1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE20H DAY OF MAY, 2021 BEFORE THE HON’BLE MR. JUSTICE P. KRISHNA BHAT R. F. A. No.1211/2011 (SP) BETWEEN : SRI JOSEPH KANTHARAJ S/O. LATE FRANCIS KARUNAKARAN AGED ABOUT58YEARS RESIDING AT NO.2, SOUTH SECOND CROSS OIL MILL ROAD, MARUTHISEVANAGAR POST, BANGALORE – 560 033. ... APPELLANT (BY SRI M.S.VENUGOPAL FOR SRI A. KRISHNA BHAT ADVOCATE) AND:
1. SMT. JOSEPH SUNDER AUGUSTINE REDDY MAJOR NO.34, LLOYDS ROAD COOK TOWN BANGALORE – 560 005.
2. SMT. S. AKTHARUNNISA BEGUM D/O SYED SHAJUDDIN AGED ABOUT59YEARS3 SMT. S. NASRATHUNNISA BEGUM, D/O. SYED SIRAJUDDIN AGED ABOUT57YEARS2BOTH RESIDING AT NO.97, JOSEPH COLONY OIL MILL ROAD, ARVINDANAGAR ST. THOMAS TOWN POST BANGALORE – 560 084. … RESPONDENTS (VIDE
ORDERDATED1009.2013 SERVICE OF NOTICE TO R1 IS HELD SUFFICIENT. R2 AND R3 ARE SERVED) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION96OF CPC AGAINST THE
JUDGMENTAND DECREE DATED2304.2011 PASSED IN O.S.NO.2089/1999 ON THE FILE OF THE XI ADDL. CITY CIVIL JUDGE BANGALORE. (CCH-8), DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE. THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED ON1704.2021, COMING ON ‘FOR PRONOUNCEMENT OF
JUDGMENT’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENTUnsuccessful plaintiff in a suit for specific performance of an agreement of sale is challenging the correctness of the judgment and decree dated 23.04.2011 passed in O.S.No.2089/1999 by the learned XI Additional City Civil Judge, Bangalore City (CCH-8) in this appeal. 3
2. The appellant was the plaintiff before the Court below. Respondent Nos. 1, 2 and 3 in this appeal were the defendant Nos. 1, 2 and 3 respectively before the Court below. The parties will be referred to as per their rank before the Court below during the course of this judgment.
3. The plaintiff instituted a suit for specific performance against the defendants on the allegation that he had been a tenant under one J.Anthony Swamy in respect of the suit schedule properties since the year 1988 and on 11.06.1997, said J.Anthony Swamy executed an agreement of sale in respect of the suit schedule properties in favour of the plaintiff under Ex.P.1. The amount of consideration agreed under Ex.P.1 was Rs.1,05,000/- and out of the same, a sum of Rs.75,000/- was paid on the date of execution of Ex.P.1. It is stated that plaintiff who was a tenant was put in possession of the suit schedule properties in part performance of the said agreement and ever since then, he was in possession of the property under 4 Ex.P.1 in that capacity. It is further stated that the time fixed under Ex.P.1 for the execution of sale deed by J.
Anthony Swamy was three months and balance consideration of Rs.30,000/- was required to be paid on demand made by the vendor and in two instalments. The plaintiff was ready with that money. It is alleged that during September, 1997, vendor – J.Anthony Swamy fell seriously ill and he was admitted to Lakeside Hospital, Bangalore, on 25.09.1997 and surgery was done on him and finally he passed away on 01.10.1997 while he was in the hospital. It is further alleged by the plaintiff that on 25.09.1997, defendant Nos. 2 and 3 had created a false sale deed under Ex.D.4 in respect of the suit schedule properties and J.Anthony Swamy had fallen ill and he could not have executed the said document and he could not have attended the Office of the sub-Registrar personally for registration. 5
4. Defendant No.1 has remained ex parte. Defendant Nos. 2 and 3 filed a joint written statement contending, inter alia, that plaintiff was not entitled to purchase the schedule property from the vendor – J.Anthony Swamy for the reason that Ex.P.1 is later than the agreement of sale in their favour which preceded the registered sale deed as per Ex.D.4 and pursuant to the same, ever since 25.09.1997, the said two defendants were the owners of the suit schedule property. It is also stated that J.Anthony Swamy had on 10.04.1996 received a sum of Rs.65,000/- by way of cheque and another sum of Rs.75,000/- at the time of registration of the sale deed and another sum of Rs.50,000/- was paid to him by cash and further registration amount was paid by cheque. It is further stated that plaintiff continued to be tenant under defendant Nos. 2 and 3 by paying rent to them. It is further stated that the contention of the plaintiff that J.Anthony Swamy had executed an agreement of sale dated 11.06.1997 was rejected by the Court of Small Causes in HRC6No.1247/1998 and also in HRC No.157/2002. On the above pleadings, learned Court below framed the following issues : “1. Whether the plaintiff proves that late J.
Anthoniswamy agreed to sell the suit property for Rs.1,05,000/- and exceuted an agreement of sale dated 11.6.1997 by receiving an advance amount of Rs.75,000/- ?.
2. Whether the defendants prove that the agreement of sale dated 11.6.1997 is got up and fabricated document?.
3. Whether the plaintiff proves that he has been always ready and willing to perform his part of the contract 4. Whether the suit is properly valued and the court fee paid is just and proper?.
5. Whether the plaintiff is entitled to the relief of specific performance of the contract?.
6. To what order or decree?.
5. During the trial, plaintiff examined himself as P.W.1 and he examined P.W.2 – Anand Raj and P.W.3 – Smt. Agnes Mary who are the attestors to agreement of sale 7 – Ex.P.1. Ex.P.1 to Ex.P.12 were marked for the plaintiff. Thereafter, defendant No.2 examined herself as D.W.1 and defendant No.3 examined herself as D.W.2 and one R. Narayana Swamy was examined as D.W.3 who is the attestor to the sale deed dated 25.09.1997 (Ex.D.4). Exs. D.1 to D.8 were marked for the defendant.
6. After hearing, the learned Court below dismissed the suit with costs holding that Ex.D.4 was a registered sale deed and therefore the burden was on the plaintiff to prove that the said sale deed was not executed by late J.Anthony Swamy and that the same was not a genuine document and the said burden was not discharged by the plaintiff. It further held that plaintiff has failed to prove that J.Anthony Swamy could not have executed Ex.D.4 as he was admitted to Lakeside Hospital on 25.09.1997 and also that such a case was an improvement before the Court. 8
7. In this appeal respondents, though served, have remained unrepresented.
8. I have heard the learned counsel Sri. M.S. Venugopal for the appellant. I have perused the records carefully.
9. Learned counsel Sri. M.S. Venugopal contended before me that J.Anthony Swamy – the undisputed owner of the suit schedule properties had executed an agreement of sale in favour of the plaintiff on 11.06.1997 for a valid consideration of Rs.1,05,000/- and out of the same, a sum of Rs.75,000/- was paid by the plaintiff to J.Anthony Swamy on 11.06.1997 itself. He submitted that Ex.P.1 has been produced before the Court by the plaintiff who has examined himself as P.W.1 and he has spoken about the payment of consideration to J.Anthony Swamy. He has also submitted that plaintiff by producing the original agreement of sale and upon his evidence as well as on the evidence of two attestors – P.W.2 and P.W.3, has proved the 9 due execution of agreement of sale. He further submitted that under Ex.P.1 the plaintiff who was already a tenant in respect of the suit schedule properties was put in possession of the properties in part performance of the agreement of sale and ever since then, plaintiff is in possession of the suit schedule properties under the terms of the agreement itself. He submitted that plaintiff has always been ready and willing to perform his part of the agreement. He also submitted that the sale deed put forward by defendant Nos. 2 and 3 is a false document and J.
