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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.443/2008 (PAR) C/W. R.S.A. NO.444/2008 (PAR)
IN R.S.A. NO.443/2008:
BETWEEN:
1 . SHIVACHARADA SHIVANANJAPPA S/O LATE SUBRAYAPPA AGED ABOUT 58 YEARS,
2 . SHIVACHARADA SRIKANTAPPA S/O LATE SUBRAYAPPA AGED ABOUT 46 YEARS,
3 . SHIVACHARADA NANDAKUMAR S/O SUBBAIAH AGED ABOUT 45 YEARS,
4 . SHIVACHADRADA NANJAMMA D/O SUBBAIAH AGED ABOUT 70 YEARS,
ALL THE ABOVE APPELLANTS ARE R/O BALALE VILLAGE AND HOBLI, PONNAMPET NAD, VIRAJPET TALUK, KODAGU.
2 5 . SMT. PARVATHAMMA W/O SHIVANNA AGED ABOUT 57 YEARS, R/O BANNIKUPPE VILLAGE AND POST, HUNSUR TALUK.
6 . SMT. KAMALA AGED ABOUT 50 YEARS, R/AT KANATESUGADA VILLAGE AND POST, PERIAPATNA TALUK, MYSORE DISTRICT.
… APPELLANTS
[BY SRI K.CHANDRANATH ARIGA, ADVOCATE] AND:
1 . S.S. RAGHAVENDRA S/O LATE SANNAPPA AGED ABOUT 58 YEARS,
2 .
2(a) S.S. VEERAPPA AGED ABOUT 68 YEARS, SINCE DECEASED BY HIS LRS
SMT. KAMALAMMA W/O LATE S.S. VEERAPPA AGED ABOUT 65 YEARS,
2(b) SMT. SACHITRA D/O LATE S.S. VEERAPPAA AGED ABOUT 38 YEARS,
2(c) SMT. PAVITHRA D/O LATE S.S. VEERAPPAA AGED ABOUT 34 YEARS,
3 2(d) SRI SUNIL S/O LATE S.S. VEERAPPAA AGED ABOUT 30 YEARS,
2(e) SRI ANIL S/O LATE S.S. VEERAPPAA AGED ABOUT 28 YEARS,
ALL ARE RESIDENTS OF BILIKERE VILLAGE, BILIKERE HUNSUR TALUK, MYSORE DISTRICT .
3 .
3(a)
3(a)(1) SMT. SAVITHRAMMA SINCE DECEASED BY HER LRSS
RAVIKUMAR S/O LATE MAHADEVAPPA AGED ABOUT 4O YEARS, R/AT HITTINABAGILU VILLAGE AND POST SERICULTURAL ASST. PERIYAPATTANA, MYSORE DISTRICT.
SINCE DECEASED BY LRS.
SMT.SUDHA W/O LATE S.M.RAVIKUMAR AGED ABOUT 50 YEARS
3(a)(2) YESHUKUMAR R S/O LATE S.M.RAVIKUMAR AGED ABOUT 50 YEARS
3(a)(3) R. ASHWINI S/O LATE S.M.RAVIKUMAR AGED ABOUT 22 YEARS
4 ALL ARE R/AT BILIKERE VILLAGE & POST MYSORE HUNSUR MAIN ROAD HUNSUR TALUK, MYSORE DISTRICT KARNATAKA STATE.
3(b) SMT. KUMARI W/O SOMASHEKERA AGED MAJOR, R/AT CHIKKAHOSUR VILLAGE, KUSHALNAGAR POST SOMWARPET TALUK KODAGU DISTRICT.
3(c) SMT. RENU @ SHANTHI W/O CHANABASAPPA AGE: MAJOR, R/AT ELEVALA VILLAGE AND POST MYSORE DISTRICT.
4 . H.S. ROOPA W/O JAGADEESH AGED ABOUT 32 YEARS, R/AT HITTINABAGILU VILLAGE, PERIAPATNA.
5 . H.S. MANJULA D/O SANNAMALLAPPA AGED ABOUT 31 YEARS, R/AT HOSAHALLI ARENAHALLI PERIAPATNA TALUK.
6 . H.T. SANNAMALLAPPA S/O LATE THAMMAIAH AGED ABOUT 60 YEARS, R/AT HOSAHALLI ARENAHALLI, PERIAPATNA TALUK.
5 7 . S.M.CHANDRASHEKAR S/O LATE MALLAPPA AGED ABOUT 40 YEARS R/AT BALALE VILLAGE & HOBLI PONNAMPET NAD, VIRAJPET TALUK, KODAGU.
8 .
8(a) S.M.PRAKASH S/O LATE MALLAPPA AGED ABOUT 35 YEARS
SINCE DECEASED BY LRS.
SMT. RAJAMANI W/O LATE S.M.PRAKASH AGED ABOUT 54 YEARS R/AT AVARTHI VILLAGE KOPPA POST PIRIYAPATTANA TALUK MYSORE-571234.
8(b) SMT. S.P.AMBIKA D/O LATE S.M.PRAKASH AGED ABOUT 34 YEARS R/AT BEERANAHALLI VILLAGE HONNENAHALLI POST HANAGUD HOBLI, HUNSUR TALUK MYSORE DISTRICT.
8(c) SRI S.P.MALLIKA S/O LATE S.M.PRAKASH AGED ABOUT 33 YEARS R/AT AVARTHI VILLAGE KOPPA POST, PIRIYAPATTANA TALUK MYSORE-571234.
