Judgment:
R IN THE HIGH COUR T OF KARNA TAKA DHARWAD BENCH DATED TH IS THE9T H DAY OF APRI L2015 BEFORE THE HON’BL E MR . JUS TI CE S.N . SA TYANARAYANA R.S .A.NO.100448 /2014 BE TWE EN :
1. . BALABAI W /O. V I THOBA SHIROLE AGE:
35. YEARS OCC: AGRI CUL TURE & HOUSEHOLD WORK R/O. SIDDEWADI , HAMLE T OF MADHABAVI, TQ: A THANI , DIS T: BE LGAUM KASHIBAI W /O. RAMA SHIROLE SINCE DECEASED B Y HE R LR2. SHANAKR NAMADEV BHOSALE AGE:
27. YEARS , OCC: AGRICUL TU RE R/O. SIDDEWADI , HAMLE T OF MADHABAVI, TQ: A THANI DIST: BELGAUM (BY SRI V P KU LKARN I, ADVOCATE.) .. APPE LLAN TS AND:
1. . 2 . NARAYAN KR ISHNA SALUNKE AGE:
50. YEARS , OCC: AGRICUL TU RE R/O. SIDDEWADI , HAMLE T OF MADHABAVI, TQ: A THANI , DIS T: BE LGAUM KAMALABAI W/O. NAMADEV BHOSALE AGE:
48. EARS, OCC: AGRI CUL TURE & HOUSEHOLD WORK2R/O. SIDDEWADI , HAMLE T OF MADHABAVI, TQ: A THANI , DIS T: BE LGAUM (BY SRI RAMACHANDRA A MALI , ADVOCA TE , FOR C/R1 .) .. R ESPONDEN TS THIS R EGULAR SECOND APPEAL IS FIL ED UNDE R SEC TION100OF CPC , PRAY ING TO SE T AS IDE THE JUDGMENT
AND DECR EE DATED17.04 .2009 , PASSED IN O .S.NO .35/2 002 , ON THE FIL E OF THE CI VI L JUDGE (SR.DN.) AND ASSIS TAN T S ESSIONS JUDGE , A THANI AND THE JUDGMEN T DA TED21.06 .2014 , PASSED I N R.A.NO.138 /2009 , ON THE F ILE OF THE VI I ADDL. DISTRIC T & S ESSIONS JUDGE , B ELGAUM AT CHI KODI, E TC.,. THIS APPEAL COMING ON FOR ADMISSION , BEING HEA RD COMING ON FURTHE R/CON TINUA TION OF ARGUMEN TS TH IS DAY, THE COUR T DEL IVE RED TH E FOL LOWING : PAR T IN AND JUDGMENT
The defendants 1 and 2 in O.S.No.35/2002 on the file of Civil Judge (Sr.Dn.), Athani, have come up in this second appeal impugning the concurrent finding of both the Courts below in decreeing the suit of plaintiff for the relief of specific performance. 3 2. The brief facts leading to this second appeal are that the 1 s t defendant in the original suit is widow of one Vithoba Shirole; the original 2 n d defendant was her mother-in-law Smt.Kashibai. The case of the plaintiff is that the husband of 1 s t defendant, viz. Vithoba Shirole, who is also son of 2 n d defendant entered into an agreement with him for sale of suit schedule land bearing R.S.No.492/2 of Madabhavi village of Athani taluka in Belagavi district measuring to an extent of 3 acres 16 guntas, for valuable consideration of Rs.1,60,000/-. Under agreement of sale dated 31.7.2001, plaintiff paid an amount of Rs.1,30,000/- as advance sale consideration, in turn, he was put in possession of the suit schedule property by Vithoba Shirole. It was agreed between the parties that sale shall be completed within six months from the date of agreement and balance consideration of Rs.30,000/- was required to be paid at the time of 4 registration of the sale deed. Subsequently Vithoba Shirole, vendor under agreement of sale dated 31.7.2001 died on 21.6.2002 leaving him surviving his widow the 1 s t defendant and his mother 2 n d defendant, as his legal heirs. Hence by issuing legal notice to defendants 1 and 2 the plaintiff filed the suit for specific performance.
