PRAKASH
AGED ABOUT 34 YEARS
R/AT BEERANAHALLI VILLAGE
HONNENAHALLI POST
HANAGUD HOBLI,
HUNSUR TALUK
MYSORE DISTRICT.
8(c) SRI S.P.MALLIKA
S/O LATE S.M.PRAKASH
AGED ABOUT 33 YEARS
R/AT AVARTHI VILLAGE
KOPPA POST,
PIRIYAPATTANA TALUK
MYSORE-571234.
6
8(d) SRI S.P. ASHOKA
S/O LATE S.M.PRAKASH
AGED ABOUT 31 YEARS
R/AT AVARTHI VILLAGE
KOPPA POST,
PIRIYAPATTANA TALUK
MYSORE-571234.
... RESPONDENTS
[BY SRI PRAKASH M.H., ADVOCATE FOR R1 & R2 (a to e);
SRI VENKATESH R. BHAGAT, ADVOCATE FOR R3(b) & R4 - R6;
VIDE ORDER DATED 21.03.2014
R2 (b - d) TREATED AS LRS OF R2 (a & e);
R8(a), R8(b), R(c), R8(d),
R3(a)(1), R3(a)(2), R3(a)(3) ARE SERVED;
VIDE ORDER DATED 20.02.2018,
APPEAL AGAINST R7 ABATED;
VIDE ORDER DATED 27.10.2023,
APPEAL AGAINST R3(c) ABATES]
THIS R.S.A. IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 20.11.2007 PASSED IN
R.A.NO.05/1997 ON THE FILE OF THE AD-HOC DISTRICT JUDGE,
FAST TRACK COURT, VIRAJPET, ALLOWING THE APPEAL FILED
AGAINST THE JUDGEMENT AND DECREE DATED 24.02.1997
PASSED IN O.S.NO.6/1994 ON THE FILE OF THE CIVIL JUDE,
VIRAJPET.
IN R.S.A. NO.444/2008:
BETWEEN:
1 . SHIVACHADRADA SHIVANANJAPPA
AGED ABOUT 58 YEARS
2 . SHIVACHARADA SRIKANTAPPA
AGED ABOUT 46 YEARS
BOTH S/O LATE SUBRAYAPPA
7
BOTH R/O BALALE VILLAGE
AND HOBLI, PONNAMPET NAD,
VIRAJPET TALUK, KODAGU.
... APPELLANTS
(BY SRI K.CHANDRANATH ARIGA, ADVOCATE)
AND:
1. S.S. VEERAPPA
AGED ABOUT 68 YEARS,
SINCE DECEASED BY HIS LRS
1(a) SMT. KAMALAMMA
W/O LATE S.S. VEERAPPA
AGED ABOUT 65 YEARS,
1(b) SMT. SACHITRA
D/O LATE S.S. VEERAPPAA
AGED ABOUT 38 YEARS,
1(c) SMT. PAVITHRA
D/O LATE S.S. VEERAPPAA
AGED ABOUT 34 YEARS,
1(d) SRI SUNIL
S/O LATE S.S. VEERAPPAA
AGED ABOUT 30 YEARS,
1(e) SRI ANIL
S/O LATE S.S. VEERAPPAA
AGED ABOUT 28 YEARS,
ALL ARE RESIDENTS OF
BILIKERE VILLAGE, BILIKERE
HUNSUR TALUK, MYSORE DISTRICT .
8
2. S.S.RAGHVENDRA
S/O LATE SANNAPPA
AGED ABOUT 58 YEARS
3. SMT. SAVITHRAMMA
SINCE DECEASED BY HER LRSS
3(a) RAVIKUMAR
S/O LATE MAHADEVAPPA
AGED ABOUT 4O YEARS,
R/AT HITTINABAGILU
VILLAGE AND POST
SERICULTURAL ASST.
PERIAPATNA,
MYSORE DISTRICT.
SINCE DECEASED BY LRS.
3(a)(1) SMT.SUDHA
W/O LATE S.M.RAVIKUMAR
AGED ABOUT 50 YEARS
3(a)(2) YESHUKUMAR R.
S/O LATE S.M.RAVIKUMAR
AGED ABOUT 50 YEARS
3(a)(3) R. ASHWINI
S/O LATE S.M.RAVIKUMAR
AGED ABOUT 22 YEARS
ALL ARE R/AT BILIKERE VILLAGE & POST
MYSORE HUNSUR MAIN ROAD
HUNSUR TALUK, MYSORE DISTRICT
KARNATAKA STATE.
3(b) SMT. KUMARI
W/O SOMASHEKERA
AGE: MAJOR,
9
R/AT CHIKKAHOSUR VILLAGE,
KUSHALNAGAR POST
SOMWARPET TALUK
KODAGU DISTRICT.
3(c) SMT. RENU @ SHANTHI
W/O CHANABASAPPA
AGED MAJOR,
R/AT ELEVALA VILLAGE AND POST
MYSORE DISTRICT.
4. SRI SANNAMALLAPPA
AGED ABOUT 62 YEARS
5. H.S. MANJULA
D/O SANNAMALLAPPA
AGED ABOUT 36 YEARS,
R/AT HOSAHALLI ARENAHALLI
PERIAPATNA TALUK.
