Karnataka High Court
Smt. Renukamma vs M B Shadaksharappa on 27 May, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:17671
RSA No. 341 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 341 OF 2024 (SP)
BETWEEN:
1. SMT. RENUKAMMA
W/O LATE SRI K.P.GANGADHARA,
AGED ABOUT 55 YEARS,
2. SRI MALLIKARJUNA
S/O LATE SRI K.P.GANGADHARA,
AGED ABOUT 29 YEARS,
3. SRI CHARAN
S/O LATE SRI K.P.GANGADHARA,
AGED ABOUT 27 YEARS,
ALL ARE R/O.KAREHALLI VILLAGE,
DEVANOOR POST,
SAKHARAYAPATNA HOBLI,
Digitally signed
by DEVIKA M KADUR TALUK,
Location: HIGH CHIKKAMAGALURU DISTRICT.
COURT OF ...APPELLANTS
KARNATAKA
(BY SRI. CHANNABASAPPA S.N., ADVOCATE)
AND:
1. M.B.SHADAKSHARAPPA
S/O LATE BASAVARAJAPPA,
AGED ABOUT 59 YEARS,
RESIDING AT
MACHAGONDANAHALLI VILLAGE,
DEVANOOR POST,
SAKHARAYAPATNA HOBLI,
-2-
NC: 2024:KHC:17671
RSA No. 341 of 2024
KADUR TALUK,
CHIKKAMAGALURU DISTRICT.
...RESPONDENT
(BY SRI. ONKARA K.B., ADVOCATE)
THIS RSA IS UNDER SEC.100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 15.02.2024 PASSED IN R.A.
NO.13/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, KADUR, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 06.01.2020 PASSED IN
O.S.NO.307/2013 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE AND JMFC, KADUR.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellants and learned counsel for the
respondent.
2. The factual matrix of the case of the plaintiff before
the Trial Court is that the suit schedule property is self-acquired
property of Gangadhara. The said Gangadhara, in order to
meet his financial necessities and to discharge the loan in
Vijaya Bank, Devanoor, he agreed to sell the suit property in
favour of the plaintiff for a sum of Rs.1,50,000/-, wherein the
plaintiff has paid an amount of Rs.1,00,000/- as an advance
sale consideration and the said amount is paid through the
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cheque drawn at Punjab National Bank, Hassan Branch. On
13.10.2010, the deceased Gangadhara executed an agreement
of sale in favour of the plaintiff agreeing to sell the suit
schedule property, wherein he has agreed to receive the
balance sale consideration at the time of executing the
registered sale deed and he has agreed to furnish the relevant
documents and survey sketch which is necessary for getting
the sale deed registered in favour of the plaintiff. It is also
contended that the plaintiff was always ready and willing to
perform his part of contract. The said Gangadhara died on
27.06.2013 leaving behind the present defendants as his legal
heirs and also legal notice was issued and inspite of
acknowledging the same, the defendants did not come forward
to execute the sale deed. Hence, suit is filed for specific
performance.
3. In pursuance of the suit summons, the defendants
appeared and filed the written statement denying the very
execution of sale agreement and also denied receipt of advance
sale consideration by Gangadhara and also denied all other
averments. Hence, the Trial Court framed issues with regard to
execution of sale agreement, readiness and willingness and
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whether the said Gangadhara had breached the contract and
whether the plaintiff is entitled for the relief.
4. The Trial Court, having considered both oral and
documentary evidence placed on record, particularly the
documents at Exs.P1 to P8, comes to the conclusion that
property is self-acquired property of said Gangadhara and there
was sale agreement and also comes to the conclusion that
payment was made through the bank and not executed the sale
agreement. Though the defendants have examined one witness
as D.W.1, but not produced any documents and not accepted
the defence of the defendants. Being aggrieved by the said
judgment and decree of specific performance, an appeal is filed
before the First Appellate Court and the First Appellate Court,
on re-appreciation of both oral and documentary evidence
placed on record, confirmed the judgment of the Trial Court.
5. The main contention of the learned counsel for the
appellants before this Court is that Gangadhara was not having
any absolute right to execute the sale deed. Apart from that
suit is not filed against said Gangadhara and appellants being
the wife and sons are not having any knowledge about the sale
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transaction and both the Courts committed an error in granting
the relief of specific performance. Learned counsel also would
vehemently contend that this Court has to frame substantial
question of law whether the kartha of joint family will have an
absolute right over the joint family property to dispose of the
same without the consent of other co-parceners/legal heirs and
granting the relief of specific performance without considering
the question of limitation is erroneous. Hence, it requires
interference.
6. Per contra, learned counsel for the
respondent/plaintiff would vehemently contend that agreement
of sale dated 13.10.2010 is marked as Ex.P1 and RTC extracts
are marked as Exs.P2 to P4 which stands in the name of
Gangadhara and notice and reply notice which are also
exchanged are marked as Exs.P5 and P6. Ex.P7 is the passbook
of Punjab National Bank through which an earnest money of
Rs.1,00,000/- was paid in favour of said Gangadhara. Apart
from that, it is contend that when the defendants have taken
up the defence that property is self-acquired property, Ex.P8
the certified copy of sale deed dated 20.12.1994 is marked
before the Trial Court and both the Courts have not committed
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any error in granting the relief. Hence, it does not require any
interference by exercising the power under Section 100 of CPC.
7. Having heard the learned counsel for the appellants
and learned counsel for the respondent and also considering
the plaint averments, there is an agreement of sale dated
13.10.2010. It is the contention of the appellants that it is a
joint family property and as against the defence, the document
at Ex.P8 i.e., certified copy of sale deed dated 20.12.1994 is
produced and it clearly discloses that property was purchased
by Gangadhara from one Siddagangamma and the same is
discussed in Para No.21 of the judgment of the Trial Court.
Apart from that, the recital of the sale agreement is clear that
balance sale consideration is payable at the time of
registration. In the meanwhile, the said Gangadhara passed
away and notices are also exchanged and when the
fundamental issue is raised by the appellants/defendants before
the Trial Court that property is not self-acquired property,
kartha of the family was not having any right and as against
the same, the document at Ex.P8 is clear that property is self-
acquired property of said Gangadhara. Hence, both the Courts
have not committed any error in coming to the conclusion that
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there was agreement of sale and the respondent/plaintiff was
always ready and willing to perform his part of contract. When
such material is found, the very contention that said
Gangadhara was not having any absolute right to execute the
sale agreement cannot be accepted.
8. It is also important to note that recital of the
document is very clear that said Gangadhara had availed loan
from Vijaya Bank and in order to clear the said loan, agreement
of sale was executed in terms of Ex.P1 having accepted earnest
money of Rs.1,00,000/- in terms of Ex.P7. When such being
the material on record, both the Courts have not committed
any error. Hence, I do not find any ground to frame the
substantial question of law by invoking Section 100 of CPC to
come to an other conclusion as contended. The very contention
that substantial question of law has to be framed that said
Gangadhara being the kartha of the family was not having
absolute right to execute the sale deed cannot be accepted, in
view of the material on record. Therefore, there is no ground
to admit the appeal and frame substantial question of law.
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9. In view of discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
JUDGE
ST
