[Cites 7, Cited by 0]
Karnataka High Court
Sri B K Krishna Moorthy vs Sri N Shivanand on 23 February, 2026
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RFA No. 280 of 2011
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR FIRST APPEAL NO. 280 OF 2011 (SP)
BETWEEN:
1. SRI. B.K. KRISHNA MOORTHY
SINCE DECEASED BY HIS LRs
1(A) B.K. PREMA
W/O LATE KRISHNA MOORTHY
AGED ABOUT 66 YEARS
R/AT.NO.26/1 (OLD NO.786)
EKADANTHA
1ST FLOOR
SRI RAMANJANEYA ROAD
HANUMANTHNAGAR
BANGALORE - 560 019.
1(B) SMT. B.K. JYOTHI
W/O GIRISH .G
Digitally signed
AGED ABOUT 42 YEARS
by AL BHAGYA R/AT NO.101, G.F.,
Location: HIGH SIRI JASMINE APARTMENTS
COURT OF
KARNATAKA UTTARAHALLI
BENGALURU-560 061.
1(C) SRI. B.K. KESHAV KIRAN
S/O LATE KRISHNA MOORTHY
AGED ABOUT 38 YEARS
R/AT NO.26/1 (OLD NO.786)
EKADANTHA, 1ST FLOOR
SRI RAMANJANEYA ROAD
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RFA No. 280 of 2011
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HANUMANTHNAGAR
BANGALORE - 560 019.
[CAUSE TITLE AMENDED
VIDE COURT ORDER DATED 17.01.2022]
...APPELLANTS
(BY SRI. NAGARAJ SHETTY, ADVOCATE FOR A1(A TO C) AND
SRI. RANGANATHA REDDY AND
SRI. G.S. BALAGANGADHAR, ADVOCATES FOR APPELLANT)
AND:
1. SRI. N. SHIVANAND
S/O N. NARAYANA RAO
AGED ABOUT 55 YEARS
NO.142/4, 5TH CROSS
MAIN ROAD, CHAMARAJPET
BANGALORE - 560 018.
2. SRI. N.A. GOPINATH RAO
S/O N.S. ANANDA RAO
MAJOR
NO.174, 1ST MAIN ROAD
KEMPEGOWDANAGAR
GAVIPURAM GUTTAHALLI
BANGALORE - 560 019.
3. SRI. VENKATARAMAIAH PINGALE
[R3 IS DELETED AS PER COURT ORDER
DATED 23.09.2011]
...RESPONDENTS
(BY SRI. N. JAGADISH BALIGA AND SUNDARESH, ADVOCATES
FOR C/R1;
V/O DATED 24.03.2011 NOTICE TO R2 HELD SUFFICIENT
BY WAY OF PAPER PUBLICATION;
V/O DATED 08.03.2011 R3 IS DELETED)
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RFA No. 280 of 2011
HC-KAR
THIS RFA IS FILED U/S 96 R/W ORDER XLI RULE 1 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED
10.12.2010 PASSED IN O.S.NO.4672/1998 ON THE FILE OF
THE XI ADDL. CITY CIVIL JUDGE, BANGALORE, (CCH 8),
DECREEING THE SUIT FOR SPECIFIC PERFORMANCE AND
PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
ORAL JUDGMENT
The captioned appeal is by defendant No.2 directed
against the judgment and decree rendered in
O.S.No.4672/1998, whereby learned Judge has decreed
the suit granting specific performance of contract and
defendant No.1 was directed to execute registered sale
deed in terms of agreement of sale vide Ex.P-1 within two
months. Defendant No.2 who claims to be a purchaser is
assailing the judgment and decree rendered by the trial
Court.
2. For the sake of brevity, the parties are referred
to as per their rank before the trial Court.
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3. Facts leading to the case are as under:
The suit schedule property is a residential house
bearing Municipal No.142/1, comprising ground and first
floors. The plaintiff has instituted the present suit seeking
specific performance of an agreement to sell dated
15.06.1994, marked as Ex.P-1. It is the specific case of
the plaintiff that defendant No.1 was the absolute owner of
the suit property and had agreed to sell the same for a
total sale consideration of Rs.4,75,000/-. The plaintiff
asserts that a substantial portion of the sale consideration,
namely Rs.4,50,000/-, was paid as advance pursuant to
the execution of the agreement, leaving a balance of
Rs.25,000/- to be paid at the time of registration of the
sale deed. According to the plaintiff, the period stipulated
for performance under the agreement was four years.
Alleging that despite issuance of a legal notice dated
19.05.1998 calling upon defendant No.1 to execute the
sale deed, there was no compliance or response, the
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plaintiff was constrained to institute the present suit for
enforcement of the contract.