6. H.S.ROOPA
D/O SANNAMALLAPPA
AGED ABOUT 33 YEARS
ALL R/O. HOSAHALLI VILLAGE
REVENDUR HOBLI
PERIYAPATNA TALUK
MYSORE DISTRICT.
7. N.K.LAXMANA
S/O LATE KUTTAPPA
AGED ABOUT 51 YEARS
SINCE DECEASED BY HIS LRS
7(a) SMT.UMAVATHI LAKSHMAN
W/O LATE LAKSHMANNA
AGED ABOUT 43 YEARS
10
7(b) KUTTAPPA LAKSHMAN
S/O LATE LAKSHMANNA
AGED ABOUT 18 YEARS
7(c) MASTER BIDDAPPA LAKSHMANNA
S/O LATE LAKSHMANNA
AGED ABOUT 16 YEARS
REPRESENTED BY HIS
NATURAL GUARDIAN
UMAVATHI LAKSHMAN
ALL ARE R/AT AMATHI POST
BILAGUNDA VILLAGE, MUNDONI
VIRAJPET TALUK, KODAGU DISTRICT.
8. N.K.POOVAIAH
S/O LATE KUTTAPPA
AGED ABOUT 53 YEARS
SINCE DECEASED BY HIS LRS
8(a) SMT. KAVERAMMA POOVAIAH
W/O LATE POOVAIAH
AGED ABOUT 52 YEARS
8(b) SMT. INDIRA POOVAIAH
LATE POOVAIAH
AGED ABOUT 29 YEARS
8(c) SMT. SUBHA POOVAIAH
S/O LATE POOVAIAH
AGED ABOUT 27 YEARS
ALL ARE R/AT AMATHI POST
BILAGUNDA VILLAGE, MUNDONI
VIRAJPET TALUK, KODAGU DISTRICT.
11
9. NELLAMAKKADA SUBRAMANI
S/O LATE KUTTAPPA
AGED ABOUT 54 YEARS
SINCE DECEASED BY HIS LRS
9(a) SMT.PRABHA SUBRAMANI
W/O LATE NELLAMAKKADA SUBRAMANI
AGED ABOUT 58 YEARS
9(b) SMT. KAVANA SUBRAMANI
S/O LATE NELLAMAKKADA SUBRAMANI
AGED ABOUT 26 YEARS
BOTH ARE R/AT AMATHI POST
BILAGUNDA VILLAGE, MUNDONI
VIRAJPET TALUK, KODAGU DISTRICT.
10 . N.K.SHARADHA
D/O LATE KUTTAPPA
AGED MAJOR
R/AT KAIKAD VILLAGE
PARANE POST, KODAGU.
... RESPONDENTS
(BY SRI VENKATESH R. BHAGAT, ADVOCATE FOR R2,
R3(a)(2), R3(b & c) & R4 - R6;
SRI PRAKASH M.H., ADVOCATE FOR R1(a to e) & R2;
VIDE ORDER DATED 21.03.2014,
R1(a & e) DECEASED & R1(b to d) LRS OF
DECEASED R1(a & e);
R3(a)(1), R3(a)(3) - SERVED;
R7(c) IS MINOR, REPRESENTED BY GUARDIAN R7(a);
R7(a), R7(b), R8(a), R8(b), R8(c),
R9(a), R9(b) & R10-SERVED]
12
THIS R.S.A. IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 20.11.2007 PASSED IN
R.A.NO.6/1997 ON THE FILE OF THE AD-HOC DISTRICT JUDGE,
FAST TRACK COURT, VIRAJPET, PARTLY ALLOWING THE APPEAL
FILED AGAINST THE JUDGEMENT AND DECREE DATED
24.02.1997 PASSED IN OS.NO.14/1994 ON THE FILE OF THE
CIVIL JUDGE VIRAJPET.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 12.02.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and learned
counsels for the respondents in both the appeals.
2. The factual matrix of the case of the
appellants/plaintiffs in R.S.A.No.443/2008 arising out of
O.S.No.6/1994 which was filed for the relief of partition,
separate possession and declaration of their half share in the suit
schedule properties, mesne profits and other relief is that the
plaintiffs and defendants belong to same family. The plaintiffs'
ancestor is one Earegowda, S/o.Channabasappa Gowda and he
had got two wives, one Boramma and second one is Puttamma.
Boramma had got two sons, Subbaiah and Puttaswamy and
Puttamma has got only son by name Erappa. Now Subbaiah and
Puttaswamy, sons of Boramma are no more. The children of
Subbaiah and Puttaswamy are defendant Nos.1 to 4. Erappa,
S/o. Puttamma is also no more. Raghavendra and Earappa are
plaintiff Nos.1 and 2, Savithramma, Roopa, Manjula,
Sannamallappa are added as plaintiffs. The defendant No.1-
Shivananjappa is also no more and his legal representatives are
brought on record.
3. It is contended in the plaint that one Earappa,
propositus has got two wives by name Boramma and Puttamma.
