[Cites 6, Cited by 0]
Karnataka High Court
Smt.Prabhavati vs Smt.Bhagyamma on 6 February, 2026
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RFA No. 139 of 2015
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2026
PRESENT
THE HON'BLE MR. JUSTICE D K SINGH
AND
THE HON'BLE MS. JUSTICE TARA VITASTA GANJU
REGULAR FIRST APPEAL NO. 139 OF 2015 (SP)
BETWEEN:
1. SMT. PRABHAVATI
W/O LATE S. NANJUNDAIAH,
AGED ABOUT 72 YEARS,
2. KUM. SUMANA
D/O LATE S. NANJUNDAIAH,
AGED ABOUT 31 YEARS,
BOTH ARE RESIDING AT
RESIDING AT NO.24, PEARL GARDENS,
VAJARAHALLI, TALAGHATTAPURA POST,
KANAKAPURA MAIN RAOD,
BANGALORE SOUTH TALUK,
BANGALORE-560062.
...APPELLANTS
(BY SMT. SRUTI CHAGANTI, ADVOCATE FOR
SRI. S. SUNIL, ADVOCATE)
AND:
Digitally signed by S 1. SMT. BHAGYAMMA
NOORUNNISABEGUM
Location: HIGH COURT W/O LATE KRISHNAPPA,
OF KARNTAKA AGED ABOUT 45 YEARS,
2. CHI. VISHAL
S/O LATE KRISHNAPPA,
AGED ABOUT 11 YEARS,
MINOR,
REPRESENTED BY HIS MOTHER/
NATURAL GUARDIAN,
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RFA No. 139 of 2015
HC-KAR
SMT. BHAGYAMMA
3. SRI. CHOODAPPA
S/O LATE DODDAIAH,
AGED ABOUT 53 YEARS,
RESPONDENTS NO.1 TO 3 ARE
RESIDING AT BHAKTIPURA VILLAGE,
MAYASANDRA POST,
ATTIBELE HOBLI, ANEKAL TALUK,
BANGALORE-562 107.
...RESPONDENTS
(BY SRI. T.N. VISWANATH, ADVOCATE FOR R1
(R2 IS MINOT REPRESENTED BY R1);
SRI V. VISHWANATH SHETTY, ADVOCATE FOR R3)
THIS RFA IS FILED U/S SECTION 96 READ WITH ORDER
41 RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 21.10.2014 PASSED IN O.S.NO.771/2011 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND JMFC AT ANEKAL, PARTLY
DECREEING THE SUIT FOR SPECIFIC PERFORMANCE OF
CONTRACT.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 03.11.2025, COMING ON FOR
PRONOUNCEMENT THIS DAY, HON'BLE MS. JUSTICE
TARA VITASTA GANJU PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE D K SINGH
&
HON'BLE MS. JUSTICE TARA VITASTA GANJU
CAV JUDGMENT
(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)
1. The present appeal has been filed by the
appellants/defendants seeking to set-aside the Judgment
and Order dated 21.10.2014 in O.S.No.771/2011 passed
by the learned Senior Civil Judge and JMFC at Anekal.
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(hereinafter referred to as "Impugned Judgment"). By the
Impugned Judgment, the suit of the respondents/plaintiffs
was partly-decreed and their prayer for the relief of
specific performance of the contract was dismissed. In
addition, the appellants/defendants were directed to
refund to the respondents/plaintiffs the advance paid in
sum of Rs.16,25,000/- along with interest at the rate of
9% per annum from the date of suit. The parties are also
referred to as per their title before the learned Trial Court.
2. This Court by its order dated on 16.04.2015 has
while admitting the appeal stayed the execution of the
decree.
