Annappaswamy S/O Ekambarayya ... vs M Vishanaraja S/O Sohanaraj Jain
2025 Latest Caselaw 10268 Kant

Karnataka High Court

Annappaswamy S/O Ekambarayya ... vs M Vishanaraja S/O Sohanaraj Jain on 17 November, 2025

Author: R.Devdas

Bench: R.Devdas

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                                  RFA No.100542 of 2023




IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

     DATED THIS THE 17th DAY OF NOVEMBER, 2025
                       PRESENT

          THE HON'BLE MR. JUSTICE R.DEVDAS
                         AND
     THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI

        REGULAR FIRST APPEAL NO.100542/2023 (SP)

BETWEEN:

ANNAPPASWAMY,
S/O. EKAMBARAYYA SUTTINABHAVIMATH,
AGE: 48 YEARS, OCC.: BUSINESS,
R/O. MUDIGOUDRA, 3RD HOUSE,
1ST FLOOR, NEAR DIKSHIT GAS GODOWN,
MURTHYUNJAYA NAGAR, RANEBENNUR,
DIST: HAVERI-581115.
                                           - APPELLANT
(BY SRI. S.B.HEBBALLI, ADVOCATE FOR
SRI. PAVAN HEBBALLI AND
SMT. CHITRA M.GOUNDALKAR, ADVOCATES)

AND:

1.     M. VISHANARAJA S/O. SOHANARAJ JAIN,
       AGE: 74 YEARS,
       OCC: BUSINESS AND AGRICULTURE,
       R/O. RANEBENNUR, DIST: HAVERI-581115.

2.     SMT. SHAILASHREE,
       W/O. DODDAKOTTRESH SUTTINABHAVIMATH,
       AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
       R/O. BUS STAND ROAD,
       BEHIND BUS STAND, RANEBENNUR,
       DIST: HAVERI-581115.
                              -2-
                                      RFA No.100542 of 2023




3.    SMT. SAHANA W/O. SRINATH IYER,
      AGE: 33 YEARS, OCC: LECTURER,
      R/O. MANGALURU, TQ: MUDABIDRE,
      DIST: MANGALURU-574197.

4.    SMT. SANGEETA,
      W/O. DODDAKOTTRESH SUTTINABHAVIMATH,
      AGE: 29 YEARS, OCC: HOUSEHOLD WORK,
      R/O. BUS STAND ROAD, BEHIND BUS STAND,
      RANEBENNUR, DIST: HAVERI-581115.
                                        - RESPONDENTS
(BY SRI. DINESH M.KULKARNI, ADVOCATE FOR C/R1;
NOTICE TO R2 IS SERVED BUT UNREPRESENTED;
NOTICE TO R3 AND R4 IS HELD SUFFICIENT)

      THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT
AND   DECREE     DATED   04.10.2023   PASSED    IN     O.S.   NO.
304/2018 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL
JUDGE    AND     JUDICIAL    MAGISTRATE        FIRST      CLASS,
RANEBENNUR, AND DISMISS THE SUIT IN THE INTEREST OF
JUSTICE & ETC.


      THIS REGULAR FIRST APPEAL, HAVING BEEN HEARD AND
RESERVED       ON    11.11.2025,      COMING         ON       FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:


CORAM:   THE HON'BLE MR. JUSTICE R.DEVDAS

         AND

         THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
                               -3-
                                       RFA No.100542 of 2023




                     CAV JUDGMENT

(PER: THE HON'BLE MR. JUSTICE R.DEVDAS)

This regular first appeal is filed under Section 96 of

the Code of Civil Procedure at the hands of defendant No.4

in O.S. No. 304/2018 on the file of the learned III Addl.

Sr. Civil Judge & JMFC, Ranebennur (for short, 'the trial

Court').

2. For the sake of convenience the parties shall be

referred to in terms of their ranking before the trial Court.

3. The plaintiff filed the suit for specific performance

of registered agreement of sale dated 28.09.2015,

executed by Sri Doddakotreshi, the brother of defendant

No.4 and defendant No.4 himself, in favour of the plaintiff.

Since Doddakotreshi died subsequently, his wife and

children are arrayed as defendants No.1 to 3. In terms of

the agreement of sale the vendors agreed to sell and the

plaintiff agreed to purchase the suit schedule property

which consisted of ground and first floor comprising of ten

commercial shops and with open space for a sum of

Rs.1,45,00,000/-. Under the agreement the purchaser

paid advance amount of Rs.50,00,000/- and the balance

amount was to be paid at the time of registration of the

sale deed, subject to the condition that within two months

time the vendors would get the tenants vacated from the

shops. However Doddakotreshi along with his wife and

children (defendants No.1 to 3) executed a sale deed in

favour of the plaintiff disposing ½ share of the suit

schedule property for sale consideration of Rs.72,50,000/-

(being half of Rs.1,45,00,000/-, as agreed in the

agreement of sale). It is also stated in the said sale deed

dated 10.08.2018 that the advance amount of

Rs.50,00,000/- paid under the agreement of sale forms

part of the sale consideration in the sale deed and after

paying the balance sale consideration of Rs.20,50,000/-,

the sale deed is executed by Doddakotreshi and his family

members in favour of the plaintiff.

