Basavaraju vs Smt. Mahadevamma

B.S. Patil, J.—This regular second appeal is filed challenging the concurrent findings recorded by both the Courts below in decreeing the suit filed by the respondent herein seeking specific performance of the agreement for sale executed by the defendant - appellant herein. The agreement for sale was executed by the defendant on 05.06.2007 agreeing to sell the suit schedule property for a consideration of Rs. 2,50,000/- by receiving a sum of Rs. 1,00,000/- by way of advance. The defendant agreed to secure the RTC extracts, survey sketch and other documents within a period of three months and thereafter execute the registered Sale Deed. He has clearly stated in the agreement that the suit property was absolutely owned by him and he had agreed to execute the registered Sale Deed by receiving the remaining sale consideration of Rs. 1,50,000/-. When the defendant did not execute the Sale Deed, the plaintiff caused a legal notice issued to the defendant on 17.08.2007. The defendant sent reply admitting the execution of the agreement, but contended that his brothers and his father did not agree for execution of the Sale Deed. This made the plaintiff institute the suit for specific performance. Plaintiff contended that there was partition in the family of the defendant and the suit property had fallen to the share of the defendant and that in collusion with his brothers, the defendant was trying to avoid the execution of the registered Sale Deed. She asserted that she was ready and willing to perform her part of the contract.

The defendant resisted the suit. He admitted the agreement, but denied the contention of the plaintiff that in the event of his failure to execute the Sale Deed, he had agreed to pay double the earnest money to the plaintiff. He reiterated his stand that the property was standing in the name of his father and therefore he had assured the plaintiff at the time of the execution of the agreement for sale that he would get the khatha changed in his name and execute the registered Sale Deed. But, as the father of the defendant was not agreeable for change of khatha in favour of the defendant, he was unable to execute the Sale Deed.

Based on the pleadings, the Trial Court framed necessary issues. It has found that the execution of the agreement to sell the suit property was proved. It has also found that the defendant had received a sum of Rs. 1,00,000/- towards advance sale consideration and that the plaintiff was ready and willing to perform her part of the contract. An additional issue was framed in the light of the defence taken by the defendant to the effect whether the defendant would prove that he was not able to execute the registered Sale Deed in favour of the plaintiff because of the objection raised by his father for changing the khatha in the name of the defendant. The Trial Court found that the suit property had fallen to the share of the defendant and there was no impediment for him to execute the registered Sale Deed and therefore, there was no justification for him to contend that he was incapable of executing the Sale Deed. The Trial Court further found that the defendant had come up with such a plea in collusion with his brothers and father.

On appeal, the lower Appellate Court has confirmed these findings, after re-appreciating the evidence on record.

Learned counsel for the appellant contends that both the Courts below have seriously erred in not properly exercising the discretion vested in them as provided u/s 20 of the Specific Relief Act. He has placed reliance on the judgment of the Division Bench of this Court in the case of S. Kugashankar Vs. Subhash Chand Goel, Sunita Kugashanker and Kugashanker Mahendra,

Learned counsel for the respondent has strongly supported the concurrent findings recorded by both the Courts below.

I have carefully examined the contentions urged by the learned counsel for the parties, in the light of the findings recorded by both the Courts below. The findings recorded by both the Courts below disclose that the plea set up by the defendant that he was unable to execute the registered Sale Deed as his father and brothers had raised objection for the same was totally baseless inasmuch as the defendant was the absolute owner of the suit property. Both the Courts below have found that in the partition that had taken place in the family of the defendant, the suit property had fallen to his share. His brothers, who also got other properties of the family to their share, had already sold them to others by executing registered Sale Deeds vide Exs. P5 & P6. Both the Courts below have further found that the defendant did not even make any attempt to get his name entered in the RTC by filing necessary application before the Competent Authority contrary to what he had assured to the plaintiff. Therefore, the Courts below have rightly taken note of the conduct of the defendant in coming up with a lame excuse stating that it was impossible for him to execute the registered Sale Deed. On the other hand, there is nothing unreasonable or unfair in the conduct of the plaintiff, in the facts and circumstances of the case on hand. The plaintiff has already paid a sum of Rs. 1,00,000/- towards advance sale consideration as back as in the year 2007. She has also deposited the remaining sale consideration before the Court below after the decree was passed. Therefore, I do not find any illegality in the exercise of discretion by the Courts below in decreeing the suit for specific performance. In fact, the appellant - defendant did take up a specific contention before the Trial Court that he was not ready to pay double the amount of advance received by him and that he had not accepted such a condition and it is in this background that both the Courts below have appreciated his conduct and have proceeded to decree the suit for specific performance. The judgment on which learned counsel for the appellant places reliance arises in a totally different set of facts and circumstances which has nothing to do with the facts and circumstances presented in this case. Hence, as no substantial question of law arises for consideration, the appeal is dismissed at the stage of admission.