Boramma's sons Subbaiah and Puttaswamy and Puttamma's son
Earappa are the only heirs. During the life time of deceased
Earappa, the properties were in tact and they have not been
partitioned by metes and bounds. The defendant No.1 instituted
suit in O.S.No.138/1982 for declaration and permanent
injunction and the said suit was compromised on 30.07.1983.
The defendant No.1 agreed to purchase the said properties for
Rs.1,08,000/- towards the share of the plaintiffs. On
06.06.1983, the defendant with the aid of the police forced the
plaintiff No.1 to sell his share in the schedule property for
Rs.85,000/- even though the consideration was Rs.1,08,000/-
and paid Rs.40,000/- and the remaining amount was agreed to
be paid on or before 30.09.1983 and the plaintiffs are to execute
the sale deed in favour of the defendant No.1. The defendant
No.1 took possession of the properties and not performed their
part of contract and also did not pay the balance amount and got
the sale deed registered. The defendant cannot enforce the
agreement, since it is void and not enforceable. The defendant
is in illegal possession of the schedule properties and they have
enjoyed the usufructs of the land for a period of 2 years after
payment of advance money and as such, the plaintiffs are
entitled for possession of the suit schedule properties, since
there was no partition by metes and bounds.
4. The defendant Nos.1 to 3 filed the written statement
and denied all the contentions of the plaintiffs and denied the
allegation of the plaintiffs that defendant No.1 has not used any
police force or gunda elements and forced the plaintiffs to
execute the agreement of sale. The plaintiffs took Rs.40,000/-
as advance money towards part consideration amount and put
defendant Nos.1 and 2 in possession of the property and agreed
to receive balance amount of Rs.45,000/- at the time of
registration of the deed and denied all averments made in the
plaint and the allegation that the defendant No.1 has not acted
upon in terms of the agreement is also baseless. Hence, suit for
the relief of partition is not maintainable.
5. The defendant No.4 filed a memo adopting the
written statement filed by defendant Nos.1 to 3.
6. The defendant Nos.5 and 6 filed the written
statement contending that the suit for partition and separate
possession is not maintainable and contend that the plaintiffs are
not entitled for half share.
7. Based on the pleadings of the parties, the Trial Court
framed the followings issues in O.S.No.6/1994:-
"1. Whether the plaintiffs prove that the suit
properties were the self-acquired properties of
Earegowda?
2. Whether the plaintiffs prove that late
Earegowda had settled half of the suit
properties to Boramma and her children and
the other half to Puttamma and her child
Earappa?
3. Whether the plaintiffs prove that they are
entitled to half share in the suit properties?
4. Whether the defendants prove that the
plaintiffs are acquiesced and estopped from
claiming half share in the suit properties for
the reasons stated in Para 6 of their written
statement?
5. Whether the plaintiffs prove that the
agreement of sale dated 06.06.1983 is a void
and unenforceable document?
6. Whether the defendants prove that the suit is
bad for non-joinder of necessary parties?
7. Whether the defendants prove that the suit is
not properly valued and Court fee paid is
insufficient?
8. Whether the defendants prove that the
plaintiffs are not entitled to future mesne
profits?
9. Whether the defendants prove that D1 and D2
have improved the suit properties by making
heavy investments and that they are entitled
to be compensated for said improvements in
case of partition?
10. Whether the defendants prove that they are
entitled for compensatory costs as claimed?
11. To what decree or order the parties are
entitled?".
8. Having considered the material on record, the Trial
Court comes to the conclusion that the properties were the self-
acquired properties of original propositus Earegowda. The Trial
Court also comes to the conclusion that Earegowda had settled
half of the suit schedule properties to Boramma and her children
and other half to Puttamma and her only son, but answered
issue No.3 that the plaintiffs are entitled to 1/3rd share on the
ground that settlement deed is not acted upon and comes to the
conclusion that the plaintiffs are acquiesced and estopped from
claiming half share and that the plaintiffs have not proved that
the agreement of sale is a void one and they have proved that it
is unenforceable and answered issue No.6 as 'negative' and issue
No.8 that the plaintiffs are entitled to accounts and not future
mesne profits and answered issue No.9 that though it is proved
that the defendants have improved the suit properties, they are
not entitled for compensation for the said improvements.
9. Being aggrieved by the said judgment and decree of
dismissal of suit, an appeal is filed before the First Appellate
Court in R.A.No.5/1997 and the First Appellate Court, having
considered the grounds urged in the appeal memo, modified the
judgment and decree of the Trial Court, in coming to the
conclusion that the plaintiffs are entitled for half share, since the
Trial Court comes to the conclusion that they are entitled for
1/3rd share. Hence, the appeal in R.S.A.No.443/2008 is filed
before this Court.
10. This Court, having considered the grounds urged in
the second appeal, formulated the following substantial question
of law:-
"Whether the First Appellate Court was
justified in modifying the decree of the Trial Court to
the detriment of the appellants, who were the
defendants before the Trial Court and in the absence
of the plaintiffs having preferred any appeal to the
First Appellate Court?".
