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2023 DIGILAW 1228 (KAR)

Krishnegowda Y. N. v. Shivashankar And Other

2023-10-21

H.P.SANDESH

body2023
JUDGMENT 1. This second appeal is filed challenging the judgment and decree dated 07.03.2018 passed in R.A.No.15/2017 by the V Additional District and Sessions Court, Hassan. 2. The parties are referred to as per their original rankings before the Trial Court to avoid confusion and for the convenience of the Court. 3. The factual matrix of the case of the plaintiffs before the Trial Court is that the defendant has expressed his wish to sell the suit schedule property and the plaintiffs have agreed to purchase the suit schedule property. Hence, on 28.10.2013, the defendant has executed an agreement of sale to an extent of 29 guntas for sale consideration of Rs.5,80,000/- by receiving an advance amount of Rs.10,000/- and also agreed to receive the balance sale consideration of Rs.5,70,000/- at the time of registration and sale deed which has to be executed within a period of three months from the date of the agreement. It is the case of the plaintiffs that when they personally met the defendant and requested to execute the registered sale deed, the defendant has given evasive reply. Therefore, without any other alternative, the plaintiffs issued a legal notice on 05.12.2013 calling upon the defendant to execute the sale deed as per the sale agreement. Inspite of receipt of the notice, the defendant did not execute the sale deed. Thus, panchayath was held in that regard and in the pnachayath, the defendant agreed to execute the sale deed but, later, the defendant has dodged the execution of the registered sale deed on one ground or the other. Therefore, the plaintiffs have got issued another legal notice on 20.12.2014 asking the defendant to execute the registered sale deed and the defendant got issued a reply notice refusing to execute the registered sale deed. Hence, without any other alternative, the plaintiffs have filed the suit for the relief of specific performance. 4. The defendant appeared and filed the written statement denying the averments made in the plaint and contended that it was only a loan transaction and not the sale transaction. The defendant also taken the contention that the suit schedule property is an ancestral property and the defendant alone is not having any right to sell the suit schedule property. 4. The defendant appeared and filed the written statement denying the averments made in the plaint and contended that it was only a loan transaction and not the sale transaction. The defendant also taken the contention that the suit schedule property is an ancestral property and the defendant alone is not having any right to sell the suit schedule property. It is also contended by the defendant that he has personally met the plaintiffs and repaid the amount of Rs.10,000/- and requested them to handover the loan agreement but the plaintiffs have not returned the said agreement but the defendant is at utter surprised that the said agreement is turned as sale agreement. It is also contended that present value of the suit schedule property is Rs.35,000/- per gunta and hence, the defendant could not have agreed to sell the suit schedule property at the rate of Rs.20,000/- per gunta. 5. The Trial Court having considered the pleadings of both the parties, framed the issues and allowed the parties to lead their evidence. In order to prove the case of the plaintiffs, 2nd plaintiff examined as PW1 and got marked the documents at Ex.P1 to P20 and also examined two witnesses as PW2 and PW3. On the other hand, the defendant examined himself as DW1 and got marked the documents at Ex.D1 to D8. The Trial Court having considered both oral and documentary evidence placed on record answered Issue No.1 as negative in coming to the conclusion that the plaintiffs have fraudulently obtained the signature of the defendant on the document by giving an amount of Rs.10,000/- as a money transaction and not as a sale transaction and hence, declined to grant any relief of specific performance. Being aggrieved by the judgment and decree of the Trial Court, an appeal was preferred before the First Appellate Court. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record reversed the finding of the Trial Court in coming to the conclusion that an agreement of sale was executed by receiving part sale consideration of Rs.10,000/- and hence, the Trial Court has committed an error in holding that there was no agreement and the plaintiffs have tampered and interpolated the contents of Ex.P1 and failed to appreciate the documentary evidence. Thus, reversed the finding of the Trial Court and decreed the suit of the plaintiffs. Thus, reversed the finding of the Trial Court and decreed the suit of the plaintiffs. Hence, the present second appeal is filed by the defendant before this Court. 