3. In the said suit the defence taken by defendants 1 and 2 is to the effect that the agreement of sale dated 31.7.2001 was not executed by Vithoba Shirole, it was concocted by plaintiff. That Vithoba Shirole was addicted to drinking and other vices, plaintiff taking advantage of same took his signature on blank paper and thereafter got the agreement of sale prepared on it. Defendants also denied payment of part sale consideration by plaintiff to Vithoba Shirole. However what was accepted was signature of Vithoba Shirole on the agreement of sale under 5 the guise that the same was taken when he was in inebriated state of mind.
4. With the aforesaid pleadings issues were framed, thereafter, the matter went into trial. In the said suit plaintiff got examined himself as PW.1 and also examined two other witnesses namely Krishnaji Deshpande and Vithal Shirole as PWs.2 and 3 who are scribe and witnesses to the agreement of sale. In support of his plea he relied upon in all 8 documents as Exs.P.1 to 8, out of which Ex.P.1 is the agreement of sale, Ex.P.2 is record of rights, Ex.P.3 is legal notice, Ex.P.4 is death extract of Vithoba, and other documents are Exs.P.6 to P.8. On behalf of defendants, 1 s t defendant was examined as DW.1 and she also examined two other witnesses namely Jyoti Khot as DW.2 and Shankar Bhosale as DW.3 in support of her defence and she 6 produced in all 13 documents in support of her evidence.
5. Based on the pleadings, oral and documentary evidence available on record the trial Court proceeded to hold issue nos.1 to 3 which were framed with reference to the agreement of sale being executed by Vithoba and advance amount of Rs.1,30,000/- being paid to him by plaintiff, his readiness and willingness to complete sale transaction were answered in the affirmative. So far as issues 4 and 5 which were framed to consider the defence that the plaintiff secured the signature of deceased Vithoba on blank paper and that the market value of the property was more than rupees 2 lakh as on the date of agreement of sale were answered in the negative. Consequently by answering issue no.6 which was framed to consider the entitlement of plaintiff for specific performance of contract in the 7 affirmative, suit of the plaintiff is decreed. The same was subject matter of appeal in R.A.No.138/2009 which was filed initially by defendants 1 and 2 and subsequently the defendant no.2 having died, her grandson came on record as her legal representative as respondent no.2(a).
6. The lower appellate Court on re-appreciation of the pleadings, oral and documentary evidence available on record framed only one point for consideration that is to consider whether the judgment impugned is sustainable in the eye of law or whether it requires interference. The lower appellate Court by answering the same in the negative, dismissed the appeal filed by defendants 1 and 2 and consequently confirmed the judgment and decree passed by the trial Court. 8 7. Being aggrieved by the same, this second appeal is filed by the 1 s t defendant and the legal representative of deceased 2 n d defendant on the ground that the judgment and decree passed by both the Courts below does not sustain in the eye of law. The same are sought to be set aside for the reason that the agreement of sale vide Ex.P.1 could not have been relied upon by the trial Court as it was not sufficiently stamped. Since the possession of suit property being delivered under Ex.P.1 agreement of sale, ad v alorem fee was required to be paid on the agreement, instead fixed stamp fee of Rs.200/- is paid. Therefore without adjudicating the deficit stamp duty payable, the agreement should not have been relied upon to consider his prayer for specific performance.
8. The second ground is that at the relevant time of agreement the suit schedule 9 property was subjected to charge in favour of Madabhavi Co-operative Society. Therefore under Section 32(2) of Karnataka Co-operative Societies Act there was prohibition for the vendor to convey the suit schedule property without prior permission of the said society and further on the ground that in the lower appellate Court application was filed for production of additional documents which is not considered. Therefore rejection of the appeal without considering the additional documents is erroneous. Therefore the judgment and decree passed by the lower appellate Court is required to be set aside. The provision of Section 20 under the Specific Relief Act is not looked into before considering the prayer for grant of specific performance.