3. The facts that are relevant are, that one
Sri.S.Nanjundaiah, who was the husband of
appellant No.1/defendant No.1 and father of appellant
No.2/defendant No.2 is the owner of the property bearing
Sy.No.89 measuring 1 acre 21 guntas and Sy.No.28
measuring 0.20 guntas, both situated at Bhaktipura
village, Attibele Hobli, Anekal Taluk, Bangalore District
(hereinafter referred to as the 'suit properties'). The said
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Sri.S.Nanjundaiah agreed to sell the suit properties for
Rs.21,25,000/- for which purpose an Agreement to Sell
dated 15.11.2002 was executed in favour of one
Sri. Krishnappa and Sri. Choodappa (plaintiffs)
[hereinafter referred to as the "Agreement to Sell"] and an
advance sale consideration of Rs.16,25,000/- was paid. It
was further agreed by the parties in the Agreement to Sell
that the registered sale deed would be executed after
receiving the balance consideration amount of
Rs.5,00,000/-. The Agreement to Sell, however did not set
out any time frame for the completion of the sale.
3.1. It is the case of the respondents/plaintiffs that the
said Sri. S.Nanjundaiah kept postponing the execution of
the sale deed for one or another reason and subsequently
the said Sri. S.Nanjundaiah passed away. The plaintiffs/
respondents approached the appellants/defendants on
several occasions and requested them to execute the
registered sale deed by receiving the balance
consideration amount. However, the appellants/defendants
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failed to do so. The plaintiffs/respondents were thus
constrained to send a legal notice dated 21.09.2011.
3.2. Since in spite of service of the notice calling upon the
appellants/defendants to supply the revenue documents
and execute the sale deed and receive the balance
consideration, the appellants/defendants failed to execute
the sale deed, the respondents/plaintiffs filed a suit
seeking a decree for specific performance.
3.3. The appellants/defendants entered appearance and
filed their Written Statement denying all the averments in
the plaint. The appellants/defendants further contended
that Sri. S.Nanjundaiah had not executed the Agreement
to Sell since there was no legal or family necessity to enter
into such an agreement. In addition, the
appellants/defendants also took the defence that
respondents/plaintiffs do not have the financial capacity to
purchase the suit property or to pay the balance sale
consideration. It was further stated that the Agreement to
Sell has only been created with an intention to grab the
suit properties.
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3.4. On the basis of the pleadings and contentions of both
the parties, the learned Trial Court framed the following
issues:
i. "Whether plaintiffs prove that the regarding
executing an agreement dated 15.11.2002 by S.
Nanjundaiah husband of defendant No.1 and father
of defendant No.2 in favour of Krishnappa is the
husband of plaintiff No.1 and father of plaintiff No.2
by agreeing to sell the suit schedule property for
Rs.21,25,000/-?
ii. Whether plaintiffs further prove regarding
advancement Rs.16,25,000/- by the deceased
Krishnappa and Choodappa, as earnest money?
iii. Whether plaintiffs prove that they were ever ready
and willing to perform their part of contract?
iv. Whether defendants prove regarding concoction and
creating of the agreement by plaintiffs?
v. Whether the plaintiffs are entitled for the relief as
sought?
vi. What order or decree?
3.5. During the pendency of the suit, the handwriting
expert was appointed by the Court to identify and detect
any forgery in the Agreement to Sell. The report of the
Expert Commissioner was exhibited as Ex.C1. The
Commissioner, by his report dated 13.01.2014 gave a
finding that signatures on the Agreement to Sell and
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signatures on the other documents are at variance with
each other.
3.6. Plaintiff No.3 examined himself as PW1 and stated
that Sri. S.Nanjundaiah offered to Sri. Krishnappa and
Sri. Choodappa to sell the suit properties for a sum of
Rs.21,25,000/- and paid an advance sale consideration of
Rs.16,25,000/-. The sale deed was to be executed by
paying the balance amount of Rs.5,00,000/-. However, it
was contended that the sale deed was not executed since
Sri. S.Nanjundaiah postponed the same and thereafter
passed away and the legal heirs of Sri S. Nanjundaiah did
not execute the sale deed.
