Research › Search › Judgment

Karnataka High Court · body

2008 DIGILAW 446 (KAR)

PARVATAGOUDA NINGANAGOUDA PATIL v. GUDDAPPA

2008-08-26

K.N.KESHAVANARAYANA, MANJULA CHELLUR

body2008
JUDGMENT KN. Keshavanarayana, J. This appeal is directed against the judgment and decree dated 21-10-2002 passed in O.S. No. 175 of 1998 on the file of the III Additional Civil Judge (Senior Division) arid Chief Judicial Magistrate, Dharwad, whereunder the suit filed by respondent 1 came to be decreed for specific performance of the agreement of sale dated 1-5-1995 said to have been executed by the defendants therein. 2. The appellants are the defendants 1, 2(a), 2(b), 4(a) to 4(d), 5 to 17 and 18(a) to 18(c). Respondent 1 herein is the plaintiff and respondent 2 is defendant 3. 3. The parties herein will be referred to with respect to their ranking in the Court below. The plaintiff filed the suit seeking specific performance of agreement of sale dated 1-5-1995 said to have been executed by the defendants and for a direction to the defendants to execute regular sale deed in respect of the suit schedule property in favour of the plaintiffs and also to handover actual physical possession of the suit schedule property. In the alternative he sought for return of advance sale consideration of Rs. 55,001/- in the event of Court coming to the conclusion that the decree for specific performance cannot be granted. 4. The averments made in the plaint in brief are as under: The defendants are the joint owners of the suit schedule property namely agricultural lands bearing R.S. No. 83 measuring 8 acres 34 guntas and R.S. No. 76 measuring 21 acres 36 guntas in all measuring 30 acres 30 guntas situated at Nuggikeri Village, Dharwad Taluk. The defendants became the owners of the suit schedule property by way of grant of occupancy rights as per the orders of the Land Tribunal dated 2-8-1979 and they were registered as occupants in the year 1983. The defendants approached the plaintiff and informed him that they are intending to sell the suit schedule property for meeting their family needs like marriages of their sons and daughters and to clear the debts. After negotiation, the price was fixed at Rs. 31,000/- per acre. Thereafter on 1-5-1995 written agreement was entered into between the defendants and plaintiff, whereunder the defendants agreed to sell the suit schedule properties at the rate of Rs. 31,000/- per acre and on that day defendants also received a sum of Rs. After negotiation, the price was fixed at Rs. 31,000/- per acre. Thereafter on 1-5-1995 written agreement was entered into between the defendants and plaintiff, whereunder the defendants agreed to sell the suit schedule properties at the rate of Rs. 31,000/- per acre and on that day defendants also received a sum of Rs. 5,001 as advance and agreed to receive the balance sale consideration at the time of execution of the sale deed. In the said agreement it was also stated that in view of the statutory prohibition provided under the Karnataka Land Reforms Act, 1961, prohibiting sale of the land for a period of 15 years from the date of registration of occupancy rights, the defendants could not execute the sale deed. Therefore, they agreed to execute the sale deed after the expiry of 15 years from 2-3-1983. Even though all the defendants did not sign the agreement dated 1-5-1995, defendant 1 being the Manager and Kartha of the family undertook to see that all the remaining defendants execute registered sale deed before the Sub-Registrar, Dharwad. Only 11 defendants signed the agreement of sale and those defendants assured the plaintiff that the remaining defendants would also sign the agreement later and in view of the urgency the agreement came to be executed. That subsequently, the defendants approached the plaintiff in May 1996 requesting for additional advance and accordingly plaintiff paid Rs. 50,000/- to the defendants and the defendants executed further agreement during May 1996. Thus, the defendants received total consideration of Rs. 55,001/- from the plaintiff. When the plaintiff came to know that the defendants instead of completing the sale transaction with the plaintiff are attempting to sell the suit schedule property to Hindi Prachar Sabha, Dharwad, the plaintiff was constrained to file a suit in O.S. No. 340 of 1996 on the file -of the Principal Civil Judge (Junior Division), Dharwad for bare injunction against the defendants restraining them from alienating the suit schedule property. In the said suit, the Court granted an order of interim injunction against which defendants filed appeal before the Civil Judge, Senior Division, which is pending. Thereafter, the plaintiff got issued a legal notice dated 4-4-1998 calling upon the defendants to execute the sale deed by receiving the balance sale consideration. Though some of the defendants received the said notice, they have failed to comply with the demands made therein. Thereafter, the plaintiff got issued a legal notice dated 4-4-1998 calling upon the defendants to execute the sale deed by receiving the balance sale consideration. Though some of the defendants received the said notice, they have failed to comply with the demands made therein. The plaintiff was always ready and willing to perform his part of the contract and has got the balance amount ready for being paid to the defendants. The defendants in spite of service of notice have failed to execute the sale deed. Therefore having no other alternative the plaintiff has filed the suit seeking the aforesaid relief. Subsequently, by way of amendment, the plaintiff contended that defendants 2, 5, 7, 11, 12 and 15 have received further sums from the plaintiff to meet their legal necessities from time to time and have executed receipts in favour of the plaintiff. Thus, the defendants have received in all Rs. 78,001/from the plaintiff. It was further contended by way of amendment that defendants are under obligation to execute valid and legal sale deed in favour of the plaintiff by receiving the balance sale consideration amount and in the alternative without prejudice to his contention, the plaintiff further contended that if for any reason, the Court were to hold that defendants 3, 6, 8 to 10, 14, 16 and 17 are not liable to answer the claim being not signatories to the agreement of sale, he is ready to pay the proportionate or the entire sale consideration amount as per the order of the Court and get the sale deed executed in respect of the suit schedule property excluding the shares of the persons who are not signatories to the agreement of sale. 5. During the pendency of the suit, defendants 2, 4 and 18 died. Thereafter their legal representatives were brought on record. 