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2009 DIGILAW 309 (KAR)

V. Channappa v. Channamma

2009-04-22

K.N.KESHAVANARAYANA

body2009
Judgment :- This second appeal is by the un-successful plaintiff in O.S.No.115/1999 on the file of the Civil Judge (Jr.Dn) and JMFC, Gudibanda, Kolar District. Respondents-1 to 3 were Defendants – 1 to 3 in the trail Court. The sole plaintiff filed the suit in O.S.18 of 1997 on the file of the then Munsiff of Chikkaballapur, which was later transferred to the Court of Civil Judge (Jr.Dn.), Gudibande and re-numbered as O.S. No.115/1999 for specific performance of the contract in respect of the agricultural land bearing Sy.No.62/11 measuring 1 acre 12 guntas situated in Mandikal Hobli, Chikkaballapur Taluk. 2) The 1st defendant is the mother and Defendants-2 and 3 are her sons. One Byrappa was the husband of the 1st defendant and father of Defendants-2 and 3. According to the case of the plaintiff, the 1st defendant for herself and on behalf of Defendants-2 and 3 during their minority as their Natural Guardian and also as the manager of the joint family, agreed to sell suit schedule properties for a sum of Rs.4,100/-for the legal necessities of the family and for discharging the debts of the family and in that behalf an agreement dated 18.02.1982 came into existence and on the date of the agreement the 1st defendant received the entire sale consideration of Rs.4,100/-and placed the plaintiff in possession of the property agreed to be sold to hold the same in part performance of the agreement of sale. He further alleged that the schedule land was granted to Byrappa under the provision of the Karnataka Land Reforms Act by the Land Tribunal, Chikkaballapur, and in view of the provision for non-alienation of the land for a period of 15 years from 02.01.1982, the plaintiff could not obtain the registered document immediately and therefore, the 1st defendant agreed that the regular registered sale deed would be executed by her along with her sons after the expiry of the period of 15 years. He further alleged that Defendants-2 and 3 after attaining majority ratified the sale effected by the 1st defendant during their minority and they also agreed that they would join the execution of the sale deed with the 1st defendant. He further alleged that Defendants-2 and 3 after attaining majority ratified the sale effected by the 1st defendant during their minority and they also agreed that they would join the execution of the sale deed with the 1st defendant. It was his further contention that the sale is binding upon Defendants-2 and 3 as the same was affected for their legal necessities and also for discharging the debts of the family incurred by deceased Byrappa and the 1st defendant after his death. He further alleged in the plaint that when the period of prohibition for alienation came to an end, the plaintiff demanded the defendants to execute the sale deed but the defendants failed to comply with the demand and committed breach of the terms of the agreement and they also started attempting to alienate the schedule property to others for an higher price, taking advantage of the escalation in the price of the agricultural lands. With these allegations, the plaintiff filed the suit seeking relief of specific performance of the agreement dated 18.02.1982 by directing Defendants-1 to 3 to execute the sale deed conveying the schedule property in his favour and also for the relief of permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the property. 3) Upon service of the suit summons, Defendants-1 to 3 appeared in the trail Court and contested the suit. In their joint written statement, they denied the whole case of the plaintiff. They contended that the suit is bad for non-joinder of necessary parties as all the heirs of deceased Byrappa are not impleaded as parties to the suit and therefore, the suit is liable to be dismissed. They contended that the 1st defendant has never executed any agreement muchless agreement dated 18.02.1982 in favour of the plaintiff agreeing to sell the suit schedule properties for a sum of Rs.4,100/-nor she delivered the possession of the property to the plaintiff on the date of the alleged agreement to hold the same in part performance of the agreement of sale. They further contended that prior to and subsequent to the grant of occupancy right, Byrappa and his family members were and have been in possession and enjoyment of the suit schedule property and that the plaintiff is not in possession of the property. They further contended that prior to and subsequent to the grant of occupancy right, Byrappa and his family members were and have been in possession and enjoyment of the suit schedule property and that the plaintiff is not in possession of the property. They further denied