Smt. Sharada and Others vs Sri. Chandrashekaraiah

K.L. Manjunath, J.—The legality and correctness of the judgment and decree dated 3-4-2013 in OS No. 5968 of 2007, on the file of XVII Additional City Civil Judge, Bangalore is called in question in this appeal. The appellants were defendants before the court below. For the sake of convenience, the parties would be referred to as per their status before the trial court.

The respondent-plaintiff instituted a suit to enforce the agreement dated 15-7-2005 executed by one Ananda, who was the husband of first appellant and father of the remaining appellants. The said suit has been decreed by the court below, directing the appellants herein to execute sale deed in terms of the agreement of sale executed by deceased Ananda in favour of the plaintiff Chandrashekar.

Facts leading to this appeal are that: Ananda s/o Doddathimmaih was the full and absolute owner of an immovable property bearing No. 340, 41st Cross, 8th Block, Jayanagar, Bangalore, a residential property consisting of ground and first floor constructed in a site measuring east-west 30 feet 6 inches and north-south 51 feet. The said site was allotted in favour of Ananda by Bangalore Development Authority [BDA]. Thereafter, he had put up the residential house in question after obtaining valid sanction. For his legal necessity, Ananda agreed to sell the suit schedule property in favour of the plaintiff for a sale consideration of Rs. 61.50 lakh and a sum of Rs. 15.00 lakh was received by said Ananda as advanced in the following manner:

a) Rs. 25,000/- by cheque bearing No. 557821 dated 8-7-2005, drawn on National Cooperative Bank Ltd.;

b) Rs. 10.00 lakh by way of cash at the time of execution of the agreement of sale; and

c) Rs. 4.75 lakh by cheque bearing No. 557825 dated 15-7-2005, drawn on National Cooperative Bank Ltd.

The plaintiff agreed to pay the balance of sale consideration of Rs. 46.50 lakh within two months from the date of Ananda securing original sale deed executed by BDA in his favour and that the sale transaction was to be completed within a period of two months from the date of obtaining of original sale deed from BDA. It was also agreed that Ananda should vacate and hand over vacant possession of the suit schedule property at the time of completion of the sale transaction.

On 16-10-2005, a shara i.e. an endorsement was made by Anand stating that he had secured the registered sale deed dated 18-8-2005 from BDA and the plaintiff Chandrashekar was ready and willing to pay the balance sale consideration and ready to take the sale deed, then Ananda requested to extend the time by one more month, since he had to perform the marriage of his son Srinivas A, who is the third defendant in the suit, which was scheduled to be held on 25-10-2005 at Sharavathi Kalyana Mantapa, Bangalore. Accordingly, one month''s time was extended. On that day, a further sum of Rs. 1.50 lakh was paid by Chandrashekar. Thus Ananda acknowledged the receipt of total advance sale consideration of Rs. 18.50 lakh and the balance payable was Rs. 43.00 lakh. Thereafter, a further sum of Rs. 75,000/- was received by Ananda as further advance on 27-10-2005 and a shara was made to this effect in the agreement.

Though the plaintiff was ready and willing to perform his part of the contract, execution of sale deed was got postponed at the instance of vendor Ananda, since he had to vacate the house by making alternative arrangements. However, again on 16-7-2005, Ananda had received a further sum of Rs. 50,000/- and another sum of Rs. 1.50 lakh on 27-7-2005 and endorsements had been made to this effect.

On 16-11-2005, plaintiff addressed a letter to the vendor Ananda, stating that he was prepared to pay the balance sale consideration and sent a copy of the draft sale deed. He also sent a telegraphic request to Ananda to receive the balance sale consideration and to execute the sale deed. Later on, on 18-11-2005, Ananda informed the plaintiffs that since he [plaintiff] did not complete the sale transaction within two months, he had terminated the agreement of sale. Thereafter, a legal notice was also got issued by the plaintiff through his counsel to Ananda narrating the entire background of the agreement and the transactions and further informed him that he has already purchased the following pay orders towards balance sale consideration

and requested Ananda to come and execute the sale deed in favour of the plaintiff. In the meanwhile, Ananda died on 9-6-2007, suit was filed against the widow and children of Ananda for the aforesaid reliefs.