6. Upon service of suit summons the defendants appeared. Defendants 4(a) filed her written statement on 19-6-2001. On 2-7-2001 a memo was filed on behalf of defendants 4(b), 4(c), 4(d) and 14 to adopt the written statement of defendant 4(a). The defendants 7 and 15 filed written statement admitting the case of the plaintiff. Defendant 16 filed written statement on 11-10-2002. Upon service of suit summons the defendants appeared. Defendants 4(a) filed her written statement on 19-6-2001. On 2-7-2001 a memo was filed on behalf of defendants 4(b), 4(c), 4(d) and 14 to adopt the written statement of defendant 4(a). The defendants 7 and 15 filed written statement admitting the case of the plaintiff. Defendant 16 filed written statement on 11-10-2002. As defendants 18(b) and 18(c) were minors and their guardian did not appear before the Court to contest the matter, Court Guardian was appointed and thereafter the Court guardian filed written statement on behalf of defendants 18(b) and 18(c). Defendants 1, 2, 3, 5, 6, 13, 17 and 18(a) did not file any written statement. 7. Defendant 4(a) in her written statement denied the case of the plaintiff. However, she contended that signatures of the parties are obtained on blank papers as security to advance money as hand loan to some of the defendants. She also denied the allegation that defendant 1 took the responsibility of getting the other defendants at the time of executing the sale deed. She further contended that the present suit is hit by Sections 10 and 11 of the CPC in view of the earlier suit filed by the plaintiff. She also contended that the suit is not maintainable as admitted by the plaintiff himself the alienation was prohibited as on the date of agreement as such the agreement is hit by the provisions of the Karnataka Land Reforms Act and Indian Contract Act, 1872. She further contended that the amount received from the plaintiff has been repaid. 8. As noticed above, defendants 7 and 15 in their written statement admitted the case of the plaintiff. Defendant 16 in his written statement denied the case of the plaintiff. He also denied having received any amount from the plaintiff. In the written statement filed on behalf of defendants 18(b) and 18(C), it was contended that as there is prohibition for alienation of the agricultural lands, the plaintiff is not entitled for the relief as sought in the plaint. 9. In the light of the pleadings of the parties, the Court below framed the following issues and additional issues: "1. Whether the plaintiff proves that on 1-5-1995, 11 out of 18 defendants had agreed to sell the suit lands to the plaintiff for the consideration amount at the rate of Rs. 9. In the light of the pleadings of the parties, the Court below framed the following issues and additional issues: "1. Whether the plaintiff proves that on 1-5-1995, 11 out of 18 defendants had agreed to sell the suit lands to the plaintiff for the consideration amount at the rate of Rs. 31,000/- per acre and the defendant 1 had entered so in the capacity of manager of family consisting other defendants as members and had received an amount of Rs. 5,001/- as advance and had executed the written agreement? 2. Whether the plaintiff further proves that in the month of May 1996, the defendants by receiving the further consideration amount of Rs. 55,001/- had executed additional agreement for sale? 3. Whether the plaintiff further proves that he was and has been always ready and willing to perform his part of contract? 4(a) Whether the plaintiff is entitled to get discretion relief of specific performance of agreement for sale? If not whether the plaintiff is entitled for refund 55,001/- with interest at. 18% p.a.? What order or decree? Additional Issues: 1. Whether plaintiff proves that subsequent to the agreement the defendants 2, 5, 7, 11, 12 and 15 have received the part of consideration amount for their legal necessity from time to time and have executed receipt in favour of plaintiff? 2. Whether plaintiff proves that defendants have totally received a sum of Rs. 78,001/- towards earnest amount? 3. Whether plaintiff is entitled for the relief of specific performance only to the extent of shares who are signatories to the agreement?" 10. During trial, the plaintiff examined himself as P.W. 1 and examined two attestors to the agreement as P.Ws. 2 and 3. He got marked Exs. P. 1 to P. 35. On the other hand, though defendant 1 had not filed any written statement, he examined himself as D.W. 1. Defendant 14 was examined as D.W. 2. A friend of D.W. 1 was examined as D.W. 3. Defendants did not produce any documentary evidence. 11. The Court below after hearing both sides and on assessment of oral and documentary evidence answered issues 1 to 4(a) and the additional issues 1 and 2 in the affirmative. He further held that issue 4(b) does not survive for consideration. 12. A friend of D.W. 1 was examined as D.W. 3. Defendants did not produce any documentary evidence. 11. The Court below after hearing both sides and on assessment of oral and documentary evidence answered issues 1 to 4(a) and the additional issues 1 and 2 in the affirmative. He further held that issue 4(b) does not survive for consideration. 