the case of the plaintiff that the property was agreed to be sold for discharging the family debts. According to the defendants, the alleged agreement is concocted and fabricated document. Therefore, they sought for dismissal of the suit. 4) In the light of the pleadings of the parties, the trail Court framed the following issues: i) Do the plaintiff proves the execution of the agreement by the 1st defendant on 18.02.1982 agreeing to sell the suit property on behalf of the defendant Nos. 2 and 3 as a guardian as well as the Manager of the joint family? (ii) Do the plaintiff further proves the payment of consideration and delivery of possession by the 1st defendant under the agreement dated 18.02.1982? iii) Do the plaintiff further proves that he is always ready and willing to perform his part of contract? iv) Do the plaintiff is entitled for the specific performance against the defendants? v) What order or relief? 5) During the trail, the plaintiff examined himself as PW.1 and also examined two attestors to agreement as PWs.2 and 3. He marked the agreement of sale as Ex.P1 and a copy of the registration certificate in Form No.10 issued by the Tahsildar as Ex.P2. On behalf of the defendants, the 1st defendant examined herself as DW.1 and two more witnesses were examined as DWs. 2 & 3 to establish that the defendants are in possession of the property. The defendants got marked the revenue records in respect of the schedule property as Exs.D1 to D9, genealogical tree as Ex.D.10 and certified copy of the sale deed as Ex.D.11. 2 & 3 to establish that the defendants are in possession of the property. The defendants got marked the revenue records in respect of the schedule property as Exs.D1 to D9, genealogical tree as Ex.D.10 and certified copy of the sale deed as Ex.D.11. 6) The trail Court after hearing the parties and on appreciation of the oral and documentary evidence, answered Issues-1 to 4 in the affirmative holding that the plaintiff has proved execution of the agreement dated 18.02.1982 marked as Ex.P1 by the 1st defendant agreeing to sell the suit schedule property both on her behalf and on behalf of Defendants-2 and 3 as their guardian as well as the manager of the joint family, and that the plaintiff has further proved the payment of consideration and delivery of possession of the property under the agreement. The trail Court also held that the plaintiff has proved that he is always ready and willing to perform his part of the contract and therefore, he is entitled for specific performance of the agreement. In that view of the matter, the trail Court decreed the suit and directed the defendants to execute the sale deed in respect of the suit schedule property within three months from the date of the judgment and also restrained the defendants by means of permanent injunction from interfering with the peaceful possession and enjoyment of the property by the plaintiff. 7) It appears that the 1st defendant-Chennamma had filed a suit against plaintiff-V. Channappa on the file of the Civil Judge. (Sr.Dn.), Chikkaballapur, in O.S. 73/1997, which was later transferred to the Court of Civil Judge (Jr.Dn.) at Gudibande and renumbered as O.S.No.12/2000 seeking the relief of permanent injunction inter alia contending that she has been in lawful possession and enjoyment of the property and that the plaintiff in the present suit namely, Channappa is trying to interfere with her peaceful possession and enjoyment under the guise of alleged agreement of sale. However, it is noticed that though the subject matter of both suits was one and the same, the trail Court did not club the matters but held independent trail in both the suits. However, it is noticed that though the subject matter of both suits was one and the same, the trail Court did not club the matters but held independent trail in both the suits. 8) By separate judgment passed in O.S. No.12/2000 the trail Court dismissed the said suit in the light of its finding that under the agreement of sale, possession of the property has been delivered to the plaintiff Channappa and therefore, the 1st defendant-Channamma is not in possession of the property, as such, she is not entitled for the relief of injunction. 9) Aggrieved by the judgment and decree passed in both the suits, Defendants-1 to 3 filed appeals in R.A.No.104 and 105 of 2001 on the file of the Civil Judge (Sr.Dn.), Chikkaballapur. R.A.No.104/2001 related to the judgment and decree passed in O.S.No.12/2000 and R.A.No.105 of 2001 related to the judgment and decree passed in O.S. No.115 of 1999. The lower Appellate Court heard both the appeals together and disposed of them by common judgment dated 15.04.2002. 