4. Thereafter a sum of Rs.45,00,000/- are deposited

into the account of the 4th defendant, at the hands of the

plaintiff and his son. A notice is issued to the 4th

defendant calling upon the 4th defendant to collect the

balance sale consideration and execute sale deed in

respect of the other half of the suit schedule property.

When the 4th defendant did not come forward to execute

the sale deed, suit is filed by the plaintiff with a prayer for

specific performance of the registered agreement of sale

dated 28.09.2015. In the alternative, prayer is also made

for refund of earnest money of Rs.45,00,000/- along with

damages of Rs.55,00,000/- with interest at the rate of

18% p.a. from the date of agreement till realization. The

suit is decreed by the trial Court while directing defendant

No.4 to execute registered sale deed in favour of the

plaintiff in respect of half share in the suit schedule

property, within two months from the date of the order.

The plaintiff was also directed to deposit the balance sale

consideration of Rs.27,50,000/- before the Court on or

before 30.10.2023.

5. Learned counsel Sri S.B. Hebballi appearing for the

appellant/ defendant No.4 contended that having regard to

the terms and conditions of the agreement, there is no

provision for severability of the contract. Therefore, it was

not permissible for the plaintiff to have got a sale deed

executed at the hands of Doddakotreshi with regard to one

half of the suit schedule property. In terms of the

agreement, the plaintiff was required to pay the balance

sale consideration to the vendors after the vendors got the

shop premises vacated from the tenants and till date the

tenants have not been vacated. Therefore, it is contended

that there is no cause of action for filing the suit and

seeking directions for specific performance of the contract.

It was also pointed out that the suit schedule property is

not definite, therefore, on the ground of uncertainty of the

suit schedule property, the suit should have been

dismissed.

6. It is further contended that the advance amount of

Rs.50,00,000/- which was paid under the agreement could

not have been considered as part of the sale consideration

while executing the sale deed at the hands of

Doddakotreshi disposing of one half share of the suit

schedule property. No permission was taken by the

plaintiff from the 4th defendant before appropriating the

said advance amount, completely in favour of his brother

Sri Doddakotreshi. It is further contended that the claim

of the plaintiff regarding payment of Rs.45,00,000/- into

the bank account of defendant No.4 is denied by

defendant No.4. It was contended before the trial Court

that a sum of Rs.30,00,000/- and Rs.10,00,000/- was

deposited into the bank account of defendant No.4 by Sri

Sunil Jain, the son of the plaintiff, who had nothing to do

with the transaction. It was contended by defendant No.4

that the said sum was paid by Sri Sunil Jain as a loan to

defendant No.4 and therefore the same could not be taken

as part payment towards the agreement in question. It

was also contended that defendant No.4 transferred

Rs.45,00,000/- which was deposited into his bank account

to his brother Doddakotreshi, on his directions. It was

therefore contended that the plaintiff cannot claim that he

has paid Rs.45,00,000/- as part payment towards the sale

consideration under the agreement in question. It was

also contended that payment was made by a firm named

'Apsara Fashion' which belonged to the plaintiff's son and

not to the plaintiff. Therefore it was contended that the

claim of the plaintiff regarding part payment of

Rs.45,00,000/- in favour of defendant No.4 should be held

as not proved. At any rate, it was contended by defendant

No.4 that there was no consensus ad idem to execute sale

deeds in two parts under the agreement in question.

7. Learned counsel Sri S.B. Hebballi further contended

that the value of the property in question is about Rs.15

crores and it could not have been agreed to be sold at

Rs.1.45 crores. This would also indicate that the advance

amount of Rs.50 lakhs was not for the purpose of selling

the property. It was a loan advanced to defendant No.4

and his brother who was in dire requirement of the said

funds for defraying the outstanding loans obtained by Sri

Doddakotreshi. There was no intention of selling the

property in favour of defendant No.4. It was contended

before the trial Court that the plaintiff is in the habit of

entering into agreements and getting the same cancelled

and that the plaintiff was doing real estate business. To

drive home the fact that the plaintiff was in the habit of

entering into agreements and getting the same cancelled,

material have been placed before the Court.

8. It is further contended that Sri Doddakotreshi

committed suicide on account of the trouble and

intimidation at the hands of the plaintiff. It is submitted

that the plaintiff registered an FIR against Doddakotreshi

and defendant No.4 trying to intimidate the vendors to

execute the sale deed in favour of the plaintiff. It is

contended that if the plaintiff was aggrieved he should

have filed a suit seeking specific performance of the

agreement, but, the plaintiff got registered a criminal

complaint against the vendors, which clearly shows the

oblique motive of the plaintiff in arm twisting the vendors

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to execute a sale deed, although the agreement was

nominal, for the purpose of securing the loan given by the

plaintiff in favour of the vendors.