12. In the light of answers on issues 1 to 4(a) and additional issues 1 and 2, the Court below held that the plaintiff has proved the execution of agreement of sale dated 1-5-1995 which has been marked as Ex. P. 1 and also the further agreement Ex. P. 2 by some of the defendants and that the plaintiff has satisfactorily proved that he is always ready and willing to perform his part of the contract and it is only on account of the default on the part of the defendants, the sale transaction could not be completed. In that view of the matter, the Court below decreed the suit in part and directed defendants 1, 2(a), 2(b), 4(a) and 4(b) through their guardian, defendants 5, 7, 11, 12, 13, 15, 18(a), 18(b) and 18(c) through their guardian to execute the sale deed in favour of plaintiff by receiving the consideration amount at the rate of Rs. 31,000/- per acre proportionate to their shares in the suit land after deducting the acquired area from the suit land by the Government for bypass road and also after deducting the share of the non-signatories to Exs. P. 1 and P. 2, within one month from the date of the order. In other words, the suit against other defendants who were not signatories to Exs. P. 1 and P. 2 came to be dismissed. 13. Being aggrieved by the said judgment and decree, all the defendants except defendant 3 have presented this appeal inter alia on the ground that the Court below has committed error in decreeing the suit holding that the plaintiff has proved execution of the alleged agreement Exs. P. 1 and P. 2 and that the Court below has failed to see that Exs. P. 1 and P. 2 and that the Court below has failed to see that Exs. P. 1 and P. 2 are security documents executed by some of the defendants when they were blank as security for the repayment of the loan received by them and that the defendants at no point of time agreed to sell the suit schedule property to the plaintiff. 14. Upon service of notice of this appeal, the plaintiff appeared through his learned Counsel. 15. We have heard the learned Counsel appearing on both sides. 16. The learned Counsel appearing for the defendants contended that there are several circumstances which would clearly indicate that Exs. P. 1 and P. 2 are not executed by the defendants and on the other hand, the circumstance would indicate that the signature of some of the defendants on these documents were obtained on blank papers and subsequently, they have been converted into agreement. According to the learned Counsel the various circumstances in this regard are: The signatures of the defendants are not found on all pages of Exs. P. 1 and P. 2. Though 16 names of vendors as Party I are typed in Ex. P. 1, the names of persons mentioned at S1. Nos. 17 and 18 are added by hand. As could be seen from Ex. P. 1, 5 persons have signed the same at the first instance and thereafter there was space provided for signatures of the witnesses and subsequently the same was struck off and other signatories purported to have subscribed their signatures at Sl. Nos. 7 to 11. The signature of Party II namely the plain tiff is shown to have been subscribed on 7-4-1995, though according to the plaintiff the agreement was dated 1-5-1995. Inadequacy of sale consideration is also another circumstance according to the learned Counsel for the defendants to suspect the genuineness of the agreement. In this regard, it is his further contention that a portion of the suit schedule property was acquired prior to 1-5-1995 and in respect of this acquired land, the Government has fixed the market value at Rs. 55,000/- per acre and on reference to the Civil Court, the market value has been enhanced and therefore, the price mentioned at Ex. P. 1 at Rs. 55,000/- per acre and on reference to the Civil Court, the market value has been enhanced and therefore, the price mentioned at Ex. P. 1 at Rs. 31,000/- per acre is too low and this is sufficient to hold that the defendants never agreed to sell the property and the transaction is not a sale transaction. He further contended that in the agreement the total consideration has not been specified. It is his further contention that though the total consideration at the rate mentioned in Ex. P. 1 works out Rs. 9,53,250/- for the entire extent, a paltry sum of Rs. 78,001/- was stated to have been paid as earnest money. This would also go to show that the transaction was not an out and out sale transaction. It is his further contention that as the plaintiff is a non-agriculturist, he is prohibited from holding agricultural land as per Section 79 of the Karnataka Land Reforms Act and the plaintiff has not produced any evidence to show that he was agriculturist so that he can purchase agricultural land. Therefore, the transaction is hit by the provisions of Section 79 as such it is opposed to public policy. He further contended that as on the date of agreement, the defendants could not have sold the property in the light of the prohibition under Section 60 of the Karnataka Land Reforms Act and therefore, the alleged agreement was void as such it cannot be enforced. He further contended that having regard to the facts and circumstances, this is not a fit case to exercise the discretion to grant the relief of specific performance. 17. On the other hand, learned Counsel appearing for the plaintiff contended as under: That acquisition of a portion of the land was not prior to the date of Ex. He further contended that having regard to the facts and circumstances, this is not a fit case to exercise the discretion to grant the relief of specific performance. 