3.7. Appellant No.1/Defendant No.1 examined herself and
stated that her husband Sri. S.Nanjundaiah never
executed any Agreement to Sell, that he never received
any payment and that the plaintiffs/respondents have
forged the signature of Sri. S.Nanjundaiah on the
Agreement to Sell dated 15.11.2002.
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4. The learned Trial Court also examined C.W.1, the
officer of the Forensic Science Laboratory, Bangalore, and
the report of C.W.1 and gave its finding that if the
respondents/plaintiffs had created the Agreement to Sell
by forging the appellants/defendants' signatures, the
appellants/defendants would have taken steps against the
respondents/plaintiffs but since they did not do the same,
it goes to show that the appellants/defendants were aware
about the Agreement to Sell. It was further held by the
learned Trial Court that the respondents/plaintiffs have
proved their case by oral and documentary evidence.
4.1. In addition, on the issue of the readiness and
willingness of the respondents/plaintiffs to perform the
contract, the learned Trial Court also gave a finding that
during the lifetime of Sri. S.Nanjundaiah, demands were
made for execution of the sale deed and also after the
death of Sri. S.Nanjundaiah, respondents/plaintiffs have
paid more than 70% of the sale consideration. Thus it was
held that the respondents/plaintiffs were ready and willing
to perform the contract. In these circumstances, the
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learned Trial Court found that the respondents/plaintiffs
have proved the execution of the Agreement to Sell and
also proved that Sri. S.Nanjundaiah received
Rs.16,25,000/- as earnest money and held that since the
Agreement to Sell was of the year 2002 and the judgment
was given in the year 2014, the suit properties could not
be sold on the market value fixed in the year 2002. Thus,
it was held that earnest money which was paid, be
refunded to the respondents/plaintiffs along with interest
at the rate of 9% per annum.
5. Learned counsel for the appellants/defendants have
contended that the Agreement to Sell is a false and
fabricated document and that there was no legal or valid
necessity to execute the alleged agreement. In addition, it
was contended that the suit filed was barred by limitation
and the court fee paid was insufficient despite which the
suit was partly decreed. Lastly, it was contented that the
respondents/plaintiffs were not ready or willing to pay the
balance consideration and that the findings of the learned
Trial Court in this behalf were not correct.
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6. The respondents/plaintiffs on the other hand
contended that the Agreement to Sell was a legal and valid
document executed by Sri. S.Nanjundaiah and that the
payment of Rs.16,25,000/- was made as an advance. It
was further stated that despite the respondents/plaintiffs'
repeated request, the sale deed was not registered by
Sri. S.Nanjundaiah during his life time. It was averred that
subsequently, Sri. S.Nanjundaiah passed away and his
legal heirs did not execute the sale deed in favour of the
respondents/plaintiffs and that the respondents/plaintiffs
had already paid Rs.16,25,000/- as consideration which is
more than 70% advance and thus, the Agreement to Sell
should not be interdicted.
7. The question that arises for the consideration of this
Court is whether there existed a valid Agreement to Sell in
performance of which an amount of Rs.16,25,000/- was
paid in cash to Sri S.Nanjundaiah.
8. The appellants/defendants have challenged the
Impugned Judgment and the finding that the Agreement
to Sell was proved and that they are liable to refund the
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advance payment made. It is the case of the
respondents/plaintiffs that the Agreement to Sell was
executed by Sri. S.Nanjundaiah and that Rs.16,25,000/-
was paid in cash. While it is the case of the
appellants/defendants that no such agreement was ever
entered into since there was no legal necessity or
requirement to execute the same.