9. It was also contended by learned counsel for the

appellant/ defendant No.4 that the plaintiff failed to prove

readiness and willingness and therefore the trial Court

could not have decreed the suit. It was also contended

that having regard to the provisions contained in Sec. 20

of the Specific Relief Act, the Court should have come to

conclusion, on the basis of the material available on record

that the plaintiff had an unfair advantage over the

defendants. The circumstances clearly indicate inequitable

advantage in favour of the plaintiff to enforce the

agreement. Learned counsel submitted that the trial Court

has failed to appreciate the evidence on record and

therefore this Court should hold that the impugned

judgment and decree passed by the trial court is perverse

and arbitrary.

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10. Learned counsel Sri Hebballi further contended that

the trial Court has erred in coming to a conclusion that

defendant No.4 failed to explain his defence as

contemplated u/S 92 of the Evidence Act. It was

contended that sufficient material is placed before the trial

Court to support the contention of defendant No.4 that the

plaintiff is a real estate dealer and he is in the habit of

entering into agreements and thereafter cancelling the

same. Evidence is placed on record to show such

transactions at the hands of the plaintiff, to drive home

the point that the registered agreement is a sham

document, but the actual intention is to secure the interest

of the plaintiff who offered financial assistance to Sri

Doddakotreshi, since Sri Doddakotreshi was in dire need of

funds.

11. In order to substantiate his contention, learned

counsel Sri S.B. Hebballi sought to place reliance on the

following judgments.

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1. Mayavanti Vs. Kaushalya Devi (1990) 3 SCC 1 - regarding consensus ad idem;

2. Jayakantam & Ors. Vs. Abhay Kumar (2017) 5 SCC 178; and N.P. Tirugnanam Vs. Dr. Jaganmohan Rao & Ors. AIR 1996 SC 116 - regarding discretionary power of the Court under Section 20.

3. Kartar Singh Vs. Hariginder Singh AIR 1990 SC 854 - regarding performance of a part of the contract vis-à-vis whole of the contract/ severability.

4. Canara Bank Vs. K.L. Rajgarhia 2025 INSC 1278 - regarding enforceable/unenforceable contract / severability.

12. Learned counsel Sri Dinesh M. Kulkarni appearing

for the plaintiff contended that the trial Court has rightly

considered the averments made in the plaint and the

evidence available on record. It is submitted that since

defendant No.4 has admitted in the written statement as

well as the oral testimony that a sum of Rs.45 lakhs were

deposited into his account by the plaintiff and / or his son,

the issue regarding ready and willingness was rightly held

in favour of the plaintiff. On the other hand, having

regard to the conduct of defendant No.4 in admitting the

receipt of Rs.45 lakhs and yet contending that the

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agreement came to an end the moment sale deed was

executed by Doddakotreshi was rightly taken note of and

held against defendant No.4. In this regard reliance is

placed on Zarina Siddiqui Vs. A.Ramalingam alias R.

Amarnathan (2015) 1 SCC 705 where it was held that

"such conduct of the defendants would disentitle them to

ask the Court for exercising discretion in their favour by

refusing to grant a decree for specific performance".

13. Regarding the argument of the learned counsel for

defendant No.4, regarding severability of the contract,

learned counsel for defendant No.4 submitted that under

Section 54 of the Transfer of Property Act sale of

undivided interest by a co-sharer is not barred. In this

regard reliance was placed on Ramdas Vs. Sitabai and

Others (2009) 7 SCC 444, where it was held that "there

could be no dispute with regard to the fact that an

undivided share of co-sharer may be a subject matter of

sale". The learned counsel further submitted that the

plaintiff who acquired rights over one half of the suit

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schedule property under the sale deed executed by

Doddakotreshi and defendants No.1 to 3, the plaintiff is

entitled to seek for execution of sale deed at the hands of

defendant no.4 in respect of the remaining one half

portion of the suit schedule property. In the same vein, it

was contended that there is no uncertainty in the

description of the suit schedule property.

14. As regards the contention of the learned counsel for

defendant No.4 that the plaintiff has played fraud on the

defendants and therefore the plaintiff is not entitled for

any relief at the hands of the Court, learned counsel for

the plaintiff contended that evidence has to be placed

before the Court to substantiate such allegations regarding

fraud. Mere pleadings would not be sufficient to deny

relief to the plaintiff. Moreover there is a presumption that

a registered document is validly executed. A registered

document, therefore, prima facie would be valid in law.

The onus of proof, thus, would be on the person who leads

evidence to rebut the presumption. In this regard reliance

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