B. Sham Sundar vs B. Kishanlal

N. Kumar, J.—This is a defendant''s Regular First Appeal challenging the Judgment and Decree of the trial Court which has decreed the suit of the plaintiff as prayed for and dismissed the counter claim preferred by the plaintiff.

For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

The subject matter of the suit is the property bearing No. 149/112-2, Present No. 18, situated at 4th Cross, Nehrunagar, Main Road, Seshadripuram, Bangalore-20 which is more fully described in the schedule to the plaint and hereinafter referred to as schedule property.

The plaintiff and the defendant are brothers. The schedule property was purchased by one Sri Bhagavan Das, Smt. Lajawanthi Bai, the plaintiff and defendant jointly under a registered sale deed dated 13.12.1979. The said Sri Bhagavan Das and Smt. Lajawanthi Bai were parents of plaintiff and defendant. Smt. Lajawanthi Bai bequeathed her 1/4th share in the schedule property in favour of defendant under a Will dated 25.3.1984. Similarly, Bhagavan Das bequeathed his share in the schedule property in favour of plaintiff under a Will dated 25.6.1985. The said Bhagavan Das and Smt. Lajawanthi Bai died leaving behind the plaintiff and defendant and they succeeded to their share in the suit schedule property as per their respective Wills. Thus, plaintiff and defendant are absolute owners in possession and enjoyment of schedule property jointly and as joint owners.

The plaintiff and his wife, defendant and his wife owned other properties jointly. In view of differences arose among the family members, the defendant had executed a release deed relinquishing his interest in favour of the plaintiff the particulars of which are set out in the plaint which has no direct bearing in the suit and therefore, they are not set out. Though they could settle the dispute in respect of other properties, the dispute persisted in respect of the schedule property. According to the plaint averments, arbitration proceedings was commenced. The defendant has complied with the decision of the arbitrator as far as other properties are concerned and has willfully failed and neglected to comply with the decision of the Arbitrator in so far as schedule property is concerned. The plaintiff had requested the defendant several times either to comply with the decision of the Arbitrator or to effect an equitable partition of the schedule property but the defendant is very adamant and was not likely to effect the partition. Thus, he was constrained to get a legal notice issued. The said legal notice was not replied. Therefore, the plaintiff filed a suit for partition and separate possession of his half share in the schedule property.

After service of summons, defendant entered appearance and filed his written statement admitting all the allegations made in the plaint from paragraphs 2 to 8. However, he contended that, averments made in para. 2 of the plaint that the defendant has willfully failed and neglected to comply with the decision of the Arbitrator in respect of the half share of schedule property is totally false. He also denied the allegation that plaintiff requested the defendant to effect an equitable partition of the schedule property. The defendant specifically contended that, the plaintiff had agreed in the presence of Arbitrators on 17.8.2002 to sell his half right in the suit property in favour of the defendant for a consideration of Rs. 27.5 lakhs and had received advance of Rs. 5 lakhs by way of a cheque dated 22.8.2002 drawn on State Bank of Mysore, SC Road Branch, Bangalore. The draft was prepared agreeing the terms and conditions of sale. The plaintiff has signed the draft in the presence of the arbitrators and the arbitrators have also signed the said draft. It was agreed between the parties that on 22.8.2002, a regular agreement of sale has to be drafted and plaintiff was to receive Rs. 5 lakhs cash and return the cheque dated 22.8.2002 and to comply with the terms mentioned in the draft agreement written on 17.8.2002 in the presence of said arbitrators. But, the plaintiff did not turn up on 22.8.2002 and a Mahazar was drawn on that date in the presence of arbitrators. A telegram was also sent to the plaintiff on 24.8.2002 by the defendant. On 3.10.2002, the plaintiff, in the presence of Arbitrators received a sum of Rs. 1,000/- and requested the defendant to pay an amount of Rs. 17.5 lakhs after one month and rest of the amount agreed as consideration for half of the right of the plaintiff after three months.