10) During the course of the judgment, the Lower Appellate Court raised the following points for consideration: i) Whether the respondent in these appeals proves that the appellant had executed an agreement of sale to sell the suit schedule property to him on 18.02.1982? ii) Whether the alleged agreement dated 18.02.1982 is enforceable in law? iii) Whether the respondent proves that he was always ready and willing to perform his part of contract? iv) Whether the respondent proves that the appellant had tried to interfere with his possession and enjoyment of property? v) Whether the appellant proves that she was in lawful possession over the suit schedule property as on the date of filing of the suit in O.S.12/2000? vi) Whether the judgment and decree passed by the trail Court in both suits needs to be set aside or modified? 11) The Lower Appellate Court on re-assessment of the oral and documentary evidence, held that though the plaintiff in O.S.No.115/1999 has proved execution of the agreement-Ex.P1 and payment of consideration, the evidence on record does not clearly and satisfactorily establish that the possession of the property was delivered to him under the agreement as contended by him. 11) The Lower Appellate Court on re-assessment of the oral and documentary evidence, held that though the plaintiff in O.S.No.115/1999 has proved execution of the agreement-Ex.P1 and payment of consideration, the evidence on record does not clearly and satisfactorily establish that the possession of the property was delivered to him under the agreement as contended by him. The Lower Appellate Court further held that the Agreement-Ex.P1 was a void agreement in view of the prohibition contained is Section 61 of the Karnataka Land Reforms Act and therefore, the plaintiff is not entitled to enforce the same. In that view of the matter, the Lower Appellate Court allowed both the appeals and set aside the judgment and decree of the trail Court passed in both the suits and dismissed the suit filed in O.S.No.115 of 1999 for the relief of specific performance and decreed the suit in O.S.No.12/2000 for permanent injunction and restrained the plaintiff-Channappa from interfering with the peaceful possession and enjoyment of the property by the defendant-Channamma and her sons. Aggrieved by the said judgment and decree passed by the Lower Appellate Court, the plaintiff-Channappa, preferred two appeals before this Court in RSA No.697/2002 and 698/2002. Both the appeals were admitted. However, when the appeals were listed for final hearing, learned counsel for the appellant by filing a memo, with drew the appeal in RSA 698 of 2002 on the ground that the finding of fact recorded by the Lower Appellate Court with regard to the delivery of possession of the property is not open for question in a second appeal. In the light of that memo RSA 698/2002 was dismissed as withdrawn. Thus only RSA.No.697/2002 remained for disposal. 12) While admitting this appeal by this Court, the following substantial question of law was framed for consideration. “Whether the agreement for sale amounts to an alienation under Section 61(1) of the KLR Act and the agreement executed by the mother binds Defendants-2 and 3?” 13) I have heard Sri. C.B. Srinivas, learned Senior Advocate appearing for the appellant and Sri. Vivek S. Reddy, learned counsel appearing for the respondents/defendants. “Whether the agreement for sale amounts to an alienation under Section 61(1) of the KLR Act and the agreement executed by the mother binds Defendants-2 and 3?” 13) I have heard Sri. C.B. Srinivas, learned Senior Advocate appearing for the appellant and Sri. Vivek S. Reddy, learned counsel appearing for the respondents/defendants. 14) Sri C.B. Srinivas, learned Senior Advocate, submitted that in the light of the findings of the Lower Appellate Court that the possession of the property agreed to be sold has not been delivered under the agreement, the Lower Appellate Court was not justified in holding that there is a transfer of property within the meaning of Section 61(1) of the KLR Act. He would further submit that the bar under Section 61(1) does not relate to an agreement of sale, as, what is prohibited under Section 61(1) of the said Act is sale, gift, exchange, mortgage, lease or assignment. Therefore, the Lower Appellate Court has committed error in holding that the agreement is void. He would further submit that the Lower Appellate Court has failed to consider that the 1st defendant agreed to sell this property for the benefit of the family and to discharge the antecedent debts of the family, therefore, it is binding on Defendants-2 and 3 also. Therefore, he submitted that the Lower Appellate Court ought to have dismissed the appeal and affirmed the judgment of the trail Court. Alternatively he submitted that even if in the discretion of the Court, it is not case for granting specific performance, the Court ought to have directed refund of the consideration paid under the agreement together with interest by way of damages. 