6. The main contention of the counsel for the defendant/appellant that the First Appellate Court committed an error in coming to the conclusion that there was an agreement of sale dated 28.10.2013 and three months time was fixed to execute the sale deed and notices were exchanged and specific reply was given with regard to denial of execution of the sale agreement and it is only a monitory transaction of loan and Trial Court rightly dismissed the suit in coming to the conclusion that there was no agreement of sale and there was an interpolation in the document and evidence is also not consistent. The counsel further contend that the plaintiffs came to know about selling of the property through the villagers, none of the villagers have been examined. The counsel also would vehemently contend that negotiation was taken place for 2 to 3 days but same is not established and inspite of the contradictions in the evidence of plaintiffs' side, the First Appellate Court failed to take note of the said fact with regard to the execution of the document. PW1 says that sale agreement papers were purchased by the defendant but PW2 and PW3 given contra evidence stating that the same was purchased by the plaintiffs and these contradictions have not been considered by the First Appellate Court. The counsel also contend that notice was given immediately i.e., almost 1V months from the date of the sale agreement though time of three months was fixed to execute the registered sale deed and the reasoning given by the First Appellate Court is erroneous and notary register is not summoned though claims that the same has been signed by the defendant and only paid an amount of Rs.10,000/- as advance sale consideration. 7. 7. The counsel in support of his arguments relied upon the judgment reported in (2022) 7 SCC 1 in the case of Veena Singh (Dead) Through Lr Vs The District Registrar/Additional Collectro (F/R) and another and brought to notice of this Court to paragraphs 4, 14, 39, 42, 43, 48 to 62, 66 and 69 and having brought to notice of this Court the said paragraphs would vehemently contend that mere execution of sale agreement is not enough and execution of documentis necessary to adopt a purposive construction to protect, facilitate and achieving object of registration. The counsel relying upon this judgment would vehemently contend that the Apex Court held that mere signing of the sale deed with its execution cannot be a ground to grant the relief and approach is erroneous and cannot be upheld. 8. The counsel also relied upon the judgment reported in 2023 (1) KLR 121 (SC) in the case of v S Ramakrishnan vs P M Muhammed Ali wherein the Apex Court held that there must be a specific issue framed on readiness and willingness on the part of the plaintiff in a suit for specific performance before giving any specific finding. But in the case on hand, the First Appellate Court comes to an erroneous conclusion that need not necessary to frame the issues and even non-framing of issues will not come in the way to grant the relief of specific performance. 9. The counsel also relied upon the judgment reported in 2022 (1) KLR 328 in the case of C S Lalitha vs T V Govindaraj and Others and brought to notice of this Court that when the defendant disputed the very signature, firstly, the burden is on the plaintiff to prove the same and the same has not been proved by leading cogent evidence and the case of the plaintiff regarding very execution and payment of sale consideration is doubtful and the same is not on the consensus ad-idem and the plaintiff had failed to prove that it is a valid contract. The counsel also brought to notice of this Court to the elaborate discussion made in this judgment. 10. The counsel also brought to notice of this Court to the elaborate discussion made in this judgment. 10. The counsel also relied upon the judgment reported in 2023 (1) KLR 413 (SC) in the case of Desh Raj and Others vs Rohtash Singh wherein discussed with regard to recovery of earnest money.Prayer for refund of earnest money need to be made in plaint, unless a plaintiff specifically seeks the refund of the earnest money at the time of filing of the suit or by way of amendment, no such relief can be granted to him. Hence, the counsel relying upon this judgment would vehemently contend that this Court has to set aside the judgment of the First Appellate Court and consequently, dismiss the suit of the plaintiff. 