4. Defendant No.1, though disputing the execution
and genuineness of the suit agreement at Ex.P-1, did not
contest the proceedings by filing a written statement or
leading evidence. Defendant No.2, who claims under a
subsequent transaction and is admittedly a pendente lite
purchaser, entered contest. Defendant No.2 contended
that the plaintiff was not an agreement holder but only a
mortgagee/tenant and that defendant No.1 had earlier
mortgaged the property in favour of one J. Parasmal. It
was further contended that defendant No.2 discharged the
alleged mortgage liability by paying a sum of
Rs.5,50,000/- to J.Parasmal, who, claiming to be the
General Power of Attorney holder of defendant No.1,
executed a registered sale deed dated 17.05.2003 in
favour of defendant No.2. While opposing the plaintiff's
claim under Section 52 of the Transfer of Property Act,
1882, defendant No.2 asserted that his sale deed relates
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back to a prior agreement to sell dated 28.06.1995
allegedly executed by defendant No.1 in his favour and
therefore, the subsequent conveyance in his favour is not
hit by the doctrine of lis pendens. On these grounds,
dismissal of the suit was sought.
5. The Trial Court, on the basis of the pleadings,
framed appropriate issues. The plaintiff and defendant
No.2 adduced both oral and documentary evidence in
support of their respective stands. The Trial Court, upon
appreciation of evidence, discarded Ex.D-39, the
unregistered mortgage deed relied upon by defendant
No.2, and recorded a finding that the plaintiff had
successfully established the execution of the agreement
for sale dated 15.06.1994 and payment of advance
consideration. While answering Issue No.3 in the negative,
the Trial Court held that defendant No.2 failed to
substantiate his contention that the transaction in favour
of the plaintiff was in the nature of a mortgage and that
the plaintiff was only a mortgagee. Further, the Court held
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that defendant No.2, being a purchaser during the
pendency of the suit, is bound by the doctrine of lis
pendens and accordingly decreed the suit for specific
performance.
6. Assailing the judgment and decree, learned
counsel for defendant No.2 vehemently contends that
defendant No.2 had secured an agreement to sell from
defendant No.1 as early as 28.06.1995 and that the
registered sale deed dated 17.05.2003 executed in his
favour is only in furtherance of the said prior agreement.
It is therefore contended that the transaction in favour of
defendant No.2 cannot be held to be hit by the doctrine of
lis pendens. It is further argued that even assuming the
plaintiff has proved the suit agreement, the Trial Court has
failed to exercise its discretion in accordance with settled
principles governing grant of specific performance and has
not properly weighed the equities arising in favour of
defendant No.2. On these premises, it is urged that the
findings recorded on Issue Nos.1 to 3 are perverse,
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contrary to the evidence on record, and call for
interference in appeal.
7. Per contra, learned counsel appearing for the
plaintiff, while adverting to the conduct and status of
defendant No.2, would vehemently contend that defendant
No.2 cannot claim the status of a bona fide purchaser. It is
specifically pointed out that defendant No.2 is a licensed
stamp vendor and that the very stamp papers on which
the suit agreement dated 15.06.1994 (Ex.P-1) came to be
executed were admittedly purchased from him. Drawing
attention to the admissions elicited in the cross-
examination of defendant No.2, learned counsel would
submit that defendant No.2 has candidly admitted his
knowledge of the suit agreement as well as the pendency
of the present suit. These admissions, according to the
learned counsel, demolish the plea of want of notice and
clearly establish that defendant No.2 had full knowledge of
the prior contractual obligation undertaken by defendant
No.1 in favour of the plaintiff.
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8. Elaborating further, it is contended that the
alleged agreement dated 28.06.1995 set up by defendant
No.2 is only an afterthought and, in any event, cannot
dilute the statutory embargo contained under Section 52
of the Transfer of Property Act, 1882. Once it is
demonstrated that the plaintiff has proved the execution of
the agreement and his readiness and willingness, and the
Trial Court has exercised its discretion judiciously in
granting specific performance, this Court, while exercising
appellate jurisdiction under Section 96 of the Code of Civil
Procedure, 1908, ought not to lightly interfere with such
findings of fact. Defendant No.2, being a pendente lite
purchaser with clear notice of the prior agreement and the
pending litigation, cannot claim any equity. On these
grounds, learned counsel prays for dismissal of the appeal.