15) On the other hand, Sri. Vivek S. Reddy, learned counsel appearing for the respondent submitted that in the light of the specific case of the plaintiff that under the Agreement-Ex.P1 the possession of the property was delivered to the plaintiff, the Lower Appellate Court is justified in holding that it amounted to transfer of property within the meaning of Section 61 of the KLR Act and therefore, the Lower Appellate Court has rightly held that the agreement is void and unenforceable. He further submitted that the appellant/plaintiff merely taking advantage of the finding of the Lower Appellate Court that the possession has not been delivered to the plaintiff under the agreement as recited therein and by with drawing the appeal filed against such finding, cannot circumvent the prohibition created under the Statute to over-come the invalid agreement. Therefore, he submitted that in the light of the contents of Ex.P1, the agreement was void and unenforceable. He would further submit that absolutely no evidence has been placed by the plaintiff on record to indicate that the alleged agreement was for the legal necessities and for discharging the family debts so as to bind Defendants-2 and 3. He would further submit that the very recitals in the agreement-Ex.P1 clearly indicates the absence of any family necessities or the antecedent debt and therefore, even if the Agreement-Ex.P1 is held as valid and enforceable in law, it would not bind the other heirs of Byrappa including Defendants-2 and 3, and at the best it may bind only the share of 1st Defendant. Therefore, he submitted that this is not a case warranting exercise of discretion to grant relief of specific performance. He further submitted that since the plaintiff has not sought for alternative relief of refund of consideration paid under the agreement, the Lower Appellate Court is justified in not granting such relief. 16) As noticed above, both the Courts below have recorded a concurrent finding that the plaintiff has satisfactorily proved the execution of the agreement-Ex.P1 by Defendant No.1 in respect of the schedule property and also the passing of consideration of Rs.4,100/-under the agreement from plaintiff to Defendant No.1. It is also pertinent to note that the defendants have not filed cross-objection before this Court against the said finding of the Courts below. Therefore, it is not open to the defendants to contend that the execution of the agreement is not proved. Therefore, the next prime question required to be considered is, as to whether the agreement is void in terms of Section 61 of the KLR Act. Therefore, it is not open to the defendants to contend that the execution of the agreement is not proved. Therefore, the next prime question required to be considered is, as to whether the agreement is void in terms of Section 61 of the KLR Act. There is no dispute that the suit schedule property was a tenanted property and on the application filed by Byrappa, the husband of the 1st defendant and the father of Defendants-2 and 3, occupancy rights in respect of the suit schedule property was conferred on the said Byrappa as evidenced by the Registration Certificate-Ex.P2 and Ex.D1 issued in Form No.10 by the jurisdictional Tahsildar. The certificate is dated 02.01.1982. From the contents of Ex.P2 and Ex.D1, it is clear that there is a total prohibition for transferring the granted property by way of sale, gift, etc. for a period of 15 years from the date of issue of certificate. Therefore, either Byrappa or his successors could not have alienated this property in any manner or could not have parted with possession of the property in any manner till 02.01.1997. It appears within a few days after the issuance of certificate-Ex.P2 and Ex.D1, the said Byrappa died leaving behind his widow and two sons as admitted by the plaintiff and according to the defendants, he has also left behind three daughters also. As held by the Courts below, Defendant No.1 being the wife of Byrappa executed the agreement of sale dated 18.02.1982 as per Ex.P1. As per the recitals in Ex.P1 on the date of the agreement itself the entire sale consideration of Rs.4,100/-was received by Defendant No.1 and the prospective buyer was placed in possession of the property agreed to be sold and only execution of the regular sale deed was postponed till the expiry of the period of prohibition. Though before trail court it was not contended on behalf of the defendants that the agreement is void in terms of Section 61 of KLR Act as such it is unenforceable, it is not forthcoming from the judgment of the trail Court as to whether or not this question of law was raised before it during the arguments. Though before trail