11. The counsel for the respondents in his arguments would vehemently contend that the sale agreement has been entered into between the parties. A time of three months was stipulated to execute the registered sale deed and paid the advance sale consideration of Rs.10,000/-. The parties have entered into the sale agreement on 28.10.2013 after the talks held between the parties for 4 to 5 days. It is also agreed to execute the sale deed within three months but when the defendant refused to execute the registered sale deed, within a span of one month and one week, notice was issued i.e., on 05.12.2013 and the same was served and untenable reply was given and the Trial Court having taken note of the material on record erroneously comes to the conclusion that there was an interpolation and fraud. The counsel also would vehemently contend that EC was applied prior to the agreement of sale and the same was produced before the Court and one of the son of defendant is also a contesting witness to the document and the document of patta book was also delivered at the time of entering into the agreement. All these documents were also produced before the Court and earlier to that there was a sale agreement and the same was cancelled. The judgments which have been relied upon by the counsel for the appellant are not applicable to the facts of the case on hand. 12. All these documents were also produced before the Court and earlier to that there was a sale agreement and the same was cancelled. The judgments which have been relied upon by the counsel for the appellant are not applicable to the facts of the case on hand. 12. In reply to the arguments, the counsel for the appellant would vehemently contend that when the respondents contend that panchayat was held, not examined any panchayatdar and with regard to the escalation of price of property, no cross-examination in that regard and only denied the signature made in Kannada and the same has not been proved and the First Appellate Court not met the reasoning given by the Trial Court while reversing the finding and hence, it requires interference. 13. Having heard the learned counsel appearing for the respective parties, this Court while admitting the appeal has framed the following substantial question of law: "Whether the appellate Court, in arriving at its conclusion on the due execution of the sale agreement, has overlooked material evidence and circumstances, which if considered, would result in a finding other than the fining arrived by the appellate Court." 14. Having considered the substantial question of law framed by this Court and also considering the material on record and the grounds urged in the appeal by both the counsel, this Court has to reanalyze the material on record. It is case of the plaintiffs before the Trial Court that an agreement of sale was executed on 28.10.2013 and also time was fixed to execute the registered sale deed as three months but before that, the defendant refused to execute the sale deed. On the other hand, it is the contention of the defendant that it was only a loan transaction and he had borrowed an amount of Rs.10,000/- and the same is fraudulently converted as sale agreement and there is a interpolation of signature of defendant and he had made the signature only in English. The plaintiffs in order to prove the very execution of the sale agreement produced the document of sale agreement which is marked as Ex.P1. The plaintiffs in order to prove the very execution of the sale agreement produced the document of sale agreement which is marked as Ex.P1. On perusal of Ex.P1 dated 28.10.2013 there is no dispute with regard to the execution of the agreement but it is termed as loan agreement by the defendant and it contains the signature of the defendant in Kannada in all the pages and the defendant denies the said signature and only in one page English signature available i.e., in page 4 and the same is admitted by the defendant and the same is marked as Ex.P1(c). The defendant denied the very signature of him which was there in Kannada language but not taken any steps to prove the same stating that the said signature not belongs to him. But he admits his signature available as Ex.P1(c).A suggestion was made that his son is also signed the said agreement and his signature is also marked as Ex.P1(b) and he denies that he is not aware of the signature of his son. It is important to note that though the defendant denies the Kannada signature available in Ex.P1 but in the cross-examination, he says that the document of stamp paper was bought by the plaintiffs and the plaintiffs say that they came to know of selling of the property through the villagers and it is rightly pointed out by the counsel for the appellant that no such villagers were examined. 15. It is also important to note that PW1 admits that the suit schedule property is an ancestral property and he also discloses that the defendant is having three children and the villagers are not signatories to the sale agreement but he admits that one month prior to the agreement, talks were held. He also says that talks were held for 2 to 3 days in the presence of the son of the defendant, advocate and before the notary, the document was signed. The defendant got this property in the partition. When suggestion was made that he has got only one such property and the same was denied. But he claims that the defendant himself has given instructions to prepare the sale agreement and the defendant has bought the stamp paper in the name of plaintiff Nos.1 and 2. The defendant got this property in the partition. When suggestion was made that he has got only one such property and the same was denied. But he claims that the defendant himself has given instructions to prepare the sale agreement and the defendant has bought the stamp paper in the name of plaintiff Nos.1 and 2. It is suggested that he only bought the stamp paper and the same was denied and he cannot tell how many pages, he has signed in the document. He admits that both belongs to the same community. 