11. The factual matrix of the case of the
appellants/plaintiffs in R.S.A.No.444/2008, wherein the plaintiffs
filed the suit before the Trial Court for the relief of specific
performance in O.S.No.14/1994 is that Shivananjappa and
Srikantappa, the first and second sons of Subrayappa referred to
in the suit, who are the defendant Nos.1 and 2 in O.S.No.6/1994
are the plaintiff Nos.1 and 2 in O.S.No.14/1994. Veerappa,
plaintiff No.2 in O.S.No.6/1994 is the defendant No.1 in
O.S.No.14/1994. Raghavendra, the plaintiff No.1 in
O.S.No.6/1994 is the defendant No.2 in O.S.No.14/1994. The
legal representatives of Deveeramma, namely Sannamallappa,
Manjula and Roopa are defendant Nos.4 to 6 respectively in
O.S.No.14/1994.
12. The contention of the plaintiffs in O.S.No.14/1994 is
that the suit schedule properties are the family properties and
under an oral family arrangement which was effected about 60
years prior to the suit, the properties were enjoyed separately
and each of the sons of Earegowda was in possession and
enjoyment of 1/3rd portion of the properties and Veerappa and
Raghavendra i.e., defendant Nos.1 and 2 in O.S.No.14/1994
entered into an agreement of sale dated 14.05.1982 with the
defendant No.7-Muthamma and her son, the defendant No.8-
Subramani and in that regard, the plaintiffs in O.S.No.14/1994
filed a suit in O.S.No.138/1982 on the file of the Civil Judge,
Madikeri against defendants Veerappa, Raghavendra, Muthamma
and Subramani and during the course of proceedings in
O.S.No.138/1982, there was a panchayath and it was decided in
the panchayath on 20.02.1983 that on payment of a particular
sum of money to defendant Nos.7 and 8, the suit in
O.S.No.138/1982 should be got settled and further Veerappa,
Raghavendra and their sisters should execute an agreement of
sale in favour of the plaintiff-Shivananjappa and Srikantappa in
respect of their 1/3rd share in the suit schedule properties and
accordingly, on 06.06.1983, an agreement of sale was executed
agreeing to sell the properties for Rs.85,000/- and a sum of
Rs.40,000/- is paid in advance and the balance amount is
Rs.45,000/-. It is also contended that, in terms of the
agreement, defendants Veerappa, Raghavendra and their sisters
had to move the authorities concerned for obtaining permission
for alienating the properties under the provisions of the
Karnataka Prevention of Fragmentation and Consolidation of
Holdings Act and further had to obtain income tax clearance
certificate and they fail to do and therefore, after the repeal of
the said Act with effect from 02.02.1991, there is absolutely no
impediment for a sale and therefore, they are entitled to a
decree for specific performance. It is contended that they were
always ready and willing to perform their part of the contract.
13. The defendant Nos.1 to 3 appeared and filed their
written statement denying the material averments in the plaint
in O.S.No.14/1994 and contend that the agreement was
executed in the circumstances narrated in the plaint in
O.S.No.14/1994. It is also stated that the suit is barred by time.
It is further contended that there is a prayer for alternative relief
in O.S.No.14/1994 for the refund of the advance amount and for
a decree for a sum of Rs.25,000/- said to be the investments
made by the plaintiffs on the suit schedule properties.
14. The defendant Nos.4, 5 and 6 have filed a memo
stating that they adopt the written statement of defendant Nos.1
to 3.
15. The defendant Nos.7 and 8 have filed written
statement and have also set up a counter-claim stating that in
terms of the decision given by the panchayathdars, a subsequent
agreement took place and accordingly, Veerappa, Raghavendra
and others at the time of executing a sale deed in favour of
Shivananjappa and others had to pay a particular sum of money
to defendant Nos.7 and 8 and therefore, they have set up
counter claim for recovery of the said amount. Additional written
statement has been filed by the other defendants after the
counter-claim was set up stating that defendant Nos.7 and 8 are
not entitled to counter-claim and that the counter claim is also
barred by time.
16. Based on the pleadings of the parties, the Trial Court
has framed the following issues in O.S.No.14/1994:-
"1. Whether the plaintiffs prove that the defendant
Nos.1 to 3 and Smt. Deveeramma had
executed the agreement of sale dated
06.06.1983 in their favour in respect of suit
properties?
2. Whether the defendant Nos.1 to 3 prove that
the agreement of sale dated 06.06.1983 was
outcome of coercion, misrepresentation and
threat?
3. Whether the plaintiffs prove that they have
been all-along ready and willing to perform
their part of the contract under the agreement
of sale dated 06.06.1983?
4. Whether the plaintiffs prove that they are
entitled to specific performance of the
agreement of sale dated 06.06.1983?
5. Whether the plaintiffs prove, in the alternate
that they are entitled to refund of Rs.40,000/-
from the defendants with interest at 15% p.a.,
as claimed?
6. Whether the plaintiffs prove that they have
effected improvement in the suit properties
and that they are entitled to recover
Rs.25,000/- towards said improvements from
the defendants?
7. Whether the defendant Nos.1 to 3 prove that
the suit is barred by limitation?
8. Whether the defendant Nos.1 to 3 prove that
the suit is bad for non-joinder of necessary
parties as contended in paras 2 and 21 of their
written statement?
9. Whether the defendant Nos.1 to 3 prove that
the suit is not properly valued and Court fee
paid is insufficient?
10. To what decree or order the parties are
entitled?".
