Kalyani Poojarthy vs P Purushotham Nayak on 6 March, 2009

Karnataka High Court

Author: K.N.Keshavanarayana

III THE HIGH COURT OF KARNATAKA AT

mm!) nus ma 673 our or mncn ~

BEFORE

ms HOIPBLE mt JUSTICE x N

R.S.A. No. 245_oF
BETWEEN: % 'V

31119 K31Y31"1i P00ja1'thY=;_ _ _ "
W/0. Krishna Poojarthy,"<Major, } ' '
Agriculturist, Residing in
Udyavar Village, Post: LIdy'aV'a1",.' - "
UduPiDisu'ict.;" % u 3:

(By Sri. Senior Advocate)
A N D: ' ' ' ' ._ V
1. Sri. P; '
S/o. Vama_Vn-NVayak,, Major,
Bank Qfﬁceg Residing in

V. K;ai?apa'd.iv%_of Yéiiaumgddc Village,

n --- 400 013.

' so. Acharya,
Majoxf, Residing in Pankaj Mansion,
7'33 ~~}?'l0a9r, Worlie, Naka,

. . . .RESPONDEN'l"S

Devi Prasad Shetty, Advocate for R~«1

~ "Sri. Nabaraj Banal, Advocate for Kishonc Shctty,
" Advecate for C/R42)

This R.S.A. is ﬁled under Section 100 of C.P.C.
against the judgment and decree dated 29.11.2903
passed in RA. No.11 of 2001 on the ﬁle of the District

Judge, Udupi, dismissing the appeal and eonﬁrmirigthe
judgment and decree dated 22.04.1995 '
No.30 of 1984 on the ﬁle of the Civil Judge.A4"('S1f.,j)11;},_

Udupi. _ .

This R.S.A. comm' g on for i

day, the Court delivered the followljngzﬁ "

JUne£eNeea A

This Second Appeal: ' agm 'n"st the
concurrent judgments decreeing

the Of? A' plaintiffs for speciﬁc

performaI 1ce'of The appellant is the

sole deiendani as. so gr 1934 on the ﬁle of the Civil

Udupi. Respondents »-» 1 and 2 are the

suit.

2) " -- I and 2 ﬁled the said suit against

' defendant for the following re1iefs:-

' A decree directing the defendant speciﬁcally

to perform the ageement claim 18.05.1982

'Eg/4

and to do all acts to put the second plaintiﬂ'

in full possession of the immovable -. V.
fully described in schedule 'A; or in ravoiif 013 V
such of the plaintiffs as V'
entitled by executing at the .'
second plaintiffs Vsale V '
conveying the plaint

absolutely to the 2nd p1aix1tViifi'.by..;feos5ivingAt11s
balance price of RsL53,e35o%,*o default
by defendant to a
decree fox ssocuﬁéon deed by
Court or such of
the _§_1su entitled as
" Rules 32 and 34 of
the""Ci§1il 1908.

ﬁle defendant to pay to

. ' 'such oompensation for breach
' 'of_ as the court deems ﬁt to

= Section 21 of the Karnataka

Fees Act, 1958.

n 'T in tho unh.k' sly event of the Court coming to
.V "the conclusion that the plaintiﬂ' or tbs
second plaintjﬂ' is not entitled to the relief of

speciﬁc perfoimanoc a decree directing the

defendant to refund to the second plaintiﬁ' or
such of the Plaintiffs as the Court

entitled to the advance anaou1112":--.~1' ~

Rs.25,000/» taken by the dcfenda.:a.t_j'::eQ::n5..:: ._
19.05.1982 towards the sale::"pﬁé_< é.' . g e

d) Directing the defendant .g-.o pa;.z%r.e f; %
plaintiﬁ' or such of the pxaajmrs as eemgt
entitled to the full zcgsts "

e) Granting the and
further -as l__th¢_3 of the
case
3) " the suit are lands

bearing s,,__N.,A,2e,%g 1 acres 5 Cents and Sy.

No.29/fa}: 'E6 Cents situated in Katapadi

_ A Vxnege efeigdupi 'ra1uk. *

.' A ._4)' of the p}aintiﬁ's in brief is as under:

defendant is the absolute owner of the suit

property. she agreed to sell the schedule

%% to the 19: p1ai;ntiﬁ' for a total consideration of

'~.,u.Rs.78,650/--- by calculating the value of the land at

&~/'

128.650/-- per Cent. In this behaif, a

agreement dated 18.05.1982 came into A'

between the 18* plaintjﬁ' and the d

terms of the agreement, the do

ls: piaintiﬁ in possession of» sehedule .

the date of the sale deed. 1 of
Rs.2S,{}OO/- as dgeeement
and agreed to receive at the
time of the property in
favour of months from the
date of She uxadertook to

get the the non--ag'ricultural use

4_ 'to sale deed in favour of the 1*"

the agreement she was required to

of the Land to non-agricultural use

_ 'apd aiso Jdpexﬁission ﬁmn the concerned authorities to

e lend which was a frawent, within six months

an option to extend the said time by six. more

Lzrnonths and thus, the time was not essence of the

contract. However, the defendant did not comply ﬁlth

the conditions of the agreement by "

concerned authoritim for permission l

fragmented land and also to l_

agricultural use within the time presenter ll

amment. Therefore, the 18'; the
defendant to perform ' by
issuing legal notice dated ﬁowever, in
spite of Ieeeiptiel'A idelendant did not
take any" conditions of the
breach of terms of the

agreement. was always ready and

_. of the contract in getting the

V. 'A«by:'pa_yi11g the balance sale consideration.

Hewe§er,vV.ﬁteL: to cneate evidence, sent a reply

% noticeddddategi l1%l1.o4. 1933 falsely contending that she was

r willing to execute the sale dwd in favour of

and called upon the 1" plaintiﬁ' to take

. V " deed lfrozn her. The defendant was totally not ready

and willing to complete the sale transaction and

was trying to ﬁnstrate the sale from the very "

As per Clause-8 of the agreement

the 15: plaintiff is entitled to

specific performance of the co11t;'aett'teV"seH V.

property and accordingly the '
211:1 plajntiﬂ' as his nojftjgiﬂg feijef
performance, andfthis fact Que: plajntiﬂ
as nominee of to the
to execute the
sale in property in favour
of the szmi the balance sale

, Vconsidereﬁon izispite of repeated demands and notices.