17. On the other hand, learned Counsel appearing for the plaintiff contended as under: That acquisition of a portion of the land was not prior to the date of Ex. P. 1 and it was subsequent thereto as admitted by defendant 1 in his oral evidence; that defendants 1, 2, 3, 5, 6, 13, 17 and 18(a) have not filed any written statement, therefore they are presumed to have admitted the case of the plaintiff; that the memo filed on behalf of defendants 4(b) and 4(c) and 14 adopting the written statement of defendant 4(a) is not in accordance with law since the memo does not bear the signatures of those defendants as such it has to be held that defendants 4(b) and 4(c) and 14 have not filed any written statement; that though defendant 4(a) filed written statement has not entered the witness-box to substantiate her contention; that though defendant 1 did not file any written statement he has examined himself as D.W. 1 and therefore no reliance can be placed on his evidence and it is of no significance; that though defendant 16 filed his written statement generally denying the case of the plaintiff, there was no specific denial and she has also not entered the witness-box to substantiate her contention; that it is in evidence on record that defendant 1 is the kartha of the family and therefore the agreement executed by defendant 1 is binding on all other sharers; that defendant 1 during his examination as D.W. 1 has admitted the signatures of all the signatories to Exs. P. 1 and P. 2; that in the light of the evidence of P.Ws. 1 to 3 and admissions made by D.W. 1 the Court below was justified in holding that the agreement Exs. P. 1 and P. 2 have been satisfactorily proved, therefore there is no ground to interfere with the said finding of the Trial Court; that the defence of the defendants that they signed Exs. 1 to 3 and admissions made by D.W. 1 the Court below was justified in holding that the agreement Exs. P. 1 and P. 2 have been satisfactorily proved, therefore there is no ground to interfere with the said finding of the Trial Court; that the defence of the defendants that they signed Exs. P. 1 and P. 2 on blank papers and subsequently they have been converted into agreement of sale cannot be believed as all the defendants except one are literate persons and two of them were Professors in Colleges as on the date of the agreement; that the plaintiff has proved by cogent and convincing evidence that he was always ready and willing to perform his pad of the contract and therefore, the Court below was justified in decreeing the suit; that all the five branches holding undivided shares in the schedule property are represented in the agreement; that having regard to the facts and circumstances of the case, the Court below ought to have directed specific performance of agreement of sale in its entirety and the plaintiff in this appeal filed by the defendants is entitled to urge that that part of the finding recorded by the Court below is erroneous; that the bar under Section 79 of the Karnataka Land Reforms Act has no application as the said bar do not apply for an agreement .as the said bar is applicable only for sale of the property. In support of his submissions, the learned Counsel for the plaintiff placed reliance on various decisions. 18. In the light of the rival submissions, the points that arise for our consideration in this appeal are: (i) Whether the Court below is justified in holding that the plaintiff has proved the execution of agreement of sale Exs. P. 1 and P. 2 by the defendants? (ii) Whether the Court below was justified in decreeing the suit of the plaintiff in part directing some of the defendants to execute the sale deed in respect of the suit schedule property in relation to their undivided interest in the suit, schedule property? (iii) Whether the judgment and decree of-the Court below calls for interference by this Court? Point No.1: 19. There is no dispute that the suit schedule property was tenanted land and the ancestors of defendant 1 were cultivating the lands: as tenants. (iii) Whether the judgment and decree of-the Court below calls for interference by this Court? Point No.1: 19. There is no dispute that the suit schedule property was tenanted land and the ancestors of defendant 1 were cultivating the lands: as tenants. One Ninganagouda Basanagouda Patil was the propositus of the family of the defendants. He had 5 sons, - Ninganagouda Basanagouda Patil father of defendant 1 filed Form 7 for conferring occupancy rights in respect of this property. Upon the cl8ath of Ninganagouda Basanagouda Patil, the said application was pursued and ultimately the Land Tribunal confen-ed occupancy rights by its order dated 2-8-1979. It is in evidence that on 8-8-1982, Form 10 was issued registering the defendants as tenants, Subsequent to the issue of Form 10, mutation entry in favour of defendants was made on 2-3-1983 in respect of the suit schedule property. Thus, from ,the above, it is clear that all the defendants who represent five branches being the sons of Ninganagouda Basanagouda Patil are the absolute owners of the suit schedule property and they are in possession and enjoyment of the same. 20. It is the specific case of the plaintiff that defendant 1 along with other defendants came to him and informed that they are in need of money to meet their family needs such as to perform marriage of their children and to payoff their debts and therefore they are .intending to sell the suit schedule property. It is the ,further case of the plaintiff that upon negotiation, price of the land was fixed at Rs. 31,000/- per acre and thereafter agreement of sale was entered into on 1-5-1995 as per Ex. P. 1 and on that day the defendants received a sum of Rs. 5,001/- as advance and agreed to receive the balance sale consideration at the time of the registration of the sale deed. It is the further case of the plaintiff that subsequently the defendants received amounts from him and executed Exs. P. 2 to P. 14. Thus, according to the plaintiff, the defendants in all have received Rs. 78,001/- towards the sale consideration. 21. As noticed above, only defendants 4(a), 7, 15, 16, 18(b) and 18(c) have filed their written statement. Defendants 7 and 15 have admitted the case of the plaintiff in toto admitting execution of agreement agreeing to sell the suit schedule property at the rate of Rs. 78,001/- towards the sale consideration. 