Karnataka High Court
Kumari Manjula vs Smt. R Yellamma on 27 June, 2025
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
-1-
NC: 2025:KHC:22608
RFA No. 1668 of 2016
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL NO. 1668 OF 2016 (SP)
BETWEEN:
1. KUMARI MANJULA
AGED ABOUT 36 YEARS,
D/O LATE MUNISA,
2. SRI. M.VINAYAKA
AGED ABOUT 41 YEARS,
S/O LATE MUNISA,
BOTH ARE RESIDING AT NO.4,
G.B.LANE, 2ND LANE, 2ND CROSS,
COTTONPET, BENGALURU-560 053.
...APPELLANTS
(BY SRI. C.S.PREM KUMAR., ADVOCATE FOR
SRI. VIJAYA KRISHNA BHAT.M., ADVOCATE)
AND:
Digitally signed by
PREMCHANDRA M R
Location: HIGH 1. SMT. R.YELLAMMA
COURT OF
KARNATAKA AGED ABOUT 64 YEARS,
W/O LATE RAMASWAMY,
2. SRI. R.RANGASWAMY
AGED ABOUT 41 YEARS,
S/O LATE RAMASWAMY,
3. SRI R.JAYAKRISHNA
AGED ABOUT 43 YEARS,
S/O LATE RAMASWAMY,
4. SM. VARALAKSHMI
AGED ABOUT 36 YEARS,
-2-
NC: 2025:KHC:22608
RFA No. 1668 of 2016
HC-KAR
5. SMT. RUKMINI @ JAYALAKSHMI
SINCE DEAD HER LR'S,
5(a) SRI. KARIBASAPPA
MAJOR,
HUSBAND OF LATE SMT. RUKMINI
@ JAYALAKSHMI,
5(b) KUMARI UMAMAHESHWARI
D/O KARIBASAPPA,
5(c) MAHESHA
S/O KARIBASAPPA,
5(d) SANTHOSHA
S/O KARIBASAPPA,
NO.5(b) TO 5(d) ARE MINORS
REPRESENTED BY THEIR NATURAL GUARDIAN,
FATHER SRI.KARIBASAPPA,
APPELLANT NO.5(a).
ALL ARE RESIDING AT
NO.7, 1ST B MAIN ROAD,
KEMPAPURA AGRAHARA,
MAGADI MAIN ROAD,
BENGALURU-560 023.
...RESPONDENTS
(BY SRI. JAYKISHAN SHARMA &
SRI. GOPAL SINGH., ADVOCATES FOR R1 TO 4;
SRI. NATARAJ., ADVOCATE FOR R5(b-d);
NOTICE TO R5(a)-DISPENSED WITH
V/O DATED:23.11.2017)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 READ WITH ORDER 41 OF THE CPC.
THIS REGULAR FIRST APPEAL IS LISTED FOR HEARING,
THIS DAY, AN ORDER IS MADE AS UNDER:
-3-
NC: 2025:KHC:22608
RFA No. 1668 of 2016
HC-KAR
ORAL JUDGMENT
Sri.C.S.Prem Kumar, counsel on behalf of Sri.Vijaya
Krishna Bhat, M., for the appellants and Sri.Jay Kishan Sharma
and Sri.Gopal Singh, counsel for respondents 1 to 4, and Sri.
Nataraj, counsel for respondents 5(B to D), have appeared in
person.
2. This is an appeal from the Court of XI Addl. City
Civil Judge, Bangalore City.
3. For convenience's sake, the parties are referred to
as per their status and rankings before the Trial Court.
4. The plaint averments are these:
The defendants are the owners in possession and
enjoyment of a residential house property bearing Site No.52,
Municipal No.7, measuring East - West 25 feet North - South 30
feet, consisting of ground, first and second floor situated at 6th
cross road, 2nd street, Kempapura Agrahara, Bengaluru. The
defendants, for their legal necessity, jointly and severally
offered to sell the said property to the plaintiff for a valuable
sale consideration of Rs.11,00,000/- and executed a registered
NC: 2025:KHC:22608
HC-KAR
sale agreement on 21.11.2005 and received Rs. 7,00,000/- on
the same day from the plaintiff towards part payment of sale
consideration.
As per the terms of the agreement, the defendants
agreed to execute a registered sale deed in favor of the plaintiff
within 24 months from the date of the sale agreement. The
defendants also handed over title deeds and other relevant
documents to the plaintiff. The plaintiffs were always ready and
willing to perform their part of the contract and to get the sale
deed registered in their favor by paying the balance sale
consideration amount. However, the defendants postponed the
same on one or another pretext. Hence, the plaintiffs were
constrained to issue a legal notice on 24.03.2007 calling upon
the defendants to execute the sale deed. However, the said
notice was returned as unserved. Thereafter, the notice issued
under a certificate of posting was served on the defendants.
Despite the same, the defendants neither complied with the
notice nor gave a reply. Hence, the plaintiffs were constrained
to take shelter under the Court of law and filed a suit for the
relief of specific performance.
