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2003 DIGILAW 716 (KAR)

E. M. NARASIMHAREDDY v. CHIKKANARASIMHA REDDY

2003-08-26

K.SREEDHAR RAO

body2003
K. SREEDHAR RAO, J. ( 1 ) THE appeal filed against the Judgment and decree passed in RA 29/1997 on the file of I Addl. District Judge, Kolar arising out of the Judgment and decree in O. S. No. 31/1990 on the file of the Civil Judge (Sr. Dn.) Chikkaballapur. ( 2 ) THE appellants are the plaintiffs, filed a suit for specific performance of the agreement for sale at Ex. P. 1 dated 29. 5. 1988. The plaintiff's father and the father of defendants 4 and 5 and defendants 1 to 3 are full brothers. The suit property is the joint family property which consists of a non-residential plot with a Flour-Mill situate in Billapur Village of Bagepalli Taluk. Ex. P. 1 came to be executed by defendants 1 to 3 in favour of plaintiffs father agreeing to sell for a total consideration of Rs. 76,000/- Including plaintiffs share, the value of the property was assessed at rs. 95,000/ -. The defendants 1 to 3 refused to execute the sale deed conveying their share in favour of the plaintiffs. Defendants 4 and 5 consented and executed a relinquishment deed in favour of the plaintiffs 1 and 2. The plaintiffs issued a legal notice as per Ex. P4 and filed a suit. During the pendency of the suit, 3rd defendant also consented to execute the sale deed in favour of the plaintiffs and agreed to suffer a decree as prayed for, in the suit, to the extent of his share. The defendants 1 and 2 stoutly contested the suit. Before the Trial Court, it was contended by the defendants that the plaintiffs have failed to prove and plead that they were ready and willing to perform their part of the contract through out. The Trial Court upheld the defence contention and dismissed the suit of the plaintiffs. ( 3 ) THE first Appellate Court modified the Judgment and decree and allowed the suit of the plaintiffs, as against defendants 3 to 5 and dismissed the suit and appeal, as against defendants 1 and 2 confirming the findings of the Trial Court that the plaintiffs have failed to aver and prove that they were ready and willing to perform their part of the contract through out and thus, ultimately dismissed the appeal of the plaintiffs, as a result of which, present appeal is filed. ( 4 ) THIS Court by Judgment dated 15. 12. 1989 allowed the appeal of the plaintiffs. The Hon'ble supreme Court has set aside the order of this Court in Civil Appeal No. 1453/01 dated 19. 2. 2001 and remitted the matter for fresh consideration in accordance with law. ( 5 ) THE following substantial question of law is framed for consideration by the admission Judge: "whether the Courts below have committed an error of law in holding that the plaintiffs tendered the balance of consideration to the defendants 1 and 2 in view of the facts and circumstances of the case under Section 12 (3) of the Specific Relief Act" ( 6 ) IT is the contention of the Appellant /plaintiffs that on a mistaken assumption of the quantum of share of each of the defendants as 1/4th, a sum of Rs. 23,750/- was assessed as value of share of each of the defendant under Ex. P. 1. But later on, it transpires that the extent of share of each of the defendant is 1/5th, and same is admitted by the defendant in their legal notice Ex. P. 3. In that view, the plaintiff tendered the proportionate value of 1/5th of the share instead of the value of 1/ 4th share. Therefore, the offer made proportionate to the reduced extent of the share is a valid offer under Section 12 (3) of the Specific Relief Act and as such the plaintiffs have proved their readiness and willingness to perform their part of the contract in accordance with law and in accordance with the terms of the agreement. ( 7 ) IN the ruling of the Supreme Court in KALYANPUR LIME WORKS v. STATE OF BIHAR AIR1954 SC 165 , [1954 ]1 SCR958 it is held that under Section 12 (3) of the Act the relinquishment of claim of further performance of the remaining part of the contract and all rights to compensation can be forgone at any stage of the litigation including the appellate stage and further in SMT. T. K. SHANTHA AND ORS. v. SMT. A. G. RATHNAM and ORS. AIR1990 Ker 69 the following observations are made: 13. If the case comes under Section 12 (3) (a), the plaintiff is entitled to specific performance of the agreement on her paying the agreed consideration reduced by the consideration for the part which must be left unperformed. T. K. SHANTHA AND ORS. v. SMT. A. G. RATHNAM and ORS. AIR1990 Ker 69 the following observations are made: 13. If the case comes under Section 12 (3) (a), the