Karnataka High Court
Yallappa S/O Babu Mali vs Hussainsab S/O Mahammadsab @ Mammusab ... on 25 January, 2025
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RFA No. 100577 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO. 100577 OF 2019 (SP)
BETWEEN:
YALLAPPA S/O BABU MALI
(WRONGLY MENTINED AS YALLAPPA
S/O BABU @ SHIVARAY MALI),
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O: KADAKOL ROAD, JAMKHANDI-587301,
DIST: BAGALKOTE.
...APPELLANT
(BY SRI. RAVI S BALIKAI, ADV)
AND:
HUSSAINSAB S/O MAHAMMADSAB
@ MAMMUSAB KUDACHI
AGE: 78 YEARS, OCC: AGRICULTURE,
R/O: SARAWAD-5863201,
Digitally signed TQ & DIST: VIJAYAPURA.
by
MOHANKUMAR
B SHELAR ...RESPONDENT
Location: High (BY SRI. GIRISH A YADAWAD, ADV)
Court of
Karnataka, RFA FILED UNDER SEC. 96 OF CPC., 1908, AGAINST THE
Dharwad Bench
JUDGMENT AND DECREE DTD:30.10.2019 PASSED IN
O.S.NO.148/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE, JAMKHANDI, DECREEING THE SUIT FILED FOR SPECIFIC
PERFORMANCE OF CONTRACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RFA No. 100577 of 2019
CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)
This regular first appeal is filed by the appellant,
challenging the judgment and decree dated 30.10.2019
passed in O.S.No.148/2015 by the learned Additional
Senior Civil Judge, Jamkhandi.
2. For convenience, the parties are referred to,
based on their ranking before the trial court. The appellant
was the defendant, and the respondent was the plaintiff.
3. Brief facts, leading rise to the filing of this
appeal are as follows:-
The plaintiff filed a suit against the defendant for a
specific performance of the contract. It is the case of the
plaintiff that the defendant is the absolute owner of the
suit schedule property. He agreed to sell the same for
valuable consideration of Rs.40 lakhs, and executed a
registered sale agreement dated 05.10.2013 by receiving
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advance sale consideration amount of Rs.15 lakhs.
Further, agreed to execute a registered sale deed by
accepting the balance consideration amount of Rs.25 lakhs
on or before 04.10.2015. It is contended that, the plaintiff
was/is always ready and willing to perform his part of the
contract. The defendant failed to perform his part of the
contract, and he evaded the same on one or the other
pretext. The plaintiff got issued a legal notice dated
30.07.2014, calling upon the defendant to receive the
balance sale consideration amount and execute a
registered sale deed. The defendant replied to the legal
notice vide reply dated 09.07.2015, denying the contents
of the legal notice issued by the plaintiff. The plaintiff
issued another legal notice on 26.10.2015, calling upon
the defendant, to execute the registered sale deed as
agreed upon. The defendant again replied to the legal
notice dated 26.10.2015, denying the contents of the legal
notice. Hence, a cause of action arose for the plaintiff to
file a suit for specific performance of a contract.
Accordingly, prays to decree the suit.
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4. The defendant filed a written statement denying
the averments made in the plaint. It is contended that, the
defendant does not know the reading and writing of
Kannada or any other language, and the plaintiff, taking
undue advantage, has induced him to execute the
agreement of sale of the suit properties by
misrepresentation of facts. It is also contended that the
suit schedule property is a joint family property, which was
acquired from the joint family funds, the family members
are having a share in the suit land. The defendant is not a
manager of the joint family. The suit land is the only
property and has an NA potentiality; as such the suit land
has more value. It is contended that there was no
necessity of selling the suit land. It is also contended that,
there is no cause of action to file the suit. Hence, prays to
dismiss the suit.
5. The trial court based on the aforesaid
pleadings, framed the following issues:
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1) Whether the plaintiff proves that the defendant
entered with him a sale agreement dated
05.10.2013 thereby agreeing to sell the suit
property for a consideration Rs.40,00,000/- and
accepted an earnest money of Rs.15,00,000/- ?
