IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 8"' DAY OF SEPTEMBER 2008
BEFORE
THE HON'E5LE MRJUSTICE JAWAD RAHIM'":.fl'--.rF..
R.S.A. No.1016/2002 (sp).df A
BETWEEN:
1. Smt. SIRIYAMMA A
W/O GOWDARA VEERAPPA
Age;62 years, ' ~
HOUSE HOLD,
R/O. ANABUR
GOLLARAHATTI_\i~ILLA_GE_ A .4 V
JAGALUR TALUK" ~ r "
2 SMT. GIRI--.]AMMA'""»h«if A
w/o.' 'z'3A..LAF*PA T
'=..(H0'Nz\:A'MfixR%ADI')-E.TA '
HOUSE HOLD v&"--~ "
AG'R.1CL.tLTuR1sT.__i:~
-..R/0.'ANA'BUR '
GOLLARA-HATT1 VILLAGE
' 53'AG'Ai.UR TALUK
4, ...APPELLANTS
R" = :('té<y $5' PATIL, ADV., )
KARIYAPPA
A 8/0 TODARA KARIYAPPA
AGED ABOUT 55 YEARS
AGRICULTURIST
CHIKKABANNIHATTI GOLLARAHATTI
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from entering upon or enjoying the properties in question.
2. Contextual facts as manifest from the case
papers reveal that Kariyappa, the respondent herein, who
also happens to be proximately related to the ~
Siriyamma, Basamma and Girijamma filed
No.13/1997 on the file of the Civil ‘}’u’dgt.e if
alleging that the husband of thel’:’fj_’rst_lVa$ppei’iaht.-«.
Veerappa was the absoluVtev.:crwnerV’ o.f.’th:e_’*_, Syf’
l\Eo.205 measuring 7 Acres and (‘3″L-2,.ntas.”‘ He had, during
is life time, agreed tolls-_=__-ll or-nito Kariyappa, the
‘schedule for a valuable sale
Considerat.i_on,, Gowdra Veerappa had
xRs.x3’,OV(V),VQ/__-flas advance and the balance was
~A ;a’gr,eed_v4t0ihlgexpaid later. However, during his lifetime itself,
if’whihthout:’éV’é–f’egVi’stering the deed of sale, he received the
balancegg amount to make up Rs.10,000/~ and had
“the_refo”re, no subsisting right, title or interest. He
lilacklnowledged it before the plaintiff and agreed to register
if “the document as and when required. However, from 1988
till 1995, the document was not executed and Gowdra
3/
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Veerappa died in the year 1995 leaving behind the
defendants to succeed to his estate.
3. The defendants (appellants herein), lf’4).ell”i{Ij”‘f,l’J||Y
aware of the transaction between Gowdra
the plaintiff and also acknowledgingthat_ent~ire_».a§*h:oLI,nt_,of’
Rs.10,000/- was paid to Gowdiéa \{e.e.ra4ppa,i.”ex’e’cust_ed:;_a
deed of acknowledgementvion.._,17.o3_.i996,i;d%’eg;i:ariVdd: thatiii»
they will execute the sale deed-,,as,,_and.’v¢.hlen required by
the plaintiff. He alleige-J_’that;dvle’spi’te’~e,xecuting the said
acknowledgement deeds-on ‘the defendants
have tailed toV”tra’in,sfer4Vt;§’é–property and he issued notice in
the yearVV”1.._9!9? calliéng them to execute the document.
Noti,ce_lseht on” ‘2.7,_Q_3..1997 was served on them, but, they
r ;d’i~d,,not’resp«on__d. On that basis, he filed the suit.
z “‘f”i’he suit was resisted by the defendants
contenlding that there was no privity of contract between
and the plaintiff and they had not executed any
it Wagreement, much less the so called acknowledgement /
ratification deed dated 17.05.1996. They also denied that
if
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Gowdra Veeranna had received any money or Rs.10,000/–
in 1988 or that he had agreed to sell the property of the
plaintiff.