The defendant made the said payment by borrowing the loan with interest from third party. The defendant has produced a copy of the DD. The plaintiff vacated the house in question i.e. ground floor where he was in occupation. Defendant requested the plaintiff to sign the agreement, prepared on a stamp paper of Rs. 200/- dated 08.11.2002 and also to take the demand drafts. The defendant was ready to pay the consideration amount to the plaintiff, but the plaintiff had failed to receive the same and breached the terms of the contract. The defendant has been ready and willing to perform his part of contract. The defendant is even now ready to pay the sale consideration of Rs. 27,50,000/- to the plaintiff and take sale deed from him. The defendant is paying the taxes for the entire building. Further, it was pleaded that he has suffered a loss of Rs. 1 lakh by way of interest and other things in order to comply with the sale transaction. He was put to great hardship and injury. On the other hand, the plaintiff had not suffered in any manner. Therefore, the suit of the plaintiff is liable to be dismissed and the plaintiff is to be directed to execute the sale deed in favour of defendant by receiving Rs. 27,50,000/-.

In the light of the aforesaid pleadings, the trial Court framed the following issues:

"1. Whether the plaintiff proves that he is entitled to the relief of partition and separate possession of his 1/2 share in the suit schedule property?

Whether the defendant proves that plaintiff had agreed to sell his 1/2 share to the defendant for a sum of Rs. 27,50,000/- (Rupees twenty seven lakhs fifty thousand)

To what reliefs the parties are entitled to?"

Additional Issues:

"1. Whether the defendant proves that the plaintiff had agreed to sell his 50% share in favour of defendant in the presence of arbitrator on 17.8.2002 and received Rs. 5 Lakhs by Cheque by way of advance?

Whether the defendant proves that he had agreed to pay that Rs. 5 Lakhs by cash when the plaintiff did not present the cheque for encashment?

Whether the defendant proves that he is always ready and willing to perform his part of contract?

Whether the defendant proves that he is entitle for counter claim by way of decree in his favour for direction to the plaintiff to execute the sale deed in favour of defendant in respect of his 50% share by receiving Rs. 27,50,000/-?"

The plaintiff in order to substantiate his claim examined himself as P.W. 1 and produced 10 documents which were marked as Exs. P.1 to P.10. On behalf of the defendants, three witnesses were examined as P.Ws. 1 to 3 and 39 documents were marked as Exs. D.1 to D.39.

The trial Court, on appreciation of the aforesaid oral and documentary evidence on record held, the plaintiff has proved that he is entitled to the relief of partition and separate possession of his half share in the suit schedule property. The defendant has failed to prove that the plaintiff agreed to sell his half share to the defendant for a sum of Rs. 27,50,000/- and had received an advance of Rs. 5,00,000/- from the defendant. Further the trial Court held, defendant in spite of giving the cheque for Rs. 5,00,000/-, the plaintiff did not present the same for encashment. The trial Court further held, when no agreement to sell came to be executed by the plaintiff in favour of the defendant, agreeing to sell the schedule property, the question of defendant being ready and willing to perform part of the contract or the defendant being entitled to a decree for specific performance would not arise and therefore the suit of the plaintiff was decreed and the counter claim of the defendant was dismissed.

Aggrieved by the said judgment and decree of the trial Court, the defendant is in appeal.

The learned Counsel for the appellant -defendant assailing the impugned judgment and decree, contended, the defendant is not disputing the fact that plaintiff has half share and defendant has half share in the schedule property. The evidence on record discloses there were disputes. The matter was referred to arbitration in respect of other properties, in terms of the arbitrator''s award, the dispute has been amicably resolved by executing necessary documents. It is only in case of the schedule property, after agreeing to execute an agreement of sale, the plaintiff went back on his promise. However, the fact that the plaintiff had agreed to sell the property is not in dispute. Issue of a cheque for Rs. 5,00,000/- is not in dispute. Because the plaintiff wanted cash payment of Rs. 5,00,000/-, when the same was offered to the plaintiff with a request to return the cheque, he neither returned the cheque nor accepted Rs. 5,00,000/-. Therefore he submits, in the facts of this case, he is not entitled for partition. The trial Court on proper appreciation of the evidence on record committed a serious error in rejecting his counter claim.