NC: 2025:KHC:22608
HC-KAR
After service of the suit summons, the defendants
appeared through their counsel and filed a common written
statement asserting that they are the absolute owners in
possession of the suit schedule property. They denied the
execution of the sale agreement and denied the receipt of
amount of Rs.7,00,000/-. Urging other contentions, the
defendants specifically contended that they needed money;
hence, they intended to mortgage the property, and one
Mr.Anand Kumar took them to the sub-registrar office and,
without explaining the contents of the papers, got them to sign
the documents. The defendants contended that they were
under the impression that they were executing a mortgage
deed; however, they came to know that it was an agreement
for sale. Among other grounds, they prayed for dismissal of the
suit.
Based on the above pleadings, the Trial Court framed
issues. The parties led evidence and documents were exhibited.
The Trial Court vide Judgment and Decree dated 14.09.2016
dismissed the suit. Hence, the plaintiffs have filed the present
appeal under Section 96 of the CPC.
NC: 2025:KHC:22608
HC-KAR
5. Counsel Sri.C.S.Prem Kumar, for the appellants,
submits that the Judgment and Decree of the Trial Court is
contrary to the law and documentary and oral evidence on
record.
Next, he submits that the Trial Court seriously erred in
dismissing the suit by holding that the plaintiffs had no financial
capacity to pay the balance sale consideration, and they have
not proved their readiness and willingness.
A further submission is made that the Trial Court
seriously erred in concluding that the plaintiffs have not
produced any documents to show that they were having
balance amount of Rs.4,00,000/- along with them. Counsel
contended that in a suit for specific performance, the plaintiff
need not show the availability of hard cash with him/her, but it
is sufficient to demonstrate that they had the capacity and
means to raise the funds to pay the balance sale consideration.
Counsel vehemently contended that the Trial Court
seriously erred in holding that the time of two years fixed in the
agreement shows that the plaintiffs were not ready with the
balance sale consideration. Counsel submits that it is the
NC: 2025:KHC:22608
HC-KAR
discretion of the parties to fix the period to complete the sale
transaction.
Lastly, he submits that viewed from any angle, the
Judgment and Decree of the Trial Court is liable to be set aside.
Counsel, therefore, submits that the appeal may be allowed
and the plaintiffs' suit may be decreed. Counsel placed reliance
on the following decisions:
I. R. SHAMA NAIK VS. G. SRINIVAIAH - SLP (CIVIL)
NO.13933/2021.
II. JAMAL VS. NARESH KUMAR - RSA 856/2015
(PUNJAB AND HARYANA, CHANDIGARH).
III. R. KANDASAMY (SINCE DEAD) & OTHERS VS.
T.R.K. SARASWATHY AND ANOTHER WITH
M/S.ABT LIMITED VS. T.R.K. SARASWATHY AND
OTHERS - CIVIL APPEAL NO.3015/2013.
IV. SUKHBIR SINGH AND OTHERS VS. BRIJ PAL
SINGH AND OTHERS - (1997) 2 SCC 200.
V. P. DAIVASIGAMANI VS. S. SAMBANDAN - AIR
2022 SC 5009.
NC: 2025:KHC:22608
HC-KAR
VI. HIS HOLINESS ACHARYA SWAMI GANESH DASSJI
VS. SITA RAM THAPAR - (1996) 4 SCC 526.
VII. SATYA JAIN (DEAD) THROUGH LRS AND OTHERS
VS. ANIS AHMED RUSHDIE (DEAD) THROUGH
LRS. AND OTHERS - (2013) 8 SCC 131.
6. Counsel Sri.Jay Kishan Sharma, for respondents 1
to 4, justified the Judgment and Decree of the Trial Court.
Next, he submits that the Trial Court is justified in
answering Issue No.3 in the negative.
A further submission is made that the plaintiff must prove
the readiness and willingness throughout the decree, and a
mere oral statement is not sufficient. He submits that, in the
present case, plaintiffs have only averred that they were ready
and willing to perform their part of the contract, but have failed
to prove the same till the date of the decree.
Counsel vehemently contends that the Trial Court has
erred in concluding that defendants failed to prove that the
agreement for sale is a mortgage deed, and it was obtained in
collusion with one Mr.Anand Kumar.
NC: 2025:KHC:22608
HC-KAR
Lastly, he submits that the Trial Court extenso, referred
to the material on record and rightly dismissed the suit. The
appellants have not made any grounds to interfere with the
Judgment of the Trial Court. Counsel, therefore, submits that
the appeal may be dismissed. Counsel for respondents 1 to 4
submits that a memo of citation has been filed furnishing the
proposition of law, and the same may be placed on record.
Memo is placed on record and perused the proposition of
law with care.
Counsel for respondents 5(B to D) justified the Judgment
and Decree of the Trial Court and submits that the appeal may
be dismissed.
Heard the arguments and perused the appeal papers and
the records with care.
7. The short point that requires consideration is
whether dismissal of the suit is just and proper.
8. The facts are sufficiently said and do not require
reiteration. The issue falls within a narrow compass and relates
to the refusal to grant the relief of specific performance.