9. Having heard the learned counsel appearing for
the parties and on a careful and meticulous examination of
the pleadings, oral evidence and documentary material
placed on record, this Court has undertaken an
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independent re-appreciation of the entire evidence. Upon
such consideration, the following points arise for
determination:
(i) Whether the finding of the Trial Court
that the plaintiff has proved the execution of
the suit agreement and is therefore entitled to
the discretionary relief of specific performance
suffers from perversity or illegality warranting
interference in appeal?
(ii) Whether defendant No.2 has
established that he is a bona fide purchaser for
value without notice of the prior agreement in
favour of the plaintiff?
(iii) Whether the registered sale deed
dated 17.05.2003 obtained by defendant No.2
is hit by the doctrine of lis pendens as
embodied under Section 52 of the Transfer of
Property Act, 1882?
(iv) Whether the finding of the Trial
Court that the suit is within limitation suffers
from perversity or misapplication of law?
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Finding on Point No.(i):
10. In order to discharge the burden cast upon him,
the plaintiff has entered the witness box and examined
himself as PW.1. He has reiterated the averments made in
the plaint and has specifically deposed with regard to the
execution of the agreement of sale dated 15.06.1994,
which is marked as Ex.P-1. Since both defendant No.1
and defendant No.2 disputed the very execution of the
agreement and the signature of defendant No.1 found
therein, the learned Trial Judge, in order to arrive at a just
conclusion, referred the disputed signatures to a
handwriting and fingerprint expert by appointing a
Commissioner.
11. The Commissioner, after conducting scientific
examination and comparison of the disputed signatures on
Ex.P-1 with the admitted signatures of defendant No.1,
submitted a detailed report before the Court. The report
unequivocally opines that the signature appearing on the
suit agreement at Ex.P-1 is that of defendant No.1. The
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expert has further certified that there is no tampering with
the stamp paper, including the seal, date, and serial
number. The authenticity of the instrument, therefore,
stands fortified not only by oral testimony but also by
expert evidence.
12. The Commissioner has also examined the
documents relied upon by defendant No.2, particularly
Ex.D-39 (an unregistered mortgage deed) and Ex.D-26
(rent receipts). The expert has categorically opined that
the signatures attributed to the plaintiff on Ex.D-39 are
not his and that the signatures appearing on Ex.D-26 are
likewise not genuine. Though defendant No.2 filed
objections to the Commissioner's report, it is pertinent to
note that despite summons being issued at his instance to
secure the presence of the expert for cross-examination,
he did not pursue the matter further. In the absence of
effective cross-examination, the expert's opinion remains
unshaken and carries significant evidentiary value. Thus,
the Commissioner's report conclusively establishes that
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Ex.P-1 bears the genuine signature of defendant No.1 and
that the stamp paper used for its execution is free from
tampering.
13. On a careful scrutiny of this crucial evidence,
certain significant circumstances emerge. It is not in
dispute that defendant No.2 is a licensed stamp vendor.
The evidence on record discloses that the stamp papers
used for execution of Ex.P-1 were purchased from him.
While defendant No.2 admits having sold the stamp
papers, he feigns ignorance as to the purpose for which
they were utilized. This explanation, in the backdrop of the
expert opinion affirming the genuineness of the document,
appears wholly unconvincing.
14. The plea advanced by defendant No.2 that the
transaction under Ex.P-1 was in reality a mortgage and
not an agreement of sale stands thoroughly discredited.
The very document set up by him as evidencing a
mortgage, namely Ex.D-39, has been found to bear
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signatures not belonging to the plaintiff. Likewise, the rent
receipts at Ex.D-26 relied upon to probabilise a tenancy
arrangement have also been disbelieved by the expert.
When the foundational documents relied upon by
defendant No.2 crumble under forensic scrutiny, the
defence sought to be projected loses all credibility.
15. This Court also cannot lose sight of the fact that
defendant No.1, who is the alleged executant of the
agreement and whose signature was in dispute, has
chosen not to contest the proceedings. He has neither
entered the witness box nor adduced any evidence to
disown the agreement. The silence of defendant No.1,
coupled with the categorical expert opinion affirming his
signature on Ex.P-1 and the absence of any material to
suggest fabrication or tampering, lends substantial
credence to the plaintiff's case.
16. On a cumulative assessment of the oral
testimony of P.W.1, the documentary evidence, and the
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uncontroverted expert report, this Court is satisfied that
the plaintiff has successfully proved the due execution of
the agreement of sale dated 15.06.1994 marked at Ex.P-
1. The findings recorded by the Trial Court on this aspect
do not suffer from perversity or misappreciation of
evidence. Accordingly, Point No.(i) formulated above is
answered in the Negative.