V. have no alternative but to seek

of the said agreement. They

'fuI'therV that the plaintiffs are even now ready
' to speciﬁcally perform their part of
The 2*' plaintiff is also ready and W1lhn' ' g to

the balance money in respect of the schedule

property to the defendant and thetnefore, the 2nd pldigmﬁ

is entitlw for the reliefs as sought in the fiti" %

further contended that if the relief.....r4f_':~d.VVs:pemf1A--1:

performance is refused, the p1amtd:tfs:§e§>j'eid» 7

to legal injury, handship, injdsgioettedddd mcddd;d¢n.s, %

whereas the defendant wo11i&w« any
hardship or inconvexlietieeﬂ the relief of

speciﬁc performance is V

5) dams summons, the
defendat1t""agi$j;eat9eé;i" Trial Court and
oontesteti. the ft: her written statement

denying all the Ve.veJ9£nents".tnade by the plaintiﬁs in the

J "plaintd the plaintiffs to prove each and

tddiciﬁ. in the plaint. She contended that

L shetgnt dated 30.12.1932 to the stat plaintiﬂ

iher Willingness to perform her part of the

V' and also to execute register sale deed in favour

'11' ofﬁxe 1" plairltiff and in spite of the said notice, the W

gdxdinee" failed to take the sale dmd by paying balance

consideration. She denied the allegation me: 'he ﬁes

always ready and willing to perform his "

contract'. On the other hand, according

plaintiff was never ready and

of the contract. She further that k%

of time, the 1st plaintiff t,o1ri°u hdseeed
Poojari that he us: pmem toV'AApeI'chase
the schedule property could sell
the same to and that he
has in respect of the
Prabhakar shenoy. She

further of the unwillingness

_._and ;1,5r&:1'§V1*eac1inese_.V:cVv>v1:1 ﬂue part of the 1" plainwf, she

fehe:eo;1%1'act, as such, she is no longer liable

aeent in question and as the

' has been terminated, the 1" plaintiﬁ'

' ferfeiiﬁ his right to receive advance of Rs.25,0G0/~

him to the defendant at the time of agrmment.

A eeehe further contended that she is not liable to execute

g,/'

written statement ﬁled, wherein, tkm

contended that, as the 1" plaintjﬂ _

nominated the 2'"! plaintiff as his nom:2r»e£_:'~f:of~'::: the " ~ V.

purpose of speciﬁc performance of ;

18* plaintiﬁ has no right to

and the claim made the h_§t 3 of
Benami Transaction 1933. The
plaintiﬁs have rejcixieieij statemmt
filed by the the ease of

the defe1f1cI.a1;f;V.Vf'i'fiey,_h£1ife:else::vep§itended that the suit

is not Prexnatmwe -»'-ill "the additional written

statement aIiii...§i11ce't1aieA'.deﬁfer1dant failed to perforxn her

of .i:he.plaintiﬁ's have cause of action

fc.Vﬁ}et.'1eT speciﬁc performance.

En' light of the above pleadings of the

' Court framed the following iesues:-

ISSUES

" - Whether the plaintiffs prove that time is

not the essence of the ctmtract?

gé/.

Vi)

Whether plaintiffs prove that they
were/are ready and willing to

their part of contract?

Whether plaintiffs pmve 'e1: .

defendant has commitfned _

agreement?

Whether defendaE1t"'~

agreement to has'
terminated as cor;tended" Para:-:7 of
the Written stat:em_en1; ~

Whether for
aggeement?

' In plaintiffs are
emitletzig for ef Rs§j.25,000/ -?

vii) Whether Meagan: VvA:"wis'«..:"'emtitk:d tbr

viii)

compensatory posts uradetj 35-21
of 0.19.0.9 e

What e1f;de1'e.0r

e kfee*.mnme§:AL ISSUES

Wiiet1Ie:« the"'_def=ejx'x&ant preves that the

'wasuit is notfxzaintainabk as it is

It premature eentended?

_ defendant proves that the 1"
p1ai;1tiﬁ'_ :'.-s a wholly un-necessary party
ta-the suit?

iii) Whether the sit filed by the plaintﬁfs is
hit by Sccﬁon-3 of Benami Transaction.' _T
(Prohibition) Act, 1988? w

8) During the trial, the 18*

himself as PW. 1, While the dcfendégnt :

as mv.1. She examined Oneﬁblga %

P. 14 and :31 to D5 were Eat' the
'68. V .. A .

9) bath s:aes;ma1 Court by

its judmenf issue No.1 to

3 and 5 the; that the me was not

essence of plaintiffs have waved

are Willing to perform their pan; of

the defendant has committed blmch

of the plaintiﬂs are entitled for

' 'spec1ﬁ' 'c o' of the agreement. The um' 1 Court

' "3;;'1$§1WemdV"Issue No.4, '7 and Additional Issues No. I to 3

1jh'c"1t1egativc holding that the defendant has failed to

that the agreement to sell was validly tcrmmwed

and that she has failed to prove that the suit

Inaintainable on the ground that it is prema1;§1I*e;.'"

she has failed to prove that the 18* nan» »

urmecessary party to the suit, fltlie. 3 f

hit by Section 3 of the Benami .

Act, 1988. The trial court he1dLot:nd the
answers on other issueegiissoe 'not arise for
oonsideraﬁon. of the Trial
Court decreed and directed
speciﬁc to sell. The trial
Court Qua p1aint:Zﬂ' to deposit

Rs.53,65o/';ooebcroiéeodge within a period of two

V.1;uo11t;l:fo dgndk the defendant was directed to

AV.'-execute sale deed in favour of the 2"

of the schedule property within a

ope:-iod months. She was also directed to obtain

:the_ order of conversion of the schedule property into

'.I"1o: 1;---a,gric11ltu1'a1 use Rom the competent authority for

: '3X6C1lti0I1 of the sale deed. The trial Court furthe

directed that the schedule property shall be

through conapetem: surveycr and the sale _

calculated at 123.650] - per Cent and if t116_.'£3:".'.'»¥.A4t:."..:IA'}t:'e'f§\:.I'i.€A':Sb " > N

from the extent stated in the

sale price also shall vary pmpmﬁmmmiy, %

made good by either of the
further obsexved that ﬁle to comply
with the decree, t_h.-e_ get the sale

deed of [W '

10; by th¢ said judgment and

decree, ihe' 'sele ﬁled appeal before the

Distric3t--J1;dge: uaupi, ELA. No.11 of 2001. The Lower

ai'£ei?W}V1ean'ng the parties, framed the

rbalirmg fer COI1SidCI'&ti0112-

.. A«:_\3i.r'V14'1etI1e1' plaintiffs have complied with
the mandate of Section 16(0) of
Speciﬁc Relief Act ----- 1963?

ii) Whether the learned Civil Judge
(Sr.Dn.), Udupi, is justified in ﬁving a
ﬁnding to the effect that time was not
the essence of Contract?

