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2011 DIGILAW 1072 (KAR)

G. Baby Sarojini v. Murtuzasab

2011-11-03

B.V.NAGARATHNA

body2011
JUDGMENT B.V. NAGARATHNA, J.—This second appeal is filed by defendant Nos. 2 to 5 in O.S. No. 112/2006, assailing the judgment and decree dated 6.3.2009, passed by the Civil Judge (Sr.Dn.) at, Gangavathi, which has been confirmed by the judgment and decree dated 18.4.2011, in R.A. No. 85/2009 by the Fast Track Court-I at Koppal. 2. For the sake of convenience, the parties shall be referred to in terms of their status referred to before the trial Court. 3. The plaintiff filed the suit seeking relief of specific performance of agreement to sell dated 26.6.2004 by which defendant No. 1 had agreed to sell land bearing No. 54/2/A/2, measuring 3 acres 25 guntas of Somanahal Village, Gangavathi Taluk for a consideration of Rs. 2,70,000/-. The case of the plaintiff is that a sum of Rs. 2,50,000/- was paid and the balance was to be paid at the time of execution of the sale deed. However, defendant No. 1 did not execute the sale deed in favour of the plaintiff. Instead defendant No. 1 who is the father of defendant Nos. 2 to 4 and husband of defendant No. 5 had executed a registered gift deed dated 6.9.2005 in favour of defendant Nos. 2 to 5. Therefore, the plaintiff sought a declaration that the gift deed bearing No. 3573 dated 6.9.2005 was null and void and not binding upon him. 4. While seeking the relief of specific performance, the plaintiff also sought an alternative relief for refund of the sale consideration amount of Rs. 2,50,000/- to be paid with interest at the rate of 24% p.a. from the date of agreement till realisation. The plaintiff had also averred that he was ready and willing to perform his part of the contract, but defendant No. 1 went on postponing performance of his part of the contract. He entered into registered gift deed in the year 2005 in respect of the same property which was agreed to be sold to the plaintiff. Therefore, the plaintiff has sought the aforesaid reliefs. 5. After service of suit summons and notice, defendant Nos. 1 to 5 appeared and filed their written statement denying the existence of the agreement and that there was any amount received by defendant No. 1 under the said agreement. Therefore, the plaintiff has sought the aforesaid reliefs. 5. After service of suit summons and notice, defendant Nos. 1 to 5 appeared and filed their written statement denying the existence of the agreement and that there was any amount received by defendant No. 1 under the said agreement. It was stated that defendant No. 1 was addicted to bad habits and on the advice of the elders executed the gift deed was executed by defendant No. 1 in favour of defendant Nos. 2 to 5. They are the absolute owners of the property and that the suit be dismissed. 6. On the basis of the said pleadings, the trial Court raised the following issues and additional issues: (i) Whether plaintiff proves that the defendant executed the sale agreement dated 26.6.2004 agreeing to sell the suit schedule property for Rs. 2,70,000/- and received advance of Rs. 2,50,000/-? (ii) Whether plaintiff further proves that he is ever ready and willing to perform his part of contract? (iii) Whether plaintiff further proves that he is entitled for the relief of specific performance or in the alternative for refund of Rs. 2,50,000/- (iv) What reliefs parties are entitled? Addl. Issues: (i) Whether plaintiff is entitled to decree declaration to the effect that Gift Deed executed by defendant No. 1 in favour of defendant Nos. 2 to 4 through defendant No. 5 is illegal, void and not binding on this plaintiff to the extent of suit schedule land, as alleged in para No. 1 and relief No. (3) in the plaint? (ii) Whether defendants prove that the suit agreement of sale is bogus, sham, illegal, created, forged and fabricated as alleged in para No. 12 of their written statement? 7. The plaintiff examined himself as P.Ws. 1 and two other witnesses as P.Ws. 2 and 3 and produced 18 documents which were marked as Exs.P1 to P8. The defendants let-in evidence of 5th defendant as DWs. 1 and 2 and produced 10 documents which were marked as Exs. D1. to D10. 8. On the basis of the said evidence the trial Court decreed the suit of the plaintiff and granted the relief of specific performance and directed that defendants 1 to 5 shall execute the registered sale deed in favour of the plaintiff on receipt of the balance consideration of Rs. D1. to D10. 8. On the basis of the said evidence the trial Court decreed the suit of the plaintiff and granted the relief of specific performance and directed that defendants 1 to 5 shall execute the registered sale deed in favour of the plaintiff on receipt of the balance consideration of Rs. 20,000/-, Under the agreement to sell dated 26.6.2004, It was also declared that the gift deed dated 6.9.2005 bearing document No. 3573 was null and void. The defendants were also directed to execute the sale deed after a period of three months from the date of the judgment and decree. Being aggrieved by the said judgment and decree, the defendants filed R.A. No. 85/2009 before the First Appellate Court. 