Smt. Begur Muniyamma and Others vs R. Ambikapathy

H.N. Nagamohan Das, J.—This appeal is directed against the judgment and decree dated 19.01.2004 in O.S. No. 296/1994 passed by the I Additional Civil Judge, Senior Division, Bangalore Rural District Bangalore decreeing the suit of plaintiff for specific performance.

The appellants are defendant Nos. 1(a), 2 and 3. Respondent No. 1 is the plaintiff before the trial Court. In this judgment, for convenience, parties are referred to their status before the trial Court.

The plaintiff contends that defendant No. 1 Begur Muniyamma was the owner of I acre 12 guntas in survey No. 43/1 Chkkasanne Village, Devanahalli taluk, Bangalore district (for short ''schedule land''). Defendant Nos. 2 and 3 are the sons of defendant No. 1. Defendant No. I executed an agreement of sale in favour of the plaintiff on 15.11.1993 agreeing to sell the schedule land for a total sale consideration of Rs. 1,87,000/-. On the date of agreement of sale the plaintiff has paid an advance amount of Rs. 1,27,000/-. It was agreed that the balance sale consideration of Rs. 60,000/- was to be paid at the time of registration of sale deed. The entire sale transaction shall have to he completed within a period of 11 months from the date of agreement of sale. Defendant Nos. 2 and 3 being the sons of defendant No. 1 affixed their signature to the agreement of sale as consenting witnesses. The defendants have also handed over the original sale deed dated 27.10.1972, encumbrance certificate, copies of RTC and mutation register extracts to the plaintiff. Right from the date of agreement of sale the plaintiff was and is ready and willing to pay the balance sale consideration and to have the sale deed registered in his name. Despite repeated requests and demands by the plaintiff, the defendants went on postponing to execute the registered sale deed on one pretext or the other. In the month of August 1994 the plaintiff came to know that the defendant Nos. I to 3 by suppressing the agreement of sale in favour of plaintiff have negotiated and entered into an agreement of sale with defendant No. 5 on 04.07.1994. The defendant Nos. 1 to 3 have also executed a general power of attorney in favour of defendant No. 4 who is the wife of defendant No. 5. The plaintiff further came to know that the defendant Nos. 1 to 3 by fabricating a document dated 20.07.1994 falsely represented to defendant Nos. 4 and 5 stating that the loan borrowed by them from the plaintiff has been discharged. The plaintiff having no other alternative filed O.S. 296/1994 for decree of specific performance of agreement of sale, permanent injunction and for other reliefs.

Defendant No. 1 entered appearance and filed separate statement inter alia contending that her sons defendant Nos. 2 and 3 falsely representing that they have to raise a loan on the security of schedule lands obtained her LTM on certain papers. The defendant Nos. 2 and 3 in collusion with plaintiff and defendant Nos. 4 and 5 created the alleged agreement of sale and power of attorney. She contends that she never executed an agreement of sale in favour of the plaintiff nor in favour of defendant Nos. 4 and 5. Defendant No. 1 died during the pendency of the suit leaving behind two sons and one daughter as her legal representatives. Defendant Nos. 1 and 2 are the sons and they are all ready on record. Akkaiyamma the daughter of first defendant predeceased leaving behind her daughter Smt. Subbalakshmi. Thus the grand-daughter Smt. Subbalakshmi was brought on record as defendant No. 1 (a).

Defendant No. 1(a) is the wife of defendant No. 3. Defendant Nos. 2 and 3 filed written statement inter alia contending that on 26.01.1995 the first defendant bequeathed the schedule lands under a will in favour of her daughter - Smt. Akkaiyamma. These defendants denied the claim of plaintiff Defendant Nos. 4 and 5 have not flied any written statement. On the basis of pleadings, the trial Court framed the following issues and additional issues.

I. Whether plaintiff proves that the 1st defendant along with defendant Nos. 2 and 3 have executed an agreement of sale dated 15.11.1993 in respect of the suit schedule property for a total sale consideration of Rs. 1,87,000/- and having received a sum of Rs. 1,27,000/- in part sale consideration as alleged in the plaint?

II. Whether the plaintiff further proves that the defendant Nos. 1 to 3 suppressing the agreement of sale dated 15.11.1993 and executed another agreement of sale in respect of suit schedule property on 04.07.1994 in favour of defendant Nos. 4 and 5 as alleged in the plaint?

III. Whether the plaintiff is ready and willing to perform his part of contract and defendant Nos. 1 to 3 refused to execute regular sale deed as alleged in the plaint?

IV. What relief the plaintiff is entitled?

V. What order and decree?

Additional Issue:

I. Whether the suit is bad for non joinder of necessary and proper parties as alleged in written statement?

Before the Trial Court the plaintiff examined two witnesses as P.W. 1 and P.W.2 and got marked Ex.P.1 to Ex.P.4. The defendants examined one witness as D.W. 1 and got marked Ex.D.1 to Ex.D.3. The Trial Court after hearing arguments on both the side passed the impugned judgment decreeing the suit of plaintiff for specific performance. Hence this appeal by defendant Nos. 1(a), 2 and 3.