The defendants contested the suit. They have filed detailed statement of objections. The defendants admitted the allotment of suit site by the BDA and the construction of a house therein by deceased Ananda by borrowing loan from government of Karnataka. According to them, the sale consideration for acquiring the site and funds for putting up of construction was also contributed by the defendants and therefore Ananda was not the absolute owner of the property and hence Ananda could not have entered into an agreement of sale to sell the suit schedule property. They have also denied the execution of agreement of sale and receipt of advance sale consideration. According to them, Ananda had only 1/6th share in the suit schedule property and therefore he did not have any absolute right to alienate the entire suit schedule property in favour of the plaintiff. It was also contended by the defendants that there was no necessity to sell or alienate the property by Ananda in favour of the plaintiff or in favour of any other person. According to them, deceased Ananda did not receive any amount from the plaintiff. It was also contended by them that legal notice got issued by the plaintiff was properly replied by them. It was further contended that the defendants should be put to hardship if they were directed to execute the sale deed. In the circumstances, they requested the court to dismiss the suit.

Based on the rival contentions of the parties, the trial court has framed the following issues:

1) Whether the plaintiff proves that the was ready and willing to perform his part of contract?

2) Whether the plaintiff is entitled to specific performance of the contract?

3) To what decree or order?

In order to prove their respective case, plaintiff himself has examined as PW 1 and has got examined PWs 2 and 3 and got marked Ex. P1 to 44. On behalf of defendants, first defendant Sharada has examined herself as DW 1. However, no documents relied upon on behalf of the defendants. The trial court, after appreciation of the evidence let in by the parties, has held issues 1 and 2 in the affirmative and decreed the suit by directing the defendants to execute sale deed by receiving the balance sale consideration of Rs. 42.25 lakh and the plaintiff was directed to deposit the balance sale consideration within a fortnight from the date of judgment. This judgment and decree is called in question in this appeal by the defendants in the suit.

Though several grounds have been urged in the memorandum of appeal, at the time of arguments, Sri. Sunil Dutt Yadav, learned counsel for the appellants-defendants, canvassed the following points only: According to him, the plaintiff has failed to prove the agreement of sale. It is contended by him that even if the agreement of sale is held to be proved, the court did not consider the hardship that would be caused to the defendants in executing the sale deed in favour of the plaintiff. According to him, the value of the property has gone up by many folds and on account of the same, the defendants would be put to a lot of hardship. It is contended that the suit schedule property is the only shelter available for the defendants. He further contends that the plaintiff did not ask for possession of the property and therefore, the decree is inexecutable.

Per contra, Sri. D.L. Suresh, learned counsel for the respondent-plaintiff, submits that all the grounds urged by the learned counsel for the appellants are not tenable, because, the plaintiff has proved execution of agreement of sale by Ananda in favour of the plaintiff. He points out that most of the payments towards advance sale consideration were made through cheques and were encashed by Ananda According to him, evidence let in by the plaintiff through PWs 1 to 3 is not seriously challenged by the defendants. He further submits that the execution of the agreement has been proved by examining the attestors viz., PWs 2 and 3. He further submits that the contention of the defendants that the trial court did not consider the hardship that would be caused to the defendants is incorrect, because, all the defendants are well placed in their lives and no hardship can be attributable to any one of them. According to him, deceased Ananda was working as a superintendent in the office of the Regional Transport Office and after his death, the first defendant Sharada is getting family pension. According to him, one of the sons is residing with his wife and children at Malavalli, looking after the agricultural lands and another son is working in New Delhi and well placed in his life. Another son is settled Indonesia and fifth defendant/appellant Indira is married and living with her husband comfortably at Mysore. Therefore, the contention that hardship would be caused to the defendants if they are directed to execute the sale deed is of no consequence. He, lastly contended that when the plaintiff has requested the court to grant a decree to enforce the agreement of sale, it goes without saying that possession has to be delivered by the defendants to the plaintiff. In the circumstances, he requests the court to dismiss the appeal.

Having heard the learned counsel for the parties, we have to consider the following points in this appeal:

a) Whether the plaintiff has proved the execution of agreement of sale dated 15-7-2005?

b) Whether the finding of the trial court that plaintiff was ready and willing to perform his part of the contract from the date of agreement till the date of filing of the suit is justified?

c) Whether the trial court has committed any error in not considering the hardship that would be caused to the defendants in the event of execution of the sale deed?

d) Whether the suit filed by the plaintiff without seeking relief of possession is maintainable?

e) To what reliefs and decree the parties are entitled for?

Re: Point (a):

In order to prove the agreement of sale, the plaintiff got examined himself as PW 1. In his examination-in-chief, he has deposed as to how the transaction took place and details of payments made from to time through cheques and demand drafts and also in cash. We have seen the cross-examination of this witness done by the learned counsel for the defendants. On perusal of the cross-examination of PW 1, it is seen that the evidence of PW 1 has not been challenged at all, except putting a few suggestions and the same have been emphatically denied by the witness. It is suggested to PW 1 that the value of the property on the date of agreement was 1.5 crore. It is further suggested to him that in connection with agreement in question, police had summoned the plaintiff and Ananda and that PW 1 demanded three times the advance amount paid by him to settle the case. It was also suggested that the signature of first appellant Sharada on Ex. P11 agreement is concocted. All these suggestions have been denied. He has also denied that he did not possess sufficient fund.