21. As noticed above, only defendants 4(a), 7, 15, 16, 18(b) and 18(c) have filed their written statement. Defendants 7 and 15 have admitted the case of the plaintiff in toto admitting execution of agreement agreeing to sell the suit schedule property at the rate of Rs. 31,000/- per acre. As could be seen from the tenor of the contentions of the defendants who have filed their written statement, it is their case that they borrowed some money from plaintiff on different dates and at that time their signatures were obtained on blank papers and subsequently those signed papers have been converted into agreement of sale. However, none of the defendants who have filed such written statement have entered witness-box to substantiate their stand. Defendants 4(a), 16, 18(b) and 18k) who have taken up such contentions have not entered witness-box. On the other hand, defendant 1 who is the eldest surviving member of the family though did not file any written statement, examined himself as D.W. 1 admitting the signatures of the signatories found at Exs. P. 1 and P. 2. No doubt D.W. 1 in his examination-in-chief sought to contend that he signed Exs. P. 1 and P. 2 when it was blank. However, as noticed above, he has not taken up such contention by filing written statement and Courts cannot look into any amount of evidence without pleadings. 22. On the other hand, the plaintiff who examined himself as P.W. 1 and the two attesting witnesses examined as P.Ws. 2 and 3, have categorically stated in their evidence that all the defendants who have signed Ex. P. 1 came to the office of P.W. 3-Krishna a practicing Advocate on 1-5-1995 and defendant 1 himself brought the stamp paper and thereafter as per the instructions of defendant 1 the agreement was drafted and then typed. Thereafter the contents were read over and after understanding its contents, defendants signed the agreement. They have also further stated that on that day plaintiff paid a sum of Rs. 5,001/- to defendants as advance. The defendants have not denied the receipt of Rs. 5,001/- on 1-5-1995 from the plaintiff. They have also not disputed their signatures. However, it is their contention that they subscribed their signatures to blank papers. They have also further stated that on that day plaintiff paid a sum of Rs. 5,001/- to defendants as advance. The defendants have not denied the receipt of Rs. 5,001/- on 1-5-1995 from the plaintiff. They have also not disputed their signatures. However, it is their contention that they subscribed their signatures to blank papers. When the defendants have taken a specific stand that they signed on the blank papers and subsequently they have been converted into agreement, it is for them to substantiate such contention. The burden of proving the said fact is on them. However, none of them have entered the witness-box to discharge the said burden. The persons who have entered the witness-box were not the one who has taken up such contention. In addition to this, it is on record, except defendant 7 all other signatories to Exs. P. 1 and P. 2 are literate persons. Two of them namely defendants 14 and 18 are Professors as admitted by D.W. 1 in the cross-examination. In the cross-examination, D.Ws. 1 and 2 have admitted that before signing any document they would go through the contents and it is only after understanding the contents of the documents they would subscribe their signatures. In the light of this admission made by D.Ws. 1 and 2 it is highly difficult to believe the contention of the defendants that they subscribed their signatures to blank papers and later they have been converted into agreements. None of the circumstances indicated by the learned Counsel for the defendants would create any kind of suspicion as to the genuineness of Exs. P. 1 and P. 2. No doubt in Ex. P. 1 in pages 1 and 2, names of 16 persons constituting the members of Party I have been typed and names of 2 persons at 81. Nos. 17 and 18 have been entered in hand. That by itself cannot create any kind of suspicion. May be the typist who typed the document has omitted to mention the names of two persons and therefore the names of two other persons have been included by hand. Of course all the defendants are not signatories to the agreement Ex. P. 1. That is the reason why the Court below has decreed the suit only in part directing only such of the defendants who are signatories to Exs. Of course all the defendants are not signatories to the agreement Ex. P. 1. That is the reason why the Court below has decreed the suit only in part directing only such of the defendants who are signatories to Exs. P. 1 and P. 2 to execute the sale deed. No doubt the signatures of defendants to Ex. P. 1 are found at the last page of the document and other pages of the document are not signed. The reason why the parties did not sign on other pages is not forthcoming in evidence nevertheless this by itself will not make the agreement a fabricated one. The space for signatures of the parties is provided at the end of the agreement. It is in the cross-examination of D.W. 1 that on 1-5-1995 he and other defendants went to the office of P.W. 3 and there they signed the document. Therefore, merely because the signatures of some of the defendants are found at the last page of Ex. P. 1, it would not indicate that defendants subscribed their signatures to blank papers. The very fact that the signature of D.W. 1 is found on the second page of the stamp paper for having purchased the stamp paper by him, which he has admitted in the cross-examination, substantiates the case of the plaintiff that defendant 1 brought the stamp paper required for the agreement. No doubt there is some discrepancy with regard to the date put below the signature of the plaintiff in Exs. P. 1 at P. 1(k), The plaintiff, below his signature has mentioned the date as 7-4-1995 though according to him the agreement was signed on 1-5-1995. However, some explanation has been brought out in the cross-examination of P.W. 1 as to under what circumstances he has put the date below his signature as 7-4-1995. According to this explanation, since the stamp paper was purchased on 7-4-1995, he has put the date as 7-4-1995. As noticed earlier, D.W. 1 in his cross-examination has categorically admitted that on 1-5-1995 he received a sum of Rs. 5,001/- from plaintiff and subscribed their signatures at Ex. P. 1(a) to P. 1(1). Of course, in Ex. P. 1, the date on which the agreement was entered into has not been specifically mentioned. However, one of the defendants while putting his signature has mentioned the date as 1-5-1995. 