_, Pointek 2 in the amrmative, Points ----~ 3

and Point No.5 partly in the

%H ameuﬁaevefhekengtnatumpeeneﬁstmwecxnnpnedxmun

T the Section 16(0) of the SR. Act; that the
«eh-hﬁﬂ(§nyeiejusﬁh&dﬂ1gwhugafkuﬁngtothecmkwtﬂnu
was not essence of the contract; that the decree

'V ' trial court directing the defendant to get the Land

iii) Whether the decree is unenforceable in " 7
View of the dinection gven to
defendant to get the land 5 _.__ é
into noI1~--agricult1n'a1 purposes '
the competent authorities? ._ _. V'

iv) Whether an issue ;
comparative hardshipvgaf the '
contemplated under "Section 29 "of '
Speciﬁc Relief . Act ferjuei
and proper --._ _ 'fdeter1I;.iIia!i0xi * . _ of the
dkﬁnﬁe? e_a «nee.

V) for by
.11'. se,._Vto _w'E;at eiitent?

vi) the pam 'es

11)'--,_ ._ --O;1""..--'re'-assessment of the oral and

documentaijr Lower Appellate Court

converted to the non-agrieultzuml purposes fromlhe
Competent Authority is not unenforceable; "

of speciﬁc issue regarding the comparative K

the parties under Section 20 of the'

not required; and that the xthe

does not call for interferemne, 'the is

justified in holding that em-aw for the
reliefs as sought in the the Lower
Appellate Court_ diamissed the

judment of zihected' that the

appellant land surveyed with the
assistance at" within two months
from date ef' by making necessaxy
Authorities with the cost of the
I" appellant was further directed to

move authorities for getting' Convasion

aft the. suit land for non-agricultural purposes

as months from the date of the judgment with

'"pfoper irltimation to the 1» pla1'ntiﬁ' and if the

arbitrary, being contrary to law and the
material on reconi? T

ii) Whether the Courts below V' M

justified in decreeing; -to;-%kkk %
speciﬁc perfoxmanoe, p?Js s¢1s$i§}n' " j
had been handodmfer ta um plai1'ii:§..fVI §.
and the land is z1oi;*vL4:z:1_V_i'c:z:* '
agnbuitural {Isa diéC1'etio§1
exercised by the % bexmv in
dec1'eei;1g tIf1_t_-3.. ..$1;~.it for
specit'i's>%%TAJ'per:'orma£zce;L%%isx to

riotice of this appeal,
Respondenf NC). 1 _/V has appeared through the

" {:§:§uns6I,'A V"\v}.'-ails Respondent No.2 hag entered

Vcaveét. _

%%14) f 5% hearing the learned counsel appearing

ii on going through the judmrents of

below, Iwas convinced that few more substantial

"» q1l6St1OI}.g of law also anscs for conslderanon kl thus

appeal. Therefore, the following additional

question of law were framed:

i) Whether the Courts below are

in holding that the 2ﬁd::'plai§ 1tiﬁ',*«.wR:e.:is X
stated to be the nominee pf -_1§* «. "

is entitled to seek
of the -- T_
was I10 of
plaintiff and aemang? ~

ii) justiﬁed
11;; 17mg p£aintiﬁ' being

A' pm-zhaser of the
progiefiy .. '" the ag'eement---Ex.P 1

'A was to perform his

5- .. LA 'me and has complied
, 5vi1§h f.fie'~rec;ui1ement of Section 16(0)
A s. 12. Act, though he had parted

H his interest in the agreement in

feeder of 2nd plaimtiﬁ'?

" Having regard to the facts and

circumstances of the case, whether the
Courts below, in Law, could have
exercised discretion at all for deereeing

speciﬁc performance in favour of the

2nd plaintiff, who is not a party to

contract?

In the light of the above, thz:""'Iea1j_m:d

appearing for patties were

submissions. Accordingly,

above points.

15) Sri. l?ad_ubidri"' Roe, learned
Senior appeal, urged
1) The ipiainuirso» noﬁgagacmtmsts and both of
them iIioomo"'t;ax::aosossees, as such, they are
noiientitiod Vtobiily or agricultural lands as
Section 79A"""'ai1d 8-0 of the Karnataka Land
' Ivéefomis Therefore, the decree granted by the
Aibeloov' contrary to the said provisions, as
SiIiCh,,.__it iopexversc and illegal.

.: AS the ageement, the total consideration for

""..i:'hc:*" property agreed to be sold has to be

[ascertained after measuring the land and then

multiplying the total extent with Rs.6-50/~ per
%£=/

iv)

Cent, therefore, it is not a concluded oont:'act,--..as
the total consideration is not speciﬁc. V. '

As per agreement, the saie
executed only after getting into
non-agricultural use and is

Contingent Contract.

Though in the p.lait1t"'£§fash'ﬁovv.,.rc3}tef for
directing the to gemenene converted
for non-ag1'ioultura1,_:f1s.e the sale
deed, the directions in
that ._:directions are iﬂegal
'

As have directed that the
defendazit =shou1Ad_" obtain an order of conversion

_ _ exee1iti11g_Athe sale deed, the decree passed
db}; Comte below is not executable, in the

" is no speciﬁc decnee directing

'e ,_.§;iefe:3dei.?%j;td:;to execute the sale deed and there is no

iimdieeﬁon as to what should happen if the

so :R.eve"11ue Autlxorﬁies refused to gant permission
V' vt-9: covnezt the land for non--agricultura1 use, thus,

the decree is vague.