6 8(d) SRI S.P. ASHOKA S/O LATE S.M.PRAKASH AGED ABOUT 31 YEARS R/AT AVARTHI VILLAGE KOPPA POST, PIRIYAPATTANA TALUK MYSORE-571234.
… RESPONDENTS
[BY SRI PRAKASH M.H., ADVOCATE FOR R1 & R2 (a to e); SRI VENKATESH R. BHAGAT, ADVOCATE FOR R3(b) & R4 – R6; VIDE ORDER DATED 21.03.2014 R2 (b – d) TREATED AS LRS OF R2 (a & e); R8(a), R8(b), R(c), R8(d), R3(a)(1), R3(a)(2), R3(a)(3) ARE SERVED; VIDE ORDER DATED 20.02.2018, APPEAL AGAINST R7 ABATED; VIDE ORDER DATED 27.10.2023, APPEAL AGAINST R3(c) ABATES]
THIS R.S.A. IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 20.11.2007 PASSED IN R.A.NO.05/1997 ON THE FILE OF THE AD-HOC DISTRICT JUDGE, FAST TRACK COURT, VIRAJPET, ALLOWING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DATED 24.02.1997 PASSED IN O.S.NO.6/1994 ON THE FILE OF THE CIVIL JUDE, VIRAJPET.
IN R.S.A. NO.444/2008:
BETWEEN:
1 . SHIVACHADRADA SHIVANANJAPPA AGED ABOUT 58 YEARS
2 . SHIVACHARADA SRIKANTAPPA AGED ABOUT 46 YEARS BOTH S/O LATE SUBRAYAPPA
BOTH R/O BALALE VILLAGE AND HOBLI, PONNAMPET NAD, VIRAJPET TALUK, KODAGU.
… APPELLANTS
(BY SRI K.CHANDRANATH ARIGA, ADVOCATE) AND:
1 .
1(a) S.S. VEERAPPA AGED ABOUT 68 YEARS, SINCE DECEASED BY HIS LRS
SMT. KAMALAMMA W/O LATE S.S. VEERAPPA AGED ABOUT 65 YEARS,
1(b) SMT. SACHITRA D/O LATE S.S. VEERAPPAA AGED ABOUT 38 YEARS,
1(c) SMT. PAVITHRA D/O LATE S.S. VEERAPPAA AGED ABOUT 34 YEARS,
1(d) SRI SUNIL S/O LATE S.S. VEERAPPAA AGED ABOUT 30 YEARS,
1(e) SRI ANIL S/O LATE S.S. VEERAPPAA AGED ABOUT 28 YEARS,
ALL ARE RESIDENTS OF BILIKERE VILLAGE, BILIKERE HUNSUR TALUK, MYSORE DISTRICT .
8 2 . S.S.RAGHVENDRA S/O LATE SANNAPPA AGED ABOUT 58 YEARS
3 .
3(a)
3(a)(1) SMT. SAVITHRAMMA SINCE DECEASED BY HER LRSS
RAVIKUMAR S/O LATE MAHADEVAPPA AGED ABOUT 4O YEARS, R/AT HITTINABAGILU VILLAGE AND POST SERICULTURAL ASST. PERIAPATNA, MYSORE DISTRICT.
SINCE DECEASED BY LRS.
SMT.SUDHA W/O LATE S.M.RAVIKUMAR AGED ABOUT 50 YEARS
3(a)(2) YESHUKUMAR R. S/O LATE S.M.RAVIKUMAR AGED ABOUT 50 YEARS
3(a)(3) R. ASHWINI S/O LATE S.M.RAVIKUMAR AGED ABOUT 22 YEARS
ALL ARE R/AT BILIKERE VILLAGE & POST MYSORE HUNSUR MAIN ROAD HUNSUR TALUK, MYSORE DISTRICT KARNATAKA STATE.
3(b) SMT. KUMARI W/O SOMASHEKERA AGE: MAJOR,
9 R/AT CHIKKAHOSUR VILLAGE, KUSHALNAGAR POST SOMWARPET TALUK KODAGU DISTRICT.
3(c) SMT. RENU @ SHANTHI W/O CHANABASAPPA AGED MAJOR, R/AT ELEVALA VILLAGE AND POST MYSORE DISTRICT.
4 . SRI SANNAMALLAPPA AGED ABOUT 62 YEARS
5 . H.S. MANJULA D/O SANNAMALLAPPA AGED ABOUT 36 YEARS, R/AT HOSAHALLI ARENAHALLI PERIAPATNA TALUK.
6 . H.S.ROOPA D/O SANNAMALLAPPA AGED ABOUT 33 YEARS
ALL R/O. HOSAHALLI VILLAGE REVENDUR HOBLI PERIYAPATNA TALUK MYSORE DISTRICT.
7 .
7(a) N.K.LAXMANA S/O LATE KUTTAPPA AGED ABOUT 51 YEARS
SINCE DECEASED BY HIS LRS
SMT.UMAVATHI LAKSHMAN W/O LATE LAKSHMANNA AGED ABOUT 43 YEARS
10 7(b) KUTTAPPA LAKSHMAN S/O LATE LAKSHMANNA AGED ABOUT 18 YEARS
7(c) MASTER BIDDAPPA LAKSHMANNA S/O LATE LAKSHMANNA AGED ABOUT 16 YEARS REPRESENTED BY HIS NATURAL GUARDIAN UMAVATHI LAKSHMAN
ALL ARE R/AT AMATHI POST BILAGUNDA VILLAGE, MUNDONI VIRAJPET TALUK, KODAGU DISTRICT.