court it was not contended on behalf of the defendants that the agreement is void in terms of Section 61 of KLR Act as such it is unenforceable, it is not forthcoming from the judgment of the trail Court as to whether or not this question of law was raised before it during the arguments. Nevertheless this question of law was raised before the Lower Appellate Court and the Lower Appellate Court has considered this aspect at length and has come to the conclusion that as per the terms of the agreement, the possession of the property agreed to be sold was delivered to the purchaser and it amounts to transfer of property and therefore, the agreement is void in terms of Section 61 of the KLR Act. 17) Section 61 of the KLR Act deals with restrictions of the transfer of land of which the tenant has become occupant. According to sub-section (1) of Section 61 of KLR Act, the land of which the occupancy rights have been granted to any person, shall not be transferred by way of sale, gift, exchange mortgage lease or assignment within the period of 15 years from the date of the order passed by the Tribunal but the same can be partitioned among the members of the joint family. According to Sub-section (2) of Section 61, such land could be mortgaged in favour of certain financial institution for raising loan for the improvement of the property. Sub-section (3) of Section 61 states that any transfer or partition of land in contravention of Sub-section (1) shall be invalid and it also deals with the consequence of such transfer in contravention of sub-section (1). According to sub-section (3), if any such transfer takes place in contravention of sub-section (1), such land would vest with the State Government free from all encumbrances and such land shall be disposed of by the State Government in accordance with the provisions of section 77 as a surplus land. Thus, reading of Section 61 clearly indicates that there is a total prohibition from transferring the land of which occupancy rights have been granted to a tenant for a period of 15 years and if any such transfer takes place in contravention of such prohibition, the land would vest with the State Government free from all encumbrances. Thus, reading of Section 61 clearly indicates that there is a total prohibition from transferring the land of which occupancy rights have been granted to a tenant for a period of 15 years and if any such transfer takes place in contravention of such prohibition, the land would vest with the State Government free from all encumbrances. The expression “Transfer of Property” has not been defined under the Act. Under Section-5 of the Transfer of Property Act, which is the general law of the land dealing with the transfer of property, the expression ‘Transfer of Property’ has been defined to mean an act by which a living person conveys property, in present, in present or in future, to one or more other living persons. 18) The Lower Appellate Court relying upon a decision of the learned Single Judge of this Court in Ramegowda Vs. Assistant Commissioner (ILR 1995 Kar. 259), which is the case arising under the provisions of SC/ST (Prohibition of Transfer of Certain Lands) Act, has held that the agreement of sale coupled with the delivery of possession amounts to transfer of property. The expression “Transfer of Property” has been specifically defined under the said Act in Section 3(e) of the Act, wherein, it is clearly stated that an agreement coupled with delivery of possession would constitute “Transfer of Property” for the purpose of the said Act. It is in the light of the said definition of ‘Transfer of Property’ in the said decision, it was held that the agreement coupled with delivery of possession would amount to ‘Transfer of Property’. Since, in the KLR Act, the expression “Transfer of Property” has not been defined, we cannot borrow definition found in other Act. Nevertheless, though under Ex.P1 it is recited that the possession of the property agreed to be sold has been delivered to the purchaser, as a matter of fact, the Lower Appellate Court has recorded a finding that possession of the property has not been delivered to the plaintiff. The Lower Appellate Court has set aside the specific finding recorded by the trail Court in this regard and therefore, mere recital in the agreement regarding delivery of possession without the actual delivery of possession having not taken place, it cannot be said that it would amount to “Transfer of Property”. The Lower Appellate Court has set aside the specific finding recorded by the trail Court in this regard and therefore, mere recital in the agreement regarding delivery of possession without the actual delivery of possession having not taken place, it cannot be said that it would amount to “Transfer of Property”. Reading of Section 