Anthony Swamy was not in a position to execute the sale deed as per Ex.D.4 in view of his serious illness and further on 25.09.1997 he was admitted for surgery to Lakeside hospital, Bangalore, where he underwent surgery and subsequently passed away on 01.10.1997. He submitted that in support of the said contention, plaintiff has produced Ex.P.2 which is a certificate issued by Lakeside hospital and the fact of J.Anthony Swamy being admitted to hospital on 25.09.1997 and further his death in the 10 hospital on 01.10.1997 has been admitted by D.W.1 and D.W.2 as also by D.W.3. He further submitted that defendants have put forward entirely a false case regarding the execution of sale deed itself, payment of consideration and also regarding an agreement of sale said to have been executed by J.Anthony Swamy in favour of defendant Nos. 2 and 3 anterior to the sale deed – Ex.D.4. Learned counsel took me through the pleadings, evidence and documents exhibited and submitted that plaintiff has fully proved his case and he is entitled to a decree of specific performance in respect of the suit schedule properties. In this behalf he pointed out that the evidence of D.W.1 and D.W.2 clearly shows that they had made no enquiry regarding Ex.P.1 dated 11.06.1997 in favour of the plaintiff even though they were aware that plaintiff was residing in the suit schedule premises. He submitted that the learned Court below was entirely in error in ignoring from consideration the admissions made in their depositions by D.W.1, D.W.2 and D.W.3 in the earlier proceedings, 11 namely, HRC No.1247/1998 and HRC No.157/2000 (Ex.P.7 to P.12) inspite of the fact that said depositions of these witnesses were confronted to them and they had admitted having given such evidence.
10. In support of his various submissions, learned counsel placed reliance on the following decisions :
1. In the case of Lala Durga Prasad and Another Vs Lala Deep Chand and others reported in AIR1954SC75(paragraph – 37 to
42) 2. In the case of Dwaraka Prasad Singh and another Vs Harikant Prasad Singh and others reported in (2000) 6 SCC402(paragraph -13, 14 and
15) 3. In the case of R K Mohammed Ubaidulla and others Vs Haji C Abdul Wahab by Lrs and others reported in (2000) 6 SCC402(paragraph -13, 14 and
15) 4. In the case of Ram Niwas through Lrs Vs Bano and others reported in (2000) 6 SCC685(paragraph 3, 5, 7, 8 and
18) 5. In the case of Vijay A Mittal and others Vs Kulwant Rai (Dead) through Legal heirs and anothers reported in 2019 (3) SCC520(paragraph – 28, 35 to
42) 12 6. In the case of MMS Investments Madurai and others vs V Veerappan and others reported in (2007) 9 SCC660(paragraph 6 and
7) 7. In the case of Motilal Jain Vs Ramdasi Devi and others reported in (2000) 6 SCC420(paragraph 6, 9 and
10) 8. In the case of B Santoshamma and another Vs D Sarala and another in Civil Appeal No.3574/2009 dated 18.09.2020 (paragraph 67 to 71 9. (2007) 6 SCC401– M. Venkataramana Hebbar (Dead) by LR. Vs. M. Rajagopal Hebbar and others.
10. (2016) 1 SCC207– Standard Chartered Bank vs. Andhra Bank Financial Services Limited and others.
11. (2016) 12 SCC288– Muddasani Venkata Narsaiah (Dead) through Legal Representatives vs. Muddasani Sarojana.
12. (2003) 8 SCC752– R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P. Temple and another.
13. AIR1957All. 1 (FB) – Shri. Ajodhya Pd. Bhargava vs. Shri. Bhawani Shankar Bhargava and another.
14. (2005) 7 SCC534– Aniglase Yohannan vs. Ramlatha and others. 13
15. AIR2012Kar. 141 – Sri. Somanagouda and another vs. Sri. Shamshiddin.
16. (2019) 6 SCC233– Beemaneni Maha Lakshmi vs. Gangumalla Appa Rao (since dead) by Legal Representatives.
17. (2015) 1 SCC597– K. Prakash vs. B.R. Sampath Kumar.
18. (2002) 9 SCC597– A. Maria Angelena (Dead) and others vs. A.G. Balkis Bee.
19. (2015) 1 SCC705– Zarina Siddiqui vs. A. Ramalingam alias R. Amarnathan.
11. On the materials produced and the contentions raised before me, the following points arise for consideration :
1. Whether the agreement of sale – Ex.P.1 dated 11.06.1997 set up by the plaintiff is proved in accordance with law ?.
2) Whether the sale deed dated 25.09.1997 (Ex. D.4) set up by the defendant Nos. 2 and 3 is proved in accordance with law ?.
3) Whether the plaintiff has proved that he was ready and willing to perform his part of the contract under Ex.P.1 ?. 14
4) Whether the plaintiff is entitled to a decree of specific performance prayed for by him ?.
12. Point No.1 : Plaintiff has pleaded in detail that on 11.06.1997, late J.Anthony Swamy executed an agreement of sale agreeing to sell the suit schedule properties for a consideration of Rs.1,05,000/- and on the date of the agreement, plaintiff had paid a sum of Rs.75,000/- to late J.
Anthony Swamy towards part consideration. He has further pleaded that on the date of Ex.P.1, namely the agreement of sale, plaintiff was put in possession of the suit schedule properties by late J.Anthony Swamy in part performance of the agreement of sale. He has also pleaded that plaintiff was in possession of the suit schedule properties as a tenant till the date of agreement of sale and ever since then he has been in possession of the same in part performance of Ex.P.1. He has also pleaded in detail the salient terms of Ex.P.1, namely, that sale deed was to be executed within three months; that balance consideration was to be paid in 15 two instalments on demand made by the vendor; and that vendor had undertaken to withdraw HRC No.1552/1990 filed by him against the plaintiff which was pending before the learned Judge of Small Cause, Bangalore City. Along with the plaint he had produced the agreement of sale – Ex.P.1.
13. Defendant No.1 had remained ex parte and defendant Nos. 2 and 3 who are the purchasers under the sale deed dated 25.09.1997 (Ex.D.4) have filed a joint written statement.
14. In the said written statement, defendant Nos. 2 and 3 have stated that they had purchased the suit schedule properties as per the sale deed dated 25.09.1997 (Ex.D.4). Even though defendant Nos. 2 and 3 have not specifically denied the agreement of sale – Ex.P.1 of the plaintiff, they have stated that the plaintiff was not entitled to purchase the suit schedule properties from the late J.Anthony Swamy for the reason that Ex.P.1 was later than 16 the agreement of sale which preceded the sale deed (Ex.D.4) in their favour and as per the recitals of the sale deed – Ex.D.4, a sum of Rs.65,000/- was paid by cheque on 10.04.1996 drawn on Syndicate Bank and subsequently a sum of Rs.75,000/- was paid at the time of registration of the sale deed and a sum of Rs.50,000/- by way of cash was also paid. According to the defendants, in their written statement, it is clear that for the purpose of snatching the property from the defendants, plaintiff had taken up such a contention and it was rejected by the trial Court in HRC No.1247/1998.
15. In the evidence of P.W.1 – plaintiff, he has deposed about the agreement of sale dated 11.06.1997 (Ex.P.1). He has also stated about the terms of Ex.P.1, namely that the sale consideration fixed was Rs.1,05,000/- and out of the same, Rs.75,000/- was paid at the time of execution of Ex.P.1. and the balance amount of Rs.30,000/- was to be paid within a period of three months 17 in two instalments and on demand made by the vendor – J.Anthony Swamy. He has also spoken about the vendor – J.Anthony Swamy putting the suit schedule properties in possession of the plaintiff pursuant to Ex.P.1, in part performance of the same and ever since the agreement of sale, he continued in possession of the suit schedule properties in that capacity. P.W.1 has further stated that vendor – J.