Both the com-:;s" below have failed to taI;e'e',:.i:i:t.<)

consideraﬁon the fact of 1" plaintiﬁ" ~

with his right under the agxeement in faeeur
2nd plaintiff as a "
reasonable to infer that the
ready and Willing to his (if rxiee V'

contract and therefore', ' c
performance of the ---Wee not
maintainable in l_ig!_1t er 15(0) of the

Speciﬁc ReliefAct. V'

Admittedf , is between
the 2114:: deferigzient in respect of the
sa}.e bf and merely because
the---2nd be the nommee of the 15*
- use was entitled to seek speciﬁc
erjforeen£:ez11;_ " "Of tﬁe agreement against the

_ A "'defende'n't, as'$'iiel91, the decree of the Courts below
. defendant to execute the sale deed in
. = AA'favdi1e"."L:e1'e:="the 234 plaintiff' is not legal and

Veusteinable and it is opposed to the provisions of

x Tseéeeain 15 of the s. R. Act.

"'I"iie Courts below have totally failed to eonside1' as
to whether, in the facts and circumstances of the

ease, the discretionary relief of Speciﬁc

Performance could be gantod in favour of "QM

plaintiff and in this regard both the Couyfﬁs
have ignored the eﬁoct of the provisionsiaf

20 of the S. R. Act.

ix) Grant of Speciﬁc perrorman¢eoobe£;%1g

'the Courts below toohaye the
said discretion in favour___oi'2ﬁ3. when
admittedly mmwas of Contract
between the 2"" and
ought to this is a ﬁt
case o;)3§}--.. amount
with reasona;p1¢ko§n¢¢kr§sz;& A

The Ieariacd~. s%ex:;i<§r%%joo : submitted that the

defendant is the advance amount of

' .of__the plaintiffs with reasonable

isiipport of his various contentions, he

£116 following decisions: -

AIR ioéo so 504

CHACKO Vs. THE STATE BANK OF

TRAVANCORE]

Ia/o

iv)

AIR 1995 SC 1607

[S.V.R MUDALIAR (DEAD) BY LRS. AND"
(DEAD) :BYfT_

Vs. MRS. RAJABU F. BUHARI
AND OTHERS]

AIR 1998 SC 2216

[GANESH sum' Vs.
OTHERS]

AIR 1996 SC 2150

[KANSHI RAM V55-o.oooy:% JAWAL AND

OTHERS]

(1937) sum.' 11*

[ *v§:1%iLL «.F_€V5SE'PVVIF1"§ SON MATHEW
r;EoUMB;aRAooio%oo% Ig".rRU3zILA's son AND

Vs. V _

16) tncauaa Sr: Nataraj Ballal sought

to support "of the Courts below and

.....

Courts below have concurrently
‘held uiatothe plaizatiifs more particularly, the 1»:

,” {who is the party to the axiom was

..a1wayo feady and willing to perform his part of the

corjii£I’act and that it is on amount of the failure on

é:he part of the defendant to perform her part of

“the contract by getting the convesrsion order from

the competent revenue authorities, the sale

DR. =

transaction could not be completed and

the plainties are entitled for the relief
performance and this concurrent ﬁndixig ‘
Courts below are sound, as euch.;jj’_the3§rv’–do ‘* V

not warrant iiltetfezenee by ‘ ” ~.

The terms of the V H V the%

defendant to execute the” etitfjlervvfgizl the

name of the 16’ any of

ilis nominees, has

nominated the “sale deed and

the said_Vfec£.1:i1es.,;t}een_:V the defendant

by a competent to seek
{gent and it is in
the ‘ef the Courts below have
granted ‘relief an;i’e no illegality in the said.
ordez’-of the Eielew.

_’ The circumstances of the case clearly
A the defendant, though was under

to get the land converted into non»

,_ V purpose, failed to move the concerned
V’ V. fevenue authorities and even after havizig received

” “‘?rIie”major poxtion of the amount as advance, she

in possession of the property and

continued to enjoy the beneﬁt from the propmty,

g,/°

has failed to perform her part of the conu*actl and
therefore, the conduct on the part of the ~ H
dis-entitled herself from seeking equity
hands of the Court: in her faV_O3.~.”.’_’ e e e

Merely because the .

agriculturists and ince_;’ne–ta$i
not prevented from of
the agreement in ee;x,_r,a§Vi”(:11.ltu1’aVlV’A}aV}1ds, as
Section 79-A and ’30 L Land
Reforms Aei’d_o of the Civil
Court relief 9!’ perfomianee of
lands in
favo1.;r”oI’ A ‘ V

The neI1x–ﬁ1.entiei3;Ei:g,?:_”e1:’1ti’ie total amount of the
sale eonsiéetjeﬁoil the segment was obviously

ozi-§é2c(;g§ux;_t of”the…nen-ascertainment of the exact
__ . e;::teVn?:_A of land and therefore, the parties
t_1:r;’;;ght”‘it’_ﬁ£’V:’e5 mention the value of the land per

cent the total value could be ascertained

after the measurement/survey of the land and on
.. it cannot be held that there was no
.’ “”ee’neiuded eonmwt. 5/

The condition on the part of the defendargttto

obtain conversion order does not
agreement as a Contingent contI’act._f ‘.
Courts below were justiﬁeq in ee * kt
defendant to obtain the e
ieeepeee e

order, as the Civil court
such directions. V

The 2nd plaintiff L e 1st
plaintiif is a ‘% expression
“Representetixfe reeed ..S3ectien 159:.)
of the competent to
seek agreement.

The __Ceurts below do not suffer

ﬁbre eny 1:’-regzxlarity and this Court
eheumx gee _ eerightlyet interfere with the said

. of the Courts below sitting in
A under Section 100 of C.P.C.,

appeal is liable to be dismissed. In
‘ his contentions he placed relimlee on

the vfellowing decisions:

= AIR 1993 MADRAS 100

[RVELAMMAL Vs.R. DAIVASIGAMANI AND

OTHERS]
ﬁr –

-haw perused the records of the courts below.

ii) AIR 1997 so 3236
[HABIBA maroon Vs. UBAIDUL HUQ AND
OTHERS] .