5. Specifically, they alleged that the_:”‘p_l’gaVi.’nt4iff
Kariyappa, who had married the sister of Gowidrav
was related as brother-in–law.g””‘l–!eg hadll”rriVi.su.sedf,theft’
proximate relationship and the
Veerappa in him to exploit had”?
made good with lot Q.f..money— faimvily on the
pretext of taking careiiéof the Gowdra Veerappa,
had They also alleged that he had
obtained”»_certaVi’n_”apa”pe’rs from Gowdra Veerappa and
m.isgJsved Vthe.”‘s«am_e.g. They specifically alleged that till
‘ £6-o_wd.r_a»Ve,e’ra__ppa was alive, the plaintiff did not raise the
‘–is.s’:.;e bet’.’a–us:e’ there was no such agreement. Only after
the ‘demise of Gowdra Veerappa in Llanuary 1995, the
“piliainntivfif approached the Tahsildar seeking for transfer of
of the property in question to his name, contending
if “that his wife — Guddamma, the only legal heir of Gowdra
Veerappa had no objection. Tahsildar received the
/}¢».’7/
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application of the plaintiff and assigned it case
No.1?-lC.O6/96-97. In the said case, on issuance of
notice, wife of the plaintiff – Guddamma
the only heir of Gowdra Veerappa and on
that she had no objection to trarisfer’l<a_tl'–1a in narlnellar
the piaintiff–Kariyappa, the ggkatha'.wa's_ztransferi'ed. if
these facts were learnt Iegxal.represe'ntat'i\les of'
Gowdra Veerappa, ,t'l1~e_y aip'p'roa'chféd._'thel""E'ah"si|dar and
pointed out to the fraud and the order
was stayed? the plaintiff had
transferradlfthe and they sought for its
rectificationt»fll3'ei'ng tlhlusivldeffeated in his sinistered design,
he filedxtrhue _suit.,_.'u'VA'.clia_n'g4ing his plan, as if he was the
ptir-ttghaser. V.lPai.nVti_ng out to these facts, the defendants
' ;C'enten_vded«..thva_t the plaintiff was a fraud. He was a cheat.
if '-.EVl.e'–..wa.s'explfdiltler and he was making unlawful gain of their
inn"oce"néce'.4" They also pointed out to the fact that the
l'p'fra.perty was valued more than Rs.2,00,000/~« and the sale
shown being Rs.10,000/~ was too meagre.
6. Learned trial Judge framed relevant issues
it/’
‘7
based on the material proposition in the pleadings of the
parties and the parties did lead evidence. The plairi’t.iff on
his part, examined himself and two witnesses E;iy_”nam’e.,”GV.
Veeranna and Ajjappa and placed reliance
documents, while the defendants”-4″appellants”e_xa’mined
three witnesses and produced no”*evid_ence.’inAdrocuments,
Learned trial Judge consideri’ng””tihe nV.ature~v.o:f’.=twheueikidencew’
on record, held that theV_’plaitrit’i’ffi.h’ad:”e.stablish’ed”that there
was transaction of ra Veerappa
fof a sum “the learned trial
Judge not proved that he was
his part of the contract and he
also heldV’tthat “s:u’.ii’t’was filed more than nine years
after the ag reei’ne_n_té of sale was executed in 1988, specific
‘;p’erfor.maince”vcannot be ordered. Learned trial Judge
.’decr’eed partly directing the defendants to return
Rs:”1Q,”t)QO’/ii» with interest at 18% per annum to the
plaigntiff. The said judgement was assailed by the plaintiffs
iieguiar Appeal No.63/2000 before the Civil Judge (Sr.
if “HDn.), Davanagere. Learned first appellate Judge went one
step further and magnanimously ignored the fact that the
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7. This is a second appeai. At the time of
admission, the foilowing substantiai question of raw has
been framed:
“Whether the iower ap:5eA|’ia’te ,_
justified in reversing the
power of the triai cora’irtr«..yested’unVdeirV:’S.ect,i_,oVn VA
20 of the Specific ReiiefH’Act?”_ it
But, it is noticed that ‘two rei’évant,.,q’ue;tionsi’of”Iiaw, which
are substantive question-s:_of,”I:avv decision, have
not been raised_:fand=__ 1,; -::~’th’ereiorei.._.:\.raise the foilowing
additionai substa’ht4i’a!,Cjuestioiis of law for consideration :-
__1. i”~\Nas_’not’=_true suit hit by provisions of
V Art”i’i:!.e,_54vof the Limitation Act ?
not the suit cfaim vitiated by fraud ?