Anthony Swamy had fallen seriously ill and he was admitted to hospital on 25.09.1997 and he died in the hospital on 01.10.1997. During his evidence, Ex.P.7 which is the deposition of defendant No.2 in HRC No.1247/1998 filed by the defendant Nos.2 and 3 against the plaintiff was marked. Further, deposition of defendant No.3 in HRC No.1247/1998 was marked as Ex.P.8. Deposition of Narayan Swamy (D.W.3) who was attestor to Ex.D.4 (sale deed dated 25.09.1997) in HRC No.1247/1998 was marked as Ex.P.9. Similarly, deposition of defendant No.2 in HRC No.157/2002 filed by the defendant Nos.2 and 3 against the plaintiff was marked as Ex.P.10. Deposition of 18 defendant No.3 in HRC No.157/2002 was marked as Ex.P.11. Deposition of D.W.3 in HRC No.157/2002 was marked as Ex.P.12. There was no serious cross examination of P.W.1 from the side of defendant No.2 and defendant No.3 in so far as admissions made in Ex.P.7 to P.12 are concerned. Further, defendants have not challenged the evidence of P.W.1 during his cross examination regarding the due execution of Ex.P.1 by the deceased vendor – J.Anthony Swamy and payment of part consideration by him as also his being put in possession of the suit schedule properties in part performance of the agreement of sale, except putting a casual suggestion that he had created Ex.P.1 subsequent to defendants filing HRC No.1247/1998. In other words, even though P.W.1 had spoken about the circumstances of the vendor – J.Anthony Swamy who was prior to the agreement of sale, his landlord, executing the agreement of sale in his favour and further that on the date of Ex.P.1 his making of payment of Rs.75,000/- under the said agreement of sale and further 19 that in part performance of the agreement – Ex.P.1, he was put in possession of the suit schedule property, defendants have not chosen to challenge the said version of the plaintiff in their cross examination. These defendants have not chosen to cross examine P.W.1 on certain crucial aspects of the case inspite of the fact that P.W.1 had not only spoken about the circumstances of execution of Ex.P.1, but also identified the signatures of J.Anthony Swamy thereon, questioning the genuineness of the same.
16. Apart from the same, plaintiff has examined P.W.2 and P.W.3 who are the two attestors to Ex.P.1 – agreement of sale dated 11.06.1997. P.W.2 is one Anand Raj and P.W.3 is Agnes Mary, who is the wife of the plaintiff. As already noted, the original agreement of sale was produced as Ex.P.1. A perusal of the same shows that P.W.2 and P.W.3 had attested the same as witnesses. In his evidence, P.W.2 has stated that on 11.06.1997, Ex.P.1 was executed by J.Anthony Swamy in favour of the plaintiff 20 for a consideration of Rs.1,05,000/- and a sum of Rs.75,000/- was paid towards part consideration in his presence on the date of execution of Ex.P.1. He has also stated that Ex.P.1 was executed in the house of the vendor – J.Anthony Swamy and himself and P.W.3 – the wife of the plaintiff had attested it. During the cross examination, it was elicited from him that as per the agreement – Ex.P.1, a sum of Rs.75,000/- was paid by the plaintiff to the vendor and the balance amount was agreed to be paid by the plaintiff in two instalments. P.W.2 has further stated that the dates of payment of the balance consideration in two instalments have not been mentioned in Ex.P.1. There was only a vague suggestion to P.W.2 that Ex.P.1 was a false agreement. The relevant suggestion reads as follows : “ªÁ¢AiÀÄÄ ¸ÀļÀÄî M¥ÀàAzÀ ¥ÀvÀæªÀ£ÀÄß §gɬĹPÉÆArzÀÄÝ £Á£ÀÄ ¸ÀļÀÄî ¸ÁQëAiÀÄ£ÀÄß CªÀgÀ ¸ÀºÁAiÀÄPÁÌV ºÉüÀwÛzÉÝÃ£É J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è.
17. The above suggestion as put to the witness, if anything, goes to show that defendants have not totally 21 denied the execution of Ex.P.1 by J.Anthony Swamy, but according to them, it was a colourable one and in support of the same, P.W.2 had deposed falsely, especially, when it is read along with the written statement, where no clear stand has been taken by the defendants, vis-à-vis, Ex.P.1. Similarly, P.W.3 who is the wife of the plaintiff and attestor to Ex.P.1 has also spoken about the execution of Ex.P.1 and payment of Rs.75,000/- at the time of agreement to the vendor – J.Anthony Swamy, etc. The version of this witness has not been seriously challenged in the cross examination with regard to execution of Ex.P.1 and payment of part consideration of Rs.75,000/-, etc.
18. In so far as the evidence from the side of defendants is concerned, only evidence of D.W.1 and D.W.2, who are defendant Nos. 2 and 3 respectively, is material on this aspect. D.W.3 examined is stated to be the attesting witness to sale deed dated 25.09.1997 (Ex.D.4). He has not claimed any knowledge about the execution of 22 Ex.P.1, either way. Evidence of D.W.1 and D.W.2 is more or less identical in regard to Ex.P.1. They have only stated in their examination-in-chief that the agreement of sale (Ex.P.1) alleged is a concocted one and got up for the purpose of this case. They have further, in their evidence, denied that plaintiff had entered into an agreement of sale with J.Anthony Swamy on 11.06.1997 and plaintiff had paid a sum of Rs.75,000/- to the vendor and further asserted that the said plea in the plaint was totally false, imaginary and the said sale agreement is concocted and created for the purpose of this case. As already noticed, there is no such specific plea in the joint written statement filed by defendant Nos. 2 and 3. The evidence of D.Ws. 2 and 3 clearly shows that they had not made any enquiry with J.Anthony Swamy – the vendor under Ex.D.4 and the vendor under the agreement of sale pleaded by the plaintiff as per Ex.P.1 about who was in occupation of the schedule premises. They have further admitted that their mother and younger brother were residing as tenants under the 23 same J.Anthony Swamy in a premises within a short distance from the suit schedule properties and further that their younger brother had purchased the said premises. The learned counsel for the plaintiff has put suggestions to D.W.1 and D.W.2 regarding Ex.P.1 and both the witnesses have denied the same.
19. The learned trial Court has not at all dealt with the detailed evidence placed by the plaintiff in support of his case that on 11.06.1997, vendor – J.Anthony Swamy had executed an agreement of sale as per Ex.P.1 in his favour and he had paid Rs.75,000/- towards part payment of the consideration amount and also that he was put in possession of the suit schedule property, which was in his occupation as a tenant till then, in part performance of the agreement of sale. It has given a short shrift to the entire evidence of P.W.1 to P.W.3 which was not even seriously challenged in the cross examination on an erroneous premise that plaintiff had not sought for cancellation of 24 Ex.D.4 (sale deed dated 25.09.1997); and that it was proved that Ex.D.4 was preceded by an agreement of sale entered into between defendant Nos. 2 and 3 on the one side and late J.Anthony Swamy on the other much prior to the agreement of sale – Ex.P.1 set up by the plaintiff. It has further proceeded to draw an inference, on account of the aforesaid two reasons, that the case of the plaintiff that J.Anthony Swamy had executed the agreement of sale as per Ex.P.1 is rendered doubtful and it cannot be accepted. He has committed a serious error in proceeding to draw an inference, and that, without any discussion of the evidence let in by the plaintiff, by too readily accepting the contention of defendant Nos. 2 and 3 that the plaintiff had created Ex.P.1 in order to knock off the suit schedule property. At any rate, I was not able to discover any evidence on record to support such an inference. The evidence of the plaintiff namely P.W.1, in whose favour Ex.P.1 is stated to have been executed by J.Anthony Swamy, supported by the evidence of two attestors – P.W.2 25 and P.W.3 which has gone entirely unchallenged during the cross examination coupled with the original document – Ex.P.1, clearly show that deceased – J.Anthony Swamy had executed the said agreement in favour of the plaintiff. The learned Court below has unfortunately glossed over a very material aspect of the case that neither in the written statement, nor in the cross examination of P.W.1 to P.W.3, defendants have seriously challenged the fact that Ex.P.1 bore the signature of the deceased – J.Anthony Swamy himself or the further aspect of the case like payment of part of the consideration, namely, Rs.75,000/- at the time of agreement – Ex.P.1 and placing the plaintiff in possession of the suit schedule properties in part performance of the agreement of sale.