Attestor PW 2 D. Devendrappa has deposed that he had negotiated with the plaintiff and Ananda for the sale of the property. He has stated on oath that on the request of Ananda, he secured the plaintiff to purchase the suit schedule property. He has also identified his signature at Ex. P11(e). He has identified the sharas/endorsements entered by Ananda as and when further advance amounts were received by him from the plaintiff. He has identified his signatures at Ex. P11(f), (g) and (h) also. We have perused his cross-examination. Nothing is elicited in the cross-examination of PW 2, except denying that Ananda was not the absolute owner of the suit schedule property.

PW 3 is Girish C. According to him, Ananda was working as an internal auditor in the office of the senior regional transport office, Bangalore. He has further stated that Ananda had borrowed Rs. 17,000/- from the state government to construct a building. He has deposed that since Ananda was in need of money, he agreed to sell the suit schedule property through PW 2 for a total sale consideration of Rs. 61.50 lakh. He has also identified his signatures at Ex. P11(j) and (k). He has further deposed about the endorsements made by Ananda in the agreement. His evidence is also not challenged seriously while cross-examining the witness, except making certain suggestions, which were denied by the witness.

PWs 2 and 3 have deposed about their acquaintance with Ananda. When these witnesses had acquaintance with deceased Ananda, there is nothing on record to show that they had any axe to grind against Ananda. There is nothing for the court to disbelieve the evidence of PWs 2 and 3, since most of the payments made by the plaintiff to Ananda were through cheques. There cannot be any doubt about the payment of advance sale consideration. When these payments are not denied by the defendants, it is for them to explain the reasons for accepting the cheques issued by the plaintiff in favour of deceased Ananda, who is the owner of the property. In the circumstances, we are of the opinion that the plaintiff has proved the execution of the agreement of sale as per Ex. P11 by examining PWs 2 and 3 and the findings of the trial court is based on proper appreciation of evidence.

Re: Point (b):

We have seen from the judgment of the trial court that the court itself has compared the admitted, signatures and disputed signatures of first defendant Sharada on the vakalath and also on the agreement. The court-below has come to the conclusion that the signatures of Sharada found on the agreement and on vakalath are similar and one and the same. This, according to us, is one invoking Section 73 of Indian Evidence Act, 1872, since her signature is found as a witness in the very agreement of sale.

In examination-in-chief, the plaintiff has stated that he had purchased pay orders towards balance sale consideration. As a matter of fact, while getting issued the legal notice, he has mentioned the numbers, dates and name of the bank in respect of the pay orders. For the reasons best known to the learned counsel for the defendants, he has not touched upon these documents while cross-examining PW 1. When the evidence of PW 1 is not seriously challenged in this regard, we are of the view that the trial court is justified in holding that the plaintiff was ready and willing to perform his part of the contract.

It is also not the evidence of DW 1 that PW 1 was incapable of paying the balance sale consideration. His capacity to purchase the property is also not in dispute. Their main grievance is that the property is undervalued and that hardship would be caused to the defendants if they are directed to execute the sale deed. It is further contended by them that the suit schedule property is not the absolute property of Ananda, but it is a joint family property. To show that it is a joint family property, no evidence is let in by the defendants, except the self-serving statement of DW 1 Sharada.

Admittedly, the deceased Ananda was an employee in RTO. The site in question was allotted to him by BDA. To construct the building, he had borrowed loan. It is seen that the allotment letter Ex. P1 is dated 26-3-1973 and the suit is instituted during 2007 i.e. 37 years after the allotment of site by BDA. It cannot be accepted that defendants 2 to 5 also contributed for acquisition of the site and construction of the building, because, when the site was allotted in the year 1973, the second defendant Ananth Kumar was hardly a boy of four years and defendants 3 to 5 were not even born. Admittedly, first appellant Sharada is a housewife. No document is produced to show that she had any independent income of her own or that she had any employment or avocation so as to mobilize funds either for acquisition of site or for construction of the building. Therefore, the contention of the appellant that the suit schedule property was a joint family property of defendants and deceased Ananda cannot be believed at all. In fact, the entire focus of the defendants was more on proving that the suit property is a joint property and not on the aspect of the financial capacity of plaintiff to pay the balance of sale consideration. The evidence of PW 1 in regard to readiness and willingness is based on proper pleadings and is within the compass of the mandate of Section 16(c) of Specific Relief Act, 1963. Hence we answer point (b) in the affirmative.