2) Whether plaintiff proves that he was/is ready and
willing to perform his part of contract?
3) Whether plaintiff proves that the defendant failed
and neglected to perform his part of contract?
4) Whether the defendant proves that the plaintiff
taking undue advantage of his illiteracy and
ignorance, upon fraudulent misrepresentation got
the document styled as sale agreement executed in
his favour?
5) Whether the plaintiff is entitled for decree as sought
for?
6) What order or decree?
6. The plaintiff to substantiate his case, examined
himself as Pw.1, examined two witnesses as Pws.2 and 3,
and marked 6 documents as Exs.P1 to 6. On the other
hand, the defendant examined his father cum Power of
Attorney holder as DW.1, and marked 10 documents as
Exs.D1 to 10. The trial court, after recording the evidence,
hearing on both sides and on assessment of oral and
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documentary evidence, answered issue Nos.1 to 3 and 5 in
the affirmative, issue No.4 in the negative, and issue No.6
as per the final order. The suit of the plaintiff was decreed
with costs, and directed the defendant to execute a
registered sale deed in favour of the plaintiff within two
months from the date of the order.
7. The defendant aggrieved by the judgment and
decree dated 30.10.2019 passed in O.S.No.148/2015, filed
this regular first appeal.
8. Heard the learned counsel for the defendant
and the plaintiff.
9. Learned counsel for the defendant submits that
the plaintiff has failed to prove the execution of an
agreement of sale. He submits that the defendant has
seriously disputed the contents of the sale agreement and
also denied the receipt of the sale advance amount of
Rs.15 lakhs. He submits that, the plaintiff has not led any
evidence nor proved the payment of a huge sum of sale
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advance money. He further submits, that the plaintiff has
failed to prove that he was ready, and willing to perform
his part of the contract as per section 16(c) of the Specific
Relief Act. He submits that, the plaintiff was in a dominant
position and had an unfair advantage over the defendant,
and the plaintiff dictated the contents of the Ex.P1. The
said agreement of sale is created at the instance of the
plaintiff. He further submits that, the trial court, while
exercising its judicial discretion, has not properly exercised
its judicial discretion under Section 20 of the Specific
Relief Act. Hence, on these grounds, prays to allow the
appeal.
10. Per contra, learned counsel for the plaintiff
submits that, the defendant executed a registered sale
agreement in favour of the plaintiff by receiving advance
consideration of Rs.15 lakhs, and agreed to pay the
balance consideration amount at the time of registration of
the sale deed. He submits that, the plaintiff, to show his
readiness and willingness, got issued a legal notice calling
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upon the defendant to receive the balance consideration
amount and execute the registered sale deed. He further
submits that, the defendant has admitted the execution of
the sale agreement in favour of the plaintiff, regarding the
suit schedule property. He submits that, when the
defendant had admitted regarding the execution of the
sale agreement, said admission is sufficient to hold that
the plaintiff had proved the sale agreement executed by
the defendant in favour of the plaintiff. He also submits
that, the plaintiff proved that, he was/is always ready and
willing to perform his part of the contract. The trial court
has rightly decreed the suit. There is no error in the
impugned judgment. Hence, on these grounds, he prays to
dismiss the appeal.
11. Perused the records, and considered the
submissions of the learned counsel for the parties.
12. The points, that arise for our consideration are
that:
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1) Whether the plaintiff proves that the defendant
executed a sale agreement dated 05.10.2013
agreeing to sell the suit property for
consideration of Rs.40 lakhs and accepted an
earnest money of Rs.15 lakhs?
2) Whether the plaintiff was/is always ready and
willing to perform his part of the contract?
3) Whether the defendant proves that in case if
the suit for specific performance of a contract is
granted the defendant would be put to
hardship?
4) Whether the defendant proves that the
judgment and decree passed by the trial court
is arbitrary and erroneous?
5) What order or decree?
13. Re-point No.1 and 2: These points are
interlinked with each other and they are taken together for
common discussion to avoid the repetition of facts.
