Karnataka High Court
Sri Narayanrao vs Smt Alkavatibai on 3 June, 2025
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RSA No. 200122 of 2018
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
DATED THIS THE 03RD DAY OF JUNE, 2025
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
RSA NO 200122 OF 2018 (SP)
BETWEEN:
SRI NARAYANRAO
SON OF SRI NARASINGRAO TIRMAL,
AGED ABOUT 63 YEARS,
OCC:BUSINESS, RESIDING AT PLOT NO.24,
BALAJI NAGAR, OLD JEWARGI ROAD,
KALABURAGI.
...APPELLANT
(BY SRI.RAVI B PATIL, ADVOCATE)
AND:
SMT ALKAVATIBAI
WIFE OF LATE VEDVRAT TIRMAL
AGED ABOUT 63 YEARS,
OCC:BUSINESS, RESIDING AT SHOP NO.1-654/1,
STATION BAZAAR ROAD,
KALABURAGI-585102.
...RESPONDENT
(BY SRI.AMEET KUMAR DESHPANDE, SR. COUNSEL FOR
SRI.GANESH S.KALBURGI, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF THE CPC, AGAINST THE
JUDGMENT AND DECREE IN O.S NO.337/2014 DATED
10.08.2016 PASSED BY I ADDL. CIVIL JUDGE AND JMFC,
KALABURAGI AND ALSO JUDGMENT AND DECREE IN RA.
NO.29/2016 PASSED BY I ADDITIONAL SENIOR CIVIL JUDGE
AT KALABURGI DATED 20.03.2018 AND FURTHER ALLOW THE
RA NO.31/2016 FILED BEFORE I ADDL. SENIOR CIVIL JUDGE
AT KALABURGI DATED 20.03.2018.
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RSA No. 200122 of 2018
THIS RSA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.02.2025 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT,
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MS JUSTICE J.M.KHAZI
CAV JUDGMENT
(PER: HON'BLE MS JUSTICE J.M.KHAZI)
This is defendant's second appeal challenging the
judgment and decree passed by the First Appellate Court
dismissing the regular appeal filed by him and allowing the
Regular Appeal filed by the plaintiff, challenging the
judgment and decree of the trial Court, partly decreeing
the suit of plaintiff, ordering refund of earnest money of
`1,00,000/- with interest at 6% per annum, though her
suit for specific performance came to be dismissed. By
allowing the appeal filed by the plaintiff, the First
Appellate Court has decreed the suit in entirety and
ordered for specific performance of contract.
2. For the sake of convenience, parties are referred
to by their ranks before the trial Court.
3. Plaintiff is no other than sister-in-law of
defendant i.e, the late husband of plaintiff and defendant
are real brothers. Defendant is the absolute owner of suit
schedule property consisting of a shop premises measuring
6×18 ft, situated in the ground floor. The adjoining shop
premises of same dimension situated on the western side
of suit property belongs to the plaintiff. Plaintiff filed suit
for specific performance of contract dated 26.06.2008 for
sale of suit schedule property. She contended that
defendant who was running a fancy store in suit property,
for his legal necessity offered to sell the same to the
plaintiff for a sum of `3 lakhs and executed sale
agreement dated 26.06.2008 by receiving advance of `1
lakh. Since tenant was there in the suit property for a
period of three years, defendant offered execute of regular
sale deed after the expiry of three years, by receiving
balance sale consideration. It is alleged that after expiry of
three years, when plaintiff approached defendant with a
request to receive the balance consideration and execute
the sale deed, he refused and therefore without any
alternative suit is filed.
4. Defendant admit the relationship between him
and the plaintiff and also the fact that the shop premises
situated on the western side of suit schedule property
belongs to the plaintiff. However, he has denied of having
offered to sell suit schedule property for a sum of `3 lakhs
to the plaintiff and executed sale agreement dated
26.06.2008 by receiving advance of `1 lakh. He has also
denied that he promised to receive balance consideration
of `2 lakhs after expiry of three years and execute a sale
deed. He has alleged that the sale agreement in question
is concocted by the plaintiff and his brother Vittal, who is
one of the attesting witness to the alleged sale agreement.