Heard arguments on both the side and perused the entire records.

The contention of the learned Counsel Sri. B.U. Ramamurthy for defendant Nos. 2 and 3 that they did not had a fair opportunity before the trial Court is unacceptable to me. Deceased first defendant - Begur Muniyamma is none other than the mother of defendant Nos. 2 and 3. Before the Trial Court the defendant Nos. 2 and 3 filed separate written statement and their mother filed a separate written statement. During the pendency of the proceedings before the Trial Court the first defendant Begur Muniyamma died. Thereafter the granddaughter of Begur Muniyamma was brought on record as her legal representative as defendant No. 1(a). This defendant No. 1(a) is the wife of defendant No. 3. The material on record establishes the fact that defendant No. 1(a) and defendant No. 3 are residing together. Defendant No. 1(a) through her advocate participated in the proceedings, cross-examined the witnesses and contested the matter. In the circumstances it cannot be said that defendant Nos. 2 and 3 did not had a fair opportunity before the Trial Court. Further it is seen from the record that defendant Nos. 2 and 3 failed to cross-examine the witnesses examined by the plaintiff despite an opportunity being provided. Defendant Nos. 2 and 3 have not stepped into the witness box and there was no impediment for them in leading evidence on their behalf. In the absence of acceptable explanation from defendant Nos. 2 and 3 for their failure to cross-examine the plaintiff witnesses and to lead evidence on their behalf I decline to accept that they did not had a fair opportunity before the Trial Court.

Learned Counsel for the defendant Nos. 2 and 3 secondly contends that before filing the suit no notice was issued by the plaintiff demanding the defendants to perform their part of contract under the agreement of sale dated 15.11.1993 and as such the suit as brought out is liable to be dismissed. I decline to accept this contention of the learned Counsel for the defendants. The agreement of sale was executed on 15.11.1993. Under this agreement of sale it was agreed that within a period of 11 months the entire sale transaction had to take place. Out of the sale consideration of Rs. 1,87,000/- a sum of Rs. 1,27,000/- was paid as advance. It has come on record that before the expiry of the period of 11 months agreed under the agreement of sale the defendants have entered into an agreement of sale on 04.07.1994 agreeing to sell the schedule property in favour of defendant Nos. 4 and 5. Further the defendant Nos. 1 to 3 also executed a General Power of Attorney on 08.07.1994 in favour of defendant No. 4. Further it is seen that the defendant Nos. 1 to 3 created a document dated 20.07.1994 and falsely represented to defendant Nos. 4 and 5 stating that the loan borrowed by them from the plaintiff had been discharged, These subsequent events clearly establishes the fact that defendant Nos. 1 to 3 have refused to perform their part of obligation under the agreement of sale dated 15.11.1993.

Further it is seen from the plaint that subsequent to the agreement of sale dated 15.11.1993 the plaintiff approached the defendant Nos. 1 to 3 and requested them to execute the registered sale deed by accepting the balance sale consideration. It is further stated in the plaint that defendant Nos. 1 to 3 started giving evasive answers and went on postponing to perform their part of obligation. Further P.W. 1 in his evidence also deposed that he demanded defendant Nos. 1 to 3 to execute the registered sale deed by accepting the balance sale consideration. In the cross-examination of P.W.1 it is not even suggested by the defendants that plaintiff has not demanded the performance of agreement of sale. Thus it is seen that before filing the suit there is a demand on the part of the plaintiff requesting the defendants to complete the sale transaction in terms of agreement of sale. Merely because a lawyer''s notice was not issued by the plaintiff it cannot be said that there was no demand by the plaintiff requesting the defendants to complete the sale transaction. Issuing of lawyer''s notice by the plaintiff to the defendants is not a condition precedent. In view of the fact that defendant Nos. 1 to 3 have entered into an agreement of sale to sell the schedule property in favour of defendant Nos. 4 and 5 ignoring the agreement of sale in favour of plaintiff and the oral demand made by the plaintiff before filing the suit do constitute a cause of action for the plaintiff to file the suit. I find no infirmity in the suit filed by the plaintiff against the defendants for decree of specific performance.