9. Heard the learned counsel for the appellant. Perused the judgments of both the Courts below and also the pleadings and evidence 10 which was furnished to this Court by the learned counsel appearing for both the parties. On going through the same it is seen that the grounds which are now urged were not raised in the trial Court. In fact in the trial Court the specific stand in the written statement was that the entire agreement was denied and it was alternatively contended that even if the agreement is accepted, it is only the signature of deceased Vithoba which is taken on blank paper and rest of the agreement is manipulated. Though such defence was taken in the trial Court, no evidence is adduced to support that deceased Vithoba was addicted to vices and that the agreement was not executed by him and the same is concocted or created by the plaintiff in the original suit. The trial Court while appreciating the pleadings and evidence, having noticed that the defendants though made wild allegations in the form of defence have failed to prove the same. Hence the trial Court on 11 appreciation of pleadings and evidence by considering the issues 1 to 3 has rightly rejected the said defence.
10. Similarly with reference to the defence regarding readiness and willingness, in this second appeal it was again tried to demonstrate that the income of plaintiff being only Rs.500/- per day as on the date of agreement, he would not have had sufficient funds to pay the same. If the income of plaintiff is accepted as Rs.500/- per day, the income of the plaintiff would be around Rs.15,000/- per month in the year 2001. With such income being available to him, the trial Court has rightly accepted his ability to pay the balance sale consideration and also his readiness and willingness. So far as insufficient stamping is concerned, it is seen that the marking of said document was not at all objected by the defendant at the time when the evidence of plaintiff was 12 recorded. However it is seen that after the entire evidence was recorded at the stage of arguments an application is filed to hold that the said document is not properly stamped.
11. When the said objection was overruled by the trial Court, the same was subject matter of a Writ Petition in W.P.No.13617/2008, which is subsequently dismissed for non prosecution. With this it is seen that though such a defence is taken, the same is not pursued even while marking the document or even at a later stage when it was taken in challenge in W.P.No.13617/2008. Hence it is not open to the appellant to re-agitate the same in this second appeal.
12. Now coming to the 3 r d ground which is raised to oppose this judgment is the provision of Section 32(2) of the Karnataka Co-operative Societies Act 1959 which reads as under:
13. 32. First charge of co-operative society on certain assets.—(2) No person shall tr ansf er any proper ty wh ich is subjec t to a charge under sub-sec tion (1) except with the prev ious permission in wr iting of the co-oper ative socie ty which holds the charge. On going through the same it is clearly seen that the charge would come in the way of transfer of the property but it would definitely not prevent the vendor to enter into an agreement for sale of the said property. In the instant case under the agreement of sale when substantial payment was made, it was clearly understood between the parties under the agreement that the vendor shall secure discharge of all charges which are pending against the suit schedule property and the property was required to be conveyed free of charge in favour of the plaintiff in the original suit. Therefore even if such a charge is there, it was incumbent upon the vendor Vithoba Shirole 14 to clear the same suomotto. If the same is not cleared, it does not preclude the plaintiff in this suit to pay the said arrears which is due to the society from out of the balance consideration available with him which was required to be paid at the time of execution of the sale deed and get clearance before getting the sale deed executed in his favour. In any event that would not come in the way of completion of transaction, as the said provision is to protect the interest of society for recovery of monies due to it and not to curtail the right of the owner of the property.
13. In that view of the matter this Court find that would not be an impediment to consider grant of specific performance of the agreement of sale which is subject matter of this suit. However while rejecting the said ground this Court would reiterate that before seeking execution of sale of the suit property pursuant to the decree it is open 15 for the plaintiff to approach Madabhavi Co-operative Society to ensure that whatever charge created on the security of suit schedule property is cleared before seeking execution of sale of suit property in his favour.