5,001/- from plaintiff and subscribed their signatures at Ex. P. 1(a) to P. 1(1). Of course, in Ex. P. 1, the date on which the agreement was entered into has not been specifically mentioned. However, one of the defendants while putting his signature has mentioned the date as 1-5-1995. D.W. 1 has admitted that he and other defendants have signed Ex. P. 1(a) to P. 1(1) on 1-5-1995. Under these circumstances, we see no merits in any of the contentions urged by the Teamed Counsel for the defendants. 23. No doubt, in Ex. P. 1 the total consideration has not been mentioned. However, it is specifically mentioned at Ex. P. 1 that the defendants have agreed to sell the property at Rs. 31,000/- per acre. The extent of the land is also mentioned as 30 acres 30 guntas. Therefore, the total consideration is a matter of multiplication. Under these circumstances, non-mentioning of the total consideration has not in any way affected the genuineness of the agreement. The defendants have admitted that they have in all received Rs. 78,001/- from the plaintiff. Merely because only a sum of Rs. 78,001/- has been paid as advance as against the total consideration of Rs. 9,39,300/- it cannot be said that the parties did not intend to sell the property. The intention of the signatories of Ex. P. 1 to sell the property is clear and specific as per the terms. of Ex. P. 1. 24. In the light of the discussion made above, we see no substance in any of the circumstances indicated by the learned Counsel for the defendants to doubt the genuineness of Exs. P. 1 and P. 2. 25. Admittedly, the tenancy of the suit schedule property was conferred on defendants and as per Section 61 of the Karnataka Land Reforms Act, such land in respect of which occupancy rights have been granted to any person cannot be sold or transferred in any manner for a period of 15 years from the date of registration of occupancy right. However, subsequently by way of amendment in the year 1999 with effect from 15-2-1999 the commencement date has been altered to the date of final order passed by the Land Tribunal in place of date of registration of occupancy rights. However, subsequently by way of amendment in the year 1999 with effect from 15-2-1999 the commencement date has been altered to the date of final order passed by the Land Tribunal in place of date of registration of occupancy rights. However, in the case on hand, as the agreement was entered into on 1-5-1995, prohibition contained in unamended Section 61 would get attracted. Therefore, for a period of 15 years from the date of issuance of registration certificate i.e., from 8-8-1982 the defendants could not have sold the property. 26. Now the question is as to whether the bar under Section 61 would come into play even in respect of agreement of sale. We see no substance in the contention of the learned Counsel for the defendants that the defendants in the light of prohibition under Section 61 could not have entered into agreement of sale. The prohibition provided under Section 61 of the Karnataka Land Reforms Act, is from transferring the property by way of sale, gift, exchange, mortgage, lease or assignment. The prohibition under Section 61 does not apply to agreement of sale. Therefore, Section 61 does not prohibit the tenants to whom occupancy rights have been granted from entering into an agreement of sale. The agreement of sale does not amount to transfer of interest or right in the property. It merely creates a right to seek enforcement of contract. Under the agreement no interest or right in the property is transferred in favour of the prospective buyer. Therefore, Section 61 does not come in the way of tenant entering into an agreement to sell the property. It is for that reason only under the agreement the defendants agreed to execute the sale deed after the expiry of 15 years from 1983. Under these circumstances there is no substance in this contention also. 27. The next contention that as the plaintiff was a non-agriculturist, he could not purchase agricultural land and therefore the agreement cannot be enforced by him as it is barred under Sections 79 and 80 of the Karnataka Land Reforms Act also has no substance. Two Division Bench of this Court have clearly held that agreement to sell agricultural lands even to a non-agriculturist is not a contract in contravention of the Karnataka Land Reforms Act. Two Division Bench of this Court have clearly held that agreement to sell agricultural lands even to a non-agriculturist is not a contract in contravention of the Karnataka Land Reforms Act. In Shivannappa Sidramappa Prantur v Virupaxappa Allappa Bagi1, a Division Bench of this Court has clearly stated that an agreement to sell agricultural land even to a non-agriculturist is not a contract in contravention of the Karnataka Land Reforms Act and it is further held that there is no bar in the Act for entering into an agreement to sell agricultural lands even in favour of a non-agriculturist. It has been further observed in this decision that the question as to whether the intending purchaser is an agriculturist or not is not at all a relevant issue for consideration in a suit for specific performance of the agreement to sell agricultural lands. Again in the case of Mrs. Sushila A. Dass v Mrs. Mary Bolger, this view has been reiterated. In the light of these two decisions of the Division Bench of this Court and in the light of the provisions of Sections 79, 80 and 83 of the Act, there is no substance in the contention of the learned Counsel for the defendants with regard to legality of the agreement-Ex. P. 1. 