Karnataka High Court
P N Manjunatha vs Nanjundappa on 28 May, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:17838
RSA No. 675 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.675 OF 2024 (SP)
BETWEEN:
1. P N MANJUNATHA
S/O P S NANJUNDAPPA,
AGED ABOUT 40 YEARS,
2. GIRIJAMMA
W/O P S NANJUNDAPPA,
AGED ABOUT 60 YEARS,
BOTH ARE R/O PURALE VILLAGE,
HOLEBENAVALLI POST,
SHIVAMOGGA TALUK AND DISTRICT-577201
Digitally signed
by DEVIKA M ...APPELLANTS
Location: HIGH
COURT OF
KARNATAKA (BY SRI S B HALLI & SRI G C SHANMUKHA, ADVOCATES)
AND:
NANJUNDAPPA
S/O LATE NAGAPPA,
AGED ABOUT 62 YEARS,
R/O PURALE VILLAGE,
HOLEBENAVALLI POST,
SHIVAMOGGA TALUK AND DISTRICT - 577201
...RESPONDENT
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RSA No. 675 of 2024
THIS RSA IS FILED UNDER SEC.100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 01.03.2024
PASSED IN RA NO.82/2019 ON THE FILE OF II
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
SHIVAMOGGA AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the
learned counsel appearing for the appellants.
2. The appellants herein are the defendants before
the Trial Court. The case of the plaintiff before the Trial
Court is that defendant No.1 had executed the sale
agreement dated 28.09.2015 in favour of the plaintiff for
sale consideration of Rs.5,10,000/- and he had received
the earnest money of Rs.3,75,000/- from the plaintiff on
the date of execution of the sale agreement. It is also the
contention of the plaintiff that he was always ready and
willing to perform his part of contract. The plaintiff further
contend that when he had approached defendant No.1, he
has refused to perform his part of contract. Hence, he got
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issued legal notice to defendant No.1 calling upon him to
perform his part of contract. The plaintiff further contend
that in the meanwhile, on 17.12.2015, defendant No.1 had
executed a gift deed in favour of his mother to commit
fraud on the plaintiff and the said gift deed is not binding
on him. Hence, the plaintiff has filed a suit seeking the
relief of specific performance.
3. In pursuance of suit summons, defendants
appeared and filed the written statement contending that
there is no any cause of action to file the suit and the suit
is filed only to harass the defendants and also to grab the
property of the defendants. The defendants denied all the
averments made in the plaint. It is also the contention of
the defendants that the suit schedule property is the joint
family property and there is no division among the family
members and there is a dispute pertaining to the joint
family of the defendants regarding partition dated
05.10.2009 on the ground that it is an unequal partition
and the female members of the family have made
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objection regarding partition and as such the plaintiff
cannot claim any relief over the suit schedule property.
The defendants further contend that the alleged
agreement of sale is a forged and fabricated document
hence, the plaintiff is not entitled for any relief.
4. In order to prove the case of the plaintiff, he
himself got examined as PW1 and also examined four
witnesses as PW2 to PW5 and got marked the documents
at Ex.P1 to P11. On the other hand, defendant No.1 got
examined himself as DW1 and got marked the documents
at Ex.D1 to D7. The Trial Court having considered both
oral and documentary evidence placed on record comes to
the conclusion that the sale agreement came into
existence and the earnest money of Rs.3,75,000/- was
paid by the plaintiff and the plaintiff was always ready and
willing to perform his part of contract and also comes to
the conclusion while answering Issue No.5 that the gift
deed was executed by defendant No.1 in favour of
defendant No.2 only with an intention to defraud the
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plaintiff and hence, granted the relief of specific
performance. Being aggrieved by the judgment and
decree of the Trial Court, the defendants preferred an
appeal before the First Appellate Court in R.A.No.82/2019.
The First Appellate Court on re-appreciation of both oral
and documentary evidence placed on record taken note of
the fact that defendant No.1 had received the earnest
money of Rs.3,75,000/- from the plaintiff and no dispute
with regard to the said fact. The First Appellate Court also
taken note of the contention of appellant No.1 that the
plaintiff has forged the signature on Ex.P1 and also taken
note of the other contention of appellant No.1 that the
plaintiff had forcibly taken the signature of defendant No.1
on blank paper. Having taken note of the said defence, the
First Appellate Court comes to the conclusion that the said
defence are not proved by the defendants and also taken
note of the fact that the gift deed was executed during the
pendency of the suit and also invoked Section 52 of the
Transfer of Property Act and comes to the conclusion that
gift deed is not maintainable and confirmed the judgment
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and decree of the Trial Court. Being aggrieved by the said
judgment and decree of the First Appellate Court, the
present second appeal is filed by the
appellants/defendants before this Court.