16. The plaintiff also examined one witness as PW2 who says in the chief-evidence that plaintiff only bought the stamp paper but in the cross-examination, he says that he has read the contents of the document and he is a notary and he had obtained the signature on the register also and in his presence only transaction was taken place and defendant and his son were present at that time and an amount of Rs.10,000/- was paid to the defendant and he also collected the document from the defendant in respect of the suit schedule property. 17. The other witness is PW3 who is also a witness to the said transaction and he also says that the plaintiff only bought the stamp paper and got it typed the same and the defendant and his son was present at that time. In the cross-examination, he admits that he is having acquaintance only with the plaintiffs and when he came near the Court to obtain the genealogical tree, he was called and in his presence the document was written and in the affidavit he has stated that he is an agriculturist and he knows reading and writing and he also admits that in the affidavit he has stated that he is a coolie and he admits that agreement was prepared in the chambers of notary and parties have signed all the pages and he also had witnessed making the signature by the son of the defendant but he cannot tell that to how many pages he had signed. He also admits that he is having acquaintance with second plaintiff and he cannot tell whether Krishnegowda had signed in Kannada or in English. 18. On the other hand, the defendant examined himself as DW1 who in his evidence has reiterated the averments of written statement. He also admits that he is having acquaintance with second plaintiff and he cannot tell whether Krishnegowda had signed in Kannada or in English. 18. On the other hand, the defendant examined himself as DW1 who in his evidence has reiterated the averments of written statement. In the cross-examination, he admits the signature available in Ex.P1 which is in English and the same is marked as Ex.P1(c) wherein he claims that he had received only an amount of Rs.10,000/-as loan. DW1 further admits that he has received two notices and given reply to the same. He categorically admits that he did not mention in his affidavit that he has not signed the document in Kannada. It is suggested that signature available in Kannada is also belong to him but he denies the same and he also not admits the signature of his son but he admits that he went twice to the house of the plaintiffs for receiving the amount and returning the amount and he admits that he had received the amount and signed the document on the same day but again says in the crossexamination that he had signed the document in the house of the plaintiffs and on the other hand he says that he had signed the agreement near the typing pool of Hassan Court. It is suggested that he had also signed the register which was maintained by the advocate Notary and the same was denied. It is suggested that he only bought the stamp paper and the same was denied. He also admits that when the document was not returned after making the payment, he was not given any complaint and he also did not demand for return of the document from the advocate. In support of his case, DW1 has not examined any other witnesses except relying upon his evidence. 19. Having considered both oral and documentary evidence placed on record it discloses that there is no dispute with regard to the signature of the defendant available at Ex.P1 i.e., Ex.P1(c) and the same is in English and the same is admitted by DW1 in the cross-examination but only contention taken by the defendant that the same is a loan agreement. On the other hand, the First Appellate Court re-assessed the material on record and taken note of the documents produced by the plaintiffs before the Trial Court. On the other hand, the First Appellate Court re-assessed the material on record and taken note of the documents produced by the plaintiffs before the Trial Court. No doubt, Ex.P1 discloses that it is purchased in the name of Shivashankar and Lokesh who are the plaintiffs but contra evidence is given by PW1 that the same was purchased by defendant but PW2 and PW3 say that it was purchased by the PW1 and the document reveals that it was purchased in the name of the plaintiffs but the document also contains the signature in Kannada by the defendant. Though the defendant disputes the signature which is in Kannada, not referred the document for any hand writing expert but he only claims that he had signed only in