Defendant has made specific allegations that the said Vittal
is also instrumental in creating a gift deed, including
property belonging to defendant and being hand in glove
with the plaintiff he has created the suit documents by
forging his signatures. He never had any legal necessity to
alienate suit schedule property. He has alleged that at the
relevant point of time, the market value of such property
was `15 lakhs.
5. Based on the pleadings, the trial Court framed
necessary issues.
6. In support of her case, plaintiff examined
herself as PW-1 and her brother-in-law Vittal as PW-2. She
relied upon Exs.P1 to 7.
7. Defendant examined himself as DW-1 and got
marked Ex.D1 to 27.
8. The trial Court though held that the plaintiff
has proved the sale agreement dated 26.06.2008 and
passing of earnest money of `1,00,000/- from plaintiff to
defendant, it held that plaintiff has failed to prove that she
was ready and willing to perform her part of contract and
therefore refused to grant relief of specific performance.
However, it directed defendant to refund earnest money of
`1,00,000/- together with interest at 6% per annum to the
plaintiff.
9. Aggrieved by the same, both plaintiff and
defendant filed appeal before the First Appellate Court.
10. While the First Appellate Court allowed the
appeal filed by plaintiff and decreed the suit in entirety, it
dismissed the appeal filed by defendant.
11. Aggrieved by the same, defendant has
approached this Court in the Regular Second Appeal,
contending that the appreciation of evidence by the trial
Court as well as the First Appellate Court is illegal, perverse
and requires to be set aside. Both Courts have failed to
appreciate that the burden of proving the Sale agreement
at Ex.P1 and receipt at Ex.P2 is on the plaintiff. Even
though by producing these documents and examining one
of the attesting witness, the plaintiff discharged initial
burden, having regard to the fact that defendant had
denied the signature in Exs.P1 and 2, the burden shifted
back to the plaintiff to prove that the signatures in Exs.P1
and 2 are that of defendant. Plaintiff ought to have sent the
disputed signatures in Exs.P1 and 2 for the opinion of
handwriting expert by comparing the same with the
admitted signatures of defendant. However, plaintiff has
failed to avail this opportunity to prove Exs.P1 and 2.
11.1 On the other hand, both trial Court as well as
the First Appellate Court have committed grave error in
holding that it was for the defendant to send the disputed
documents for expert opinion. The First Appellate Court
erred in holding that it is not sufficient for the defendant to
deny his signatures. In fact, it is sufficient for the
defendant to deny his signature on the disputed documents
and the burden would shift on the plaintiff to prove the
same. In the absence of specific pleadings and proof
regarding readiness and willingness on the part of the
plaintiff to perform her part of contract, the First Appellate
Court has also erroneously reversed the findings of the trial
Court that plaintiff is not entitled for specific performance.
The First Appellate Court has also wrongly placed the
burden on the defendant to establish that plaintiff was not
possessing sufficient funds to pay the balance
consideration. The trial Court as well as the First Appellate
Court have failed to appreciate the fact that Exs.P1 and 2
are concocted despite defendant bringing out the same
through the cross-examination of PW1 and 2. They have
also failed to appreciate the fact that despite making
serious aspirations cast on PW-2, plaintiff has not chosen to
examine the other attesting witness and therefore adverse
inference was required to be drawn.
12. In support of the his arguments, learned
counsel for defendant has relied upon the following
decisions.
(i) His Holiness Acharya Swamiganesh Dassji Vs.
Shri Sita Ram Thapar (Sita Ram Thapar)1
(ii) Pratap Singh and Anr Vs. Ganga Singh and Ors.
(Pratap Singh)2
(iii) Kamal Kumar Vs. Premlata Joshi & Ors.