The plaintiff, to prove his case, examined himself as
PW.1. He has deposed that, the defendant is the absolute
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owner of the suit property. He agreed to sell the suit
schedule property for valuable consideration of Rs.40
lakhs, and the plaintiff paid a sum of Rs.15 lakhs as an
advance sale consideration amount, and it was agreed
that, the balance sale consideration amount is to be paid
on or before 04.10.2015, and it was agreed that, the
defendant shall execute a registered sale deed on or
before 04.10.2015. He has deposed that the plaintiff
was/is always ready and willing to perform his part of the
contract, but the defendant was not willing to perform his
part of the contract. The plaintiff got issued the legal
notices dated 30.07.2014 and 26.10.2015 calling upon the
defendant to receive the balance consideration amount
and execute the registered sale deed. The defendant
replied to the legal notices by his reply notice dated
09.07.2015 and 03.11.2015. The defendant, in the reply,
denied the execution of the sale agreement and receipt of
Rs.15 lakhs as an advance sale consideration amount.
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14. The plaintiff has produced the registered sale
agreement marked as Ex.P1, which discloses that the
defendant agreed to sell the suit schedule property for
valuable consideration of Rs.40 lakhs, and received a sum
of Rs.15 lakhs towards advance sale consideration
amount, and also it was agreed that, the defendant shall
execute a registered sale deed on or before 04.10.2015.
The said sale agreement was registered on 05.10.2013.
Ex.P2 is the RTC extract of the suit property, which
discloses that the defendant is the absolute owner of the
suit schedule property and he has acquired the suit
property as shown in M.R.No.486/2008-09 dated
30.07.2009. Exs.P3 and 4 are the office copies of the legal
notices issued by the plaintiff to the defendant, calling
upon the defendant to receive the balance sale
consideration amount, and execute the registered sale
deed. Exs.P5 and 6 are the reply notices issued by the
defendant, wherein the defendant has denied the
execution of Ex.P1, and receiving of an advance sale
consideration amount of Rs.15 lakhs.
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15. In the course of cross- examination, it was
suggested to PW.1 that, the land was standing in the
name of the defendant. The said suggestion was admitted
by PW.1. It was suggested that, PW.1 has fraudulently
obtained the thumb mark of the defendant in the guise of
obtaining an election identity card. He denied the said
suggestion. It was suggested to PW.1 that the said land
was purchased by the defendant and his family members.
The said suggestion was admitted by him. To the
suggestion that, there is no division in the defendant's
family. PW1 pleads ignorance. The plaintiff to prove the
contents of the Ex.P1, examined the attesting witness as
Pw.2, who has deposed that, the defendant agreed to sell
the suit schedule property in favour of the plaintiff for the
valuable consideration of Rs.40 lakhs and the plaintiff paid
Rs.15 lakhs to the defendant. After receiving the advance
sale consideration amount of Rs.15 lakhs, the defendant
executed the registered sale agreement dated 05.10.2013.
He has deposed that, he was present at the time of
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execution of a sale agreement, and he affixed his
signature on Ex.P1 as a witness to the transaction. His
signature is marked as Ex.P1(b). In the course of cross-
examination, nothing has been elicited to discard the
evidence of Pw.2. Pw.3 is the scribe of the sale agreement.
He has deposed that, on 05.10.2013, the plaintiff and
defendant, Shekhar S/o Babu Mali, Yusuf S/o Ameerbeg,
and Sunil Shankarayya Hiremath approached him, and
requested to draft the sale agreement. As per the
instructions of the defendant and one Husainsab, he has
drafted the sale agreement and thereafter, read over the
contents. The parties, after having understood the
contents of the sale agreement, have affixed their
signatures and thumb marks on the sale agreement. The
signature of PW.3 is marked as Ex.P1(c). Nothing has
been elicited from the mouth of this witness to discard the
evidence.