plaintiff is entitled to specific performance of the agreement on her paying the agreed consideration reduced by the consideration for the part which must be left unperformed. But in this case, in view of the fact that the plaintiff was not prepared to relinquish her claim regarding part which could not be performed till the case came up before this Court, I feel that the plaintiff must be directed to pay the full consideration agreed upon for the whole property, namely Rs. 2250/- though she is entitled to get a decree only in respect of the share of the 3rd defendant. Counsel for the plaintiff also submitted before me that in cases this Court feels that the whole price should be paid, he is agreeable to the same. In view of the above, I hold that the plaintiff will be entitled to a decree for specific performance of the share of the 3rd defendant in case she pays the whole consideration agreed upon and stated in ex. B. 1. I also made it clear that the plaintiff has relinquished all her claims as contemplated under Section 12 (3) (ii),. " (Underline emphasized by me) based on the said ratio it is argued that the offer of reduced value proportionate to the quantum of share is just and proper. ( 8 ) AT this stage in appeal counsel further submitted that the plaintiffs would not seek any compensation for the part of the contract that cannot be performed and also alternatively submitted that the plaintiffs are prepared to pay the full agreed value of consideration irrespective of the fact that the quantum of share has dwindled to 175th from 174th. ( 9 ) THE plaintiffs are not consistent in their version and have taken an inconsistent and a variant stand subsequent to the agreement of sale Ex. P. 1. In the suit filed in O. S. 112/91 the plaint copy at Ex. D. 1 filed by the plaintiffs herein claim exclusive title to the present suit property on the ground that it has been given to their share in the partition and seek permanent injunction against the defendants. In another suit O. S. 125/90 the plaint copy marked at Ex. D. 1 filed by the plaintiffs herein claim exclusive title to the present suit property on the ground that it has been given to their share in the partition and seek permanent injunction against the defendants. In another suit O. S. 125/90 the plaint copy marked at Ex. D. 2 the plaintiffs make categorical statement that the father of the defendants No. 4 and 5 divided about 30 years ago and started living at Dugganayakanahalli and that the plaintiffs and defendants alone have 1/4th share each in the suit property and defendants No. 4 and 5 have no share in the property. There is also a admission that the defendants 1 to 3 and the plaintiff's father were running a Flour Mill and were dividing the income of the Flour Mill during the life time of the father of the plaintiff. ( 10 ) THE denial of title of the defendant 1 and 2 by the plaintiff in the subsequent suits filed amounts to breach of terms of Ex. P. 1. In view of such hostile conduct it cannot be said that the plaintiffs were ready and willing through out to perform their part of the contract. In the normal course if there is abrogation of share of the defendant to 1/5th. The offer to pay proportionate reduced sale consideration would be a valid offer under Section 12 (3) of the Act. It is not for the reason that since the reduced sale consideration is offered, the relief of specific performance is to be rejected to the plaintiffs, but the conduct of the plaintiffs in denying the title of the defendants no. 1 and 2 subsequent to the agreement of sale and setting title in themselves would be a hostile conduct and would suggest an inference that they were not ready and willing to perform their part of the contract through out. ( 11 ) FOR the reasons and discussions made above the plaintiffs have failed to prove their readiness and willingness and the application of the provisions of Section 12 (3) does not arise in this case. The question of law answered in the negative. ( 12 ) IN view of the aforesaid facts and reasons, the provisions of Section 12 of the Specific Relief act, do not apply to the facts of the case. The question of law framed is answered in the negative. The appeal dismissed. The question of law answered in the negative. ( 12 ) IN view of the aforesaid facts and reasons, the provisions of Section 12 of the Specific Relief act, do not apply to the facts of the case. The question of law framed is answered in the negative. The appeal dismissed. The request of the Counsel for the appellant to seek withdrawal of the balance of sale consideration deposited in the Execution Proceedings is granted.