28. In view of the above discussions, we hold that the Court below was justified in holding that the plaintiff has proved the execution of the agreement by some of the defendants as per Exs. P. 1 and P. 2. Point No. II: 29. Under Section 20 of the Specific Relief Act, 1963, the grant of relief as to specific performance is purely discretionary. However such discretion will have to be exercised judicially having regard to the facts and circumstances of each case. No doubt under Section 20, the Court is not bound to grant such relief merely because it is capable to do so. But the discretion should be exercised judiciously guided by judicial principles and capable of correction by Court of appeal. While considering the question as to whether the plaintiff in a case is entitled for relief of specific performance, the conduct of the parties assumes greater importance. In the case on hand having regard to the facts and circumstances of the case, the Court below has held that the conduct on the part of the defendants who are signatories to Exs. In the case on hand having regard to the facts and circumstances of the case, the Court below has held that the conduct on the part of the defendants who are signatories to Exs. P. 1 and P. 2 in denying the execution of the agreement after admitting the receipt of money from the plaintiff would be sufficient to exercise discretion in favour of plaintiff to grant the relief of specific performance. 30. As already noticed above, except defendants 4(a), 16, 18(b) and 18(c) other defendants have not filed any written statement denying the case of the plaintiff. The defendants who have denied execution of the agreement and have disputed the genuineness of Ex. P. 1 have not entered the witness-box to substantiate their stand and contentions. Defendant 1 though has given evidence has not set out his stand by filing written statement. Therefore, his evidence is of no significance. Thus, the case of the plaintiff as set out in the plaint is not seriously challenged by the contesting defendants. The defendants have admitted the receipt of money to an extent of Rs. 78,001/-. The evidence of plaintiff clearly establishes that he was always ready and willing to perform his part of the contract. D.W. 2 admits in his cross-examination that they attempted to sell the suit schedule property to Hindi Prachar Sabha. D.W. 2 also admits having received Rs. 1,00,000/- from Hindi Prachar Sabha. From this it is clear that after executing Ex. P. 1 in favour of plaintiff, Clandestinely the defendants tried to sell the property in favour of Hindi Prachar Sabha keeping the plaintiff in dark. However, after coming to know of this, plaintiff prevented the defendants from alienating the property by instituting suit for injunction. The order of injunction granted in the said suit was challenged by the defendants in an appeal and it is not forthcoming on record as to what happened to the said appeal. Nevertheless the conduct on the part of the defendants would indicate that they attempted to sell the property to a third party even after entering into agreement with the plaintiff. Nevertheless the conduct on the part of the defendants would indicate that they attempted to sell the property to a third party even after entering into agreement with the plaintiff. In the earlier suit filed by the plaintiff in O.S. No. 340 of 1996, he has made a specific averment that since the cause of action to file suit for specific performance has not occurred, as the prohibitory period of 15 years has not expired, he could not file a suit for specific performance. Therefore, it cannot be said that the present suit is in any way barred by the provisions of Order 2, Rule 2 or Section 11 of the CPC. The defendants did not dispute the financial status of the plaintiff. It is not the case of the defendants that the plaintiff was not in a position to pay the balance sale consideration and to get the sale deed registered. What is required to be established by the plaintiff is that he is in a sound financial position to pay the balance sale consideration and get the sale deed registered. It is not necessary for him to actually count the balance sale consideration before Court to show his readiness and willingness. In terms of Section 16(c) of the Specific Performance Act, the plaintiff has averred in the plaint that he was and is always ready and willing to pay the balance of sale consideration and get the sale deed registered. He has reiterated the said fact in his evidence before the Court which is not seriously challenged by the defendants in the cross-examination. Admittedly before filing the suit, the plaintiff has caused a legal notice on the defendants. The said notice has been served on some of the defendants. In the said notice the plaintiff has called upon the defendants to receive the balance consideration and to execute the sale deed in terms of the agreement dated 1-5-1995. Inspite of the fact that some of the defendants have received the said notice, none of them have replied the said notice denying the contents of the notice. 31. In the said notice the plaintiff has called upon the defendants to receive the balance consideration and to execute the sale deed in terms of the agreement dated 1-5-1995. Inspite of the fact that some of the defendants have received the said notice, none of them have replied the said notice denying the contents of the notice. 