Per contra, the learned Counsel for the plaintiff submitted, the plaintiff has not agreed to execute the sale deed in favour of the defendant in respect of his half share. Though there was an arbitration, the defendant did not perform his part of the obligation. He never paid that money. As the terms of the agreement were not finalized, plaintiff did not affix his signature to Ex. P.2. There is no concluded contract between the parties and therefore the trial Court was justified in dismissing the counter claim based on such a contract which is not concluded, and therefore he submits, no case for interference is made out.

In the light of the aforesaid facts and rival contentions, the only point that arises for our consideration in this appeal is as under:

"Whether the defendant is entitled to compel the plaintiff to execute the sale deed in respect of his half portion?"

Plaintiff and defendant are brothers. The schedule property is owned jointly by them. Each one of them has got half share, which is not in dispute. Along with the schedule property, other properties in which they had joint interest, was the subject matter of a dispute which was resolved by arbitration proceedings. Except the schedule property, in terms of the agreement entered into, the dispute is resolved. The case of the defendant is, in respect of the schedule property, plaintiff executed Ex. D.1. A sum of Rs. 5,00,000/- was paid by way of cheque Dt. 22-08-2002 as advance for the purchase of the share of the plaintiff in the schedule property. It is categorically mentioned therein that the cheque should be replaced by cash at the time of executing the sale agreement. Further the said agreement stipulates, if the defendant fails to execute the sale agreement and further sale deed in favour of the plaintiff, a penalty equivalent to the amount of advance shall be payable to the defendant. It is in pursuance of this agreement, the defendant got prepared Ex. D.2 which is Dt. 8th November, 2002. Admittedly, the plaintiff has not executed the said agreement. It is the case of the defendant, after preparing the said agreement, he approached the plaintiff with a cash of Rs. 5,00,000/-, but the plaintiff has not appeared in spite of intimation by two Arbitrators on 22nd August, 2002 at 9.30 p.m. at the residence of Sri. H.G. Gopal Krishna Shastri and therefore he could not make the payment. In fact the plaintiff vacated the ground floor portion. Defendant is paying the electricity bills and the water bills for the entire premises. To demonstrate that, he has produced Exs. D.4 to D.13 - water bills, Exs. D.14 and D.15 -electricity bills and Exs. D.26 to 32 are tax paid receipts and therefore it is contended, the defendant had performed his part of the obligation. It is the plaintiff who committed a breach of the agreement and therefore, the defendant is entitled to a decree for specific performance.

The aforesaid undisputed facts disclose, though a cheque was given for Rs. 5,00,000/- the cheque had to be replaced by cash. Therefore, plaintiff cannot be found fault with for not encashing the cheque. Ex. D.3 is the document on which reliance is placed to show that the defendant approached the plaintiff with cash. It also discloses, the plaintiff has not received the cash. Once the plaintiff has not received the advance amount, plaintiff is not willing to enter into an agreement to sell his half share in the schedule property to the defendant, the question of the defendant instituting a suit for specific performance of an agreement of sale to which plaintiff is not a party, would not arise. Though Ex. D.1 is sought to be construed as an agreement of sale itself, if that was the intention of the parties, there was no necessity for them to agree to enter into a regular agreement of sale. It is only in the agreement of sale at Ex. D.2, the stipulations are mentioned. Therefore, Ex. D.1 cannot be construed as an agreement of sale. Agreement D.2 is the agreement of sale to which plaintiff is not a party. It is in this context, the trial Court held, there is no concluded contract of agreement of sale and in the absence of a concluded contract, the question of enforcement of such contract would not arise. Therefore, the trial Court was justified in rejecting the counter claim preferred by the defendant.

The trial Court has recorded the evidence in detail, gone through all the documents and evidence on record and has written a very considered order, based on legal evidence. The findings of the trial Court is based on legal evidence and is in accordance with law. No case for interference of such a well considered order is made out.

No merits.

Dismissed.

No order as to costs.