(Kamal Kumar)3
(iv) Narne Rama Murthy Vs. Ravula Somasundaram
and Ors. (Narne Rama Murthy)4
13. Vide order dated 13.03.2019, appeal was
admitted on the following substantial question of law:
"Whether the Courts below were right in holding
that the obligation was on the defendant to get
signatures compared when the burden and onus of
proof both lay heavily on the plaintiff?"
1996 AIR 2005 Dt 30.04.1996
Civil Suit No.59/2016 (15508/2016)
AIR 2019 SC 459 (Civil Appeal No.4453/2009)
(2005) 6 SCC 614
14. Vide order dated 19.11.2024, on IA.No.3/2024,
the following additional substantial question of law came to
be framed:
"Whether the First Appellate Court is justified in
reversing the finding of the Trial Court on Issue No.3
in the light of the documentary evidence produced by
the defendant as per Ex.D1 to Ex.D24, Ex.D26 and
Ex.D27?"
15. On the other hand, learned counsel for plaintiff
supported the impugned judgment and order passed by the
First Appellate Court decreeing the suit in entirety.
16. In support of his arguments, he has relied upon
the following decisions:
(i) Gurudev Kaur and Ors. Vs. Kaki and Ors.
(Gurudev Kaur)5
(ii) Narinderjit Singh Vs. North Star Estate
Promoters Ltd. (Narinderjit Singh)6
(iii) Swaranjit Singh Vs. Jatinder Kumar
(Swarnjit Singh)7
17. Heard elaborate arguments of both sides and
perused the record.
(2007) 1 SCC 546
AIR 2012 SC 2035
AIR Online 2022 P&H 210
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18. As already noted, the relationship between the
parties is not in dispute. Plaintiff is the sister-in-law of
defendant. PW-2 Vittal is no other than the real brother of
defendant. It has come in the evidence of PW-1 by way of
admission that Shop number 1-654/1 consisting of ground
floor was jointly purchased in the name of plaintiff and
defendant. The first floor of the said shop was purchased in
the name of PW-2 Vittal Rao. The residential house situated
on the western side of the said shop premises consisting of
house No.1-655 was purchased in the name of Vijay
Kumar - the brother of defendant through registered sale
dated 13.03.1987. Similarly, Plot No.56 situated in M.B
Nagar was purchased in the name of plaintiff's husband
during 1985.
19. Plaintiff has also admitted that shop number 1-
654/1 consisting of ground floor and first floor and house
No.1-655 are partitioned between plaintiff and her
brothers-in-law. In the said partition, ground floor of
Southern half of shop No.1-654/ 1 and 1/4th share in the
house No.1-655 and vacant land situated behind it, which
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is part of house No.1-655 has fallen to the share of
plaintiff and in the said shop, she is running a fancy store.
Thus, the ground floor of shop number 1-654/1 was
divided between plaintiff and defendant. In the portion
fallen to the share of plaintiff, she is running a fancy store
whereas in the portion fallen to the share of defendant
which is the suit schedule property, he was running a fancy
store which, according to the plaintiff is offered for sale by
the defendant through Ex.P1. Since suit schedule property
is adjoining the shop run by the plaintiff and it was part
and parcel of the shop run by the plaintiff and as she is
family member and a joint purchaser of suit schedule
property, if at all defendant wanted to dispose it off, in all
probability he would offer to sell the same to the plaintiff,
of course for market value.
20. Now the question is, what was the reason for
the defendant to sell suit schedule property to the plaintiff.
Defendant vehemently dispute the fact of offering to sell
suit schedule property and executing the sale agreement
at Ex.P1. Therefore, the reasons for taking out the suit
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schedule property for sale becomes relevant. Even though
in Ex.P1, it is stated that for family necessity and to
discharge the family debts, the defendant has chosen to
sell suit schedule property. Plaintiff is not able to point out
as to what were the debts incurred by the plaintiff and also
the family necessity for which he choose to sell suit
schedule property.