9. An examination of the Agreement to Sell dated
15.11.2002 (Ex.P1) sets out in its recitals that land is
being sold for the needs of family and it further states that
Agreement to Sell is being made for two parcels, 1 acre
and 21 guntas in Survey No.89, Bhaktipura Village and 20
guntas in Survey No.28, Bhaktipura Village, for a total sale
consideration of Rs.21,25,000/-. The Agreement to Sell
further sets out that the balance sale consideration shall
be paid at the time of registration and that the
Purchaser(respondents/plaintiffs) shall be entitled to
obtain necessary documents required for registration. The
relevant extract of the agreement is below:
"Out of the said total sale consideration, in the presence
of the witnesses mentioned below, a sum of 16,25,000
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(Rupees Sixteen Lakhs and Twenty-Five Thousand
only) has been received in cash by me from the
purchasers.
The balance amount of ₹5,00,000 (Rupees Five Lakhs
only) shall be paid before the Sub-Registrar at the time
of registration, and I shall, without any dispute or
obstruction, execute and register the sale deed in their
favour.
From this day onwards, the purchasers shall be entitled
to obtain all the necessary documents required for
registration, and on that very day, I shall execute and
register the sale deed in their favour.
If, for any reason, the purchasers fail to get the sale
deed registered, the advance money received by me
shall be treated as capital amount, and if we, the
vendors, fail or neglect to execute the sale deed, the
purchasers shall have every right to present this
Agreement of Sale before the Court and get the same
compulsorily registered through Court.
From this date, the purchasers shall have absolute
rights, title, interest, and enjoyment over the said
lands including the right over trees, water sources,
deposits, and all other natural and attached
benefits-and they, their children, and descendants shall
peacefully and happily enjoy the same hereditarily. There
is no kind of dispute or encumbrance over the said lands.
If, at any time, any dispute arises in connection with the
said lands, we ourselves shall settle the same at our own
cost and responsibility."
[Emphasis Supplied]
10. Since the signatures on the Agreement to Sell were
disputed, the learned Trial Court got an expert opinion
from the State Forensics Science Laboratory at Madiwala,
Bangalore, wherein the Agreement to Sell with the
questioned signatures [Ex.P1(a) and Ex.P1(b)] and other
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documents with the signatures of Sri S.Nanjundaiah
[Ex.D1(a), Ex.D3(a) to Ex.D3(d)] were examined. The
expert was also examined by the learned Trial Court. By
its Report dated 13.01.2014, [Ex.CW-1], the officer opined
that the signatures did not tally on the documents stated
to be signed by Sri. S.Nanjundaiah and the Agreement to
Sell. In addition, it was opined that the signatures on the
other documents are smooth, clear and rhythmic and are
found written by one person in the normal form of
execution. However the questioned signatures [Ex.P1(a)
and P1(b)] are not so freely and firmly written and the
quality of the strokes is also not smooth and uniform. The
relevant extract of the forensic expert report [Ex.CW-1] is
as under:
"My opinion is based on the following
observations"
The signatures marked as Ex.D1(a), Ex.D3(a) to
Ex.D3(d) are freely and firmly written along with
smooth, clear, rhythmic and uniform quality of
strokes formation. These signatures are showing
internal consistency in writing habits and possess
natural variations between them without any
differences in basic writing habits and they are found
written by one and the same person in normal form
of executions.
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On examination of the signatures marked as
Ex D1(a), Ex.D3(a) to Ex.D3(d) on one hand and the
questioned signatures marked as Ex.P1(a), P1(b) on the
other, it is found that the questioned signatures
marked as ExP1(a), P1(b) are not so freely and
firmly written as that of the signatures marked as
Ex.D1(a), Ex.D3(a) to Ex.D3(d), the quality of
strokes in questioned signatures marked as
Ex.P1(a), P1(b) is not so smooth, clear, rhythmic
and uniform as that of in signatures marked as Ex.D1(a),
Ex.D3(a) to Ex.D3(d). In addition, the questioned
signatures marked as Ex. P1(a), Ex.P1(b) are also
showing significant divergences with that of the
signatures marked as Ex.D1(a), Ex.D3(a) to Ex.D3(d) in
the minute and inconspicuous details of the execution of
characters "S.N.a.n,d & terminal finish" with respect to
nature and movement of their commencement, shape
and movement in formation of their body strokes,
movement in combination and termination of strokes,
nature and direction of finishing strokes, as found
in signatures marked as Ex.D1(a), Ex.D3(a) to
Ex.D3(d) are altogether found divergent in
questioned signatures marked as Ex.P1(a), P1(b)
with different movement, shape, formation and
finish. Divergences in freedom of movement,
writing skill, speed, rhythm and quality of strokes
formation are also observed.