61 as noticed above clearly indicates that what is prohibited is only transfer of property by way of sale, gift, exchange, mortgage, lease or assignment but, there is no prohibition under Section 61 from entering into an agreement of sale. Therefore, in my considered opinion, the Lower Appellate Court was not justified in holding that since in Ex.P1 it is recited that possession of the property was delivered to the plaintiff, it amounted to transfer of property and it is prohibited under Section 61 of the Act. 19) In the light of the finding recorded by the Lower Appellate Court that possession has not been delivered to the plaintiff, the Lower Appellate Court was not justified in holding that it amounted to transfer of property in contravention of prohibition under Section 61. Therefore, the said finding of the Lower Appellate Court is erroneous and contrary to the law as well as the fact-situation of the case. Merely because the agreement is held to be valid, ipso facto the plaintiff is not entitled for the relief of specific performance. No doubt, the entire sale consideration has been paid under the agreement itself. It is not the case of the defendants that the sale consideration was inadequate having regard to the prevailing market price of the property at that relevant point of time. 20) The serious question urged by the defendants is enforceability of agreement against other heirs of Byrappa admittedly, as on the date of Ex.P1, other heirs of Byrappa were minors. Though the plaintiff in his plaint has alleged that the agreement was executed by the 1st defendant for and on behalf of the family including the minors, the contents of the agreement do not support such contention. If we read the contents of Ex.P1, it would only indicate that Defendant No.1 has executed the said agreement only on her behalf. There is not even a reference to the effect she has executed the said agreement on her behalf and on behalf of her minor children. If we read the contents of Ex.P1, it would only indicate that Defendant No.1 has executed the said agreement only on her behalf. There is not even a reference to the effect she has executed the said agreement on her behalf and on behalf of her minor children. No doubt, upon the death of Byrappa, the 1st defendant became the guardian of the minors and she was acting as Manager of the joint family and therefore, she had implied authority to alienate the property of the family for legal necessities. Though the plaintiff contends in the plaint that the 1st defendant agreed to sell the property to meet the family necessities and also to discharge the family debts, absolutely no evidence is placed by him to substantiate the said contention. On the other hand, the answers elicited from him during the cross-examination indicate that he has pleaded complete ignorance about the financial condition of the family of the defendants. He appears to have not made any enquiry about the financial conditions of the family of the defendant. There is absolutely no evidence to indicate that the family of the defendant had incurred debts and they were in dire need of money to discharge such family debts. Even the contents of Ex.P1 do not indicate that the proposed sale was for meeting any legal necessities or for discharging family debts. On the other hand, the executant of the agreement states that she is selling this property to meet her own requirement. Therefore, there is absolutely no evidence to prove that the sale was for and on behalf of the minor children and that the said sale was for the benefit of the family or for discharging the family debts. Therefore, such sale cannot bind the other heirs of Byrappa. At best, it would only bind the share of the 1st defendant. What would be the share of the 1st Defendant would depend on the answer to the question whether the grant of occupancy rights in favour of Byrappa was in his individual capacity or as the Manager of the joint family comprised of himself, his wife and his two sons. Absolutely no evidence is placed on record in this regard. The parties have not directed themselves in this direction. Therefore, it cannot be clearly stated as to what would be the interest of the 1st defendant in this property. Absolutely no evidence is placed on record in this regard. The parties have not directed themselves in this direction. Therefore, it cannot be clearly stated as to what would be the interest of the 1st defendant in this property. The quantum of share to which the 1st defendant is entitled to would depend upon the question as to whether the property was joint family property or the individual property of Byrappa. In this suit, where the other heirs of Byrappa are not parties, it is not proper for this Court to record a finding on this aspect of the matter. Therefore, I