 AIR1992KAR375    _ 
[MUNISETTAPPA     '

KRISHNAPPA AND       

iv) AIR 2000 303106, %    '

[GOBIND RAM vseVG:,AN CIjI’AN§D}_

v) 2006(1)
[P.C. VARQHESTE k asvm AMMA
BALAMBIKA DEVI’*.A1§€I;r ofrrggnsl

vi) AIR 2001

vii) 2da7;§II§VV%SC:&’%j:%1%33§3%%
A%%{1>Js;~k, RA;}:£AI{RISHNAVV~~v”REDDY Vs. M.K.
l3HAGYA.LA}i.S1ﬂJEI_ AND ANOTHER]

viii) AIR Azoezksc 2335
[A;=MARIA._ ANGELBNA (D) AND omsres vs.
% _A.e. BALKIS BEE]

SCALE 569

– NATH SHARMA Vs. SHYAM
GOELA AND ANOTHER]

x)~ V”-.ViLR’:”V’1986 KAR 4031
* {JOSE Vs. ANAN”I’HA BHAT]

I have carefully considered the submissions

. by the learned counsel appearing on both sides. I

13) The undisputed facts are that the .

is the absolute owner of the schedule

are agricultural iands. The defenrie;’nt ihe V

suit schedule lands in favourof tlit3.__l.i*%_i)’1a1nt3’»”‘V’_vif’1e.irted.

registered agreement of sale
Under the said agxeeziiept, i a
sum of Rs.25,000/- as and
agreed to at the
time of the presence of
the sale oonsideratitm
has “eiie agreement, the parties
have of the land should be at

Gent izhe total consideration should be

measuring the land. As per the

‘contents gf ttiei agreement (Ex.P1), the defendant was

‘I,

_ .. .e _e obtain permission for sale of the framented

also get the land oonvatw for non-

‘:’_4:ag*ie11lt131’a1 use Within six months. It is an undispated

‘feet that the defendant did not obtain either of the

permissions within the time statod in the agteemeziit’-.or

within the extended period. Ultimatciy, the i

was not completed and this bd the .,

present suit.

19) There is no dispiiao’

are non-agiculturists ttiozo to
income«tax. As noticed :f__nattcr of the
suit are agxicuitmfai the KLR Act
prohibits ” acquiring the
agictﬂtixfai’ ii?-3′ section, on and
from Act No. 1/ 1974 w.c.f.

01.03. V1974,’ iﬁo or a family or a joint famiiy

3 assu1°’éti’Vazmual income of not less than

Twelve thousand) ﬁom sources

L ot11ierL..t11an44:_V lands shall be enticed to acquire

ianéijirhcthcr as land owner, landlord, tenant or

with possession or otherwise or partly in one

“if and partly in another. Section 80 of the Act.

jgirohibits transfer of agricultural land to new

agrioulturist. As per this Section no sale,

exchange or lmse of any land or interest A’ _

favour of a person who is not an ”

is disonﬁtled under Section 79-Al:

or hold any land, is lawf11l..=’i+Iowe’vo1j’,”‘ i

section empowers the grant
permission for such of micultural
land to a noneagticuktzzorist a. person
disentitlod 7943 to acquire or
hold the Commissioner is
satisﬁed ﬁde intending to take

up i _ of Section 79-A and

4_1.Sec1ion.{_’8″O*of tho zamga; indicates that the bar under

sisiggoztotai as it provides for acquisition of

V by non-agriculturist with the

pormissioriv, the Assistant Commissioner. The

i vﬁfoijibitioniiitmdor Section 79-A is only for acquisition of

land by person having income more

the limit mentioned in the said section fmm

Merely because the total consideration has not

speciﬁed, the contract does not ipscrfacto ”

invalid on the ground that there is e

contract. The parties have

the rate at which’ the property sholildﬁe solr}.’;7- V.

obviously for the reason not
deﬁnite as to What is ” and
that has to be
Finding out rate speciﬁed
in the of calculation after
I see no substance in

the eontentioneof Counsel that there

_ is no V’ eoi1e1uded’ cnnunot, on the ground that the total

V. is not speciﬁed in the ageement.

” V. earlier, as per the terms of the

the defendant was required to obtain

for sale of the fragmented land and also

‘:* conversion of the land in question to non»

éigieultural use. It is based on these conditions

contained in Ex.P1, the argument of the learned Senior

Counsel was that, it is 3. corrmngent ”

therefore, it is void, and Since the conve1’$_ien.V.h:§§s ‘ t

been secured, such agreement not

enforced. Section 31 of Vthée V.

def1nes,~ A Contingent or
not to do something, if such
contract, does oxjdoes not? contents of
Ex.P1 are transaction
cannot be pexmissimxs are
themagreement would say

that unless thoee are obtained, the

V is not entitled to get the sale deed in his

. ….. ..

rem. the conditions contained in Ex.P1

for sale of the fxfamented

H t’ land the conversion for non~ag’iculturaI use

nzere eonditions and it has no eﬁ-‘eat on the

cofenietion of the transaction The purchaser under the

‘ A * was not precluded from obtaining a sale deed

even if the permissions are not obtained. O!:)t,a-iI1i11:.g”‘*.<e;.:f

the permissions was not a condition precea:'xe:ot._°

execution of the sale deed and therefore, V' D

said that the contract was a I.' T

within the meaning of Sections' oft t

such, the agreement cannot
to be contended by There
is also no substance by the
learned below had no
jurisdietioo 1/ttclformanoe of the
._ quesﬁon has not been

converted use, as the Court while

__. V.considae1§11g " 'Whether the plaintiff is

performance of agreement of sale'

wsetxot to consider, as to whether 'any other

the competent authority was required' ,

es, consideration has to be made by the

___"'euthofiﬁes while regstering the document. Therefore,

Civil Court had jurisd1et1' 'on to d1rec1;' speciﬁc

Performance of agreement of sale even in

agricultural land, though the land was not _

into non-agricultural purpose. No doubt; ” * ~.

below in the judgment and ;

to what happens if the Revenue

yam: permission to ‘eonve_IEf’:-‘.v T_ non-
agricuitural use. Howeﬁref, it cannot be
said that the deeree in the
case of vs. SHYAH
[2007 (31 scans
569] Council judgment in
Monuu. 1930 Inc. 237), which

,~,iﬁs 1v)yV the…_Ape3x Court in ms. cmmms

“.§FI§§i’AA’a’–i_’,g§~ﬁ..§:§2aDDEN Vs. C.L. xamu. [AIR 1964 so

cmumrox vs. cmmr LA!