The divergences in writing habits which observed in
questioned signature marked as Ex.P1(a), P1(b) with
that of the signatures marked as Ex.D1(a), Ex.D3(a) to
Ex.D3(d) are fundamental in nature and they are beyond
the range of natural variations and intended disguise and
when they are considered collectively, they are
sufficient to express the negative authorship of
questioned signatures marked as Ex.P1(a) &
P1(b).
[Emphasis supplied]
11. The Report of the expert (Ex.CW-1) is clear wherein
it is stated that the signatures on the documents
submitted by the learned Trial Court do not tally with
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those on the Agreement to Sell. However, the learned Trial
Court, despite taking the opinion into consideration, gave
its finding that the Agreement to sell stood proved by
comparing the admitted signatures and relying on Section
73 of the Indian Evidence Act, 1872. It was held that
Section 73 of the Evidence Act permits the comparison of
admitted and disputed signatures, and that the admitted
signatures appear to be similar with the disputed
signatures. However, since there is a gap of more than 10
years, a natural difference would occur between the
signatures of a person. In addition, a finding was given
by the learned Trial Court holding that if indeed
the Agreement to Sell was fabricated, the
appellants/defendants would have taken steps against the
respondents/plaintiffs, but no such steps have been taken.
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12. This Court is unable to agree with the findings of the
learned Trial Court. Since the signatures were disputed,
the learned Trial Court appointed a handwriting expert
from the department of Forensic Science Laboratory to
examine the documents. However, thereafter the learned
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Trial Court failed to rely on the expert's opinion. The
expert examined the documents as is set out in the
paragraphs above. The expert found a clear distinction
between the two signatures. In these circumstances, for
the learned Trial Court to give a finding that the 10 years
gap would alter the signatures, and that the
appellants/defendants did not take any steps against the
respondents/plaintiffs upon becoming aware of the
Agreement to Sell, cannot be the adequate ground for the
learned Trial Court to ignore the opinion of the expert and
the evidence on record.
13. In addition, the learned Trial Court has failed to
consider the evidence of DW1, who is the wife of
Sri. S.Nanjundaiah who, in her cross-examination has
stated that the Sri. Krishnappa and Sri. Choodappa were
tenants and wanted Sri. S.Nanjundaiah to sell the property
to them. However, no Agreement to Sell was executed by
Sri. S.Nanjundaiah and no payment was received as
advance. DW 1 has also averred in her evidence that
revenue records of the suit properties were updated after
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the death of her husband. The cross-examination of D.W.1
is extracted below:
"I have visited Bhaktipura, seen the lands, and the last
time I went there have was about three to four months
ago. The suit lands are vacant; no crops are being
cultivated there. It is true that in the pahani of 2010-11
it is written that there was a ragi crop, but we did not
grow it. When the law 'Tenant is the Owner' came
into force, Krishnappa and Choodappa had also
thought of filing an application, but to say that my
husband told them not to apply because he would
sell it to them is not true. Survey number 89, item
number 1, was regularised in 2003-04, and survey
number 28 was re-regularised in 2009-10. Suit
item number 1 was mutated in 2003-04, and suit
item number 2 was mutated in 2009-10. Regarding
that, I have the documents with me and I will produce
them before the court. It is true that my husband has
passed away. My husband died in the month of
November 2004. Even though he died within six
months after the khata was made.