5. The counsel for the appellants in his argument
would vehemently contend that both the Courts have not
properly considered the cross-examination of PW1 while
granting the relief of specific performance and in the
cross-examination, PW1 was clearly admits loan
transaction with many people in the Purale village and this
appellant No.1 is also one of them and further admits that
he gave money and in turn, security to that, he used to
get the agreement. All these materials were ignored by
both the Courts. Hence, this Court has to frame
substantial questions of law. The counsel for the
appellants would vehemently contend that both the Courts
have failed to exercise the discretion under Section 20 and
Section 16(c) of the Specific Relief Act. The counsel for
the appellants would vehemently contend that the
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appellants are ready to refund the earnest money with
interest.
6. Having heard the learned counsel appearing for
the appellants and also on perusal of the material on
record it discloses that both the Courts have taken note of
the defence set out by appellant No.1 wherein in one
hand, he has contended that signatures are taken forcibly
and on the other hand he has contended that the
signatures are forged. Apart from that it is the contention
of appellant No.1 that the suit schedule property is a joint
family property. But the fact that appellant No.1 had
received the amount of Rs.3,75,000/- and the said fact is
not in dispute. But only he contend that it is only a loan
transaction and availed a loan of Rs.3,75,000/- for
construction of the house. But in the cross-examination,
he categorically admits that still he is residing in the
rented premises.
7. It is also important to note that during the
pendency of the suit, appellant No.1 had executed the gift
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deed in favour of his mother. He categorically admitted in
the cross-examination that he was residing along with the
parents till his marriage. No doubt, appellant No.1 had
executed the gift deed immediately after filing of the suit.
The said fact has been taken note of by both the Courts.
The very contention of appellant No.1 that it is only a loan
transaction and the said contention has not been proved
by himself or by examining any of the witnesses. On the
other hand, the plaintiff has examined other witnesses
who are the witnesses to the said sale agreement and
there is a concurrent finding with regard to the transaction
is concerned. The agreement of sale is dated 28.09.2015
and time of 1½ months was stipulated to execute the
regular sale deed and notice was issued on 07.11.2015
and gift deed was executed on 09.12.2015 i.e., during the
pendency of the suit. Hence, both the Courts have rightly
come to the conclusion that in order to fraud on the
plaintiff, appellant No.1 had executed the gift deed in
favour of appellant No.2 i.e., his mother that too within a
span of three months of the sale transaction. When such
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being the case, both the Courts have taken note of the
conduct of appellant No.1 as well as the contract between
the parties.
8. The very contention of the counsel for the
appellants that appellant No.1 is ready to refund the
earnest money and the said contention cannot be accepted
at this stage. No doubt, the counsel for the appellants
brought to notice of this Court with regard to the
advancing of money by the plaintiff to the different
persons and mere advancing of money to different persons
is not a ground to dismiss the suit and it shows the
financial capacity of the plaintiff and it also shows that the
plaintiff was always ready and willing to perform his part
of the contract. The counsel for the appellants contends
that in the admission of PW1 he has stated that he used to
take the sale agreement when the loan was advanced but
not such admission is found with regard to the present
transaction is concerned. The contention of the counsel
for the appellants that appellant No.1 was not aware of the
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contents of Ex.P1 and signatures were taken forcibly and
on the other hand he contends that the said signature is
forged one. All these facts are taken note of by the First
Appellate Court while re-appreciation of the material on
record. Hence, I do not find any error committed by both
the Courts in coming to the conclusion that there was a
sale transaction and earnest money of Rs.3,75,000/- was
paid by the plaintiff to appellant No.1. Hence, it is not a
case for invoking Section 100 of CPC to frame any
substantial questions of law when both the Courts have
passed the orders based on both oral and documentary
evidence placed on record.
9. In view of the discussions made above, I pass
the following:
ORDER
The Regular Second Appeal is dismissed.
Sd/-
JUDGE
SN