20. It is unfortunate that learned trial Court has failed to notice that plaintiff has been steadfast, consistent and unwavering in his stand, in his pleadings, deposition and cross examination of DW1 and DW2 - that deceased 26 J.Anthony Swamy had executed Ex.P1 in his favour after receiving part consideration. On the other hand defendant Nos.2 and 3 have not specifically denied the same in the written statement nor was there any serious challenge to the version of PW1 on this aspect. It is all too evident that entire case of the defendants vis-à-vis Ex.P1 is characterized by coyness, ambivalence and desperate attempt to extricate themselves from an impossible situation. In the entire written statement of defendants, there is no specific denial of execution of Ex.P1 by late J.Anthony Swamy which is pleaded with sufficient detail in the plaint. Even during the trial, defendants have adopted the same approach. Emphasizing the requirement of specific denial by a defendant in the written statement of a material statement of fact and legal implication flowing from the failure to do so, it has been held by the Hon’ble Supreme Court as follows:
27. “31. ……Order 8 Rule 5 of the Code of Civil Procedure, 1908 deals with this aspect, which is reproduced hereunder: “5. Specific denial – (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be not admitted except as against a person under disability.’’ It is a settled position of law that if an allegation made in the plaint is not specifically denied in the written statement, it is treated as admitted, as was also held by this Court in Balraj Taneja Vs Sunil Madan” [Standard Chartered Bank Vs. Andhra Bank Financial Services Ltd.-. (2016) 1 SCC207 21. Further, in another decision it was observed as follows: “23. The said aspect can be looked from another angle. Rules 3, 4 and 5 of Order 8 form an integral code dealing with the manner in which allegations of fact in the plaint should be 28 traversed and the legal consequences flowing from its non-compliance. It is obligatory on the part of the defendant to specifically deal with each allegation in the plaint and when the defendant denies any such fact, he must not do so evasively but answer the point of substance. It is clearly postulated therein that it shall not be sufficient for a defendant to deny generally the grounds alleged by the plaintiffs but he must be specific with each allegation of fact (se Badat and Co. v. East India Trading Co.) 24. Rule 4 stipulates that a defendant must not evasively answer the point of substance. It is alleged that if he receives a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received, and that if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances. Rule 5 deals with specific denial and clearly lays down that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not 29 admitted in the pleading of the defendant, shall be taken to be admitted against him.” (Emphasis supplied) [vide GIAN CHAND & BROTHERS AND ANOTHER v. RATTAN LAL, ALIAS RATTAN SINGH - (2013) 2 SCC606 22. Taking into consideration the above, I am of the view that learned trial Judge has entirely gone against the weight of evidence in holding that Ex.P.1 is a concocted document and on the other hand the evidence clearly shows that plaintiff has successfully established that deceased – J.Anthony Swamy had executed the agreement of sale dated 11.06.1997 under Ex.P.1; he had paid Rs.75,000/- towards part sale consideration; and that he was put in possession of the suit schedule properties in part performance of the agreement of sale Ex.P1.
23. Point No.2 : The next question falling for consideration is, whether Ex.D.4 – the sale deed dated 25.09.1997 set up by defendant Nos. 2 and 3 is proved in accordance with law ?. 30 Unfortunately, learned trial Court has not framed an issue on this question notwithstanding the fact that plaintiff has denied Ex.D.4 and defendant Nos.2 and 3 have asserted the due execution of Ex.D.4. Both sides have let in elaborate evidence and defendants have examined D.W.3 – the attestor to Ex.D.4. Records disclose that parties were conscious that there was material controversy in the suit on the existence of Ex.D.4 and they have gone to trial accordingly. Therefore, failure to frame an issue on Ex.D.4 has not caused any prejudice to the rival parties to this proceedings.
24. The grievance of the learned counsel for the plaintiff is that the trial Court was entirely swayed by the fact that Ex.D.4 was a registered document, and therefore erroneously held that there was nothing for the proponents of Ex.D.4 to introduce by way of evidence in support of valid execution of the said sale deed and on the other hand, it was entirely for the plaintiff to demonstrate by evidence 31 that Ex.D.4 was not a valid document at all and it was not executed by the putative vendor late J.Anthony Swamy.
25. There is no dispute about the fact that soon after Ex.D.4 came into existence on 25.09.1997, the vendor J.Anthony Swamy passed away on 01.10.1997 in Lakeside Hospital, Bangalore.
26. In regard to the sale deed Ex.D.4 plaintiff has averred in para 6 of the plaint that when he received notice in HRC12471998 instituted by defendant Nos. 2 and 3 against him before the Court of Small Causes, Bangalore, he came to know that defendant Nos. 2 and 3 were claiming to be owner of suit schedule properties on the strength of Ex.D.4. It was, however, further pleaded in para 8 of the plaint that on 25.09.1997, the date on which defendant Nos. 2 and 3 had claimed that late J.Anthony Swamy had executed Ex.D.4 in their favour, the said J.Anthony Swamy was actually not in a position to execute any sale deed. It is further averred in the plaint that by that time late J.
32 Anthony Swamy had fallen ill and he was not in a position to go to Sub-Registrar’s office and execute the sale deed. The said assertion in the plaint has not been specifically denied in the written statement except making an omnibus statement to the effect that “The defendants further submit that the averments mentioned in para 8 of the plaint are all false, baseless and plaintiff is put to strict proof of the same. ………”.
27. Further, the main plank of the case of the defendants as emerging from the written statement is that in HRC12471998 instituted by them against the plaintiff before the Court of Small Causes, Bangalore, the agreement of sale – Ex.P.1 set up by the plaintiff was disbelieved and Court had accepted the sale deed Ex.D.4 and eviction was ordered. It was also pleaded that the said position was affirmed by this Court in HRRP No.736/1981 by order dated 18.10.2001. Suffice it to notice here itself that Ex.P.3 is the copy of the order of the Hon’ble Supreme Court of India in SLP (Civil) No.8245/2002 which arose 33 from the order of this Court in HRRP No.736/1981, wherein it was observed as follows :
ORDER“This petition seeking special leave to file an appeal is directed against a decree for eviction passed in rent control proceedings which were initiated before the Rent Controller. The principal grievance canvassed on behalf of the petitioners is that the findings recorded in these proceedings may come in the way of the petitioners prosecuting their suit for specific performance. This apprehension is, in our opinion, unfounded, but still we clarify that the findings arrived at in the impugned order shall be treated as confined in their operation to the present proceedings and the suit for specific performance filed by the petitioner in the Civil Court shall be disposed of on its own merits on the pleadings and evidence adduced in the civil suit. Subject to this observation, the Special Leave Petition is dismissed.” [Emphasis supplied]. 34 28. To make the long story short, suffice it to note that pursuant to the enactment of the Rent Act, 1999, defendant Nos. 2 and 3 had instituted another Eviction Petition against the plaintiff in HRC No.157/2002 and the said proceeding culminated in the Hon’ble Supreme Court passing an order in Civil Appeal No.282/2010 dated 11.01.2010. The Hon’ble Supreme Court at para 11 of its order has observed as follows : “11. On the facts and material in this case, we are of the view that trial Court was justified in its decision to defer the eviction proceedings till decision by the civil court. We therefore allow this appeal, set aside the order of the High Court and restore the order of the trial court subject to the following clarifications : (i) Nothing stated herein shall be construed as acceptance of the claim of the appellants that the previous owner (Anthony Swamy) had executed an agreement of sale in his favour or that he is in possession in part performance of the agreement of 35 sale. The specific performance suit shall be decided on its merits with reference to the pleadings and evidence produced therein. Whatever observations we have made herein is only with reference to the issue of deferring the eviction proceedings. (ii) In the event of first appellant failing in the suit for specific performance, the respondent will be entitled to seek restoration of her eviction petition (HRC No.157/2002) and pursue it in accordance with law. (iii) Having regard to the facts and circumstances, we request the City Civil Court where the suit for specific performance (OS No.2089/ 1999) is pending for more than ten years, to dispose of the same expeditiously.” [Emphasis supplied].
29. The resultant position as emerging from the two orders of the Hon’ble Supreme Court referred to supra is 36 that the finding of the trial Courts in HRC proceedings with regard to jural relationship between the parties was for the limited purpose of deciding the said case; not conclusive as between the parties; and the present proceedings will have to be strictly decided on the strength of the pleadings and evidence let in during the trial of the case.
30. Even after the said two orders were passed by the Hon’ble Supreme Court, defendant Nos. 2 and 3 did not file any additional written statement. The resultant position is that the assertion of the plaintiff in his plaint that the alleged vendor of Ex.D.4, J.Anthony Swamy was seriously ill and he was not in a position to execute the sale deed on 25.09.1997 has remained uncontroverted in a specific manner.
31. Plaintiff has stepped into the witness box and during his evidence he has specifically stated that on 25.09.1997, the alleged date of execution of Ex.D.4, J.