It is not true that during my husband's lifetime he
had made an agreement with Krishnappa and the
third party to sell the suit property. It is not true
that for house expenses, my husband agreed to sell
the suit properties for Rs.21,25,000 and wrote an
agreement. It is false that he received Rs.16,25,000
as advance.
It is false that the balance 5,00,000 was to be received
at the time of registration after getting the khata and
revenue records transferred. It is false that such an
agreement took place and that my husband had told me
about it. It is not true that even though I know all the
facts of the case, I am giving false evidence. lt is not true
that according to the agreement, if registration was not
done, my husband had agreed that the money paid could
be recovered by attachment. It is false that my husband
had decided that if he failed to act according to the
agreement, a case could be filed in court and the sale
could be enforced. I do not know who Lakshmaiah,
Muniraju, Pillappa, B. Patel, Muniyappa, and
Basappa are. It is not true that the sale transaction
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took place in the presence of the above-said
persons and that all of them signed as witnesses,
and that I know all these facts. I do not know that
the person who has put the initials (B-kalam) is
Anil Kumar, advocate from Bengaluru.
[Emphasis Supplied]
14. In addition and in any event, in the entire judgment
there is no finding either on the delay in filing of the suit
or whether it has been filed within limitation. No finding on
the readiness and willingness of the plaintiffs/respondents
has been given either.
] 15. The limitation period applicable to a suit for specific
performance is set out in Article 54 of the Schedule to the
Limitation Act, 1963 and states that limitation for a
contract of specific performance is three years from the
date fixed for such performance, or if no such date for
specific performance is fixed, the limitation period starts
when the plaintiff has noticed that the performance is
refused. Article 54 of the Schedule to the Limitation Act is
extracted below:
54. For specific Three years The date fixed for the
performance of a performance, or, if no such date is
contract. fixed, when the plaintiff has notice
that performance is refused.
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15.1. The review of the Agreement to Sell shows that no
such date for specific performance was fixed.
16. Indisputably, the alleged Agreement to Sell was
entered into in the year 2002, while the said
Sri. S.Nanjundaiah died in the year 2004. During this
interregnum period, concededly no efforts were made by
the respondents/plaintiffs to get the agreement executed.
The legal notice dated 21.09.2011 was sent by the
respondents/plaintiffs to the legal heirs of Sri. S.
Nanjundaiah several years after the death of
Sri.S.Nanjundaiah. No reason or explanation has been set-
forth as to why the respondents/plaintiffs waited for a
lapse of almost nine years to file the suit and why the suit
was not filed during the lifetime of Sri.S.Nanjundaiah.
17. In addition, the readiness and willingness of the
respondents/plaintiffs must also be proved in order for
relief to be granted in a suit for specific performance. It is
settled law that specific performance of a contract cannot
be granted unless the person (plaintiff) proves his
readiness and willingness to perform the contract as per
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the terms of the contract. It is apposite to set out Section
16(1)(c) of the Specific Relief Act, 1963 (hereinafter
referred to as 'the S.R. Act') below in this behalf:
"16. Personal bars to relief. -Specific performance of
a contract cannot be enforced in favour of a person-
(a) xxxx
(b) xxxx
(c) who fails to prove that he has performed or has
always been ready and willing to perform the
essential terms of the contract which are to be
performed by him, other than terms the
performance of which has been prevented or waived
by the defendant.
2) Explanation. For the purposes of clause (c),
(i) where a contract involves the payment of
money, it is not essential for the plaintiff to actually
tender to the defendant or to deposit in Court any
money except when so directed by the Court;
(ii) the plaintiff must prove performance of, or
readiness and willingness to perform, the contract
according to its true construction.
17.1. The Supreme Court in Kamal Kumar Vs.
Premlatha Joshi and Others1 has held that specific
performance is an equitable relief and that for the grant of
such relief, the following material questions are required
to be answered:
"7. It is a settled principle of law that the grant of
relief of specific performance is a discretionary
and equitable relief. The material questions,
1 (2019) 3 SCC 704
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which are required to be gone into for grant of
the relief of specific performance, are:
7.1. First, whether there exists a valid and
concluded contract between the parties for
sale/purchase of the suit property.