Re: Point (c):

In so far as hardship is concerned, DW 1 Sharada has stated that the suit schedule property was constructed for their residential purpose; that they have no other residential house. She has further stated that her elder son Ananth Kumar is residing with his family members at Malavalli looking after the agricultural lands. Third defendant Srinivas is working at New Delhi and residing there with his family members. Fourth defendant Krishna is working in Indonesia and fifth defendant Indira is married and residing with his husband and children at Mysore. Except the aforesaid statement, no other evidence is let in by the defendants.

Merely because the suit schedule property is the only residential property owned by the defendants, who are legal heirs of original owner Ananda, who has agreed to sell the property in favour of the plaintiff, cannot be a ground for any court to reject the prayer for grant of specific performance.

Even if we accept the evidence of DW 1, none of the defendants are in difficulties and cannot be said that they are incapable of securing any other house for their own residential purpose. Except the first defendant, all other defendants are residing in different places and are gainfully employed and well settled. In so far as the first defendant is concerned, she is a pensioner and is getting pension from the government being the widow of Ananda, who was government employee. Apart from this, the sale consideration deposited by the plaintiff pursuant to the decree will also be there for her rehabilitation. In the circumstances, no court can hold that greater hardship would be caused to the defendants, in the event of execution of the sale deed as per the decree granted by the court below. Even otherwise, it is not the case of the appellants-defendants that when the agreement was executed by Ananda, he had not foreseen the consequences and hardship that would be caused to him or his family members.

To deny the relief of specific performance in favour of the plaintiff, strong circumstances have to be made out by the defendants. Such circumstances are not as all made out by the defendants. Considering the conduct of the defendants in setting up title in their favour, contending as if the property was secured by deceased Ananda out of their contribution, that too when most of them were not even born, no court can deny relief of specific performance in favour of the plaintiff. In the circumstances, we are of the opinion that the contention of the appellants that hardship that would be caused to them has not been considered by the court below cannot be accepted.

Re: Point (d):

In so far as this point is concerned, admittedly, the suit is filed to enforce the agreement of sale. When the plaintiff has requested the trial court to direct the defendants to execute the sale deed, necessarily the court is bound to direct the defendants to hand over vacant possession of the property. Merely because the plaintiff has not sought the relief of possession the same cannot be a ground to reject the prayer for specific performance only on technical ground. Courts can always mould the relief if the party has made out a case to grant the main relief. Possession is always incidental to the direction to execute a sale deed based on an agreement. In the circumstances, we find no merits in this appeal.

Re: Point (e):

Having held that the defendants-appellants have no case on merit, we also seen that the sale agreement is of the year 2005. The suit schedule property situated in Jayanagar area of Bangalore city, which is a valuable property, and on account of escalation of real estate value, the value of the suit schedule property has increased many folds. Though the plaintiff had purchased pay orders for the balance sale consideration of Rs. 42.25 lakh, the same was not received by Ananda or his legal heirs. The said amount had remained with the plaintiff only. Since the plaintiff had retained the said amount, and on account of appreciation of property value in Bangalore, we are of the view that ends of justice would be met if we direct the respondents to pay an additional sum of Rs. 45.00 lakh in addition to the balance sale consideration and execute the sale deed as a compensation u/s 23 of Specific Relief Act, 1963.

If the plaintiff had paid the amount, the defendants would have made use of the same either for purchasing any other property or for any other purpose. Even if the plaintiff had deposited the amount, we would not have directed him to pay so much of amount. Due to escalation of real estate value in Bangalore, it will be a heartburn to the defendants to execute the sale deed at the agreed sale amount of the year 2005. To minimize the hardship and even if we quantify the interest payable on the balance consideration at the rate of 18% p.a., it works out to Rs. 45 lakhs. Accordingly, we direct the respondent-plaintiff to deposit a sum of Rs. 45.00 lakh within four weeks from today. On such deposit only, the plaintiff is entitled to execute the decree of the court below. The said amount shall be deposited before the trial court in the execution petition already filed by the plaintiff. In the result, the judgment and decree of the trial court is confirmed, subject to the direction that the respondent-plaintiff to pay a sum of Rs. 45.00 lakh (Rupees forty-five lakh only) to the appellants-defendants within four weeks from today, in addition to the balance sale consideration payable under the agreement, by depositing the same in the court in which plaintiff has already filed execution petition. Taking into consideration the facts and circumstances of the case, we direct the parties to bear their own costs.