Anthony Swamy was actually not in a position to go to the 37 office of the Sub-Registrar and execute the sale deed in their favour. He has stated that, in fact on that day, he was admitted to Lakeside Medical Centre and Hospital as an inpatient where he expired on 01.10.1997. Plaintiff has also produced Ex.P.2 – a certificate issued by Lakeside Medical Center and Hospital, wherein it is stated that J.Anthony Swamy, son of late Joseph Reddy was admitted to Lakeside Medical Center and Hospital on 25.09.1997 and he expired on 01.10.1997 at 4.05 p.m. due to Diabetic Mellitus, Septic shock and his Hospital IP. No.was 931/97-98. In the entire cross examination of P.W.1, the authenticity of Ex.P.2 or the contents of the same has neither been challenged nor was any suggestion or question put regarding the same.
32. Now, let me consider what is the legal effect of failure of defendant to cross examine PW.1 on the authenticity or the genuineness of Ex.P2. Non-cross examination of PW.1 when it was produced during the 38 evidence and spoken to by the PW1 takes away the right of the defendant to question the authenticity or the genuineness of the same subsequently. The legal effect of non-cross examination of the witness when he produces a document in proof of his assertion of certain set of facts is, undeniably, the admission of the facts contained therein. If it is otherwise, in law, the defendant was under a legal obligation to interrogate and question the witness producing documents regarding the authenticity of the same or regarding correctness of the recitals therein. The above position has fallen for consideration before the Hon’ble Supreme Court and the following observation in Muddasani Venkata Narasaiah v. Muddasani Sarojana reported in (2016) 12 SCC288is very apposite. It reads as follows: “15. Moreover, there was no effective cross- examination made on the plaintiff’s witnesses with respect to factum of execution of sale deed, PW.1 and PW-2 have not been cross examined as to factum of execution of sale deed. The cross- 39 examination is a matter of substance not of procedure one is required to put one’s own version in cross-examination of opponent. The effect of non cross-examination is that the statement of witness has not been disputed. The effect of not cross- examining the witnesses has been considered by this Court in Bhoju Mandal & Ors. v. Debnath Bhagat & Ors. AIR1963SC1906 This Court repelled a submission on the ground that same was not put either to the witnesses or suggested before the courts below. Party is required to put his version to the witness. If no such questions are put the court would presume that the witness account has been accepted as held in M/s. Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. & Anr. AIR1958Punjab 440”.
33. It has to be noticed that it was only later during the arguments that a case was sought to be built regarding the non-genuineness of Ex.P.2 by suggesting that time of the admission appearing on the face of Ex.P.2 was an interpolation and, therefore, the whole of the contents of Ex.P.2 is a product of fabrication which was too readily 40 accepted by the learned Court below without so much as scrutinizing the evidence as to whether, during the trial, there was any doubt raised so as to enable the plaintiff to offer further and more evidence on the said aspect. This is required to be appreciated further from the fact that defendant No.2 when examined as D.W.1 has clearly admitted that J.Anthony Swamy had undergone major operation and only after that he died and she has also stated that the surgery was performed on 26.09.1997 and he died on 01.10.1997. That, she had no qualms in tweaking the date of admission of J.Anthony Swamy to the Hospital, is apparent from what she had to say further during her cross examination which reads as follows : “…… I do not remember that in Ex.P.10 on 12.02.2004 at page 14 “It is true to say that I have also given the deposition to the effect that on 25th morning of September, 1997, Antonyswamy was admitted into the hospital”. I do not remember that I have also deposed therein that said Antonyswamy have admitted at Lakeside Hospital and he had undergone 41 treatment and had consequently breathed his last breath. ……..” [Emphasis supplied]. Ex.P10 referred to above is the deposition of this defendant No.2 (DW.1) in HRC No.157/2002. As could be seen there from, this witness has categorically admitted in the earlier proceedings that J.Anthony Swamy was admitted to Hospital on the morning of 25.09.1997. Besides, Ex.P.2 was earlier produced in HRC No.157/2002 instituted by these defendants against the plaintiff and it was marked as Ex.R.3. D.W.2 (who is defendant No.3) has categorically admitted during cross examination that she had admitted the correctness of Ex.P.2 in the said proceedings.
34. It is the definite case of the defendants as could be seen from the endorsement on Ex.D.4 that it was presented for registration before the Sub-Registrar, Bangalore North Taluk between 3.00 p.m. and 4.00 p.m. on 42 25.09.1997 by the vendor J.Anthony Swamy himself. The admission of DW.1 as extracted above and that of D.W.2 in HRC No.157/2002 clearly gives a lie to the assertion of the defendants that J.Anthony Swamy had appeared before the Sub-Registrar for the purpose of execution of Ex.D.4 and presentation of the document for registration on 25.09.1997. If he was admitted to the Hospital on 25.09.1997 in the morning, as could be seen from the deposition of D.W.1 which is marked as Ex.P.10 and was also confronted to her, it was impossible for J.Anthony Swamy, who was to die soon on account of serious and debilitating illness, to have gone to the office of Sub- Registrar for the purpose of execution of the sale deed and presentation of the document for the purpose of registration. At any rate, defendants have not placed any evidence of definitive nature to show that notwithstanding the fact that J.Anthony Swamy was admitted to hospital in the morning, he had bestirred himself to go to the Sub- Registrar’s office to accomplish this one last mission of his 43 life. Learned trial Court has failed to refer to this aspect of the evidence presented during the trial.
35. The further affirmation of the fact that in all human probability, J.Anthony Swamy could not have appeared before the Sub-Registrar and he would not have executed the sale deed and presented Ex.D.4 for registration is forthcoming from the evidence of D.W.3, the alleged attestor to Ex.D.4. In the affidavit filed in lieu of his examination-in-chief, D.W.3 the attestor of Ex.D.4 has stated that :- “ …. I have signed the said sale deed as attesting witness and in my presence the said J.Anthony Swamy – the vendor of these defendants had executed the sale deed in favour of these defendants before the Sub-Registrar and thereafter he died on 01.10.1997 and he is no more and at the time of registration of the sale deed, the said J.Anthony Swamy was in a sound and disposing state of mind.” [Emphasis supplied]. 44 36. D.W.3 has admitted during his cross examination that he is a land developer and he is an agriculturist. He further admitted that he had given evidence in HRC No.1247/1998 instituted by the defendant Nos. 2 and 3 for eviction against the plaintiff. He has stated that he had been knowing J.Anthony Swamy since about 25 years. He has further deposed as follows : “…… ºÉZï.Dgï.¹.£ÀA.1247:1998 PÉù£À £À£Àß ºÉýPÉAiÀÄ°è CAvÉÆÃt ¸Áé«ÄAiÀÄ£ÀÄß MAzÀÄ ¢£À ªÀiÁvÀæ £ÉÆÃrzÉÝ JAzÀÄ ºÉýzÉÝ JAzÀgÉ ¤d. ¸ÀzÀj PÉù£À°è £Á£ÀÄ PÉÆnÖgÀĪÀ ¸ÁQë ºÉýPÉ ¤.¦.12gÀAvÉ EzÉ. ¢£ÁAPÀ 26-9-1997gÀAzÀÄ £Á£ÀÄ Hj£À°è £À£Àß ¸ÉÊlÄUÀ¼À §UÉÎ PÉ®¸À ªÀiÁqÀÄwÛzÉÝ JAzÀÄ ¤.¦. 12 gÀ°è ºÉýgÀÄvÉÛãÉ. JAzÀgÉ ¤d. ¤.¦.12gÀ ªÀÄÄRå «ZÁgÀtÂAiÀÄ°è £À£Àß ¸ÀªÀÄPÀëªÀÄ PÀæAiÀÄzÀ ºÀtªÀ£ÀÄß ¥ÁªÀw ªÀiÁqÀ¯ÁVvÀÄÛ JAzÀÄ ºÉýgÀÄvÉÛãÉ. ¤.¦- 12gÀ £À£Àß ¥Án ¸ÀªÁj£À°è 1 ®PÀë 90 ¸Á«gÀ gÀÆ.UÀ¼À£ÀÄß ¸ÀªÀÄPÀëªÀÄ PÉÆnÖgÀĪÀÅ¢®è ªÀÄvÀÄÛ 1 ®PÀë 90 ¸Á«gÀ gÀÆ.UÀ¼À£ÀÄß AiÀiÁªÀ gÀÆ¥ÀzÀ°è PÉÆnÖgÀÄvÁÛgÉ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è JAzÀÄ ºÉýgÀÄvÉÛ£É. £À£Àß ¥ÁnÖà ¸ÀªÁj£À°è ¢£ÁAPÀ 25-09- 1997PÉÌ CªÀgÀÄ ºË¹Öl®£À°è Cräl DVÎzÀÝgÀÄ. jf¸ïÖµÀ£ÀUÉ §A¢gÀ°®è. CªÀjUÉ vÀÄA¨Á SÁ¬Ä¯ÉUÀ¼ÀÄ EgÀĪÀÅzÀjAzÀ 45 ºË¹Öl®£À°è Cräl DVÎzÀÝgÀÄ. ¤.¦.12 (J) £ÀAvÉ ºÉýPÉ PÉÆnÖgÀĪÀÅ¢®è.