8 .
8(a) N.K.POOVAIAH S/O LATE KUTTAPPA AGED ABOUT 53 YEARS
SINCE DECEASED BY HIS LRS
SMT. KAVERAMMA POOVAIAH W/O LATE POOVAIAH AGED ABOUT 52 YEARS
8(b) SMT. INDIRA POOVAIAH LATE POOVAIAH AGED ABOUT 29 YEARS
8(c) SMT. SUBHA POOVAIAH S/O LATE POOVAIAH AGED ABOUT 27 YEARS
ALL ARE R/AT AMATHI POST BILAGUNDA VILLAGE, MUNDONI VIRAJPET TALUK, KODAGU DISTRICT.
11 9 .
9(a) NELLAMAKKADA SUBRAMANI S/O LATE KUTTAPPA AGED ABOUT 54 YEARS
SINCE DECEASED BY HIS LRS
SMT.PRABHA SUBRAMANI W/O LATE NELLAMAKKADA SUBRAMANI AGED ABOUT 58 YEARS
9(b) SMT. KAVANA SUBRAMANI S/O LATE NELLAMAKKADA SUBRAMANI AGED ABOUT 26 YEARS
BOTH ARE R/AT AMATHI POST BILAGUNDA VILLAGE, MUNDONI VIRAJPET TALUK, KODAGU DISTRICT.
10 . N.K.SHARADHA D/O LATE KUTTAPPA AGED MAJOR R/AT KAIKAD VILLAGE PARANE POST, KODAGU.
… RESPONDENTS
(BY SRI VENKATESH R. BHAGAT, ADVOCATE FOR R2, R3(a)(2), R3(b & c) & R4 – R6; SRI PRAKASH M.H., ADVOCATE FOR R1(a to e) & R2; VIDE ORDER DATED 21.03.2014, R1(a & e) DECEASED & R1(b to d) LRS OF DECEASED R1(a & e); R3(a)(1), R3(a)(3) – SERVED; R7(c) IS MINOR, REPRESENTED BY GUARDIAN R7(a); R7(a), R7(b), R8(a), R8(b), R8(c), R9(a), R9(b) & R10-SERVED]
12 THIS R.S.A. IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 20.11.2007 PASSED IN R.A.NO.6/1997 ON THE FILE OF THE AD-HOC DISTRICT JUDGE, FAST TRACK COURT, VIRAJPET, PARTLY ALLOWING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DATED 24.02.1997 PASSED IN OS.NO.14/1994 ON THE FILE OF THE CIVIL JUDGE VIRAJPET.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 12.02.2024 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
J U D G M E N T
Heard the learned counsel for the appellants and learned counsels for the respondents in both the appeals.
The factual matrix of the case of the appellants/plaintiffs in R.S.A.No.443/2008 arising out of O.S.No.6/1994 which was filed for the relief of partition, separate possession and declaration of their half share in the suit schedule properties, mesne profits and other relief is that the plaintiffs and defendants belong to same family. The plaintiffs’ ancestor is one Earegowda, S/o.Channabasappa Gowda and he had got two wives, one Boramma and second one is Puttamma. Boramma had got two sons, Subbaiah and Puttaswamy and Puttamma has got only son by name Erappa. Now Subbaiah and
13 Puttaswamy, sons of Boramma are no more. The children of Subbaiah and Puttaswamy are defendant Nos.1 to 4. Erappa, S/o. Puttamma is also no more. Raghavendra and Earappa are plaintiff Nos.1 and 2, Savithramma, Roopa, Manjula, Sannamallappa are added as plaintiffs. The defendant No.1- Shivananjappa is also no more and his legal representatives are brought on record.
It is contended in the plaint that one Earappa, propositus has got two wives by name Boramma and Puttamma. Boramma’s sons Subbaiah and Puttaswamy and Puttamma’s son Earappa are the only heirs. During the life time of deceased Earappa, the properties were in tact and they have not been partitioned by metes and bounds. The defendant No.1 instituted suit in O.S.No.138/1982 for declaration and permanent injunction and the said suit was compromised on 30.07.1983. The defendant No.1 agreed to purchase the said properties for Rs.1,08,000/- towards the share of the plaintiffs. On 06.06.1983, the defendant with the aid of the police forced the plaintiff No.1 to sell his share in the schedule property for
14 Rs.85,000/- even though the consideration was Rs.1,08,000/- and paid Rs.40,000/- and the remaining amount was agreed to be paid on or before 30.09.1983 and the plaintiffs are to execute the sale deed in favour of the defendant No.1. The defendant No.1 took possession of the properties and not performed their part of contract and also did not pay the balance amount and got the sale deed registered. The defendant cannot enforce the agreement, since it is void and not enforceable. The defendant is in illegal possession of the schedule properties and they have enjoyed the usufructs of the land for a period of 2 years after payment of advance money and as such, the plaintiffs are entitled for possession of the suit schedule properties, since there was no partition by metes and bounds.
The defendant Nos.1 to 3 filed the written statement and denied all the contentions of the plaintiffs and denied the allegation of the plaintiffs that defendant No.1 has not used any police force or gunda elements and forced the plaintiffs to execute the agreement of sale. The plaintiffs took Rs.40,000/- as advance money towards part consideration amount and put
15 defendant Nos.1 and 2 in possession of the property and agreed to receive balance amount of Rs.45,000/- at the time of registration of the deed and denied all averments made in the plaint and the allegation that the defendant No.1 has not acted upon in terms of the agreement is also baseless. Hence, suit for the relief of partition is not maintainable.