7.2. Second, whether the plaintiff has been
ready and willing to perform his part of contract and
whether he is still ready and willing to perform his
part as mentioned in the contract.
7.3. Third, whether the plaintiff has, in fact,
performed his part of the contract and, if so, how
and to what extent and in what manner he has
performed and whether such performance was
in conformity with the terms of the contract;
7.4. Fourth, whether it will be equitable to grant the
relief of specific performance to the plaintiff against
the defendant in relation to suit property or it will
cause any kind of hardship to the defendant and,
if so, how and in what manner and the extent if
such relief is eventually granted to the plaintiff;
7.5. Lastly, whether the plaintiff is entitled for
grant of any other alternative relief, namely,
refund of earnest money, etc. and, if so, on what
grounds.
[Emphasis Supplied]
18. Although no finding has been given by the learned
Trial Court on these aspects, the learned Trial Court has
gone on to direct the respondents/plaintiffs to refund the
amount stated to have been paid as advance with a
finding that the Agreement to Sell was executed.
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19. Concededly, the Agreement to Sell was executed
between Sri. Krishnappa, Sri. Choodappa and
Sri. S.Nanjundaiah. Out of the three executants of the
Agreement to Sell, Sri. S.Nanjundaiah and Sri. Krishnappa
had already passed away prior to the suit being filed. Smt.
Prabhavathi, wife of Sri. S.Nanjundaiah who was examined
as DW-1, had contended that the execution of the
Agreement to Sell in respect of suit properties was sham,
that the signature of Sri. S. Nanjundaiah in the Agreement
to Sell was forged and that there was no legal necessity
for such sale. However, the respondents/plaintiffs did not
bring any evidence on record to counter this contention of
appellants/defendants, or to prove the execution of the
Agreement to Sell.
20. In addition, no proof of payment of money was
produced by the respondents/plaintiffs before the learned
Trial Court. PW1 in his evidence, other than stating that he
made the payment in cash and that he approached
Sri. S.Nanjundaiah on several occasions, did not produce
any document in support of the fact that he had the
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HC-KAR
money available for the payment of sale consideration.
The Respondents/plaintiffs are also unable to show any
such documents qua the payments made. The
appellants/defendants have steadfastly denied that any
payment was made to Sri S.Nanjundaiah. No evidence has
been placed on record that there was legal necessity or
reason for them to execute the Agreement to Sell and
have deposed as such.
21. In addition, and as discussed above, the evidence of
a handwriting expert [CW-1], which set out that the
signatures on the Agreement to Sell are at variance, was
totally ignored by the learned Trial Court. Without a valid
Agreement to Sell, there would be no question of making
any payment of an advance. As stated above, no evidence
qua such payment has been produced either.
22. In view of the aforegoing discussions, this Court finds
that the learned Trial Court has erred in its finding that
Agreement to Sell was validly signed by
Sri. S.Nanjundaiah and that he had received payment of
advance sale consideration in a sum of Rs.16,25,000/-.
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HC-KAR
Thus, so far as concerns the finding of the learned Trial
Court that the suit for specific performance is dismissed,
this Court is not inclined to interfere with. However, the
finding that the Agreement to Sell was validly signed by
Sri. S.Nanjundaiah and the advance sale consideration in a
sum of Rs.16,25,000/- was received, which the
appellants/defendants are liable to return along with
interest, is not in accordance with law and is set aside.
23. The appeal is allowed in the aforegoing terms. All
pending applications stand closed.
24. The Registry shall draw up a decree sheet
accordingly.
Sd/-
(D K SINGH)
JUDGE
Sd/-
(TARA VITASTA GANJU)
JUDGE
YN
List No.: 1 Sl No.: 1
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