21. On the other hand, it has come in the
evidence that recently one of the son of defendant got
appointment in State bank of Hyderabad and his other son
was already working in waterworks department since
2002. Therefore, his financial dependency on the shop run
by him was considerably reduced after his son got
appointment in State bank of Hyderabad. During the cross-
examination of defendant, it is elicited that since 20 years,
he is having problem in his eye sight and pain in the
knees. However, it is not the reason stated in the sale
agreement to offer the sale of suit schedule property.
Therefore, the reasons assigned for taking out suit
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schedule property for sale is not established and it is also
not convincing.
22. As evident from the written statement, the
defendant has not only denied execution of the sale
agreement and consideration receipt at Exs.P1 and 2, he
has also contended that his alleged signatures there in are
forged. He has gone to the extent of alleging that PW-2
Vittal is instrumental in concocting the document and
forging his signatures. Therefore, not only the initial burden
is on the plaintiff to prove the execution of Exs.P1 and 2,
but also to establish that the disputed signatures are that
of the defendant. Despite making serious allegations
against PW-2 Vittal, the plaintiff has chosen to examine
him. Of course, there was no prohibition for the plaintiff to
rely upon his evidence. At the same time, she could have
examined the other witness, whose evidence would have
lent support to the case of the plaintiff.
23. It is submitted by the learned counsel for
defendant that the First Appellate Court committed grave
error in holding that burden was on the defendant to send
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the disputed signatures for the opinion of handwriting
expert. Since from day one, the defendant is disputing
execution of the sale agreement and consideration receipt
at Exs.P1 and 2 and has alleged that his signature therein
are forged, at the instance of plaintiff, the burden is on the
plaintiff to prove that the signatures in Exs.P1 and 2 are
that of defendant. It is not a case of mere denial of
execution of the said documents, but also denial of
signatures therein as belonging to the defendant. Had it
been a case of only formal denial of execution of the
documents, the evidence of the attesting witness would
have been sufficient.
24. The defendant has also alleged that the cement
concrete road situated on the eastern side of suit property
was not in existence during 2008 and therefore in Ex.P1,
the eastern boundary is not described as CC Road and only
referred to as Station Road. However, in Ex.P1(a), the
eastern boundary is referred to as Government CC Road
Station Bazaar road. It is submitted by the learned counsel
for defendant that Ex.P1(a) is created subsequently. In
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fact, PW-2 is cross-examined at length on this aspect. His
evidence reveal that it is he who gave instructions for
preparation of Exs.P1, 2 and P1(a). Therefore, he could
have examined the person who drafted these documents
and also prepared Ex.P1(a) and taken their print outs.
Therefore, it is not sufficient for the plaintiff to stop at the
evidence of PWs-1 and 2 to prove the alleged transaction
between plaintiff and defendant.
25. It is submitted by the learned counsel for
defendant that in the admitted signatures of defendant,
the alphabet Y is placed in the earlier portion i.e, 1/3rd of
his signature, whereas in the disputed documents, in his
alleged signature the alphabet Y is situated in the latter.
1/3rd portion of the signature and this could be
ascertained even from a naked eye. He would further
submit that under Section 73 of the Indian Evidence Act,
the Courts are having power to examine and compare the
admitted and disputed signatures to ascertain whether the
execution of document is established or not. In fact, this
difference is really visible to the naked eye.
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26. In the light of specific defence taken by the
defendant and allegations that his signatures in the
disputed document are forged, certainly the burden is on
the plaintiff to prove that the disputed signatures in
Exs.P1 , 1(a) and 2 are that of defendant. Therefore, it
was desirable on the part of plaintiff to send the disputed
signatures in Exs.P1 and 2 for examination by the
handwriting expert to establish that they are the
signatures of defendant. Even though the plaintiff has got
marked some admitted documents containing the
signatures of defendant, including Vakalat, she has not
chosen to send the disputed signatures for expert opinion.