16. In rebuttal, the father cum Power of Attorney
holder of the defendant was examined as DW.1. He filed
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the examination-in-chief along with an affidavit and
reiterated the written statement averments. He has
deposed that, the defendant is an illiterate, and he does
not know reading and writing of kannada or any other
language. He has deposed that, the plaintiff, by
misrepresentation of facts, obtained the signatures of the
defendant and created the sale agreement. He deposed
that, the suit schedule property is the joint family property
of the defendant and his family members. The alleged sale
agreement is not enforceable. The defendant relied on the
documents Ex.D1. Ex.D1 is the General Power of Attorney
which discloses that, the defendant had executed a power
of attorney authorizing DW.1 to depose, on behalf of the
defendant; Ex.D2 is the khata extract; Ex.D3 is the RTC of
RS No.434/1B/1, of the suit land which discloses that the
defendant is the owner and in possession of the suit
schedule property. Ex.D4 is the voter's ID card, which
discloses the identity of the defendant. Ex.D5 is the copy
of the legal notice issued to the plaintiff by the family
members of the defendant stating that they have learnt
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that the plaintiff entered into a sale agreement with the
defendant in respect of R.S.No.434/1B/1 measuring 2
acres 7 guntas on 05.10.2013. It is stated that he is
ignorant and does not know reading and writing. He
further states that, the suit property is the joint family
property purchased out of the joint family funds. Ex.D6 is
the reply issued by the plaintiff to the legal notice Ex.D5.
The plaintiff denied the contents of Ex.D5. Exs.D7 and 8
are the postal acknowledgments. Exs.D9 and 10 are postal
receipts.
17. In the course of cross-examination, DW.1
admitted that he had acquired the suit schedule property
as per the compromise decree passed in RSA
No.145/2006. From the perusal of the entire material on
record and also the evidence of PWs.1 and 3 and DW.1, it
is clear that the defendant is the absolute owner of the
suit schedule property. He acquired the said property
under a compromise decree passed in RSA No.145/2006.
The defendant agreed to sell the suit schedule property in
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favour of the plaintiff for the consideration of Rs.40 lakhs,
and the plaintiff paid a sum of Rs.15 lakhs as an advance
sale consideration amount and the defendant executed the
registered sale agreement on 05.10.2013, and it was
agreed that the defendant shall execute the registered
sale deed on or before 04.10.2015. The plaintiff, to
establish that, he was/is always ready and willing to
perform his part of the contract, got issued a legal notice
on 30.07.2014 as per Ex.P3. The defendant replied to
Ex.P3 -legal notice vide reply, dated 09.07.2015. Further,
in the reply, the defendant has denied the execution of a
sale agreement and receiving of receipt of Rs.15 lakhs as
an advance sale consideration amount. The plaintiff again
issued another legal notice on 26.10.2015, calling upon
the defendant to receive the balance sale consideration
amount and execute the registered sale deed. The
defendant replied to the legal notice as per Ex.P6 on
untenable grounds.
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18. Though, the defendant has taken a defense in
the written statement that the plaintiff has played fraud
and misrepresented the defendant, and created the sale
agreement, the defendant has not entered the witness
box, and it is observed that the defendant examined the
power of attorney holder. Admittedly, DW.1 was not
present during the sale talks between the plaintiff and
defendant. DW.1 has no personal knowledge about the
sale transaction. A power of attorney holder cannot depose
on behalf of the principle in view of the law laid by the
Hon'ble Apex Court in the case of JANKI VASDEO BHOJWANI
AND ANOTHER VS. INDUSIND BANK LTD., REPORTED IN AIR
2005 SC 439. Hence, the evidence of DW.1 cannot be
considered. Therefore, his evidence is discarded.
19. However, it is the defense of the defendant
that, the suit schedule property is the joint family property
of the defendant and his family members. The defendant,
except producing the RTC extract, has not produced any
other records to establish that the suit schedule property
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was the joint family property of the defendant and his
family members. The plaintiff has produced the certified
copy of the compromise petition and judgment passed in
RSA No.145/2006, which discloses that, the defendant had
acquired the said property under the compromise decree
passed in RSA No.145/2006. There is no rebuttal evidence
by the defendant. Hence, the plaintiff has proved that the
defendant executed the registered sale agreement in
favour of the plaintiff for valuable consideration of Rs.40
lakhs, and the defendant received a sum of Rs.15 lakhs
towards an advance sale consideration amount. The
plaintiff was/is always ready and willing to perform his
part of the contract. On the other hand, the defendant was
not willing to perform his part of the contract. In view of
the above discussion, we answer point Nos.1 and 2 in the
affirmative.
