Karnataka High Court
Smt. Yellamma W/O Fakkirappa Walikar vs Sri. Mahadevappa S/O Mallappap ... on 30 October, 2025
-1-
NC: 2025:KHC-D:14674
RSA No. 100650 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 30TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 100650 OF 2017 (SP)
BETWEEN:
1. SMT. YELLAMMA W/O. FAKKIRAPPA WALIKAR,
AGE: MAJOR, OCC. HOUSEHOLD CUM AGRICULTURE,
R/O. DHUMMAWAD, TQ. KALAGHATAGI,
DIST. DHARWAD, PIN CODE: 580001.
2. SRI. MANJUNATH S/O. FAKKIRAPPA WALIKAR,
AGE: MAJOR, OCC. AGRICULTURE,
R/O. DHUMMAWAD, TQ. KALAGHATAGI,
DIST. DHARWAD, PIN CODE: 580001.
...APPELLANTS
(BY SRI. S.M. KALWAD, ADVOCATE)
AND:
SRI. MAHADEVAPPA S/O. MALLAPPA TOPALAGATTI,
Digitally
signed by
AGE: MAJOR, OCC. AGRICULTURE,
YASHAVANT
YASHAVANT NARAYANKAR R/O. GAMBYAPUR, TQ. KALAGHATAGI,
NARAYANKAR Date:
2025.11.03
14:55:11
DIST. DHARWAD, PIN CODE: 580001.
+0530
...RESPONDENT
(BY SRI. S.S. HEGDE, ADVOCATE FOR
SRI. S.R. HEGDE, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 18.12.2014 MADE IN
R.A.NO.232/2010 PASSED BY THE COURT OF THE PRINCIPAL
DISTRICT SESSIONS JUDGE, DHARWAD BY ALLOWING THE APPEAL
FILED BY THE APPELLANT AND THEREBY CONFIRMING THE JUDGMENT
AND DECREE DATED 30.06.2010 MADE IN O.S.NO.252/ 2001 PASSED
BY THE COURT OF II ADDL. SENIOR CIVIL JUDGE SITTING AT
KALAGHATAGI IN THE INTEREST OF JUSTICE AND EQUITY.
-2-
NC: 2025:KHC-D:14674
RSA No. 100650 of 2017
HC-KAR
THIS APPEAL, COMING ON FOR ORDERS THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
Heard the learned counsel appearing for the appellants and
the learned counsel appearing for the respondent.
2. This appeal arises out of the judgment and decree
dated 18.12.2014 in R.A.No.232/2010 passed by learned
Principal District and Sessions Judge, Dharwad whereby the
judgment and decree dated 30.06.2010 in O.S.No.252/2001
passed by the Senior Civil Judge, Kalaghatagi, for refund of
earnest money paid under an agreement of sale was modified
and the defendants were directed to execute the sale deed by
paying ten times additional amount than the agreed sale
consideration.
3. The learned counsel appearing for the appellants
submits that the alleged first agreement between the parties was
as per Ex.P.1 dated 02.06.1997, under which it was stated that a
sum of ₹5,000/- was received as an earnest amount of the total
sale consideration of ₹50,000/- from the plaintiff. Thereafter, the
NC: 2025:KHC-D:14674
HC-KAR
defendant No.1, who happens to be the mother of the defendant
No.2, approached the Court in a G & WC No.17/1997 before the
Principal Civil Judge and CJM, Dharwad and prayed for granting
permission to alienate the property in favour of the plaintiff. It is
contented that the Court had allowed such alienation by order
dated 29.06.2002. In the meanwhile, the defendant No.1 is
alleged to have entered into supplementary agreement as per
Ex.P.2 on 19.10.2000 and the sale consideration was enhanced
from ₹50,000/- to ₹52,000/- and an additional sum of ₹27,000/-
was paid on that day. Subsequently, the plaintiff filed suit for
specific performance contending that he was always ready and
willing to perform his part of the contract but the defendants
have not executed the sale deed and issued a legal notice and
ultimately he filed the suit before the Trial Court seeking specific
performance of the agreement of sale.
4. The learned counsel appearing for the
appellants/defendants now submits that the First Appellate
Court, modified the judgment of the Trial Court and directed the
defendants to execute the sale deed in favour of the plaintiff. It
is submitted that as on the date of the alleged second agreement
NC: 2025:KHC-D:14674
HC-KAR
Ex.P.2, the G & WC Court had not yet granted the permission to
alienate the property and therefore, the defendant No.1 could
not have entered into any agreement as per Ex.P.2 with the
plaintiff. On that ground, the alleged agreements for alienation
are non-est and they could not have been relied by the Trial
Court and the First Appellate Court.
5. The second prong of the argument is that, the
defendants had taken the contention that it was a transaction in
respect of the mortgage and therefore, the Courts below could
not have construed the Ex.P.1 or Ex.P.2 as an agreement. Hence
he seeks indulgence of this Court.
6. So far as the delay of 877 days in filing the appeal is
concerned, it is contented that the defendants were unaware, of
the judgment of the First Appellate Court and therefore, the
delay has been properly explained by the appellants and as such
the delay can be condoned.