The defendant No.4 filed a memo adopting the written statement filed by defendant Nos.1 to 3.
The defendant Nos.5 and 6 filed the written statement contending that the suit for partition and separate possession is not maintainable and contend that the plaintiffs are not entitled for half share.
Based on the pleadings of the parties, the Trial Court framed the followings issues in O.S.No.6/1994:-
“1. Whether the plaintiffs prove that the suit properties were the self-acquired properties of Earegowda?
Whether the plaintiffs prove that late Earegowda had settled half of the suit properties to Boramma and her children and
16 the other half to Puttamma and her child Earappa?
Whether the plaintiffs prove that they are entitled to half share in the suit properties?
Whether the defendants prove that the plaintiffs are acquiesced and estopped from claiming half share in the suit properties for the reasons stated in Para 6 of their written statement?
Whether the plaintiffs prove that the agreement of sale dated 06.06.1983 is a void and unenforceable document?
Whether the defendants prove that the suit is bad for non-joinder of necessary parties?
Whether the defendants prove that the suit is not properly valued and Court fee paid is insufficient?
Whether the defendants prove that the plaintiffs are not entitled to future mesne profits?
Whether the defendants prove that D1 and D2 have improved the suit properties by making heavy investments and that they are entitled to be compensated for said improvements in case of partition?
17 10. Whether the defendants prove that they are entitled for compensatory costs as claimed?
To what decree or order the parties are entitled?”.
Having considered the material on record, the Trial Court comes to the conclusion that the properties were the self- acquired properties of original propositus Earegowda. The Trial Court also comes to the conclusion that Earegowda had settled half of the suit schedule properties to Boramma and her children and other half to Puttamma and her only son, but answered issue No.3 that the plaintiffs are entitled to 1/3rd share on the ground that settlement deed is not acted upon and comes to the conclusion that the plaintiffs are acquiesced and estopped from claiming half share and that the plaintiffs have not proved that the agreement of sale is a void one and they have proved that it is unenforceable and answered issue No.6 as ‘negative’ and issue No.8 that the plaintiffs are entitled to accounts and not future mesne profits and answered issue No.9 that though it is proved that the defendants have improved the suit properties, they are not entitled for compensation for the said improvements.
18 9. Being aggrieved by the said judgment and decree of dismissal of suit, an appeal is filed before the First Appellate Court in R.A.No.5/1997 and the First Appellate Court, having considered the grounds urged in the appeal memo, modified the judgment and decree of the Trial Court, in coming to the conclusion that the plaintiffs are entitled for half share, since the Trial Court comes to the conclusion that they are entitled for 1/3rd share. Hence, the appeal in R.S.A.No.443/2008 is filed before this Court.
This Court, having considered the grounds urged in the second appeal, formulated the following substantial question of law:- “Whether the First Appellate Court was justified in modifying the decree of the Trial Court to the detriment of the appellants, who were the defendants before the Trial Court and in the absence of the plaintiffs having preferred any appeal to the First Appellate Court?”.
The factual matrix of the case of the appellants/plaintiffs in R.S.A.No.444/2008, wherein the plaintiffs filed the suit before the Trial Court for the relief of specific
19 performance in O.S.No.14/1994 is that Shivananjappa and Srikantappa, the first and second sons of Subrayappa referred to in the suit, who are the defendant Nos.1 and 2 in O.S.No.6/1994 are the plaintiff Nos.1 and 2 in O.S.No.14/1994. Veerappa, plaintiff No.2 in O.S.No.6/1994 is the defendant No.1 in O.S.No.14/1994. Raghavendra, the plaintiff No.1 in O.S.No.6/1994 is the defendant No.2 in O.S.No.14/1994. The legal representatives of Deveeramma, namely Sannamallappa, Manjula and Roopa are defendant Nos.4 to 6 respectively in O.S.No.14/1994.
The contention of the plaintiffs in O.S.No.14/1994 is that the suit schedule properties are the family properties and under an oral family arrangement which was effected about 60 years prior to the suit, the properties were enjoyed separately and each of the sons of Earegowda was in possession and enjoyment of 1/3rd portion of the properties and Veerappa and Raghavendra i.e., defendant Nos.1 and 2 in O.S.No.14/1994 entered into an agreement of sale dated 14.05.1982 with the defendant No.7-Muthamma and her son, the defendant No.8-
20 Subramani and in that regard, the plaintiffs in O.S.No.14/1994 filed a suit in O.S.No.138/1982 on the file of the Civil Judge, Madikeri against defendants Veerappa, Raghavendra, Muthamma and Subramani and during the course of proceedings in O.S.No.138/1982, there was a panchayath and it was decided in the panchayath on 20.02.1983 that on payment of a particular sum of money to defendant Nos.7 and 8, the suit in O.S.No.138/1982 should be got settled and further Veerappa, Raghavendra and their sisters should execute an agreement of sale in favour of the plaintiff-Shivananjappa and Srikantappa in respect of their 1/3rd share in the suit schedule properties and accordingly, on 06.06.1983, an agreement of sale was executed agreeing to sell the properties for Rs.85,000/- and a sum of Rs.40,000/- is paid in advance and the balance amount is Rs.45,000/-. It is also contended that, in terms of the agreement, defendants Veerappa, Raghavendra and their sisters had to move the authorities concerned for obtaining permission for alienating the properties under the provisions of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act and further had to obtain income tax clearance
21 certificate and they fail to do and therefore, after the repeal of the said Act with effect from 02.02.1991, there is absolutely no impediment for a sale and therefore, they are entitled to a decree for specific performance. It is contended that they were always ready and willing to perform their part of the contract.