8, .”ii:’1-__I’:;have heard the learned counsei appearing for
, the pa’rt:;ies and in order to be fuily convinced about the
_ fapctuai position, I had requested the learned counsel for
the respondent to produce “the records reiating to the
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affirmed by the legal representatives of Gowdra Veerappa
on 17.05.1996. This, therefore, demonstratively depicts
the fact that the plaintiff has been guilty of suppress_i’ngf~the
facts and has been making statements.§’_s.uiti~njg–.__f
convenience before the authorities, who””p*eéffo,rrn ‘qua_si’*~
judicial functions. The statement recsorderd,wiVti1 ‘refveriue
officer is a statement on oath’.«-.._V Evenin such’Ei..,js.t.a,ternent,.:v
the plaintiff has claimed to?”-b_e-.,_sthe”‘successor-in~tit|e
through his wife and_..V:.”not’é._ aij.T.iag_reern_ent holder or a
purchaser under agre.ement ‘o-f_saieL_ second aspect
manifest from ‘_e\.<iclence; is',th.at 'the""absolute ownership
of Govwdra" brought in question at any
time. Itfis alsoxV'n.ot¥i_n' dispute that Gowdra Veerappa died
ingfhe'month""o.f__§_anuary 1995. After his death, the
rd'efencia'nts,:'namely, Smt. Siriamma, the first wife of
'€3owdra'iJ_eeraVppa, Smt. Balamma, second wife of Gowdra
Veuerap"p,a"alnd Smt. Girijamma, the daughter of Gowdra
"Veerappa are the only surviving heirs of Gowdra Veerappa.
fifuddamma, the wife of the plaintiff is the sister of
if m"Gowdra Veerappa. Therefore, even in the heir-ship, linear
descendant is only the daughter of Gowdra Veerappa –~
. 33
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Girijamma, while, Siriyamma and Balamma are the
successors–in~title by law of succession. Guddamma
therefore, gets excluded in the presence of heirs’—,of a
higher degree and hence, the claim of Gundarnma_»tha4t,;~s’lle
was the only heir of Gowdra Veerappa wVas'”~a frj_avllvdtllen’t_’ V’
statement made only to serve the purpo.se._of’hAe_t_n’_ts’,’who
claim title to the property.””‘e«..f”lfind no:d’iffi.culty'”Von this
aspect because in the spit t,hie._&plaintif’f,””he himself
categorically states suppriessinxgl facts that the
appellants are”thej–onl:y heirs; only heirs, they
executed’– ‘theft’ai:ltn’oyy’l’e:d’g–ement / ratification deed on
17.05.1995.’ tady.,. “it.:’i..s to be noticed that in a suit for
specific’ perfor’l:nan_c_e, it is the agreement of sale which
i V:b’i’n,ds._th.e’«.palrt_ies that should be sought to be enforced.
H of sale, according to the plaintiff, is of the
year. He failed to produce the said agreement
he-forevlllthe trial Court and has produced only the so called
‘AA”acl<'nowledgement/ ratification deed executed by the legal
if "heirs of Gowdra Veerappa executed on 17.05.1996.
Therefore, the plaintiff had actually not sought
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specific performance was most essential and necessary.
The decree of specific performance can certainly be
refused if it is seen by the Courts that it gives’.’,:u”ndue
advantage to the purchaser and it gives unfair’*’ad.’y’~ii,nta.t_j’e.
to him in acquiescence. It also to be noti_ced”_:wVhe.tl1er
hardship flowing from such an order
sefler than the purchaser. in the ins_t’a~nt case.,.:even ift’he”g
agreement was held to be it was exécuited in the
year 1988. The plai:n’ti.ff iiad_’,Ano.i;.,’iSk\.ught touenforce it
during the lifetime of tif;_eV’l’e>V<VeiciuVt{ant"~i,le'.-,',_'Qowdra Veerappa
tilt 19o5,iii§r;.é .p'e;ri.od–iyof.'over-eiéjht years. Though the
agreem_ent'_it'seE'f':Vh'as produced, but, even if there
be any agreeVm_e'nt:.\f..'i'the plaintiff does not say as to
what was the p'eri_o__c,l.vof time stipufated for completion of
' If there was any period of time stipulated,
'th.e"nialsoifftjhlé"plaintiff was expected to seek completion of
transaction as is provided under Section 46 of the Indian
V' Con-tyract Act, which reads as under:
” Where, by the contract, a promise! is to
perform his promise without appfication by the
promisee, and no time for performance is
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against the plaintiff. However, considering the proximal
relationship between the plaintiff and the defendants, I
refrain from passing any order in this regard, but’,’~.lieal_Ve_ it
to the defendants to initiate such proceeding_’s:..a’g’ain’stT
plaintiff as they may feel just and.;neC.€¢Ssa_r\}}'”‘*::’*:V, _ V’
This appeal is, therefore, _agliovi’red’7_’with<,_'coasts=
throughout. The judgement_passed—- 1.39-the Cii/ilg.v'Judg'e.(JrV.'*a'
Dn.) & JMFC., in o.s. No.13/'1!§:97_dated. 'A02l:06'Lr2_0V00 and
the judgement passedmibv JudVge"x(Sr. Dn.),
Davanag–er,e}"iin motels/éoooidated 13.08.2002 are set
aside.l7–.The s'uit"of-».theVpira:iin'ti_'ff.shali stand dismissed.
Sd/-
JUDGE
sums