Finding on Point No.(ii):
17. The material on record unmistakably indicates
that defendant No.2 is a licensed stamp vendor by
profession. It has come in evidence that the very stamp
papers on which the suit agreement dated 15.06.1994
(Ex.P-1) was executed were purchased from defendant
No.2. Though he attempts to distance himself from the
transaction by stating that he was unaware of the purpose
for which the stamp papers were utilized, the fact remains
that he was directly connected with the instrument at its
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inception. This circumstance assumes significance when
viewed in the backdrop of the defence now set up by him.
18. Defendant No.2 has virtually stepped into the
shoes of defendant No.1 and has sought to project an
altogether different narrative, contending that the
document styled as an agreement of sale is in fact a
mortgage transaction. However, this plea is conspicuously
unsupported by any cogent or legally admissible evidence.
The burden to establish that the transaction was one of
mortgage, and not an agreement to sell, squarely rested
on defendant No.2, especially when the document on its
face purports to be an agreement of sale and stands
fortified by expert evidence. Except for a bare assertion
and reliance on documents which have already been
discredited by forensic examination, no substantive
material is placed to probabilise the theory of mortgage.
The defence, therefore, remains devoid of evidentiary
foundation.
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19. On a closer scrutiny of the overall
circumstances, this Court also finds that the manner in
which defendant No.2 secured a sale deed through a
General Power of Attorney holder of defendant No.1, and
that too subsequent to the institution of the present suit,
is shrouded in considerable suspicion. The timing of the
transaction, the absence of any satisfactory explanation
for the alleged prior agreement dated 28.06.1995, and the
conduct of defendant No.1 in remaining ex parte
collectively cast a serious doubt on the bona fides of the
transaction in favour of defendant No.2. The sequence of
events strongly suggests that the conveyance in favour of
defendant No.2 was orchestrated during the pendency of
litigation with full knowledge of the plaintiff's subsisting
claim.
20. In the light of these significant circumstances,
this Court deems it appropriate to advert to certain crucial
admissions elicited in the cross-examination of defendant
No.2, which have a direct bearing on the question of
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notice, bona fides, and the true nature of the transaction.
The relevant portion of his cross-examination is extracted
hereunder:
" ಾ ಾರ ಮ ರವ ೆ ಾ ಾ ಸ ನ ಬ ೆ ಅಂದ ೆ ನಂ.
142/4 ಬ ೆ ಾ ೆಯನು 1997 ಂದ ನವಂಬ 1998ರ ವರ ೆ
!ೊ#$ರು%ಾ ೆ. ಾ ೆ !ೊ#$ಲ' ಎಂದು ಾರ ಮ ರವರು ಾ ಯ
)ೕ+ೆ ,ಾವ- ೇ !ೇಸನು .ಾ/ರ0ಲ'. :03.11.1998 ರ ನಂತರ
ಾ !ೇಸನು .ಾ/ರುವ ಬ ೆ ಾರ ಮ ರವ ೆ ೊ%ಾ2ತು.
3. .9 ಕ5ಯ ಪತ5ವನು 7ಾ !ೊಡುವ ಸಮಯದ0' ಾ ಈ
!ೇಸನು .ಾ/ರುವ ಬ ೆ ಪರ ಮ ರವರು ನನ ೆ :;ದ<ರು. ಈ
!ೇಸನು .ಾ/ರುವ ಬ ೆ ನನ ೇ ಬಹುಶ.ಾ 2000ದ0' ೊ%ಾ?ತು."
21. A careful reading of the extracted admissions in
the cross-examination of defendant No.2 leaves no
manner of doubt that he was fully aware of the agreement
of sale executed by defendant No.1 in favour of the
plaintiff. The admissions further disclose that he had
knowledge not only of the prior transaction but also of the
institution and pendency of the present suit. These
categorical admissions strike at the very root of his plea
that he is a bona fide purchaser for value without notice.
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22. In order to claim protection as a bona fide
purchaser under Section 19(1)(b) of the Specific Relief
Act, 1963, a subsequent transferee must establish that he
purchased the property for value, in good faith, and
without notice of the original contract. The evidence on
record, particularly the admissions of defendant No.2 and
the surrounding circumstances discussed supra, clearly
demonstrate that he had prior knowledge of the plaintiff's
contractual rights. Once knowledge is established, the plea
of good faith collapses. Therefore, this Court is of the
considered view that defendant No.2 cannot claim the
benefit of protection available to a bona fide purchaser
under Section 19(1)(b) of the Specific Relief Act.
Accordingly, Point No.(ii) is answered in the Negative.