17. The Trial Court, considering the material available on
record, answered issue No.1 as 'affirmative' that there was a
sale agreement and comes to the conclusion that there was no
coercion, misrepresentation and threat while getting the sale
agreement dated 06.06.1983. The Trial Court, answered issue
No.3 in coming to the conclusion that though the plaintiffs have
proved that they were willing and ready to perform their part of
contract at some earlier part of time, their subsequent readiness
and willingness is not established. The Trial Court answered
issue No.4 as 'negative' that the plaintiffs are not entitled for
specific performance and answered issue No.5 as 'negative' that
the plaintiffs are not entitled for refund of money. However, the
Trial Court answered issue No.6 in coming to the conclusion that
though it is proved that the plaintiffs have effected
improvements, they are not entitled to recover the same, since
they have used the usufructs. While answering issue No.7, the
Trial Court comes to the conclusion that suit is barred by
limitation and answered issue No.8 as 'negative' regarding non-
joinder of necessary parties and answered issue No.10 that the
plaintiffs are not entitled for the relief of specific performance.
18. The Trial Court also framed following additional
issues in O.S.No.14/1994:-
"1. Whether defendant Nos.8 and legal
representatives of defendant No.7 are entitled
to the counter-claim?
2. Is the counter-claim barred by time as
contended by the other defendants?".
The Trial Court answered additional issue Nos.1 and 2
against the defendant Nos.7 and 8 and rejected their counter
claim.
19. Being aggrieved by the judgment and decree of
dismissal of suit, the plaintiffs have also filed an appeal before
the First Appellate Court in R.A.No.6/1997 and the First
Appellate Court, having considered the grounds urged in the
appeal and also on re-appreciation of both oral and documentary
evidence placed on record, allowed the appeal in part and
directed the defendants to pay a sum of Rs.40,000/- to the
plaintiffs within one from the date of the judgment. If they fail
to pay the amount within the stipulated period, the defendants
shall pay interest at the rate of 10% p.a. on the said amount.
Being aggrieved by the judgment and decree of granting the
relief of refund of money and not granting the relief of specific
performance, the appeal in R.S.A.No.444/2008 is filed before
this Court.
20. This Court, having considered the grounds urged in
the appeal in R.S.A.No.444/2008, framed the following
substantial questions of law:-
"i. Whether both the Courts below are justified in
holding that there was readiness and
willingness on behalf of the plaintiff initially
and subsequently, the same did not exist?
ii Whether the Courts below were justified in
dismissing the suit for specific performance?".
21. Learned counsel appearing for the appellants in
R.S.A.Nos.443/2008 would vehemently contend that in the suit
filed for the relief of partition, the Trial Court only granted 1/3rd
share. But, the First Appellate Court committed an error in
modifying the same as half share in the appeal filed by the
appellants, though no appeal is filed by the plaintiffs in
O.S.No.6/1994. The counsel also would vehemently contend that
both the Courts committed an error in not granting the relief of
specific performance in favour of the plaintiffs, who are the
appellants in O.S.No.14/1994 and concurred with the findings of
the Trial Court. The counsel would vehemently contend that the
property originally belongs to Earegowda is not in dispute. The
counsel also would vehemently contend that the plaintiffs in the
suit filed for the relief of partition claimed 1/3rd share and the
Trial Court rightly granted 1/3rd share. But, the First Appellate
Court committed an error in modifying the same as half share.
Hence, the very approach of the First Appellate Court is
erroneous and the same has to be reversed by answering the
substantial question of law framed by this Court.
22. Learned counsel appearing for the appellants in
R.S.A.No.444/2008 would vehemently contend that there is no
dispute with regard to the sale agreement dated 06.06.1983 and
the Trial Court also comes to the conclusion that there was a
sale agreement and the plaintiffs received a sum of Rs.40,000/-
as advance and the Trial Court failed to take note of the fact that
Karnataka Prevention of Fragmentation and Consolidation of
Holdings Act was prevailing at the time of entering into an
agreement. The counsel would vehemently contend in his
argument that time is not essence of the contract, but both the
Courts committed an error in coming to the conclusion that time
is the essence of the contract. The discussion made by the Trial
Court in respect of specific performance is erroneous and ought
not to have dismissed the suit for the relief of specific
performance when there is no dispute with regard to the
agreement of sale. The counsel would vehemently contend that
in the cross-examination, it is categorically admitted that money
was available in the bank account. However, the Trial Court
erroneously answered issue No.3 that the plaintiffs were not
ready and the conclusion arrived that they were not ready
subsequently is not correct.
23. Learned counsel for the appellants in both the
appeals in support of his argument, relied upon the genealogical
tree and there is no dispute with regard to the genealogical tree
and the relationship between the parties.
24. Learned counsel for the appellants in both the
appeals, in support of his argument, relied upon the judgment of
the Apex Court in ROSHANLAL KUTHALIA AND OTHERS VS.
R.B. MOHAN SINGH OBEROI reported in (1975) 4 SCC 628
and brought to notice of this Court Para No.35, wherein an
observation is made that equity arises largely from the inequity
of a foreign government's refusal, for reasons we cannot guess,
to carry out the directions of its municipal Courts.