14. With reference to additional evidence it is seen that though such an application is filed, it is clearly seen that what was sought to be produced by way of additional evidence is copy of plaint filed for partition subsequent to the decree of suit for specific performance, which clearly indicate that the said suit which is between the 2 n d defendant and her daughter who is mother of 1 s t defendant is with a clear intention of stalling the proceedings initiated by the plaintiff in O.S.No.35/2002.
15. Heard the learned counsel for the appellant. Perused the grounds of appeal and also the application, which is filed seeking production 16 additional documents. On going through the judgment of both the Courts below it is seen that the lower appellate Court has taken pains to appreciate the pleadings and evidence available on record before deciding the points for consideration framed therein and the documents which are sought to be produced before the said Court which are now sought to be produced before this Court are also looked into.
16. On going through the same, it is observed by the lower appellate Court that the attempt in filing the suit between members of Vithoba Shirole’s family against each other for partition is nothing but an attempt to deprive the right of plaintiff in the original suit to seek decree of specific performance of the agreement of sale executed by Vithoba Shirole.
17. It is seen that both the Courts below have rightly taken into consideration and rightly 17 come to the conclusion that the suit schedule property being the absolute property of Vithoba Shirole had right to convey the same and that he has entered into agreement with the plaintiff in the original suit for sale of suit property by taking substantial portion of the sale consideration as advance. From the pleadings and evidence available on record it is seen that the amount of balance consideration remaining with plaintiff is marginal. The possession of suit property is already delivered to plaintiff and he is in possession and of the suit property from the date of agreement till this day.
18. It is also seen from the records that Vithoba Shirole’s legal heirs are none other than his wife and aged mother and that the suit schedule property is not the only property that was available to Vithoba Shirole. In fact his widow is present before the Court, who confirmed the 18 same through her counsel that the family of Vithoba Shirole is left with other bits of agricultural lands which is in possession and enjoyment of his family members. The trial Court and as well as the lower appellate Court having taken into consideration these things have rightly decreed the suit considering the comparative hardship that may be caused to the parties in the event of specific performance is granted is also considered. Therefore the ground which is urged that Section 20 of Specific Relief Act is not looked into is not correct.
19. The learned counsel for the appellant who tried to pursued this Court for admitting this second appeal also relied upon the following two judgments rendered by this Court. (i) A IR2009SC354 in the matter of Jatinder S ingh and ano ther (minor through mo ther) v. Mehar Singh 19 and o thers W ITH B albir S ingh and ano ther v. J atinder Singh and ano ther. (ii) 2015(1) KCCR292 in the matter of Ning appa vs. Shiv appa and o thers.
20. On going through the same it is seen that with reference to additional evidence produced under Order 41 Rule 27 of CPC as stated supra the additional evidence is nothing but to bring on record the subsequent litigation which is initiated by and between the defendants i.e., members of Vithoba Shirole’s family trying to project the suit schedule property as joint family property in which others had share. As stated supra the lower appellate Court has seen the game plan of appellants in the trial Court in somehow trying to stall the sale transaction which was entered into between the deceased Vithoba Shirole and plaintiff in the original suit. 20 21. In fact this Court while trying to ascertain whether serious injustice would be caused to the parties, at that time the learned counsel for the appellant on consultation with the appellant who is present before the Court has brought to the notice of this Court that still more than 3 acres of land is available with the appellant which is in her exclusive possession and enjoyment. Though it was stated that the said property was joint family property, it is stated that there is nothing on record to demonstrate the same. With this it is clearly seen that, filing of application for production of additional documents was only an attempt by filing copy of the plaint in make believe partition suit between the defendants in the original suit to stall the claim of plaintiff for specific performance. In that view of the matter the lower appellate Court also has not entertained the said document. 21 22. On going through the judgments relied by appellants in support of the grounds in this appeal, this Court find that the aforesaid judgments would not have any application to the facts of the case on hand. Therefore relying upon the same to consider this appeal for admission does not arise. Accordingly this Court feel that no justifiable grounds are made out to admit this second appeal in as much as no question of law arises for consideration in this second appeal. Accordingly the same is dismissed. SD /- J UD GE Mrk/-