37. It is necessary to make reference to the portion of the evidence of this D.W.3 who was examined as P.W.3 in HRC No.1247/1998. The portion marked as Ex.P.12(a) reads as follows : “25-9-97 PÉÌ CªÀgÀÄ ºÁ¸Ààl®£À°è Cräl DVÎzÀÝgÀÄ. jf¸ïÖµÀ£ÀUÉ §A¢gÀ°®è. CªÀjUÉ vÀÄA¨Á SÁ¬Ä¯ÉUÀ¼ÀÄ EgÀĪÀÅzÀjAzÀ ºÁ¸Ààl®£À°è Cräl DVÎzÀÝgÀÄ.” The above also casts serious doubt about J.Anthony Swamy executing the sale deed – Ex.D.4 on 25.09.1997 as claimed by the defendants.
38. In the face of such overwhelming evidence, the learned trial Court has grievously erred in stretching its imagination to absurd levels when it observed that - “…………. So the probability of late J.Anthonyswamy admitted into hospital on 25.09.1997 after the execution and registration of Ex.D.4 cannot be ruled out” and “……….. So the 46 probability of late J.Anthonyswamy even after his admission into lakeside Hospital as an inpatient on 25.9.1997 coming out of the hospital for the purpose of execution and registration of the sale deed Ex.D.4 cannot be ruled out.” [vide paragraphs 14 & 15 of the impugned judgment].
39. And, what was the perceived difficulty for the learned trial Court to accept the admissions made by DW.1 in the previous proceedings ?. Let me present it in its own words:- “13. The learned counsel for the plaintiff has argued that as per Ex.P.10, the deposition of the 2nd defendant in HRC No.157/2002 at para No.14, the 2nd defendant has admitted that late J.Anthonyswamy was admitted into hospital in the morning of September 1997. But it is relevant to note that it is not the case of the plaintiff that late J.Anthonyswamy was admitted into hospital as an inpatient in the morning of 25.9.1997 and further it is pertinent to note that the 2nd defendant (DW.1) has not been 47 confronted with the relevant portion of Ex.P.10. Thus, Ex.P.10 the deposition of DW.1 in HRC.NO.157 of 2002, which is an earlier statement cannot be made use of by the plaintiff in its entirety in this case. Therefore, I hold that the plaintiff has failed to prove as to at what time on 25.9.1997 late J.Anthonyswamy was admitted into hospital as an inpatient.” [Emphasis supplied].
40. The approach of the learned trial Court is fraught with grave misapprehension of law. According to its position, since the relevant portion in Ex.P10 constituting material admission was not confronted to DW.1, it could not be used in this proceedings. What is this ‘confronting’ about?. Indisputably, Ex.P10 is the deposition of DW.1 in HRC No.157/2002 wherein herself and DW.2, her sister were petitioners and plaintiff was the respondent and relief sought in the proceedings was his eviction from the suit schedule premises. The point about ‘confronting’ previous statements is really grounded on Sections 145, 155 and 157 of Evidence Act subject to 48 Section 17 and Section 21 of the same Act. A careful perusal of the said provisions show that they are disembodied incarnation of principles of Natural Justice. In practical terms – in its application, “16. …………….There can be no hard and fast rule. All that is required is that the witness must be treated fairly and be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner. ………………… The matter is one of substance and not of mere form. “ [Bhagwan Singh v. State of Punjab - AIR1952SC214 41. The previous depositions of DW.1, DW.2 & DW.3 were all marked during the evidence of PW.1 [Ex.P7 to Ex.P12]. and that they were so was not at all disputed during the cross examination. Further, DW.1 admitted during the cross examination that EX.P10 was indeed her deposition in HRC No.157/2002. As extracted herein above when the specific portion of the admission in Ex.P10 49 was shown to D.W.1, her response was one of amnesia – “I do not remember” and not one of denial. At the beginning of cross examination of DW.1, when learned counsel for the plaintiff attempted to confront her with a portion of Ex.P7 - her deposition in HRC No.1247/98 - her learned counsel objected to such ‘confronting’ on the ground that Ex.P7 and Ex.P10 had already been marked and therefore it was unnecessary. In that view of the matter, it is clear that ‘substance’ of the requirement of ‘confronting’ has been satisfied and reason found by the learned Court below for disregarding the admission is misconceived.
42. There is yet another reason for holding this view of learned Court below untenable. In almost similar fact situation, Hon’ble Supreme Court explained the legal position as follows: “8. There is no merit even in the contention that because these three statements-Exs. G, G2 and H-had not been put to the first plaintiff when he was in the witness box or to the eighth 50 defendant although he had discreetly kept away from giving evidence, they cannot be used against him. Counsel drew our attention to Section 145 of the Indian Evidence Act. There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement. In the former case an admission by a party is substantive evidence if it fulfill the requirements of Section 21 of the Evidence Act; in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore: in the latter case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by Section 145 of the Evidence Act. This distinction has been clearly brought out in the ruling in Bharat Singh v. Bhagirathi case. This Court disposed of a similar argument with the following observations:
51. "Admissions are substantive evidence by themselves, in view of Sections 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under Section 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence."
[Emphasis supplied]. [(1974) 1 SCC78- Bishwanath Prasad and others v. Dwarka Prasad and others]. 52 43. It is necessary to point out that Ex.‘G’, Ex.‘G2’ and Ex.‘H’ referred to by Hon’ble Supreme Court were the previous depositions of plaintiff, 8th defendant and written statement, respectively filed by the parties in an earlier suit. Hon’ble Supreme Court has clearly held that if the maker of the previous statement (Ex.P10) – in this case DW.1 – is a party to the proceedings, there is no requirement of the statement containing admission having to be put to the party because it is evidence proprio vigore. It has further held that such an admission is substantive evidence if it fulfils the requirement of Section 21 of the Evidence Act. In so far as other witnesses are concerned, prior contradictory statement is required to be put to them before a Court can be asked to disbelieve him on that basis. In this case DW.1 has admitted that Ex.P7 and Ex.P10 are her depositions in the two HRC cases filed by her against the plaintiff apart from the fact that specific portion containing the admission has been extracted in her 53 evidence as DW.1. Similarly, during the cross examination of DW.3, the specific portion containing admission was marked as Ex.P12(a).
44. The defendant Nos. 2 and 3 in their written statement have claimed that Ex.D.4 was preceded by an agreement of sale which was anterior to the agreement of sale – Ex.P.1 dated 11.06.1997 set up by the plaintiff. However, true to the character of the case of defendant Nos. 2 and 3, the date of such agreement of sale executed by J.Anthony Swamy in their favour has not at all been disclosed. Even in Ex.D.4 there is absolutely no reference to any agreement of sale entered into between the parties, much less, the date of such agreement of sale.
45. During the trial, defendant No.2 who examined herself as D.W.1 has stated that there was a written agreement of sale dated 05.08.1992. She has further stated that in the sale deed dated 25.09.1997 there is a reference to the agreement dated 05.08.1992 and there is a 54 recital for payment of Rs.45,000/-. She has admitted that Ex.P.7 was her deposition in HRC No.1247/1998 and Ex.P.10 was her deposition in HRC No.157/2002. Perusal of her cross examination in these proceedings shows that when the learned counsel for the plaintiff wanted to specifically draw the attention of this witness to portions of Ex.P.7 and P.10, her learned counsel objected to the same stating that said depositions were already marked in these proceedings, thereby suggesting that confronting specific portions of evidence was not required. It was therefore, apparent defendant No.2 had no objection to the plaintiff relying on the contents of her depositions in HRC No.1247/1998 and HRC No.157/2002 which were between the same parties and that she had, by choice, forgone any right of offering explanations to her previous depositions as per Exs. P.7 and P.10. In Ex.P.7, during her deposition she had stated that the sale agreement was written on 05.08.1992 and she paid part consideration of Rs.45,000/- 55 by way of cheque on that day. She has also further stated that : “….…. It is true to say that I have deposed before the Court in Ex.P.10 in HRC No.157/2002 that after the payment of Rs.45,000/- I have paid part payment of Rs.10,000/- in instalments for four times. I have also deposed of having endorsing the said fact on the agreement of sale. It is not stated in the sale deed to the effect of above said four instalment payments. …….”.