[Am 1971 SC 1238] has observed thus

« efthe Judgment:

T “I2. The Privy Council in Moﬁlal Vs.
Nanhelal. AIR 1930 RC. 287, laid down that
if the vendor had agreed to sell the property

which can be transferred only with the; _
sanction of some government authority, A.
court has jurisdiction to order the venébf M
apply to the authority
This proposition of law was:=,foHos§j;§3d’4’i;i ‘ f
Chandnee Widya wag Madden vs: V
Katial AIR 1964 so 978v..:a:L12.d R;C;–. c::a%ndio1:’k k

vs. cmmi Lai Sabharwa1….§IR–_ 19.71 sc %

The Privy A (supra)

also laid down *is an
implied {$31 bf ..1;1_;§%;’1}endor to

do all é_ﬁ’cct; transfer of

thev he has agreed

to Vendee. Permission

fmxiz. the’ Oﬁioer is

not aR¢c211£iviti(:3:1 for grant of decree

. speciﬁf:”m1jf91mancc. High Court relied
% iﬁsxxecision in Mrs. Chandnee Widya
Dr. C.L. Kati] (supra) and
gaheb Shri Bhim Singhji Vs. Union

gym. (AIR 1951 so 234) to substamiiate

AA : Lt11e ‘conclusivc. In Mrs. Chandnce Widya
‘»-fsixpra) this Court conﬁrmed the decisitm of
the }”a11jab and Haxyana High Court holding

that if the Chief Commissioner ultimately

ﬁg

refused to gant the sanction to the sale, the

plaintiff may not be able to enforce j ~
decree for speciﬁc performance M

comraet but that was not a _bar__to ‘”

passing a decree for that relief. ” f A A’

the position in the ‘elf after. _
grant of the decree of d
the contract, the _ Land «~~–af§d ‘ ” *Dfevelopme1a3t
Officer refused for sale
the decree holder may as to
enforce brat held that
such 3; ‘a precedent
performance

of me coneegxﬁ,

23) aforesaid decisions of the

–vSi¢1premie substance in the contentions

by «the Senior Counsel appearing for the

aerenédaatd regard. Hence, I reject the said

d T ~.._ _ ‘ contenﬁon; }_

dd 24} In the light of the above discussion, the two

‘ ljjsubsfantial questions of law framed while admitting the

” appeal are answered in the negative.

25) The crucial aspect required to be

is, ‘whether in the facts and cimumstances of” %

the Courts below could have %% e .

performance of the ag1’eeInent~Ej;.P1′–..’iér.1 of’

second plaintiff ?

26) Admittedly the’ is 1″1″(JA»t *a to
the agreement of there is no
privity of contsae; ee and the
defendant the 2nd plaintitr

is his in respect of the
schedule to the plaintiff’ under

Ex.P1, the veIie1Gr:Vw’a$ to execute the sale deed

“‘faveu}i’ ﬁf or his nominee. Thus,

aemelg he is entitled to nominate a

the vendor should execute the sale

X andmfcomingly in exercise of that right, the 2nd

been appointed as his nominee by the 16*

Reading’ of the avermems made in the pleint

well as the relief sought, indicate that the plainﬁﬁs

have sought for a direction to the defendant to egeeiite

the sake deed in favour of the 2nd plaintiﬂ’ at _

the 2nd plaintiff. There is also an ”

that, if in the event of the

conclusion that any of the “a_I”e not

the reiief of speciﬁc gemount
of Rs.25,000/- be to the 2nd
plaintiff. It is this considered,
as to whetiler to the reliefs
sought ‘the SR. Act deals
with t11e’:,_ ff ” obtain the speciﬁc

performance.” this section, Speciﬁc

of 3. may be obtained by any party

th.eret0,._ §.e;~;geV«ﬂ1′;arties to the contract or the

or the Principal, of any of the

to ‘the’ As noticed above, the Sand plaintiﬂ’

to the contract. The question is as to

.s§fied.1er the 2nd p1am:;ifr’éou1d fall under the expression

..,’ii’§’epresex1tative-ir1~iI1te1’est”. Perusal of the judments

of the Courts below do not indicate that the

below have considered, as to whether the A’

would fall under the categoly >

interest” and he could seek To

agrment. This aspect, -my .

goes to the very root: of the iofu to
obtain a decrw for V the
jurisdiction of cou,¢,%gg Qeﬁef in his
favour. _ ‘V ‘_

27)_ __ Zoe’ the agwent-

Ex.P1, obligation to execute the

sale deed plaintiff or in favour of

fghe purchaser by a Ietter sent

Post, the agreement does not

;_ éééiietlaer the purchaser is emitled to

_as.s_ign 1 ii:5 under the agreement. As, prima facie

‘oi’._the parties to a contract are assiﬁable, it can

oieslened that the purchaser under Ex.Pl namely,

44 1st piamtimaad a right to assig1 his right tmder the

for execution of the sale deed and refund of ‘in

favour of the 2nd plaintiff were made in the piailiﬂ _

this, it is clear that the 1st plaintiﬁ’ mus_t..”

with his right under the agieemeidt

plaintiff for consideration.