Finding on Point No.(iii):
23. The principal contention urged on behalf of
defendant No.2 is that he had entered into an agreement
of sale with defendant No.1 on 28.06.1995 and that the
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registered sale deed dated 17.05.2003 executed in his
favour through J. Parasmal, the alleged GPA holder of
defendant No.1, is only in furtherance of the said earlier
agreement. It is therefore contended that the sale deed
should relate back to the date of the prior agreement and
cannot be treated as a transfer pendente lite so as to
attract the bar under Section 52 of the Transfer of
Property Act, 1882.
24. This contention, in the opinion of this Court, is
wholly untenable both on facts and in law. The suit for
specific performance was instituted on 15.06.1998. It is an
admitted position that the registered sale deed in favour of
defendant No.2 was executed only on 17.05.2003, i.e.,
during the pendency of the suit. For the purpose of Section
52 of the Transfer of Property Act, 1882, what is material
is the transfer of an interest in immovable property
effected by a completed conveyance and not a mere
agreement to sell.
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25. Section 54 of the Transfer of Property Act,
1882, expressly provides that an agreement for sale does
not, by itself, create any right, title or interest in or charge
on the property. Therefore, even assuming that defendant
No.2 had obtained an agreement of sale in the year 1995,
the said agreement did not confer upon him any
proprietary interest. The transfer of ownership was
effected only upon execution and registration of the sale
deed dated 17.05.2003, which undisputedly took place
after the institution of the suit. Consequently, the transfer
in favour of defendant No.2 squarely falls within the ambit
of a transfer pendente lite.
26. The doctrine of lis pendens embodied under
Section 52 of the Transfer of Property Act, 1882 is founded
on sound principles of public policy, intended to maintain
the status quo during the pendency of litigation and to
prevent the defeat of rights under adjudication by private
alienations. The Hon'ble Apex Court, in a catena of
decisions, has consistently held that a transferee pendente
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lite is bound by the decree ultimately passed and merely
steps into the shoes of his vendor. Such a transferee
cannot claim any independent or superior equities than
those available to the transferor. The operation of Section
52 is not dependent upon notice or good faith; it attaches
to the transfer by virtue of the pendency of litigation itself.
27. In the present case, apart from the statutory
position, defendant No.2 has admitted in his cross-
examination that he was aware of the prior transaction
and the pendency of the suit. Thus, both on principle and
on facts, defendant No.2 clearly answers the description of
a transferee pendente lite within the meaning of Section
52 of the Transfer of Property Act, 1882. The plea that the
sale deed relates back to a prior agreement and thereby
escapes the rigour of lis pendens is misconceived and
liable to be rejected. Accordingly, Point No.(iii) is answered
in the Affirmative.
Finding on Point No.(iv):
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28. Insofar as limitation is concerned, the
agreement of sale at Ex.P-1 is dated 15.06.1994 and, as
per its terms, the period stipulated for performance was
four years. The plaintiff has specifically pleaded and
deposed that he issued a legal notice on 19.05.1998
calling upon defendant No.1 to execute the sale deed, and
on failure of compliance, instituted the suit on 15.06.1998.
In terms of Article 54 of the Limitation Act, 1963, a suit for
specific performance is required to be filed within three
years from the date fixed for performance or, if no such
date is fixed, from the date when the plaintiff has notice
that performance is refused. In the present case, the suit
has been instituted well within the contractual period of
four years and immediately upon failure of defendant No.1
to perform despite notice. Therefore, the Trial Court, on
proper appreciation of the pleadings and evidence, has
rightly held that the suit is within time. The said finding
does not suffer from any perversity, illegality, or
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misapplication of law warranting interference in appeal.
Accordingly, Point No.(iv) is answered in the Negative.
29. For the foregoing reasons, this Court proceeds
to pass the following:
ORDER
(i) The appeal is dismissed;
(ii) The judgment and decree dated
10.12.2010 passed by the learned Trial Judge
in O.S.No.4672/1998 decreeing the suit for
specific performance are hereby affirmed;
(iii) It is declared that the registered sale
deed dated 17.05.2003 executed in favour of
defendant No.2 through the alleged GPA holder
of defendant No.1 is subject to the doctrine of
lis pendens and shall not affect the rights of the
plaintiff under the decree for specific
performance;
(iv) Defendant No.1 (and defendant
No.2, being a transferee pendente lite stepping
into the shoes of defendant No.1) shall execute
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a registered sale deed in respect of the suit
schedule property in favour of the plaintiff on
receipt of the balance sale consideration of
Rs.25,000/- within a period of three months
from the date of receipt of a copy of this
judgment.
(v) In the event of failure to execute the
sale deed within the stipulated period, the
plaintiff is at liberty to have the sale deed
executed through the process of Court in
accordance with law.
(vi) Parties shall bear their respective
costs.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
CA
List No.: 1 Sl No.: 20