46. It is now necessary to make a reference to the written statement filed by this witness along with D.W.3 on the aspect of alleged payment of consideration. The plea in this behalf is at para 5 of the written statement and it reads as follows : “…….. as per the recitals of the sale deed of defendants wherein on 10.04.1996 the sum of Rs.65,000/- cheque drawn on Syndicate Bank and subsequently sum of Rs.75,000/- who have paid at the time of registration of the sale deed and a sum of Rs.50,000/- by way of cash and payment of registration amount by cheque ……” 56 47. A close reading of the pleadings show that the case of the defendants was that a sum of Rs.65,000/- was given by way of cheque to the vendor on 10.04.1996 and a sum of Rs.75,000/- was paid at the time of registration of the sale deed and a sum of Rs.50,000/- was paid by way of cheque. The timing of payment of this third part of payment of Rs.50,000/- is delightfully kept open without mentioning the date in the written statement. Defendants have filed this written statement with the aid, advice and assistance of a learned counsel and it is impossible to believe that non-mentioning of the date of payment of Rs.50,000/- was due to oversight.
48. Now, if one peruses the sale deed – Ex.D.4, it is mentioned that total consideration is Rs.1,90,000/- and out of the same, a sum of Rs.65,000/- was paid by way of cheque bearing No.071874 dated 10.04.1996 drawn on Syndicate Bank, Lingarajpuram Branch, Bangalore. Rs.75,000/- was paid by way of cash before the witnesses. 57 Ex.D.4 does not specifically mention the date of payment of the second instalment of Rs.75,000/-. Interestingly as per the recital in Ex.D.4, Rs.50,000/- to make up the total consideration of Rs.1,90,000/- was paid by way of cheque bearing No.071878 dated 26.09.1997 drawn on Syndicate Bank, Lingarajpuram Branch, Bangalore, before the Sub- Registrar. The specific mention that this last portion of Rs.50,000/- was paid in the presence of Sub-Registrar strongly suggests that the second instalment of Rs.75,000/- was not paid before him and therefore the averment in the written statement that the said Rs.75,000/- was paid at the time of registration would not be true. Besides, there is no reference in Ex.D.4 to the agreement of sale dated 05.08.1992 and payment of Rs.45,000/- on that day by cheque and payment of Rs.10,000/- each on four occasions subsequently. If the said versions of D.W.1 were to be truthful, the arithmatics would all go horribly wrong and total consideration would go to Rs.1,90,000 + Rs.45,000 + Rs.40,000 (Rs.10,000 x 4 58 times) = Rs.2,75,000/- rendering the case of the defendants dubious.
49. Perusal of the pleadings, the evidence and the recitals in Ex.D.4 show that they bristle with so many inconsistencies and discrepancies which render the case of the defendant that there was indeed a sale deed executed by J.Anthony Swamy on 25.09.1997 as per Ex.D.4 improbable of acceptance. Learned trial Court has not applied its mind to the above aspects of the case.
50. The above view of mine is further buttressed by certain recitals in Ex.D.4 which on the showing of the defendants themselves are false. For example, clause No.7 of Ex.D.4 reads as follows : “7. The vendor has this day handed over the peaceful vacant possession along with all relevant documents in respect of the schedule property to the purchasers at the time of registration of this sale deed.” 59 51. It is admitted at all hands that the plaintiff has been in continuous possession of the suit schedule properties and, if one were to go by the case of the plaintiff, he has been in possession as a tenant in respect of the suit schedule properties from 1988 till the date of Ex.P.1 dated 11.06.1997 and thereafter in part performance of the agreement of sale dated 11.06.1997 and, if one were to go by the case of the defendants, plaintiff has been in possession of the suit schedule properties as a tenant under J.Anthony Swamy and ever since Ex.D.4, in the same capacity under defendant Nos. 2 and 3 and they had instituted several eviction proceedings against him which culminated in the orders by the Hon’ble Supreme Court referred to in the earlier part of this judgment. If that is so, the assertion in clause No.7 of the sale deed that at the time of the execution of sale deed, vacant possession of the suit schedule properties was handed over to defendant Nos. 2 and 3 is palpably false and no explanation is forthcoming for making such a false assertion. The further recital in the same clause that all relevant documents were handed over by J.
60 Anthony Swamy to defendant No.2 is also false as admitted by defendant No.2 in her evidence as D.W.1.
52. Learned trial Court was unduly carried away by the fact that since sale deed Ex.D4 was a registered document, it carried an aura of invincibility, and, therefore the defendants did not have the obligation to prove the execution of the same in accordance with law. It has observed in Para 11 of the judgment that – “……………Since the sale deed dated 25.9.1997, which is in question is a duly registered document, the burden will be on the plaintiff that the said sale deed is not executed by late J.Anthony Swamy and the same is not a genuine document”.
53. Learned trial Court has totally ignored the fact that in the plaint itself, at the earliest stage of the proceedings, plaintiff has very clearly averred that J.Anthony Swamy, the vendor had fallen ill and he was not in a position to go to Sub-Registrar’s office and execute sale deed. It is too well settled to require any affirmation 61 that mere proof of signature of the executant to a document or the fact that it was registered is not the same as proving due execution of the document. When the plaintiff has strongly asserted that the executant of Ex.D.4 was not in a position to execute the said document, defendants were under an obligation to prove that it was so executed as claimed by them. It is necessary to refer to the following observations of this Court in this context: “……………… I am unable to consider the said rule or the relevant presumption under Section114 of the Evidence Act as an impregnable China Wall preventing any attack against any registered document. These dictums have their own importance as well as limitations. But the facts of life are not cast- iron moulds. There is room for negligence and fraud inside the Registrar’s Office as well as outside it. A Judge of fact will have to consider the over-all picture as placed before him. While he should not ignore the guidance afforded by inference of law he will be abdicating his functions if he ignores the facts and circumstances of the case. 62 A Judge who becomes an automaton and makes rules of guidance as compelling conclusions, will make a mockery of law. It is not necessary that a Judge should proclaim these well accepted propositions of law in his judgment. The fact that the courts below have not made a fuss about Rule 41 of the Registration Rules or to the inference flowing therefrom will afford no material to conclude that they were unaware or unconscious of the same. To state these well known and well accepted propositions would be rather pedantic. Each case will have to be judged on its own merits, inferences of law being part of the over all picture. ……………. Mere proof of signature of the party to a document is not the same thing as proving the due execution of the document.” [1958 ILR (Mysore) 263 - Narayanappa Minor next friend Father Ramaiah vs. Lachmakka].
54. Similarly, Hon’ble Supreme Court in Om Prakash (dead) through his Legal Representatives v. Shanti Devi and others reported in (2015) 4 SCC601has observed as follows:
63. “6. …………… (b) that the registration of documents does not per se, ipso facto, render it impervious to challenge or and make its reception automatic in curial proceedings.
55. Learned Court below has committed a serious error in casting doubt about authenticity of Ex.P.2 even though defendants themselves had not cross examined P.W.1 when he had produced the same during his evidence and got it duly proved. It has proceeded to observe at para 11 of its judgment that – “……….. Thus the evidence of the plaintiff that on 25.9.1997 late J.Anthony Swamy was admitted into Lakeside Hospital as an inpatient is nothing but an improvement before the Court”.
56. While making the said observation learned trial Court has committed a serious error in as much as the plaintiff had clearly pleaded that J.Anthony Swamy was very ill and he was not in a position to go to Sub- Registrar’s office. In support of the said pleading, he had produced Ex.P.2. Ex.P.2 was not a new discovery during 64 the course of the trial of this suit but as admitted by DW.2 (Defendant No.3) in her evidence – “………..¤.¦.2£ÀÄß ºÉZïDgï¹ £ÀA.157/2002PÉù£À°è £À£ÀUÉ vÉÆÃj¹zÀÝgÀÄ ªÀÄvÀÄÛ £Á£ÀÄ CzÀ£ÀÄß M¦àPÉÆArzÉÝ JAzÀgÉ ¤d – ªÀÄvÀÄÛ CzÀ£ÀÄß D PÉù£À°è JPïì Dgï3 JAzÀÄ UÀÄgÀÄvÀÄ ªÀiÁqÀÀ¯ÁVzÉ JAzÀgÉ ¤d.