The defendant Nos.1 to 3 appeared and filed their written statement denying the material averments in the plaint in O.S.No.14/1994 and contend that the agreement was executed in the circumstances narrated in the plaint in O.S.No.14/1994. It is also stated that the suit is barred by time. It is further contended that there is a prayer for alternative relief in O.S.No.14/1994 for the refund of the advance amount and for a decree for a sum of Rs.25,000/- said to be the investments made by the plaintiffs on the suit schedule properties.
The defendant Nos.4, 5 and 6 have filed a memo stating that they adopt the written statement of defendant Nos.1 to 3.
22 15. The defendant Nos.7 and 8 have filed written statement and have also set up a counter-claim stating that in terms of the decision given by the panchayathdars, a subsequent agreement took place and accordingly, Veerappa, Raghavendra and others at the time of executing a sale deed in favour of Shivananjappa and others had to pay a particular sum of money to defendant Nos.7 and 8 and therefore, they have set up counter claim for recovery of the said amount. Additional written statement has been filed by the other defendants after the counter-claim was set up stating that defendant Nos.7 and 8 are not entitled to counter-claim and that the counter claim is also barred by time.
Based on the pleadings of the parties, the Trial Court has framed the following issues in O.S.No.14/1994:- “1. Whether the plaintiffs prove that the defendant Nos.1 to 3 and Smt. Deveeramma had executed the agreement of sale dated 06.06.1983 in their favour in respect of suit properties?
Whether the defendant Nos.1 to 3 prove that the agreement of sale dated 06.06.1983 was
23 outcome of coercion, misrepresentation and threat?
Whether the plaintiffs prove that they have been all-along ready and willing to perform their part of the contract under the agreement of sale dated 06.06.1983?
Whether the plaintiffs prove that they are entitled to specific performance of the agreement of sale dated 06.06.1983?
Whether the plaintiffs prove, in the alternate that they are entitled to refund of Rs.40,000/- from the defendants with interest at 15% p.a., as claimed?
Whether the plaintiffs prove that they have effected improvement in the suit properties and that they are entitled to recover Rs.25,000/- towards said improvements from the defendants?
Whether the defendant Nos.1 to 3 prove that the suit is barred by limitation?
Whether the defendant Nos.1 to 3 prove that the suit is bad for non-joinder of necessary parties as contended in paras 2 and 21 of their written statement?
Whether the defendant Nos.1 to 3 prove that the suit is not properly valued and Court fee paid is insufficient?
24 10. To what decree or order the parties are entitled?”.
The Trial Court, considering the material available on record, answered issue No.1 as ‘affirmative’ that there was a sale agreement and comes to the conclusion that there was no coercion, misrepresentation and threat while getting the sale agreement dated 06.06.1983. The Trial Court, answered issue No.3 in coming to the conclusion that though the plaintiffs have proved that they were willing and ready to perform their part of contract at some earlier part of time, their subsequent readiness and willingness is not established. The Trial Court answered issue No.4 as ‘negative’ that the plaintiffs are not entitled for specific performance and answered issue No.5 as ‘negative’ that the plaintiffs are not entitled for refund of money. However, the Trial Court answered issue No.6 in coming to the conclusion that though it is proved that the plaintiffs have effected improvements, they are not entitled to recover the same, since they have used the usufructs. While answering issue No.7, the Trial Court comes to the conclusion that suit is barred by limitation and answered issue No.8 as ‘negative’ regarding non-
25 joinder of necessary parties and answered issue No.10 that the plaintiffs are not entitled for the relief of specific performance.
The Trial Court also framed following additional issues in O.S.No.14/1994:- “1. Whether defendant Nos.8 and legal representatives of defendant No.7 are entitled to the counter-claim? 2. Is the counter-claim barred by time as contended by the other defendants?”.
The Trial Court answered additional issue Nos.1 and 2 against the defendant Nos.7 and 8 and rejected their counter claim.
Being aggrieved by the judgment and decree of dismissal of suit, the plaintiffs have also filed an appeal before the First Appellate Court in R.A.No.6/1997 and the First Appellate Court, having considered the grounds urged in the appeal and also on re-appreciation of both oral and documentary evidence placed on record, allowed the appeal in part and directed the defendants to pay a sum of Rs.40,000/- to the plaintiffs within one from the date of the judgment. If they fail
26 to pay the amount within the stipulated period, the defendants shall pay interest at the rate of 10% p.a. on the said amount. Being aggrieved by the judgment and decree of granting the relief of refund of money and not granting the relief of specific performance, the appeal in R.S.A.No.444/2008 is filed before this Court.
This Court, having considered the grounds urged in the appeal in R.S.A.No.444/2008, framed the following substantial questions of law:- “i. Whether both the Courts below are justified in holding that there was readiness and willingness on behalf of the plaintiff initially and subsequently, the same did not exist?
ii Whether the Courts below were justified in dismissing the suit for specific performance?”.