7. It is pertinent to note that this Court by order dated
19.07.2024 had directed the parties to make their submissions
on merit and I.A.No.1/2018 seeking condonation of delay was
kept in abeyance.
NC: 2025:KHC-D:14674
HC-KAR
8. Coming to the merits of the case, it is pertinent to
note that the only question that was available before the First
Appellate Court was whether the discretion exercised by the Trial
Court in ordering refund of the earnest money and refusing to
grant the specific performance was proper or not. Obviously, the
defendants had not approached the First Appellate Court
questioning the finding on Ex.P.1 and Ex.P.2. In that view of the
matter, the validity of Ex.P1 and Ex.P.2 as held by the Trial Court
remain intact. Even otherwise, no fault can be found in respect of
the finding of the Trial Court so far as Ex.P.1 and Ex.P.2 are
concerned. It is pertinent to note that though Ex.P.1 can be
ascribed with the allegation that it was a transaction of mortgage
or otherwise, Ex.P.2 cannot be discarded. It is pertinent to note
that after Ex.P.1 was executed on 02.06.1997, the defendant
No.1, who happens to be the natural guardian of the defendant
No.2 at that time, had approached the Court in G&WC
No.17/1997 and had deposed before the Court as per Ex.P8. In
Ex.P.8, she makes a categorical admission about her intention to
alienate the property. Evidently, the G&WC petition, the copy of
which is produced at Ex.P.7, shows that it was filed on
21.10.1997, which is subsequent to Ex.P.1. On 12.03.1998, the
NC: 2025:KHC-D:14674
HC-KAR
defendant No.1/Yellawwa appeared before the Court and
deposed that she wants to sell the suit schedule property for the
purpose of the educational expenses of the defendant No.2 and
she has no other income. This deposition of DW1 cannot be
found fault with in any way and it reiterates the intention to sell
as per Ex.P.1.
9. Further, after she deposed before the Court as per
Ex.P.8, she entered into an agreement of sale as per Ex.P.2 on
19.10.2000. It is pertinent to note that Ex.P.2 enhances the sale
consideration amount from ₹50,000/- to ₹52,000/- and an
additional sum of ₹27,000/- was received by her. Therefore, the
renewed terms and conditions of the agreement of sale were on
19.10.2000. In all, the defendant had received a sum of
₹32,000/- as earnest money. Obviously, the defendants have not
produced any document before the Trial Court to establish that
the Court had granted permission in G. & W.C.No.17/1997 in the
year 2002. Therefore, the grant of such permission to alienate,
which is said to be in the year 2002 is not established by the
defendants.
NC: 2025:KHC-D:14674
HC-KAR
10. In the light of the above facts which are born out of
records, the Trial Court as well as the First Appellate Court were
justified in holding that the defendants had entered into an
agreement of sale with the plaintiff and the sale consideration
was agreed to be ₹52,000/-, out of which, a sum of ₹32,000/-
was received by the defendants.
11. Coming to the question of discretionary relief, the
Trial Court in paragraph No.19 of the impugned judgment holds
that the ready and willingness of the plaintiff has been
established and since it is a minor's property, the relief of
specific performance being a discretionary one is to be exercised
in favour of the minor. It is pertinent to note that it refers to a
document as Ex.D1 and Ex.P10, which are non-existent. In
paragraph No.19 of the Trial Court holds as below:
"Taking into consideration the scope of the
relief of Specific Performance and by virtue of the
limitations provided u/s 20 of the Specific Relief
Act, it is in appropriate to grant the relief of
specific performance. Moreover that relief is
discretionary relief it must be reasonable and
guided by judicial principles. When the nature of
Ex.P.10 is void abinitio invariably does not
NC: 2025:KHC-D:14674
HC-KAR
warrant the kind of relief as specific performance.
Hence it is appropriate only to grant the refund of
the earnest amount of Rs.30,000/- at the rate of
8% p.a. from the date of suit till its realization.
This is for the reason that conduct of Ex.D.1
namely that she was aware about the permission
to be obtained for the purpose of alienating the
property and in spite of that the agreement as per
Ex.P:1 was entered therefore interest is required
to be levied for the refund of the earnest amount
and accordingly this issue is answered."
12. The discretion which was exercised by the Trial Court
was considered by the First Appellate Court in detail and after
referring to various judgments, it to the conclusion that 10 times
the value agreed between the parties would be a justifiable
amount and there are no reasons to hold that the specific
performance has to be declined. In paragraph Nos.43 and 44 of
the impugned judgment of the First Appellate Court holds as
below:
"43. From the above discussion it becomes clear
that the Defendants had the intention to sell the
suit property and with that intention they have
received advance consideration of Rs. 32,000/-
and this view is further supported by filing the
NC: 2025:KHC-D:14674
HC-KAR
application by the Defendant No. 1 under the
provisions of Guardians & Wards Act seeking
permission of the Court to sell the interest of the
minor. Therefore the intention of the parties was
clear that the Defendants have to sell the
property and the Plaintiff has to purchase the
same for valuable consideration. Now that the
Plaintiff has come forward to pay escalation price
and therefore, the Court below is not justified in
refusing decree for specific performance and only
to that extent the judgment and decree of the Court
requires interference by this Court and the suit of
the Plaintiff for specific performance has to be
decreed.