refrain from expressing any opinion in this regard. Having held that the agreement-Ex.P1 would only bind the share of the 1st defendant and in view of the fact that what would be the quantum of share of the 1st defendant cannot be precisely ascertained, in my opinion, this is not a fit case for exercising the discretion in favour of the plaintiff for grant of specific performance. It is well-settled law that, grant or refusal of specific performance is in the discretion of the Court. However, such discretion should be exercised judiciously and by following the well-settled principles of law. Though in the case on hand, the plaintiff was not required to do anything further under the agreement as the entire sale consideration had been paid and he was to wait for 15 years for the period of prohibition to expire, in normal circumstances, he would have been entitled for specific performance, as the transaction could not be completed only on account of the breach of condition by Defendant No.1. However, the agreement is binding only in respect of the share of the 1st defendant and not the shares of other heirs of Byrappa. As the share of the 1st defendant is not certain, even if the specific performance is granted, the plaintiff would succeed only to the extent of a fraction of share, and he is require to move Court for a general partition to work-out the share of the 1st defendant and to get the share of the 1st defendant identified by meets and bounds. Instead of driving the parties to another round of litigation, in my opinion, interest of justice would be met, if instead of granting specific performance of the agreement to the extent of share of the defendant, refund of the consideration amount is directed. No doubt the plaintiff in his plaint has not sought for refund of the consideration paid under the agreement. Of course, as per Section 22(2) of Specific Relief Act, relief of refund of earnest money paid or deposit made shall not be granted by the Court in a suit filed for the relief of specific performance of contract, unless such relief is claimed as an alternative relief. However, proviso to sub-section (2) of Section-22 empowers the Court to allow the plaintiff at any stage of the proceedings, to amend the plaint to include such prayer for refund, where the plaintiff has not claimed such relief. Before this Court an oral request on behalf of appellant was made to allow the plaintiff to seek relief of refund. Regard being had to the facts and circumstances of the case and in the light of the discretion vested in the Court to allow the plaintiff to seek such alternative prayer, it is just and necessary to permit the appellant/plaintiff to seek such relief and to grant the relief of refund of the money paid under the agreement. The 1st defendant who has received Rs.4,100/-is not entitled to retain the same. It would be unfair if the plaintiff is told that he is not entitled even for refund of amount, which was paid under the agreement after rejecting his prayer for specific performance. Under these circumstances, I am of the opinion that the Lower Appellate Court ought to have exercised its discretion to direct refund of the consideration paid under agreement with reasonable interest by way of damages. 21) Judicial notice of the fact may be taken that till the year 2000 even the National Banks were offering good rate of interest for the long-term deposit. It is only after the year 2000, the rate of interest came down. 21) Judicial notice of the fact may be taken that till the year 2000 even the National Banks were offering good rate of interest for the long-term deposit. It is only after the year 2000, the rate of interest came down. Keeping all these factors in mind and having regard to the fact that the amount of Rs.4,100/-was paid in the year 1992, I am of the opinion that the interest of justice would be met if the 1st defendant is directed to refund a sum of Rs.25,000/-to the plaintiff in lieu of refund of the consideration received under Ex.P1 together with interest by way of damages. In this view of the matter, the substantial question of law raised is answered accordingly. 22) Appeal is allowed in part. The Judgment and decree passed by the Lower Appellate Court dismissing the suit of the plaintiff for the specific performance is confirmed. However, it is ordered that the plaintiff is entitled for refund of the amount of consideration paid under Ex.P1 together with interest. The 1st defendant is directed to pay Rs.25,000/-(Rupees Twenty Five Thousand only) to the plaintiff towards the refund of amount received by her under Ex.P1 inclusive of interest. The amount shall be paid within six months from today. Till the payment of the amount, charge shall be created in respect of the share of Defendant No.1 in the suit schedule property.