Learned Counsel for the defendants further contend that there is no pleading and evidence specifying that plaintiff was always, ready and willing to perform his part of obligation under the agreement of sale and as such the suit is liable to be dismissed. Again I decline to accept this contention of the learned Counsel for the defendants. Under the agreement of sale dated 15.11.1993 the plaintiff has paid an advance amount of Rs. 1,27,000/- out of total sale consideration of Rs. 1,87.000/-. In part performance of agreement of sale the defendants have handed over the original sale deed dated 27.10.1972, RTC extract, tax paid receipts and encumbrance certificate to the plaintiff. Further the plaintiff in the plaint had specifically stated that in the month of July 1994 they approached the first defendant and informed her that they have kept the balance sale consideration ready and requested for executing the registered sale deed before the commencement of Ashada masa. On the other hand the defendants represented to the plaintiff that they will execute the registered sale deed immediately after the end of Ashada masa. The plaintiff further contends that again after completion of Ashada masa he approached the defendants on 08.08.1994 requesting them to execute the registered sale deed in terms of agreement of sale but the defendants went on postponing by giving evasive answers. When the matter stood at that stage the plaintiff came to know that the defendants have entered into an agreement of sale with defendant Nos. 4 and 5 to sell the schedule properties. This pleading clearly establishes the fact that the plaintiff was always ready and willing to perform his part of obligation under the agreement of sale. To this effect P.W.1 also deposed in his evidence. Therefore I decline to accept the contention of the defendants that there is no pleading and evidence as required u/s 16(1) of the Specific Relief Act stating that the plaintiff was always ready and willing to perform his part of obligation.

Lastly learned Counsel for the defendants contend that the Trial Court committed an error in not considering the scope of Section 20(2) of the Specific Relief Act. In the instant case the defendants have totally denied the execution of agreement of sale and receipt of advance amount of Rs. 1,27,000/- from the plaintiff. The defendants in their written statement have not pleaded any hardship and inconvenience that they will be put to in the event of granting a decree of specific performance. Further there is no evidence in this regard. In the absence of pleading and evidence on the question of hardship to the defendants there is no need for the Trial Court to examine the scope of Section 20(2) of the Specific Relief Act. On the other hand it is seen from the record that under the agreement of sale the plaintiff has paid a substantial portion of the sale consideration as advance to the defendants to the extent of Rs. 1,27,000/-. Further in part performance of the agreement of sale the defendants have handed over the original title deeds to the plaintiff. After filing the suit the plaintiff deposited the entire balance sale consideration of Rs. 60,000/- before the Trial Court. Under the circumstances the defendants are not entitled to the benefit of Section 20(2) of the Specific Relief Act. I find no infirmity or illegality on the part of the Trial Court in not extending the benefit of Section 20(2) of the Specific Relief Act to the defendants.

The agreement of sale is dated 15.11.1993. Now we are in 2009. Undisputedly during this period there is escalation of prices of real estate in and around the schedule properties. In identical circumstances the Supreme Court in the case of Gobind Ram Vs. Gian Chand, held as under:

In view of the above clear finding of the High Court that the appellant tried to wriggle out of the contract between the parties because of escalation in prices of real estate properties, we hold that the respondent is entitled to get a decree as he has not taken any undue or unfair advantage over the appellant. It will he inequitable and unjust at this point of time to deny the decree to the respondent after two Court below have decided in favour of the respondent. While coming to the above conclusion we have also taken note of the fact that the respondent deposited the balance of the consideration in the trial court and also the amount in the High Court, as directed. On the other hand appellant as held by the High Court tried to wriggle out of the contract in view of the tremendous escalation of prices of real estate properties. However, to mitigate the hardship to the appellant we direct respondent to deposit a further sum of Rs. 3.00,000/- within 4 months from today with the registry of this Court and the amount shall be kept in Short Term Deposit in a nationalised bank. While giving the above direction we have taken note of the offer made to us on behalf of the respondent. This amount is to be paid to the appellant on giving his possession of the suit property to the respondent within 6 months from the date of the deposit of the above amount. The appellant shall also be entitled to withdraw the amount already deposited in the Trial Court and the amount of Rs. 1,00.000/- which has been kept in interest bearing fixed deposit in the registry of the High Court.

The material on record discloses that originally the defendants agreed to sell the schedule property to the plaintiff under the agreement of sale dated 15.11.1993 for a total sale consideration of Rs. 1,87,000/- and acknowledged the receipt of advance amount of Rs. 1,27,000/-. Now there is escalation of price of real estate in and around the schedule property. The extent of schedule land is 1 acre 12 guntas. It is necessary to balance the interest of both the parties. In view of the law laid down by the Supreme Court in the aforesaid decision and in the facts and circumstances of this case, I am of the considered view, that in order to mitigate the hardship to the defendants, the plaintiff should be directed to pay to the defendants a sum of Rs. 15.00 lakhs as balance sale consideration for transfer of schedule property in favour of plaintiff. The defendants are also entitled to withdraw the amount in deposit before the trial Court.

For the reasons stated above, the following:

ORDER

i. The appeal is disposed off.

ii. The impugned judgment and decree dated 19.01.2004 in O.S. No. 296/1994 passed by the I Additional Civil Judge, Senior Division, Bangalore Rural District Bangalore is modified directing the plaintiff - respondent to pay to the defendants-appellants a sum of Rs. 15.00 lakhs as balance sale consideration and in remaining all other aspects the impugned judgment and decree of the trial Court remains intact and undisturbed.

iii. Parties to hear their own costs. Ordered accordingly.