- 10 -
NC: 2025:KHC:22608
HC-KAR
In this case, the plaintiffs sued to enforce the specific
performance of a Contract to execute a conveyance in respect
of the suit property. Suffice it to note that the Trial Court
framed as many as five issues, and the issue relating to the
execution of the sale agreement was answered in plaintiffs'
favor.
In this appeal, the main contention on behalf of the
plaintiffs relates to the factum of readiness and willingness. A
good deal of argument is canvassed about ready and willing.
Let me consider the same.
The law is well-settled that the plaintiff must aver as well
as prove his readiness and willingness to perform his part of
the obligation. The controversy revolves around readiness and
willingness; hence, let us quickly glance at the distinction
between the two. The distinction between readiness and
willingness is that the former has reference to financial
capacity, and the latter to the conduct of the plaintiff wanting
specific performance. While 'willingness' is merely a mental
process, 'readiness' is something to do with translating that will
into action and is preceded by the necessary preparation of
- 11 -
NC: 2025:KHC:22608
HC-KAR
being in a position to be ready. In other words, while
'willingness' may be something to do mainly with a person's
mental process to do an act, the readiness implies proximity of
such willingness and its ultimate physical manifestation.
'Readiness' must, in all cases, be backed by 'willingness' and its
imminent physical action is demonstrated when it is about to be
put into action.
9. Reverting to the facts of the case, the plaintiffs
issued a legal notice on 24.03.2007 and called upon the
defendants to perform their part of the contract. Before the
Trial Court, the plaintiffs specifically contended that they were
ready and willing to perform their part of the contract and pay
the balance consideration. Even in this Court, they have
adhered to the said contention. Counsel for the respondents
contends that the legal notice issued is a counterblast to the
Police complaint and the plaintiffs were not ready and willing to
perform their part of the contract from the date of the
agreement till the decree.
The onus of proof of being ready and willing to perform
his part of the contract from the date of the contract to the
- 12 -
NC: 2025:KHC:22608
HC-KAR
date of filing of the suit is on the plaintiff. An averment that the
plaintiff is ready and willing to perform his part of the contract
is sufficient compliance with Section 16(c) of the Specific Relief
Act. It is not necessary for the plaintiff to further aver that he
had made a demand upon the defendant to execute the sale
deed on a particular date. Nor is it necessary that the plaintiff
must have averred his readiness and willingness in the notice,
if he has sent one.
Readiness and willingness of a person seeking
performance, in a case where time is provided for performance,
means that the person claiming performance has kept the
contract subsisting with preparedness to fulfill their obligations,
and accepts performance when the time for performance
arrives. In the present case, time was the essence of the
contract. Two years were fixed for the completion of the
contract. The Trial Court, despite holding that the plaintiffs had
proved the agreement, erroneously concluded that the plaintiffs
were not ready and willing to perform their part of the contract
solely on the ground that the plaintiffs had failed to furnish the
documents to show that they were having the balance amount
- 13 -
NC: 2025:KHC:22608
HC-KAR
to complete the transaction. The finding and the conclusion
about the financial capacity are untenable in law. The reason is
apparent. The law is settled that a purchaser, to succeed in a
suit for specific performance, need not show that he had the
consideration money with him, nor that he had arrangements
for it, but that he was ready and willing to go through with the
contract. The question is one of fact. The plaintiff purchaser
doesn't need to vouch for a concluded scheme for financing the
transaction. A buyer is sufficiently 'ready' when he is in a
position to borrow money to make payment of the price. No
adverse inference can be drawn against the plaintiff about his
readiness and willingness for the non-production of accounts,
or for not filing any passbook.
The agreement for sale is dated 21.11.2005, and time was
the essence of the contract, and the plaintiffs have proved the
agreement for sale. Taking note of the oral and documentary
evidence, it can be safely held that the plaintiffs have proved
their readiness and willingness to perform their part of the
contract, as well as the default committed by the defendants
despite the requests and demands and issuance of legal notice
- 14 -
NC: 2025:KHC:22608
HC-KAR
for the execution of the sale deed. Hence, this Court is of the
view that the plaintiffs must succeed.
10. Lastly, counsel for the respondents submits that the
Trial Court has erred in answering Issue No.2 in the Negative.
They argued to contend that there was a mortgage deed and
not an agreement for sale. In my view, the finding as regards
Issue No.2 is just and proper.
Counsel for the respective parties placed reliance on
several decisions, but I do not think the law is in doubt. Each
decision turns on its facts. The present case is also tested in
light of the aforesaid decisions.
For the reasons stated above, this Court holds that the suit
of the plaintiffs must be decreed with costs.
11. The Judgment and Decree dated 14.09.2016 passed
by the XI Addl. City Civil Judge, Bengaluru City in
O.S.No.4000/2007 is set aside. The suit of the plaintiffs is
decreed with costs. The defendants are directed to execute the
sale deed on receiving the balance consideration of
Rs.4,00,000/- within three months from the date of this order,
- 15 -
NC: 2025:KHC:22608
HC-KAR
failing which the plaintiffs are to secure the sale deed through
the Court.
The Registry concerned is hereby directed to draw the
decree accordingly.
Sd/-
(JYOTI MULIMANI)
JUDGE
TKN/MRP