9. The first appellate Court on hearing the parties raised the following points for its consideration: (i) Whether defendant No. 5 proves that there are sufficient grounds to condone the delay? (ii) Whether plaintiff proves that 1st defendant has agreed to sell the suit property to him for consideration of Rs. 2,70,000/- for his family legal necessity, further on 26.6.2004 1st defendant has executed a deed of agreement in favour of plaintiff and on the same day he received advance consideration of Rs. 2,50,000/- from plaintiff? (iii) Whether plaintiff proves that after the said agreement he has been always ready and willing to perform his part of agreement, but defendant No. 1 has failed to keep up his promise? (iv) Whether plaintiff proves that in order to defeat his right of getting sale-deed, defendants 1 & 5 illegally created the gift-deed in favour of defendant No. 2 to 4 with notice of sale agreement of D1 with plaintiff is in subsistence? (v) Whether plaintiff is entitled for judgment and decree of specific performance of sale of suit property in his favour from defendants 1 to 5? (vi) Whether defendants prove that there are grounds to interfere with reasons recorded by the trial Court? (vii) To what order? It answered point Nos. 1 to 5 in the affirmative and point No. 6 in the negative and dismissed the appeal by confirming the judgment and decree of the trial Court. Being aggrieved by the said judgment and decree, defendant Nos. 2 to 5 have preferred this second appeal. Defendant No. 1 has, however, not preferred any second appeal. 10. I have heard the learned counsel for the appellants. 11. Being aggrieved by the said judgment and decree, defendant Nos. 2 to 5 have preferred this second appeal. Defendant No. 1 has, however, not preferred any second appeal. 10. I have heard the learned counsel for the appellants. 11. He contended that the Courts below have failed to appreciate the evidence of the defendants to the effect, that there was no agreement entered into between the plaintiff and the defendant No. 1 on 26.6.2004. That in the absence of there being any such agreement, first defendant was entitled to execute a registered gift deed in favour of defendant Nos. 2 to 5 as defendant No. 1 was the owner of the suit schedule property, He submitted that in the absence of there being any proof of the agreement between the plaintiff and defendant No. 1, the relief of specific performance could not have been granted to the plaintiffs. He further, submitted that the gift deed executed by defendant No. 1 on 6.9,12005 in favour of defendant Nos. 2 to 5 is a valid agreement and the same could not have been declared as null and void. He, therefore, contended that the trial Court was not light in granting the relief of specific performance by holding that the gift deed was null and void and not binding on the plaintiff, 12. He also drew my attention to Section 20 of the Specific Relief Act and submitted that the Courts below ought to have exercised discretion against plaintiff and in favour of defendant No. 1 and thereby dismissed the suit. Hence, he contended that substantial questions of law arise in this appeal calls for intervention of this Court. 13. Having heard the learned counsel for the appellants and on perusal of the material on record, at the outset it is to be noted that defendant No. 1 the executant has not filed any appeal assailing the judgment and decree of the first appellate Court. In fact he has also not stepped into the witness box to let in any evidence, though allegations have been made by the plaintiff against him. Though he was an appellant in R.A. No. 85/09, it is only defendant Nos. 2 to 5 who are the beneficiaries of the gift deed dated 6.9.2005 in respect of the suit schedule properties who have filed this appeal. 14. Though he was an appellant in R.A. No. 85/09, it is only defendant Nos. 2 to 5 who are the beneficiaries of the gift deed dated 6.9.2005 in respect of the suit schedule properties who have filed this appeal. 14. The case of the plaintiff was that the first defendant had entered into an agreement to sell the suit schedule property dated 26.6.2004 and that the sale consideration was fixed at Rs. 2,70,000/-, out of which a sum of Rs. 2,50,000/- had been paid. It was also contended that the plaintiff was ready and willing to perform his part of the contract, but was aggrieved by defendant No. 1 postponing the performance of his part by executing a registered gift deed dated 6.9.2005. It is in that context, the plaintiff had sought for a declaration that, the said gift deed was null and void. 15. The trial Court has specifically framed issues with regard to the execution of agreement to sell dated 28.6.2004 for a consideration of Rs. 2,70,000/- and also with regard to the payment of an advance amount of Rs. 2,50,000/-. The plaintiff in support of his case had produced Ex. P1 the agreement to sell dated 26.6.2004 and got marked the signatories of defendant No. 1 and also his own signature and also that of two attesting witnesses, Sharanappa. and