Learned counsel appearing for the appellants in R.S.A.Nos.443/2008 would vehemently contend that in the suit filed for the relief of partition, the Trial Court only granted 1/3rd share. But, the First Appellate Court committed an error in modifying the same as half share in the appeal filed by the appellants, though no appeal is filed by the plaintiffs in
27 O.S.No.6/1994. The counsel also would vehemently contend that both the Courts committed an error in not granting the relief of specific performance in favour of the plaintiffs, who are the appellants in O.S.No.14/1994 and concurred with the findings of the Trial Court. The counsel would vehemently contend that the property originally belongs to Earegowda is not in dispute. The counsel also would vehemently contend that the plaintiffs in the suit filed for the relief of partition claimed 1/3rd share and the Trial Court rightly granted 1/3rd share. But, the First Appellate Court committed an error in modifying the same as half share. Hence, the very approach of the First Appellate Court is erroneous and the same has to be reversed by answering the substantial question of law framed by this Court.
Learned counsel appearing for the appellants in R.S.A.No.444/2008 would vehemently contend that there is no dispute with regard to the sale agreement dated 06.06.1983 and the Trial Court also comes to the conclusion that there was a sale agreement and the plaintiffs received a sum of Rs.40,000/- as advance and the Trial Court failed to take note of the fact that
28 Karnataka Prevention of Fragmentation and Consolidation of Holdings Act was prevailing at the time of entering into an agreement. The counsel would vehemently contend in his argument that time is not essence of the contract, but both the Courts committed an error in coming to the conclusion that time is the essence of the contract. The discussion made by the Trial Court in respect of specific performance is erroneous and ought not to have dismissed the suit for the relief of specific performance when there is no dispute with regard to the agreement of sale. The counsel would vehemently contend that in the cross-examination, it is categorically admitted that money was available in the bank account. However, the Trial Court erroneously answered issue No.3 that the plaintiffs were not ready and the conclusion arrived that they were not ready subsequently is not correct.
Learned counsel for the appellants in both the appeals in support of his argument, relied upon the genealogical tree and there is no dispute with regard to the genealogical tree and the relationship between the parties.
Learned counsel for the appellants in both the appeals, in support of his argument, relied upon the judgment of the Apex Court in ROSHANLAL KUTHALIA AND OTHERS VS. R.B. MOHAN SINGH OBEROI reported in (1975) 4 SCC 628 and brought to notice of this Court Para No.35, wherein an observation is made that equity arises largely from the inequity of a foreign government’s refusal, for reasons we cannot guess, to carry out the directions of its municipal Courts.
The counsel also relied upon the judgment of the Apex Court in PASUPULETI VENKATESWARLU VS. MOTOR & GENERAL TRADERS reported in (1975) 1 SCC 770 and brought to notice of this Court Para No.4, wherein an observation is made that it is basic to our processual jurisprudence that the right to relief must be adjudged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the
30 notice of the Tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure.
The counsel also relied upon the judgment of the Apex Court in PRAKASH CHANDRA VS. ANGADLAL AND OTHERS reported in (1979) 4 SCC 393 and brought to notice of this Court Para No.9, wherein an observation is made that the ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief.
The counsel also relied upon the judgment of the Apex Court in KAMMANA SAMBAMURTHY (DEAD) BY LRS. VS. KALIPATNAPU ATCHUTAMMA (DEAD) AND OTHERS reported in (2011) 11 SCC 153 and brought to notice of this Court Para Nos.11, 19, 22 and 27, wherein in Para No.27 it is held that there is no impediment for enforcement of the agreement against the vendor to the extent of his half-share in the property.
The counsel also relied upon the judgment of the Apex Court in SHIVAJI YALLAPPA PARTIL VS. RANAJEET APPASAHEB PATIL AND OTHERS reported in (2018) 16 SCC 725, wherein the Apex Court has discussed with regard to Section 20 of the Specific Relief Act, 1963 that the discretion to pass decree for specific performance of contract requires to be exercised judicially and prudently. The counsel also referred Para No.19 of the judgment regarding exercise of discretionary relief. Learned counsel appearing for the appellants referring these judgments would vehemently contend that both the Courts failed to take note of the fact that there was an agreement and there was part payment of money and possession was also delivered and failed to take note of Section 53-A of the Transfer of Property Act, 1882.
On the other hand, learned counsels appearing for the respective respondents in both the appeals would vehemently contend that the respondents have issued paper publication in the year 1979 and counter publication was also made by the other side in respect of undivided interest and there
32 is no dispute with regard to the fact that earlier there was an agreement in the year 1982 in favour of Muthavva and also no dispute with regard to the fact that suit was settled and fresh agreement was entered into on 06.06.1983. The counsel would vehemently contend that in terms of the fresh agreement, the plaintiffs have not come forward to have the sale deed and both the Courts have taken note of the said fact into consideration while rejecting the prayer for specific performance. With regard to the modification of the share by the First Appellate Court in the appeal, it is the contention that the plaintiffs were not aware of the same while seeking the relief of partition and hence, they claimed 1/3rd share and subsequently, on coming to know about the settlement deed dated 05.12.1910, prayer was made to grant half share and the Trial Court committed an error in coming to the conclusion that the parties have not acted upon in terms of the settlement deed and when there was a registered document, though no appeal was filed, the First Appellate Court considered granting half share and not committed any error.