27. At the first available opportunity, when the
written statement was filed, the defendant has disputed
the fact of execution of the sale agreement and
consideration receipt. Of course the signatures of
defendant available in the written statement,
Vakalathnama and the lease agreements at Exs.D26 and
27 are subsequent to Exs.P1, 1(a) and 2 and there is
possibility of defendant changing his signature. However,
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the plaintiff was in a position to collect other documents
which are earlier in point of time to Exs.P1, 1(a) and 2,
including sale deeds, etc, to establish the signature of
defendant prior to Exs.P1, 1(a) and 2. Therefore, The
trial Court as well as the First Appellate Court were in
error in holding that the burden was on defendant to
prove that the signatures in Exs.P1, 1(a) and 2 are not his
signatures and that he ought to have sent them for the
opinion of handwriting expert. When the plaintiff has
failed to establish Exs.P1, 1(a) and 2, the trial Court as
well as the First Appellate Court were in error in holding
that advance of `1,00,000/- was paid by the plaintiff to
the defendant, especially when no evidence is led to prove
that plaintiff was in possession of `1,00,000/- in cash.
28. In the plaint, there are no averments to the
effect that plaintiff was and is always ready and willing to
perform her part of contract and that she was ready with
the balance sale consideration of `2,00,000/-. In fact, she
has also not issued any legal notice to the defendant
calling upon him to receive the balance consideration and
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register the sale deed. On this aspect, the First Appellate
Court has made an observation that since plaintiff and
defendant are neighbours, the plaintiff might not have
sent any legal notice, which is not even the case of
plaintiff. In fact, there are no averments in the plaint as to
why the legal notice was not sent. Therefore, the findings
of the First Appellate Court that the plaintiff has proved
that she was ready and willing to perform her part of
contract is contrary to the evidence placed on record and
as such it is perverse.
29. Moreover according to the plaintiff when the
sale agreement and consideration receipt at Exs.P1 and 2
were executed, tenant was inducted in the suit schedule
property and therefore the plaintiff postponed execution
of Sale deed by three years i.e, after completion of the
lease period. However, plaintiff has denied that any
tenant was in possession of suit schedule property when
Exs.P1 and 2 were allegedly executed in 2008. He has
claimed that only during 2013, he let out the suit property
as per Ex.D 26 and extended the lease for one more year
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as per Ex.D27. Ex.D1 to 24, 26 and 27 clearly indicates
that plaintiff continued business in the suit schedule
property by renewing the license etc. The plaintiff has not
placed any material on record to establish who was the
tenant who was in possession of suit schedule property
when Exs.P1 and 2 came to be executed. Therefore,
rightly the trial Court has answered issue No.3 in the
Negative and in the light of Exs.D1 to 24, 26 and 27, the
First Appellate Court is not justified in reversing the
findings on the said issue. Since the plaintiff has failed to
prove issue Nos.1 to 3, the plaintiff is not entitled for any
of the relief sought in the plaint and entire suit is liable to
be dismissed. In the result the appeal is allowed and
accordingly, the following:
ORDER
(i) Appeal filed by the appellant/defendant
under Section 100 and Order 42 of CPC is
allowed.
(ii) The impugned judgment and decree dated
10.08.2016 in O.S.No.337/2014 on the file
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of I Addl.Civil Judge and JMFC, Kalaburagi
and judgment and decree dated 20.03.2018
in R.A.Nos.29/2016 and 31/2016 on the file
of I Addl.Senior Civil Judge, Kalaburagi are
set aside.
(iii) Accordingly, suit is dismissed with cost
throughout. Office to draw decree
accordingly.
(iv) The Registry is directed to send back the
trial court and First Appellate Court records
along with copy of this judgment forthwith.
In view of disposal of the appeal, pending
application/s, if any, stands disposed off, as no separate
order is required.
Sd/-
(J.M.KHAZI)
JUDGE
RR