Chandrashekar as also that of the scribe in proof of the said agreement. Since defendant. No. 1 had not performed his part of the contract, Ex. P8 legal notice was issued and subsequently one more legal notice at Ex. P11 was issued. The case of the plaintiff was that the execution of gift deed subsequent to execution of the agreement to sell by defendant No. 1 was only for the purpose of avoiding the performance of contract under agreement to sell dated 26.6.2004. On the basis of the said evidence, the trial Court as well as the first appellate Court have come to a concurrent conclusion that there has been proof of the agreement dated 26.6.2004 and that a sum of Rs. 2,50,000/- out of the entire sale consideration of Rs. 2,70,000/- was paid by the plaintiff to defendant No. 1. The Courts below exercised discretion in favour of the plaintiff and accordingly, have granted relief of specific performance while at the same time holding that the gift deed was null and void. 2,50,000/- out of the entire sale consideration of Rs. 2,70,000/- was paid by the plaintiff to defendant No. 1. The Courts below exercised discretion in favour of the plaintiff and accordingly, have granted relief of specific performance while at the same time holding that the gift deed was null and void. The question to be considered is as to whether the exercise of discretion by the Courts below is just and proper since there has been proof of the agreement dated 26.6.2004. In this context, reference may be made to Section 16 of the Specific Relief Act as well as Section 20 of the said Act. 16. Section 16 states that specific performance of the contract cannot be enforced in favour of a person under certain circumstances, while Section 20 deals with the exercise of discretion with regard to decreeing specific performance. On a combined reading of the said sections, what becomes relevant for the purpose of this case is as to whether the plaintiff has averred and approved that he was ready and willing to perform the essential terms of the contract. The reference made to the documents which have been produced by the plaintiff and the finding of the Courts below on the said documents would clearly establish that there was an agreement to sell entered into by defendant No. 1 in favour of plaintiff on 26.6.2004, whereby Sy. No. 54/2/A/2 measuring 3 acres 25 guntas was to be sold for a sum of Rs. 2,75,000/- and that defendant No. 1 had received an advance consideration of Rs. 2,50,000/-. Therefore, plaintiff has been able to prove his case under Section 16 of the Act. As far as Section 20 of the Act is concerned, it speaks about the circumstances under which discretion may not be exercised in favour of the plaintiff and thereby decline to decree specific performance. A reading of the various circumstances mentioned in Sub-Section(2) of Section 20 alongwith explanations 1 and 2 would clearly indicate that defendant No. 1 has not been able to establish any of the circumstances mentioned in sub-section(2) of Section 20. Therefore, the Courts below have rightly not. exercised their discretion in the matter to decline the relief of specific performance to the plaintiff. 17. That apart, what is significant to note is that out of a total consideration of Rs. 2,70,000/-, a sum of Rs. Therefore, the Courts below have rightly not. exercised their discretion in the matter to decline the relief of specific performance to the plaintiff. 17. That apart, what is significant to note is that out of a total consideration of Rs. 2,70,000/-, a sum of Rs. 2,50,000/- was paid by the plaintiff, to defendant No. 1. All that defendant No. 1 had to do so was to execute a registered sale deed in favour of the plaintiff by receiving the balance sale consideration of Rs. 20,000/-. Having regard to the fact that substantial portion of the consideration amount had been received by defendant No. 1, it, was not right on his part to have gifted the suit schedule property to his wife and children and thereby depriving the plaintiff of his right under the agreement to sell dated 26.6.2004. The fact that defendant No. 1 has not let in any evidence in the matter is also significant. While exercising the discretion in favour of the plaintiff the Courts below were right in holding that the gift deed dated 6.9.2005 was executed by defendant No. 1 for the purpose of avoiding his performance under on agreement dated 26.6.2004. No doubt, the appellants herein under the gift deed are innocent as far as the agreement dated 26.6.2004 are concerned. However, the right, title and interest of the appellants herein would be only subject to the agreement dated 26.6.2004. If both the Courts below have exercised discretion in favour of the plaintiff and have assigned reasons for decreeing the suit of the plaintiff and thereby granted relief of specific performance and at the same time have held that the gift deed dated 6.9.2005 is null and void, the said findings would not call for any interference in this second appeal. I find that no substantial question of law arises in this appeal. In the result, the appeal is dismissed.