33 30. The counsel also would vehemently contend that in terms of the agreement dated 06.06.1983, it is very clear that transaction should be completed in the end of September, 1983 i.e., 30.09.1983 and before the end of September, 1983, notice was issued in terms of Ex.P4 i.e., on 27.09.1983 and reply was given on 30.10.1983 in terms of Ex.P13. A request was also made to handover the draft sale deed, but the draft sale deed was not handed over and subsequently, suit was filed in the year 1985 itself seeking the relief of partition and the same is numbered as O.S.No.88/1985. On transfer, the same was renumbered as O.S.No.275/1989 and subsequently, the same is renumbered as O.S.No.6/1994. The counsel would vehemently contend that when the plaintiffs came to know about the settlement deed, got amended the same and the Trial Court committed an error and the First Appellate Court, having exercised the power under Order 41 Rule 33 of CPC, modified the same and now, they cannot find fault with the same. The counsel would submit that the suit for the relief of specific performance was filed on 20.01.1994 by the plaintiffs and they have not given any notice, but notice is sent by the respondents.
34 Hence, both the Courts have taken note of the fact that time is the essence of the contract and the Trial Court rightly comes to the conclusion that suit is barred by limitation and there was no need of considering the provisions of Karnataka Prevention of Fragmentation and Consolidation of Holdings, since the same was repealed in the year 1991 itself and even after repealing of the said Act, suit was filed in 1994 and at no point of time, the plaintiffs were ready to have the sale deed.
Learned counsels for the respondents in support of their argument, relied upon the judgment of the Apex Court in JUGRAJ SINGH AND ANOTHER VS. LABH SINGH AND OTHERS reported in AIR 1995 SC 945 and brought to notice of this Court Para No.5 of the judgment, wherein the Apex Court has observed that the subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration. Though they are necessary parties to the suit, since any decree obtained by the plaintiff would be binding on the subsequent purchasers,
35 the plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal representatives, but not the subsequent purchasers.
The counsel also relied upon the judgment of the Apex Court in SHRIMANT SHAMRAO SURYAVANSHI AND ANOTHER VS. PRALHAD BHAIROBA SURYAVANSHI (DEAD) BY LRS. AND OTHERS reported in AIR 2002 SC 960 and brought to notice of this Court Para No.14 of the judgment, wherein the Apex Court has observed that part performance of contract-defendant-transferee obtained possession over property in part performance of contract-possession over property is protected even if period of limitation for bringing suit for specific performance of an agreement to sell has expired – defendant – transferee, however, is required to fulfill necessary conditions in order to defend or protect his possession. That apart, Limitation Act, does not extinguish defence but only bars the remedy.
In reply to the argument of the learned counsel for the respondents, learned counsel for the appellants would
36 vehemently contend that the judgment of the Apex Court in SHRIMANT SHAMRAO SURYAVANSHI’s case is not applicable and condition Nos.5 and 6 of the agreement of sale is very clear to obtain income tax certificate and the judgments which have been relied upon by the learned counsel for the respondents will not come to the aid of the respondents. Hence, prayed the Court to grant the relief of specific performance.
Having heard the learned counsel for the appellants and learned counsel for the respondents, though the suits and appeals are clubbed together, this Court has framed the substantial questions of law independently and hence, the same have to be answered independently. The substantial question of law of framed by this Court in R.S.A.No.443/2008 is: “Whether the First Appellate Court was justified in modifying the decree of the Trial Court to the detriment of the appellants, who were the defendants before the Trial Court and in the absence of the plaintiffs having preferred any appeal to the First Appellate Court”.
It is not in dispute that suit was filed claiming 1/3rd share in the suit schedule properties at the first instance and the
37 same was amended thereafter claiming half share. It is also not in dispute that originally the properties belong to Earegowda. It is also not in dispute that he had two wives i.e., Boramma and Puttamma and through first wife, he had two sons i.e., Subbaiah and Puttaswamy and the second wife had only one son i.e., Earappa. It has to be noted that, it is the specific case of the plaintiffs that in a suit for partition, they are entitled for 1/3rd share and it has to be noted that settlement deed is also marked before the Trial Court that a settlement was made by the propositus of the family Earegowda during his life time and the same is marked as Ex.P1 dated 05.12.1910.
It is the case of the plaintiffs that they came to know about the same subsequently and hence, got amended the same thereafter. The fact that settlement deed came into existence on 05.12.1910 is not in dispute. However, the Trial Court comes to the conclusion that the same is not acted upon and not accepted the case of the plaintiffs for grant of half share. But, the First Appellate Court, in the absence of the appeal by the plaintiffs, proceeded to reconsider the same and reassessed the material
38 available on record and having considered the material on record, taken note of the settlement deed dated 05.12.1910. However, the Trial Court, while answering issue Nos.3 and 4, negated the same, but the First Appellate Court reversed the findings of the Trial Court and formulated the point in the appeal whether the settlement deed executed by the propositus of the family Earegowda is binding on the plaintiffs and defendants and whether the Trial Court has wrongly answered issue No.2 that the settlement deed is not acted upon and point No.3 whether the plaintiffs are entitled for equal share, if so, what is the quantum of share the plaintiffs and the defendants are entitled to and all the points for consideration are answered as ‘affirmative’.