25. The counsel also relied upon the judgment of the
Apex Court in PASUPULETI VENKATESWARLU VS. MOTOR &
GENERAL TRADERS reported in (1975) 1 SCC 770 and
brought to notice of this Court Para No.4, wherein an
observation is made that it is basic to our processual
jurisprudence that the right to relief must be adjudged to exist
as on the date a suitor institutes the legal proceeding. Equally
clear is the principle that procedure is the handmaid and not the
mistress of the judicial process. If a fact, arising after the lis has
come to Court and has a fundamental impact on the right to
relief or the manner of moulding it, is brought diligently to the
notice of the Tribunal, it cannot blink at it or be blind to events
which stultify or render inept the decretal remedy. Equity
justifies bending the rules of procedure.
26. The counsel also relied upon the judgment of the
Apex Court in PRAKASH CHANDRA VS. ANGADLAL AND
OTHERS reported in (1979) 4 SCC 393 and brought to notice
of this Court Para No.9, wherein an observation is made that the
ordinary rule is that specific performance should be granted. It
ought to be denied only when equitable considerations point to
its refusal and the circumstances show that damages would
constitute an adequate relief.
27. The counsel also relied upon the judgment of the
Apex Court in KAMMANA SAMBAMURTHY (DEAD) BY LRS.
VS. KALIPATNAPU ATCHUTAMMA (DEAD) AND OTHERS
reported in (2011) 11 SCC 153 and brought to notice of this
Court Para Nos.11, 19, 22 and 27, wherein in Para No.27 it is
held that there is no impediment for enforcement of the
agreement against the vendor to the extent of his half-share in
the property.
28. The counsel also relied upon the judgment of the
Apex Court in SHIVAJI YALLAPPA PARTIL VS. RANAJEET
APPASAHEB PATIL AND OTHERS reported in (2018) 16 SCC
725, wherein the Apex Court has discussed with regard to
Section 20 of the Specific Relief Act, 1963 that the discretion to
pass decree for specific performance of contract requires to be
exercised judicially and prudently. The counsel also referred
Para No.19 of the judgment regarding exercise of discretionary
relief. Learned counsel appearing for the appellants referring
these judgments would vehemently contend that both the Courts
failed to take note of the fact that there was an agreement and
there was part payment of money and possession was also
delivered and failed to take note of Section 53-A of the Transfer
of Property Act, 1882.
29. On the other hand, learned counsels appearing for
the respective respondents in both the appeals would
vehemently contend that the respondents have issued paper
publication in the year 1979 and counter publication was also
made by the other side in respect of undivided interest and there
is no dispute with regard to the fact that earlier there was an
agreement in the year 1982 in favour of Muthavva and also no
dispute with regard to the fact that suit was settled and fresh
agreement was entered into on 06.06.1983. The counsel would
vehemently contend that in terms of the fresh agreement, the
plaintiffs have not come forward to have the sale deed and both
the Courts have taken note of the said fact into consideration
while rejecting the prayer for specific performance. With regard
to the modification of the share by the First Appellate Court in
the appeal, it is the contention that the plaintiffs were not aware
of the same while seeking the relief of partition and hence, they
claimed 1/3rd share and subsequently, on coming to know about
the settlement deed dated 05.12.1910, prayer was made to
grant half share and the Trial Court committed an error in
coming to the conclusion that the parties have not acted upon in
terms of the settlement deed and when there was a registered
document, though no appeal was filed, the First Appellate Court
considered granting half share and not committed any error.
30. The counsel also would vehemently contend that in
terms of the agreement dated 06.06.1983, it is very clear that
transaction should be completed in the end of September, 1983
i.e., 30.09.1983 and before the end of September, 1983, notice
was issued in terms of Ex.P4 i.e., on 27.09.1983 and reply was
given on 30.10.1983 in terms of Ex.P13. A request was also
made to handover the draft sale deed, but the draft sale deed
was not handed over and subsequently, suit was filed in the year
1985 itself seeking the relief of partition and the same is
numbered as O.S.No.88/1985. On transfer, the same was
renumbered as O.S.No.275/1989 and subsequently, the same is
renumbered as O.S.No.6/1994. The counsel would vehemently
contend that when the plaintiffs came to know about the
settlement deed, got amended the same and the Trial Court
committed an error and the First Appellate Court, having
exercised the power under Order 41 Rule 33 of CPC, modified
the same and now, they cannot find fault with the same. The
counsel would submit that the suit for the relief of specific
performance was filed on 20.01.1994 by the plaintiffs and they
have not given any notice, but notice is sent by the respondents.
Hence, both the Courts have taken note of the fact that time is
the essence of the contract and the Trial Court rightly comes to
the conclusion that suit is barred by limitation and there was no
need of considering the provisions of Karnataka Prevention of
Fragmentation and Consolidation of Holdings, since the same
was repealed in the year 1991 itself and even after repealing of
the said Act, suit was filed in 1994 and at no point of time, the
plaintiffs were ready to have the sale deed.