English. The interpolation is not proved but Trial Court committed an error in coming to the conclusion of interpolation. The document at Ex.P2 is clear that the same was obtained on 17.10.2013 that is prior to the agreement. It is also important to note that Ex.P3 and P4 were obtained on 13.11.2013 that is subsequent to the sale agreement. But Ex.P5 is very clear that earlier there was a sale agreement and the same was cancelled and this document was obtained even prior to one week of the agreement i.e., on 21.10.2013. Apart from that the document of patta book is produced and the same is marked as Ex.P7 and this document does not contain date of issuance. The genealogical tree which is marked as Ex.P8 discloses the defendant family details wherein the said defendant is having a two sons by name K Anil Kumar and K Sunil Kumar and one daughter K Manjula (married). This document also bears the signature of one of the son i.e., Anil Kumar who had signed the document of Ex.P1. This document is also issued on 31.10.2013 i.e., immediately after the agreement of sale. In order to show that the plaintiffs are having money to purchase the suit property, Ex.P9 to P14 were produced but these are the documents of the year 2014 and not at the time of entering into an agreement. This document is also issued on 31.10.2013 i.e., immediately after the agreement of sale. In order to show that the plaintiffs are having money to purchase the suit property, Ex.P9 to P14 were produced but these are the documents of the year 2014 and not at the time of entering into an agreement. But the First Appellate Court committed an error in relying upon these documents stating that the plaintiffs were having money to purchase the property as on the date of agreement but agreement was on 28.10.2013 and these investments were made only in the year 2014 that is subsequent to the agreement and not at the time of agreement. When the defendant failed to perform his part of contract, the plaintiffs issued the notices twice and reply was given stating that it was not sale agreement and it was only loan agreement. 20. Having perused these materials it is clear that before entering into an agreement, documents were obtained and given to the plaintiffs and it is also emerged from the evidence that instructions were given to prepare the document to PW2 who is a notary. PW3 is also a witness to the sale agreement. These materials supports the case of the plaintiffs and these factors has been taken note of by the First Appellate Court while reversing the finding of the Trial Court. The defendant by examining himself as DW1 says that it is a loan agreement but in the cross-examination he admits his signature at Ex.P1(c) and when suggestion was made that his son also signed the document for that intelligently he gives reply saying that he is not aware of the signature of his son. But Court can compare the signature available at Ex.P1 and also genealogical tree which is marked as Ex.P8 and on comparison, the Court opines that the signature available at Ex.P1 and Ex.P8 are one and the same of his son but son not entered into the witness box to deny the same. But Court can compare the signature available at Ex.P1 and also genealogical tree which is marked as Ex.P8 and on comparison, the Court opines that the signature available at Ex.P1 and Ex.P8 are one and the same of his son but son not entered into the witness box to deny the same. It is also important to note that in one hand, DW1 says he went to the house of the plaintiffs to give the document by receiving the amount but on the other hand he says that he had signed the agreement near the typing pool of the Court and again he says that he had received the amount of Rs.10,000/- and signed the agreement in English on the same day and hence, DW1 has given contra evidence with regard to the receipt of money and also signing of the document. It is also important to note that DW1 says that after 2 to 3 months of the said transaction, he has returned the amount of Rs.10,000/- but before 2 to 3 months itself, a notices were issued in terms of Ex.P16 and P19 hence, the question of accepting the contention of DW1 that he has repaid the amount of Rs.10,000/- cannot be accepted. The material contradictions were also taken note of by the First Appellate Court and rightly comes to the conclusion that there was an agreement of sale. 21. It is also important to note that DW1 categorically admits that he did not give any complaint when original documents were not returned to him when he had repaid the amount. All these materials were contradicts each other. It is also important to note that suggestion was made that when there was a partition among the family members, he replied that no such partition was taken place but categorically says that the wife and children are not agreeable to sell the property and they made galata about six months back and this admission is very clear that the family members are not agreeable to sell the property. It