The First Appellate Court, in Para No.25 of the judgment discussed the same and taken note of Section 8 of the Transfer of Property Act which deals with the settlement deed i.e., the deed which creates right and interest in favour of settlee regarding the properties mentioned therein with life estate for an enjoyment during her life time, settlee was to acquire absolute
39 right to enjoyment, alienation etc., and such deed is considered to be settlement deed and also taken note of contents of Ex.P1 and extracted the same in the very same paragraph and considering the same, the First Appellate Court comes to the conclusion that the very original owner i.e., propositus of the family made it clear in the settlement deed that both the wives and their children are entitled for share in the suit schedule properties and taken note of half share and remaining half share should go to the legal representatives of deceased Subbaiah and Puttaswamy, who are the children of first wife Boramma and in Para Nos.28 and 29 of the judgment, discussed the same in length and hence, the First Appellate Court comes to the conclusion that settlement deed executed by late Earegowda is binding on the plaintiffs and the defendants and one cannot go beyond the intention of settled rights of the parties left by Earegowda. Simply because it is the fact not brought to the notice of the legal representatives of late Earegowda, the document cannot be thrown away and his legal representatives, cannot interpret the document according to their convenience, since late Earegowda acquired these properties shown in Ex.P1
40 out of his own earnings and settled the rights of the parties. Having taken note of the registered document of the year 05.10.1910 which is marked as Ex.P1, the First Appellate Court given more credence to the documentary evidence rather than oral evidence.
Having perused the reasoning given by the First Appellate Court and also discussion made with regard to both question of fact and question of law, the First Appellate Court rightly comes to the conclusion that the share can be modified as half share instead of 1/3rd share and in the absence of the appeal by the plaintiffs, the Court can modify the share by exercising the power under Order 41 Rule 33 of CPC. Hence, I do not find any error committed by the First Appellate Court in modifying the same. Therefore, the substantial question of law framed by this Court is answered accordingly that the First Appellate Court has not committed any error in exercising its statutory power in appeal under Section 96 of CPC and under Order 41 Rule 33 of CPC.
Now, this Court has to consider the material available on record with regard to the substantial questions of law framed by this Court in R.S.A.No.444/2008 which reads as hereunder: “i. Whether both the Courts below are justified in holding that there was readiness and willingness on behalf of the plaintiff initially and subsequently, the same did not exist?
ii Whether the Courts below were justified in dismissing the suit for specific performance?”.
The substantial questions of law framed by this Court is with regard to readiness and willingness of the plaintiffs while seeking the relief of specific performance. The First Appellate Court in R.A.No.6/1997 formulated the point whether the Trial Court committed an error in not granting the relief of specific performance. The First Appellate Court having considered whether the defendants have proved that they are entitled for protection under 53-A of Transfer of Property Act and discussed the same in Para No.34 of the judgment and so also taken note of point No.3 with regard to the limitation which was answered in the suit i.e., whether the suit is barred by limitation, as the Trial
42 Court held that the suit is barred by limitation and the said finding is perverse. While answering point Nos.2 and 3, the First Appellate Court in detail discussed that there was an agreement of sale in terms of Ex.D1 dated 06.06.1983 and also taken note of recital in the agreement that sale deed has to be executed on 30.09.1983 and balance amount has to be paid at the time of execution of registered sale deed.
The Trial Court has also taken note of the fact that suit was filed in the year 1994 and both the Courts have taken note of the fact that suit ought to have been filed within three years after 30.09.1983. Learned counsel for the appellants would vehemently contend that time is not the essence of the contract and the said contention cannot be accepted, when a specific date is fixed in the agreement i.e., 30.09.1983. Apart from that, an amount of Rs.40,000/- was paid and the balance amount was payable on a particular date and the purpose for which the properties are sold is also mentioned, wherein it is also undertaken that they will not interfere with the possession of the aggrieved purchaser. No doubt, the possession was
43 delivered at the time of entering into an agreement, the fact that earlier suit was filed in O.S.No.132/1982 and the same was withdrawn in view of the compromise is not in dispute and subsequent sale agreement is also entered into which is discussed in Para Nos.35 and 36 of the judgment of the First Appellate Court.
The First Appellate Court also taken note of issue No.7, the intention of the parties and also the fact that time is the essence of the contract and discussed in detail Article 54 of the Limitation Act and taken note of the fact that, inspite of earlier suit being filed for the relief of partition in O.S.No.88/1985, which was renumbered as O.S.No.275/1989 and thereafter renumbered as O.S.No.6/1994 and notices are also exchanged in the year 1983 itself, the plaintiffs have not made any efforts to file the suit immediately, though the defendants demanded the draft sale deed for getting the income tax clearance and the plaintiffs kept quiet for a longer period and suit was filed in the year 1994. Hence, both the Courts have rightly come to the conclusion that the plaintiffs were earlier
44 ready and subsequently, they were not ready to perform their part of contract, inspite of notices being exchanged. However, the First Appellate Court though not granted the relief of specific performance, ordered to refund the amount of Rs.40,000/- with interest at 10% p.a. in favour of the plaintiffs.
It has to be noted that while granting the relief of specific performance, the plaintiffs should be always ready and willing to perform their part of contract in compliance of Section 16(c) of Specific Relief Act and the same has not been complied with. Under the circumstances, the plaintiffs are not entitled for the relief of specific performance and both the Courts have not committed any error in not granting the relief of specific performance. Hence, I do not find any perversity in the findings of the Trial Court and the First Appellate Court for inaction on the part of the plaintiffs while seeking the relief of specific performance and both the Courts have taken note of it. Though the agreement is of the year 1983, the plaintiffs have filed the suit in the year 1994 and even though the suit was filed belatedly and time barred, the First Appellate Court granted the
45 relief of refund of money of Rs.40,000/- with interest at 10% p.a. Therefore, I do find any grounds to reverse the finding of the First Appellate Court and I answer the substantial questions of law accordingly.
In view of the discussions made above, I pass the following: ORDER
The regular second appeals are dismissed.
Sd/- JUDGE