23) In the case-.__ of R.

mzmsraamm [1 fetied upon by
the learned the Division
Bench of the has considered the

case, agreed to purchase
certain ﬁled a suit for speciﬁc

perforgnance .5: _the. Vagreem’ em, but, during the

iot1e=9f was examined. In the light

ef ‘V44Vezt_im’gument was addressed before the

i other two plaintiffs, who did not

‘ ” the weimess box are not entitled for the speciﬁc

Rejecting the said oorltenﬁon, the Madras

lifiighi Court held that it is unnecessary for all the

“p’t:aiI1tifi’s to enter the witness box and the awment

being jointly entered into by all the three plaiI1t:iﬁ’s,T’ e11e

of them could give evidence on behalf of all.

observation is made in the said

sale agreement, the defendant

deeds either separately or in of V’

plaintiﬁs or their nominees.

observed that, it was to say
that the other the witness
box. In the to whether a
purchaser in respect of any
immovazyle his interest under the

ilrfaveur party, if so, whether such

V assig;1;ee’er nomieee could enforce speciﬁc performance

did net arise for consideration.

can be drawn from the said

.decisiein. e

In new ammo»: vs. mamm. Hm

0&5 (AIR 1997 so 3236), the Supreme Court

eonsidered a case involving ageement of re~

conveyance. In this decision, the Apex Court

that the agreement of re-conveyance A’

interpreted as conferring personal nﬂ’l-f’.b’ ‘

Supreme Court, a submission by

relevant terms of the doou1r1enf;” ‘

conveyanee was sought to be on select
body of persons, whom,
his own children.,_ on the
nelzoaining it cannot be
enjoyed :__ therefore, the
beneﬁciaries from assigning
their right of However, the
Age); argument observing thus:–

_ as original vendor is concerned,
a right to get re-

of the suit house within a period

of timee’;.months. If he himself get this right

nothing prevented him as the full

of the re-conveyed house from almost

…simuitaneously selling it to stranger.

Similarly, if he fails to enforce the right

Within time, his children could enforce that”

right within the same period and so V’
they are concerned, nothing is indicated’ a ”

the document either expressly dor ” 3 4′

necessary inapiication, that e ._r1ot’ = f A = T A’

assign the said right onceéit A’
in favour of any S
conjoint reading of the;

cannot be said that.xﬂ1e the
said right to

be purely ‘ ~ V. was
irlalienasibie mar have been
assigzzedrjio remade W earmarked,
lisifed _’r;atego1f3_Vf«.of~ speciﬁed in the

docuznent ‘

_ Under; the Apex Court held that

of right to repurchase by son of original

§end::ere«d% er-»plaintiﬂ’ was therefore, valid.

dd *1’hus;’he1v¥i:r1g to the fact that the original vendor

. ‘ re-conveyance amﬁent lmd right to obtain

the Apex Court held that either the

‘ A * {vendor or his heirs had right to ass1gn’ that right

‘

and the assiglee would acquhe right to enfe1’eee’:the

same. However, in the case on hand, we are A’

with the re-eonveyance agreement. V’ V ” d

augment of sale between the

defendant. The ayeement d0es_ note .

that the 15* plaintiff is
C1ause–8 of E1-LP}. in not impliedly
indicate that the 1st his right
under the is that
the piamue by mean
‘defendant to execute the

sale deed ‘irne4:14’a1Ieii;t’_(E>”i’V da Agreement—Ex.P1 do

___not the assignee or nominm to

tf;e.agfee;}aent. Under these circumstances, the

of the Apex Court has no application

‘ ‘te efﬁdmis ease.

In the mse of HUMSETTAPPA 4%

vs. 3. A AAR) Amzm [Am
992 XAR 375] relim upon by the learned eounsei for

the plaintiﬁ; the learned Single Judge of this

considered the question, whether the suit A’

performance of re-cenveyance ”

abated upon the death of the

case, the sole plaixltiff had -f;led “aV_ euVit %

performance of ageeznent of of
an immovable ‘During
the pendency of me saigleesﬁjig died, his
LRS. ﬁled to continue
the suit the right to sue
and to on them. However, the

trial Court “mi under the agreement is

_,I:1ot V therefore, upon the

of his heirs and legal repxmentatives

said proceedings. In that new’ of

.___ti’:a,e_ suit came to be dismissed as abated.

order of the trial Court was questioned before this

The learned Single Judge of this Court held that

tum Court is not justified in dismissmg the suit as

in favour of the parties to the agecment. There wiil”

mutual obligaﬁons still to be performed. ”

unless the agmement speciﬁcally or K

for assiguncnt or transfer of such; ‘oi’ _

and party, the right under rm, ”

are mutual obiigations still tivgaymtlle
parties cannot be it is
assigned or ﬁansfexee,
having 15(0) of
the s.R.A¢¢ wrelief of Speciﬁc
pexformarﬁge as stated by Section

20 of the an action for spec1ﬁ’ c

¢nforoen_§1eht.of s1ich_. aVgree::ment.

T. on hand, the 2*!’ plaintiff is not a

: – the 1″ plaintiff. He is not a natural

% :%%r.-.c%:;ki;+ gg meL1st pxamtia”. The 2nd plaintiff is stated to be

th:é .nacn.$::mce” of the 18* plaintiﬂi But, the averments

mde in the plaint indicate that the 1st plaintiff has

Kxs~«3tC».\5 C\;»’§ €33 £””

” with his right under the agrwent Wm: the 2115

been completely overlooked by the courts below.

Therefore, the decree directing speciﬁc perl’orm,anee–..ef

the ageement in favour of the 2nd plaintiff, l

there was “A110 privity of contract, in my ll

perverse, illegal and contrary to

32) No doubt in the

averted that the 18* plaintﬁf as
are ready and willing pavltfof the
connect. The learned for the
defendant that there is
suiﬁeiexlt to the readiness and

willingness of-~’l’tl1e plaintiﬁs. However, the

w’ v the 1″ plaintiﬁ} who is the

has proved his readiness and

Wlm his part of the contract by

l”*«.__eﬁ’e1’if’g psy the balance sale consideration and to

t sale deed ‘2 Reading ef the judments of the

l. belew indicate that both the courts below have

jalaeed emphasis only on the conduct of the defendant

defendant, the 1″ plaintiff’ was an Oﬁicer in the V.

and he was financially sound. Therefore, it .

that the I” plaintiﬁ’ was capabke of dd ” ~~

sale consideration. It is well-mttied

that he was always ready pay

sale consideration, it is Knot fox”. in
a suit of speciﬁc count the
money before if he
produces ” ﬁnancially
sound and the balance sale
oonsidetaﬁoo. txand, by the date of his

evidence, ilfiltecf’.-.115′ retired’ from the Bank.

,- that he had cash of rupees ten

“s;o tiv’enty..,t’eoesaed with him and that he had shares of

the Rs.20,000/- and also he had gold

o:fnaments;_ of oonsiderable value, no documentary

is produced to prove the said fact. It is

that even according to the 1st plaintiﬁ”, the

Lbalance amount was deposited in Court by the 29′!