31. Learned counsels for the respondents in support of
their argument, relied upon the judgment of the Apex Court in
JUGRAJ SINGH AND ANOTHER VS. LABH SINGH AND
OTHERS reported in AIR 1995 SC 945 and brought to notice of
this Court Para No.5 of the judgment, wherein the Apex Court
has observed that the subsequent purchasers have got only the
right to defend their purchase on the premise that they have no
prior knowledge of the agreement of sale with the plaintiff. They
are bona fide purchasers for valuable consideration. Though
they are necessary parties to the suit, since any decree obtained
by the plaintiff would be binding on the subsequent purchasers,
the plea that the plaintiff must always be ready and willing to
perform his part of the contract must be available only to the
vendor or his legal representatives, but not the subsequent
purchasers.
32. The counsel also relied upon the judgment of the
Apex Court in SHRIMANT SHAMRAO SURYAVANSHI AND
ANOTHER VS. PRALHAD BHAIROBA SURYAVANSHI (DEAD)
BY LRS. AND OTHERS reported in AIR 2002 SC 960 and
brought to notice of this Court Para No.14 of the judgment,
wherein the Apex Court has observed that part performance of
contract-defendant-transferee obtained possession over property
in part performance of contract-possession over property is
protected even if period of limitation for bringing suit for specific
performance of an agreement to sell has expired - defendant -
transferee, however, is required to fulfill necessary conditions in
order to defend or protect his possession. That apart, Limitation
Act, does not extinguish defence but only bars the remedy.
33. In reply to the argument of the learned counsel for
the respondents, learned counsel for the appellants would
vehemently contend that the judgment of the Apex Court in
SHRIMANT SHAMRAO SURYAVANSHI's case is not applicable
and condition Nos.5 and 6 of the agreement of sale is very clear
to obtain income tax certificate and the judgments which have
been relied upon by the learned counsel for the respondents will
not come to the aid of the respondents. Hence, prayed the Court
to grant the relief of specific performance.
34. Having heard the learned counsel for the appellants
and learned counsel for the respondents, though the suits and
appeals are clubbed together, this Court has framed the
substantial questions of law independently and hence, the same
have to be answered independently. The substantial question of
law of framed by this Court in R.S.A.No.443/2008 is:
"Whether the First Appellate Court was
justified in modifying the decree of the Trial Court to
the detriment of the appellants, who were the
defendants before the Trial Court and in the absence
of the plaintiffs having preferred any appeal to the
First Appellate Court".
35. It is not in dispute that suit was filed claiming 1/3rd
share in the suit schedule properties at the first instance and the
same was amended thereafter claiming half share. It is also not
in dispute that originally the properties belong to Earegowda. It
is also not in dispute that he had two wives i.e., Boramma and
Puttamma and through first wife, he had two sons i.e., Subbaiah
and Puttaswamy and the second wife had only one son i.e.,
Earappa. It has to be noted that, it is the specific case of the
plaintiffs that in a suit for partition, they are entitled for 1/3rd
share and it has to be noted that settlement deed is also marked
before the Trial Court that a settlement was made by the
propositus of the family Earegowda during his life time and the
same is marked as Ex.P1 dated 05.12.1910.
36. It is the case of the plaintiffs that they came to know
about the same subsequently and hence, got amended the same
thereafter. The fact that settlement deed came into existence on
05.12.1910 is not in dispute. However, the Trial Court comes to
the conclusion that the same is not acted upon and not accepted
the case of the plaintiffs for grant of half share. But, the First
Appellate Court, in the absence of the appeal by the plaintiffs,
proceeded to reconsider the same and reassessed the material
available on record and having considered the material on
record, taken note of the settlement deed dated 05.12.1910.
However, the Trial Court, while answering issue Nos.3 and 4,
negated the same, but the First Appellate Court reversed the
findings of the Trial Court and formulated the point in the appeal
whether the settlement deed executed by the propositus of the
family Earegowda is binding on the plaintiffs and defendants and
whether the Trial Court has wrongly answered issue No.2 that
the settlement deed is not acted upon and point No.3 whether
the plaintiffs are entitled for equal share, if so, what is the
quantum of share the plaintiffs and the defendants are entitled
to and all the points for consideration are answered as
'affirmative'.
37. The First Appellate Court, in Para No.25 of the
judgment discussed the same and taken note of Section 8 of the
Transfer of Property Act which deals with the settlement deed
i.e., the deed which creates right and interest in favour of settlee
regarding the properties mentioned therein with life estate for an
enjoyment during her life time, settlee was to acquire absolute
right to enjoyment, alienation etc., and such deed is considered
to be settlement deed and also taken note of contents of Ex.P1
and extracted the same in the very same paragraph and
considering the same, the First Appellate Court comes to the
conclusion that the very original owner i.e., propositus of the
family made it clear in the settlement deed that both the wives
and their children are entitled for share in the suit schedule
properties and taken note of half share and remaining half share
should go to the legal representatives of deceased Subbaiah and
Puttaswamy, who are the children of first wife Boramma and in
Para Nos.28 and 29 of the judgment, discussed the same in
length and hence, the First Appellate Court comes to the
conclusion that settlement deed executed by late Earegowda is
binding on the plaintiffs and the defendants and one cannot go
beyond the intention of settled rights of the parties left by
Earegowda. Simply because it is the fact not brought to the
notice of the legal representatives of late Earegowda, the
document cannot be thrown away and his legal representatives,
cannot interpret the document according to their convenience,
since late Earegowda acquired these properties shown in Ex.P1
out of his own earnings and settled the rights of the parties.