is also important to note that DW1 categorically admits that a suit is filed by his another son Sunil Kumar in O.S.No.87/2015 and the same is subsequent to the issuance of notice and filing of the suit and got it decreed the same. It is also important to note that DW1 categorically admits that a suit is filed by his another son Sunil Kumar in O.S.No.87/2015 and the same is subsequent to the issuance of notice and filing of the suit and got it decreed the same. He also categorically admits that he has not engaged any other counsel and the very same counsel engaged by his son is also an advocate in the said matter hence, it is clear that only with an intention to avoid an enforcement of agreement, DW1 has not come forward to execute the sale deed. Hence, I do not find any error committed by the First Appellate Court in reversing the finding of the Trial Court. 22. However, it is important to note that admittedly, PW1 in his evidence categorically admits that the suit schedule property is an ancestral property and the said admission is elicited from the mouth of PW1 in page 5, paragraph 3 and he also categorically admits that the defendant himself has stated that there were five brothers and having three children. When PW1 himself admits that the suit schedule property is an ancestral property and DW1 also pleaded the same, defendant alone cannot execute any sale deed when he is having two sons and one married daughter. PW1 himself has produced Ex.P8-genealogical tree to show that the children of the defendant are also having coparcenary right in respect of the ancestral property. No doubt, one of the son of defendant is also a signatory to the said agreement of sale but he is not a party to the said transaction and other son Sunil Kumar is not a party to the said sale agreement. When such being the material available on record, the very agreement cannot be enforced by DW1 alone. It is the case of DW1 that it is the only property available to the family and though PW1 denies the said contention, not produced any document to show that the defendant is having other property except the suit schedule property hence, the question of directing the defendant to execute the sale deed does not arise since the property is an ancestral property and other coparceners also having right in the said property. PW1 admitted that the property comes to the defendant in a partition but no document is placed before the Court hence, the agreement cannot be enforced by the defendant alone. The suit is also filed against the present defendant and not made the coparcener of the property as defendants. Hence, the question of granting the relief of specific performance does not arise and also the fact that they are the majors is not in dispute. It is also important to note that this agreement came into existence in the year 2013 that means after amendment to the Hindu Succession Act. When such being the case, the daughter of the defendant who is married is also having right in the property in view of the judgment of the Apex Court as she is also a coparcener in the family of the defendant. Hence, the agreement cannot be enforced against the other family members who are not parties to the sale agreement. It is also important to note that the property is only 29 guntas and sale consideration is fixed as Rs.20,000/- per gunta and the property is also surrounded by Holenarasipura Taluk, Halekote Hobli, Chikkanahalli village and the transaction is of the year 2013 and the sale consideration as pleaded in the written statement is Rs.35,000/- per gunta but the plaintiffs have not produced any document to show that the suit schedule property is worth for Rs.20,000/- or Rs.35,000/- per gunta as per the market value. Apart from that the plaintiffs have paid only an amount Rs.10,000/- to the defendant out of the total sale consideration of Rs.5,80,000/- hence, the Court has to take note of this aspect into consideration while exercising the discretion. Mere execution of sale agreement itself is not a ground to pass an order for the relief of specific performance and discretion has to be exercised judiciously by considering the material on record in toto and hence the judgment of the Trial Court is requires to be intervened with regard to exercising the discretion is concerned and hence, I answer the substantial question of law accordingly and the judgments relied upon by the counsel for the appellant will not come to the aid of the appellant. 23. In view of the discussions made above, I pass the following: ORDER The appeal is allowed in part. 23. In view of the discussions made above, I pass the following: ORDER The appeal is allowed in part. The judgment and decree dated 07.03.2018 passed in R.A.No.15/2017 by the First Appellate Court is set aside and modified. The appellant/defendant is directed to refund the earnest money of Rs.10,000/- along with the interest at the rate of 18% p.a. from the date of agreement i.e., 28.10.2013 till the date of realisation.