44. Now we have to see what would be the result
if this Court were to accept the offer made by the
learned counsel for the Appellant to pay the price
ten times more than the agreed price. The agreed
value as per Ex.P.2 is Rs. 52,000/- and if it is
calculated ten times it comes to Rs. 5,20,000/-.
Out of this Rs. 32,000/- has been paid by the
Plaintiff and the remaining amount of Rs.
4,88,000/- has to be paid by the Plaintiff to the
Defendants as full consideration before having the
sale deed executed in his favour. For these
reasons I answer point No. 2 in the negative and
point No. 3 in the affirmative."
- 10 -
NC: 2025:KHC-D:14674
HC-KAR
13. It is pertinent to note that in coming to such
conclusion, it had placed reliance on the judgment in the case of
Parakunnan Veetill Joshph's son Mathew vs. Nedumbara
Kuruvila's son and others1 and Narayana Pillai
Chandrasekharan Nair vs. Kunju Amma Thankamma2. It is
worth to note that enhancement of the sale consideration
amount though cannot be granted generally since the escalation
of the price at a subsequent date cannot be a ground as per the
provisions of Section 16 of the Specific Relief Act, 1963. The
Hon'ble Apex Court in several of its judgments has slightly
deviated from the said view and has tried to lean in favour of the
equities. The Hon'ble Supreme Court, in the case of Satya Jain
v. Anis Ahmed Rushdie3, held as under:,
"39. The long efflux of time (over 40
years) that has occurred and the
galloping value of real estate in the
meantime are the twin inhibiting
factors in this regard. The same,
however, have to be balanced with the fact
that the plaintiffs are in no way responsible
for the delay that has occurred and their
keen participation in the proceedings till
date show the live interest on the part of the
1 AIR 1987 SC 2328
2 AIR 1990 Kerala 177
3 AIR 2013 SC 434
- 11 -
NC: 2025:KHC-D:14674
HC-KAR
plaintiffs to have the agreement enforced in
law.
40. The discretion to direct specific
performance of an agreement and that
too after elapse of a long period of time,
undoubtedly, has to be exercised on
sound, reasonable, rational and
acceptable principles. The parameters
for the exercise of discretion vested by
Section 20 of the Specific Relief Act,
1963 cannot be entrapped within any
precise expression of language and the
contours thereof will always depend
on the facts and circumstances of
each case. The ultimate guiding test would
be the principles of fairness and
reasonableness as may be dictated by the
peculiar facts of any given case, which
features the experienced judicial mind can
perceive without any real difficulty. It must
however be emphasised that efflux of time
and escalation of price of property, by itself,
cannot be a valid ground to deny the relief
of specific performance. [...]
41. The twin inhibiting factors
identified above if are to be read as a bar
to the grant of a decree of specific
performance would amount to penalising the
plaintiffs for no fault on their part; to deny
them the real fruits of a protracted litigation
wherein the issues arising are being
answered in their favour."
(emphasis supplied)
14. In directing specific performance of the agreement,
the Apex Court in Satya Jain (supra) held that sale deed must
be executed for the current market price of the suit property.
- 12 -
NC: 2025:KHC-D:14674
HC-KAR
Therefore, the view taken by the First Appellate Court to
enhance the sale consideration 10 times than the agreed amount
cannot be found fault with in the facts and circumstances of the
case.
15. The learned counsel appearing for the appellant
places reliance on the judgment in the case of Sarup Chand vs.
Surjit Kaur and others4 wherein it was observed that when no
permission was taken from the Court to alienate the share of the
minors, the agreement to sale could not be construed to have
been made on behalf of the minors. Evidently, the said judgment
cannot be made applicable to the facts of the present case since
defendant No.1 had approached the Court and had deposed
before the Court that permission may be granted and in
pursuance to such deposition, the second agreement as per
Ex.P2 was entered into. To say that the Court had granted the
permission in the year 2002, nothing is produced before this
Court to establish the same. In that view of the matter, no fault
can be found with the judgment of the First Appellate Court on
merit.
AIR 2002 Punjab and Haryana 54
- 13 -
NC: 2025:KHC-D:14674
HC-KAR
16. I.A.No.1/2018, the affidavit filed in support of the
application states that she came to know about the judgment of
the Appellate Court after receiving the notice in E.P.No.17/2017.
This prima facie shows that the appellants were not diligent in
prosecuting or following the appeal before the First Appellate
Court. The requirement of Section 5 of the Limitation Act to
condone the delay i.e. to explain every day's delay has not been
stated in the affidavit. Therefore, even the I.A.No.1/2018 is
bereft of any merits. In the result, the following order is passed:
ORDER
i) I.A.No.1/2018 is dismissed.
ii) The appeal is dismissed.
iii) The judgment of the First Appellate Court in
R.A.No.232/2010 is confirmed.
SD/-
(C M JOSHI)
JUDGE
YAN:Para 1 to 8
SSP:Para 9 to end
CT:PA