Having taken note of the registered document of the year
05.10.1910 which is marked as Ex.P1, the First Appellate Court
given more credence to the documentary evidence rather than
oral evidence.
38. Having perused the reasoning given by the First
Appellate Court and also discussion made with regard to both
question of fact and question of law, the First Appellate Court
rightly comes to the conclusion that the share can be modified as
half share instead of 1/3rd share and in the absence of the
appeal by the plaintiffs, the Court can modify the share by
exercising the power under Order 41 Rule 33 of CPC. Hence, I
do not find any error committed by the First Appellate Court in
modifying the same. Therefore, the substantial question of law
framed by this Court is answered accordingly that the First
Appellate Court has not committed any error in exercising its
statutory power in appeal under Section 96 of CPC and under
Order 41 Rule 33 of CPC.
39. Now, this Court has to consider the material
available on record with regard to the substantial questions of
law framed by this Court in R.S.A.No.444/2008 which reads as
hereunder:
"i. Whether both the Courts below are justified in
holding that there was readiness and
willingness on behalf of the plaintiff initially
and subsequently, the same did not exist?
ii Whether the Courts below were justified in
dismissing the suit for specific performance?".
40. The substantial questions of law framed by this Court
is with regard to readiness and willingness of the plaintiffs while
seeking the relief of specific performance. The First Appellate
Court in R.A.No.6/1997 formulated the point whether the Trial
Court committed an error in not granting the relief of specific
performance. The First Appellate Court having considered
whether the defendants have proved that they are entitled for
protection under 53-A of Transfer of Property Act and discussed
the same in Para No.34 of the judgment and so also taken note
of point No.3 with regard to the limitation which was answered in
the suit i.e., whether the suit is barred by limitation, as the Trial
Court held that the suit is barred by limitation and the said
finding is perverse. While answering point Nos.2 and 3, the First
Appellate Court in detail discussed that there was an agreement
of sale in terms of Ex.D1 dated 06.06.1983 and also taken note
of recital in the agreement that sale deed has to be executed on
30.09.1983 and balance amount has to be paid at the time of
execution of registered sale deed.
41. The Trial Court has also taken note of the fact that
suit was filed in the year 1994 and both the Courts have taken
note of the fact that suit ought to have been filed within three
years after 30.09.1983. Learned counsel for the appellants
would vehemently contend that time is not the essence of the
contract and the said contention cannot be accepted, when a
specific date is fixed in the agreement i.e., 30.09.1983. Apart
from that, an amount of Rs.40,000/- was paid and the balance
amount was payable on a particular date and the purpose for
which the properties are sold is also mentioned, wherein it is
also undertaken that they will not interfere with the possession
of the aggrieved purchaser. No doubt, the possession was
delivered at the time of entering into an agreement, the fact that
earlier suit was filed in O.S.No.132/1982 and the same was
withdrawn in view of the compromise is not in dispute and
subsequent sale agreement is also entered into which is
discussed in Para Nos.35 and 36 of the judgment of the First
Appellate Court.
42. The First Appellate Court also taken note of issue
No.7, the intention of the parties and also the fact that time is
the essence of the contract and discussed in detail Article 54 of
the Limitation Act and taken note of the fact that, inspite of
earlier suit being filed for the relief of partition in
O.S.No.88/1985, which was renumbered as O.S.No.275/1989
and thereafter renumbered as O.S.No.6/1994 and notices are
also exchanged in the year 1983 itself, the plaintiffs have not
made any efforts to file the suit immediately, though the
defendants demanded the draft sale deed for getting the income
tax clearance and the plaintiffs kept quiet for a longer period and
suit was filed in the year 1994. Hence, both the Courts have
rightly come to the conclusion that the plaintiffs were earlier
ready and subsequently, they were not ready to perform their
part of contract, inspite of notices being exchanged. However,
the First Appellate Court though not granted the relief of specific
performance, ordered to refund the amount of Rs.40,000/- with
interest at 10% p.a. in favour of the plaintiffs.
43. It has to be noted that while granting the relief of
specific performance, the plaintiffs should be always ready and
willing to perform their part of contract in compliance of Section
16(c) of Specific Relief Act and the same has not been complied
with. Under the circumstances, the plaintiffs are not entitled for
the relief of specific performance and both the Courts have not
committed any error in not granting the relief of specific
performance. Hence, I do not find any perversity in the findings
of the Trial Court and the First Appellate Court for inaction on
the part of the plaintiffs while seeking the relief of specific
performance and both the Courts have taken note of it. Though
the agreement is of the year 1983, the plaintiffs have filed the
suit in the year 1994 and even though the suit was filed
belatedly and time barred, the First Appellate Court granted the
relief of refund of money of Rs.40,000/- with interest at 10%
p.a. Therefore, I do find any grounds to reverse the finding of
the First Appellate Court and I answer the substantial questions
of law accordingly.
44. In view of the discussions made above, I pass the
following:
ORDER
The regular second appeals are dismissed.
Sd/-
JUDGE
ST