31. The Honble Supreme Court in the case of Pandurang Ganpat Tanawade v Ganpat B hairu Kadam and Others , has held that when the plaintiff avers in the plaint in terms of Section 16(c) of the Specific Performance Act, that he is ready and willing to perform his part of the contract and sent registered notice to the seller to execute the sale deed and also proves the same before the Court in evidence, it has to be held that the plaintiff has proved his readiness and willingness to perform his part of the contract. In the case on hand, the plaintiff has averred the said fact in the plaint and before instituting the suit he has served the legal notice on the defendants calling upon them to receive the balance sale consideration and execute the sale deed and during the evidence he has reiterated all these facts. Therefore, under these circumstances the Court below was justified in holding that the plaintiff has proved that he was always ready and willing to perform his part of the contract. The defendants have not brought out any circumstance to indicate that the plaintiff was not ready and willing to perform his part of the contract. The Honble Supreme Court in the case of P.S. Ranakrishna Reddy v M.K. Bhagyalakshmi and Another2, has held that the relief of specific performance cannot be denied on the ground that the price of immovable property is on rise. In other words, inadequacy of the sale consideration cannot be a ground to deny the relief of specific performance. Having regard to the facts and circumstances of the case on hand, we are of the opinion that the Court below was justified in holding that the plaintiff was ready and willing perform his part of the contract and there is no error in this finding recorded by the Court below in this regard. Therefore, we answer point No.2 accordingly. 32. The Court below having regard to the fact that only 10 defendants have subscribed their signatures to Exs. Therefore, we answer point No.2 accordingly. 32. The Court below having regard to the fact that only 10 defendants have subscribed their signatures to Exs. P. 1 and P. 2 has granted the relief of specific performance in respect of the undivided shares of the defendants who are signatories to Exs. P. 1 and P. 2. Thus, the Court below has granted specific performance in respect of a portion of the property. Therefore, this is the case where Section 12(3) of the Specific Relief Act has been applied. According to Section 12 except as provided under sub-section (3), the Court shall not direct specific performance of part of the contact. 33. In the case on hand, admittedly occupancy right in respect of suit schedule property was conferred on the family members of the defendants and, therefore, all the defendants have undivided shares in the suit schedule property. Though in Ex. P. 1, the names of all the defendants have been typed, only 10 defendants have subscribed their signatures. No doubt it was the specific case of the plaintiff that defendant 1 in the capacity as Manager and kartha of joint family executed agreement to meet the legal necessities of the family and therefore, the other defendants are bound by the agreement. However, this case of the plaintiff cannot be accepted for the simple reason that if the plaintiff is satisfied that defendant 1 was the Manager and kartha of the joint family and in that capacity, he can alienate the property for the legal necessities even binding the share of other sharers, there was no need or occasion for the plaintiff to insist the other defendants to join the agreement. The very fact that the other defendants are also arrayed as parties to the agreement and some of them have subscribed their signatures would indicate that defendant 1 alone could not transfer valid title to the plaintiff The other receipts produced by the plaintiff which have been marked Exs. P. 3 to P. 14 executed by other defendants would further support the above view as admittedly, some of the other defendants have received money from the plaintiff on various dates agreeing to sell their undivided shares in the property. P. 3 to P. 14 executed by other defendants would further support the above view as admittedly, some of the other defendants have received money from the plaintiff on various dates agreeing to sell their undivided shares in the property. Therefore, there is no substance in the contention of the learned Counsel for the plaintiff that the Court below ought to have decreed the suit in toto and ought to have directed specific performance in respect of the entire extent of the property. 34. In view of the fact that only 10 sharers have subscribed their signatures to Exs. P. 1 and P. 2 and in the light of the provisions of Section 12 of the Specific Relief Act, and in view of the law laid down by the Honble Supreme Court in (2005)5 SCC 142 , the Court below was justified in directing specific performance of only a portion of the property covering the undivided shares of the signatories of Exs. P. 1 and P. 2. In fact, the plaintiff by way of amendment to the plaint at para 7(a) has stated that if for any reason the Court were to hold that defendants 3, 6,8, 10, 14, 16 and 18 are not signatories to the agreement of sale he is ready to pay the proportionate or the entire sale consideration amount as per the order of the Court and get the sale deed ,executed in respect of the, suit schedule property excluding the shares of the persons who are not signatories to the agreement of sale. In the reported case of the Supreme Court referred to supra, also such an amendment was sought before the Supreme Court and the said amendment was allowed and the relief of specific performance of a part of the agreement was ordered. 35. Having regard to the above discussion, we hold that the Court below has rightly directed specific performance of part of the agreement and the judgment of the Court below do not suffer from any kind of illegality or irregularity warranting interference at the hands of this Court. Therefore, we see no merit in anyone of the submissions made by the learned Counsel for the appellants and the appeal lacks merit. 36. Accordingly, the appeal is dismissed. The parties are directed to bear their own costs.