ﬁx»

the above circumstances, it cannot be said that the 16*

plaintiff was ready and willing to perform his part oftlie

contract. Under these circumstances, the ”

are not justiﬁed in attaching much

alleged conduct of the clefendant-jg, T.

have made much about the it

and D5 holding that Exs. D4 135 iami,i§acit genuine
documents. PW.1 egteement
between him and the However,

he denies tiie it Exs. D4

and produced by the defendant

to contend. is dabbling in Real

I?)statC_;f’Iiusir1eVss was interested only in getting

:’Ev_ren if Exs. D4 and D5 are ignored, the

” gyms 13* plaintiff both in the plaint and

V .111 clearly indimte that, he has parted with

« V’ his” interest under the agreement in favour of the 211*!

for consideration and therefore, there is 110

V _ in holding that the 15* plaintii-‘fwas dabhﬁng in

g,/~

would be caused to the defendant if speciﬁc

performance is ordered.

33) In 1987 (Supp) sec 340 [P.V. Josephfs

Mathew Vs. N.KuruVila’s son], the Apex _

that, the Court should metictllously >_c;on$i€it::»:

and circumstances of the case the.

the litigation should also enté1f”i{;to d

It is further held that the dike see

that it is not used. as ‘appression to

have

34) ind_%A112ddd’3,9″9 6 2150 [ Kanshiram Vs. Om

aaif1d…_QtheI’s], the Apex Court in Para-5

V”–haz§:.. bbs¢r;fed_’ £1fiu.s:

g “-Having regard to the facts of this case
addressed by the learned
the question thaﬁ arises for

cmisiziexaﬁgn is: whether ﬁt weuld be just, fair
” equitable to grant the decree for apeciﬁc

v __pic;rformance? It is true that the rise in prices of

the property duxing the pcndcncy of the suit

F may not be the sake corasiicration for refusing to
decree the suit for specﬁc performance. But it
is equally settled law that granting dccme for

,&//

speciﬁc performance of a contract of ixnmovable’

property is not automatic. It is one of __
to be exercised on sound principles. Whe1a”—the ” ‘

Court gets into equity jurisdiction, it ‘
guided by justice. equity, go0d».conscktnoé”a¢d
fairness to both the parties. Considered-I
this perspective, in View of the mat” the .
respondent himself had claimed a1téInatiVc.rslief”
for damages, we think the Coraxtts
have been well justiﬁed
decree for damages, instead Vcf ozxjcriszzg
performance which ~ .§_avouId’ mb’o._ ‘ ‘ V
uJ:1ﬁair. Under these” ci1?cn3_n3tii.*ices’,~ _we hold
that the decree for perforoxagnce is
inequitable and unjue’£.,to’vthcAa;)peZIa1ii:J*’ ‘

35) In {ova Mudaliar Vs.
Rajabu while considering
the quefstiozﬁ to grant speciﬁc
performa;oce ‘should in favour of assigxee,
has ob;s¢rved’zhus 1:1; Pafaceé9:

” _ We are ofthe View that ifa case of the

could be regarded akin to

. the relief of speciﬁc

K pcrforiziarice may be refused; indeed
“eho1__11′<i- refused."

51$) In the caee on hand, the 13* plairltiﬁ’ having

‘A with his right under the agrﬁent hl favour of

the 21″! plaintiff, would not suﬁer any hardship if the

éy

speciﬁc performance is not granted in his favour. On

the other hand, it is the common knowledge of every _O_i’1€

that the value of the immovable properties -.4

increasing. The agreement relates to the

are in 2009. Therefore, it is Ieasomibie to tide V

value of the property in question

by many folds. No doubt a
sole circumstance ‘_ o,.._31’a;,i gpeciﬁc
performance. However, as’ Court in

several deeisioije,’ also a relevant

factor while deciding the
question the speciﬁc performance

regard to the facts and

the ease, I am of the opinion that this

‘ is note which the chscre’ tion to grant relief of

ormanee should have been exercised in

of the 211*! plaintiff, who is not a party to the

it Lagiweement and to whom, the defendant had not agreed

«e

substantial question of law, the question whether the

Court could, in law, exercise discretion at “for

decreeing speciﬁc performance, could be a “~

iaw that substantially aﬁeets the parties Q

In the case on hand, in my opirtioxte _

fact that the 13* plaintiff, Whoeeoteredttintn

with the defendant agreeing eeuxehetsgt’ ole
has parted with his e favour
of the 2nd plamufrr and….$ii1£:e~–tio privity of
contract eeeea one defendant, the
Courts below exercised the discretion

in favour of ‘V255 . the case do not warrant

_.. V.exercis;§e’Vof sucf1’t1iscI’ef;ion at all. In this View of the

the Courts below are not justified in

of the plaintiffs and granting the relief

‘ ‘of in favour of the 2″‘ plainﬁff. The

e of the Qmrts below are perverse, illegal and

to law and they cannot be sustained.

stated declining only from the year 2000 onwidiig.

Keeping all these factors in mind, I am of _

that the defendant should be to V’: d o x

sum, which would reflect both tho

Rs.25,000/- and the intcrest»thcareoii;._ V

40) Having t and
circumstances of the that the
interest of jusﬁco defendant is
directed to to the plaintiifs

being 1*efI’ii1id”oftv1v1c’A with “iﬁtcrest.

41) &’I’£1_ ‘the above discussion, the

_.. judgment and decree of the

the suit for speciﬁc performance

plaintiﬁ’ is set aside. In modiﬁcaizion

‘ ‘of mad judgoiont of the Courts below, the suit of the

H for speciﬁc performance is dismissed.

____”Ho§§:evor, alternative prayer for refund of the advance is

gnowod. The defendants are directed to deposit

ffﬁg

KGR”* _ V

Rs.2,50,000/-(Rupees Two Lakhs Fifty Thousand)

Trial Court within one month from today.
shall smk payment of the said axggount _ﬁﬂ1ﬁ: ”

court. The amount said to have

plaintiffs towards the balanr e”

bercfundedtothem. %     

In the peculiar    of the
case, the parties  costs.

'V

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Kalyani Poojarthy vs P Purushotham Nayak on 6 March, 2009

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