20. Re-Point No.3: Learned counsel for the
defendant submits that the trial court has not exercised
judicial discretion under Section 20 of the Specific Relief
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Act. He submits that in case the suit for specific
performance of the contract is granted, the defendant
would be put to hardship. He submits that the defendant,
except the suit schedule property, does not possess any
other properties, and the defendant's family depends on
the income derived from the suit schedule property.
During the course of the cross-examination, DW.1
admitted, that the defendant had purchased 10 acres of
land at Shirol village from Mulgode and he has 3 acres 7
guntas of land in R.S.No.457. The defendant has other
properties, other than the suit schedule property.
21. Section 20 of the Specific Relief Act, would go
to show as to under what circumstances hardship can be
taken into consideration in refusing the specific
performance of the contract. It is not possible to
enumerate the different circumstances that constitute a
hardship. It will suffice if it is noted that the question of
hardship will have to be adjudged in the facts and
circumstances of the case.
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22. As per Section 20, merely a rise in price
subsequent to the date of the contract is not to be treated
as a hardship entailing refusal or specific performance of a
contract. Further, the hardship involved should be one
not foreseen by the party and should be collateral to the
contract. In some cases, it is not just one factor or two
that is relevant for consideration. But it is the sum total of
various factors which is required to enter into the judicial
verdict. Merely, the defendant has pleaded in the written
statement that the defendant does not possess any other
properties and, if specific performance is granted, would
cause hardship is not a ground to decline the relief of
specific performance of a contract. The Hon'ble Apex
Court in the case of PARSWANATH SAHA VS. BANDHANA
MODAK (DAS) AND ANOTHER IN CIVIL APPEAL
NO.14804/2024 disposed of ON 20.12.2024 reported in
2024 SCC ONLINE SC 3834 held in para No.34, which
reads as under:
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"34. The High Court seems to have overlooked the
fact that the question of hardship in terms of Section
20(2)(b) of the Act, 1963, read with explanation (2),
bears reference to hardship, which the defendant did not
foresee at the time of entering into the contract. In other
words, the issue of hardship would come into play only if
it is established by cogent evidence that late Prabha
Ranjan Das, who executed the agreement of sale, was
unable to foresee the hardship at the time of entering
into the contract".
23. Thus, the defendant has failed to establish that
if the specific performance of the contract is granted, the
defendant would be put to hardship. In view of the above
discussion, we answer point No.3 in the negative.
24. Re-Point No.4: The trial Court, considering
the evidence of PWs.1 to 3 and Ex.P1 i.e., Registered sale
agreement, held that, the defendant has not entered the
witness box, and has held that, the plaintiff has proved
that, the defendant agreed to sell the suit schedule
property for valuable consideration of Rs.40 lakhs, and the
plaintiff paid a sum of Rs.15 lakhs as an advance sale
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consideration amount, and the defendant executed the
sale agreement as per Ex.P1 and also recorded a finding
that, the plaintiff was/is always ready and willing to
perform his part of contract. On the other hand, the
defendant did not perform his part of the contract. The
defendant committed a breach of contract. The trial court
rightly decreed the suit. We do not find any error in the
impugned judgment. We concur with the impugned
judgment. Accordingly, we answer point No.4 in the
negative.
25. Re-Point No.5: As we already answered point
Nos.1 to 4 in favour of the plaintiff, accordingly, we
proceed to pass the following:
ORDER
The appeal is dismissed.
The judgment and decree passed in
O.S.No.148/2015 by the learned Additional
Senior Civil Judge, Jamkhandi, is hereby
confirmed.
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No order as to the costs.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
SKS