57. Now, what is the legal consequence of the defendants either not objecting to the marking of Ex.P.2 or non cross-examining P.W.1 on the genuineness of the same or the veracity of the contents therein?. If defendants had objected to Ex.P.2 being put in evidence through P.W.1, he would have cured the defect and produced such evidence as would be regular. Defendants having not cross-examined P.W.1 on Ex.P.2 and not objected to its marking cannot now turn round and say that it was not properly proved. Hon’ble Supreme Court had an occasion to deal with such a contention and it observed as follows: “20. The learned counsel for the defendant-respondent has relied on The Roman 65 Catholic Mission Vs. The State of Madras & Anr. AIR1966SC1457in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the above said case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as “an exhibit”, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered 66 and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of 67 seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.” [Emphasis supplied]. [(2003) 8 SCC752– R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and another].
58. Learned trial Court ought to have noticed that in civil proceedings parties need to only plead the facts in support of cause of action and they need not plead the evidence. Order VI Rule 2 of CPC reads as follows :
68. “2. Pleading to state material facts and not evidence.- (1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. (2) Every pleading shall,, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph. (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.” Ex.P.2 was produced in support of the plea that J.Anthony Swamy was ill on 25.9.1997 and he could not have executed sale deed-Ex.D.4 and he could not have appeared before the Sub-Registrar for presenting it for 69 registration on that day. Plaintiff has let in evidence in support of the plea apart from producing Ex.P.2. Thus, production of Ex.P.2 was merely as a piece of evidence in support of his plea that J.
Anthony Swamy was ill and could not have executed Ex.D.4. As already pointed out DW.1 and DW.3 have also admitted the fact that J.Anthony Swamy was admitted to the hospital in the morning of 29.5.1997 whereas as per the endorsement on Ex.D4, the same was presented for registration between 3 p.m. and 4 p.m. on 25.9.1997. Ex.P12(a) also shows that DW.3 had made admission in another proceedings between the same parties that on 25.9.1997 J.Anthony Swamy was admitted to the hospital and since he was very ill, he did not appear before the Sub-Registrar on that day. Even D.W.2 has admitted Ex.P.2 when it was shown to her during cross-examination in a previous proceedings before the Court where it was marked as Ex.R.3. 70
59. Learned trial Court has also gotten into some kind of confusion by drawing upon the concept of “improvement before the Court” which is essentially a principle applicable to criminal trials. In civil proceedings, the standard of proof is one of preponderance of probability and the onus of proof keeps on shifting between the parties. The rules of pleading is governed by the Code of Civil Procedure which, as already pointed out, required the parties only to plead the facts and not evidence. The question of “improvement before the Court” arises only in cases of criminal nature where the trial is based on the charge sheet filed, which contains the previous statement of the witnesses who are to be examined before the Court.
60. The observation of this Court in Narayanappa’s case to the effect “……… There is room for negligence and fraud inside the Registrar’s Office as well as outside it.” is fully applicable to this case as well, in view of the several suspicious circumstances surrounding the execution of 71 Ex.D.4. As per the evidence of DWs.1 to 3, Ex.D.4 was executed in the office of Sub-Registrar and it was presented before the Sub-Registrar by the vendor J.
Anthony Swamy himself. The said circumstance is rendered improbable in view of the weight of evidence produced before the Court, more particularly, from the several admissions made by the DWs.1 to 3. The discrepancy between oral evidence and intrinsic material available in Ex.D.4 like the payment of consideration, handing over of vacant possession of the suit schedule premises to defendants No.2 and 3 and handing over the property documents to them shows that the recitals are wholly false and the defendants have not been able to explain as to why false recitals were made in the document. Learned trial Court has failed to apply its mind to the above circumstances and also fact that when Ex.P2 and the evidence thereon shows that J.Anthony Swamy was admitted to the hospital on 25.9.1997 in the morning with serious ailment to which he succumbed on 72 01.10.1997, it was for the defendant to show that he had moved out of the hospital to office of Sub-Registrar for the purpose of execution of Ex.D4 and presenting it for registration on 25.09.1997. As observed by this Court in Narayanappa’s - 1958 ILR (Mysore) 263 case – “………………. From the internal evidence available from Exhibit A, it is clear that the recitals in the document are substantially false. It is evidently a document made to order. The document is said to have been executed on the very day of the adoption. There was undue haste in rushing things through.” [Emphasis supplied]. rendering the case of the defendants improbable of acceptance.
61. Learned trial Judge has unfortunately missed the whole series of tissue of lies woven by the defendants around their case and has acted like an `automaton’ and accepted the version doled out by the defendants and in the process totally brushed under the carpet the very 73 detailed evidence placed by the plaintiff in support of his case. In the face of the above evidence, it is impossible to hold that evidence placed before the Court probabilises the execution of sale deed as per Ex.D.4 by deceased J.Anthony Swamy.
62. Point No.3 : Section 16(c) of the Specific Relief Act, 1963, makes it incumbent on the party, who wants to enforce specific performance of a contract, to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract. In this case, plaintiff has pleaded that he was ready and willing to perform essential terms of his part of the contract and he has also given evidence in support of the same which has remained uncontroverted. Ex. P.1 is the agreement of sale executed by vendor – J.Anthony Swamy in favour of the plaintiff on 11.06.1997. The essential terms of the agreement of sale is payment of consideration of Rs.1,05,000/- out of which 74 the plaintiff had paid a sum of Rs.75,000/- on the date of the agreement which is acknowledged in the document itself. In so far as the payment of balance consideration of Rs.30,000/- is concerned, the terms of Ex.P.1 is to the effect that it should be paid within three months from the date of the agreement and that, in two instalments and upon the vendor – J.Anthony Swamy making a demand for the same. The said period of three months fell on 11.09.1997. The evidence clearly shows that during the month of September, 1997, the vendor – J.Anthony Swamy had fallen seriously ill and he was admitted to Lakeside Hospital, Bangalore, on 25.09.1997 and he had undergone surgery there and subsequently he succumbed to death on 01.10.1997. Ex.P.2 is the certificate issued by the said hospital which mentions the cause of death also. As per the said certificate issued by the hospital, the cause of death was Diabetic Mellitus Septic shock. The plaintiff has stated that he could not take forward the agreement of sale into a sale deed on account of the fact that at about the 75 time the expiry of three months fell, the vendor had fallen ill and ultimately he had to be hospitalized and, as ill-luck would have it, he died in the hospital itself. There is nothing placed on record to indicate that the vendor had made a demand for the payment of the balance consideration amount of Rs.30,000/- from the plaintiff and expressed his readiness and preparedness for executing the sale deed.
63. It is the case of the defendants that on 25.09.1997, the vendor – J.Anthony Swamy had executed a sale deed in their favour in respect of the suit schedule properties as per Ex.D.4. Under Ex.P.1, the only essential term of the agreement which was required to be performed by the plaintiff was payment of the balance consideration of Rs.30,000/-. The plaintiff was already a tenant in respect of the suit schedule properties and his having pleaded and spoken about his readiness and willingness to perform his part of the obligation, there is no reason to 76 believe that he was not prepared to pay the balance consideration on demand made by the vendor as stipulated in Ex.P.1. In this connection it is necessary to make a reference to the observation of the Hon’ble Supreme Court to the following effect : “14. …… It is not expected from the plaintiff that he would continue to deposit the same with the bank all these years. What is required to be considered is as and when he is called upon to make the deposit, he has deposited the amount to show his bona fides or not ?. Therefore, as such, both the learned trial court as well as the High Court have rightly passed a decree for specific performance.” [Emphasis supplied]. [(2019) 6 SCC233– Beemaneni Maha Lakshmi vs. Gangumalla Appa Rao (since dead) by Legal Representatives.].
64. Plea of readiness and willingness as adumbrated in Section 16(c) of the Act is a concept relatable to an agreement of sale which the purchaser wants to take forward vis-à-vis his vendor, by performing his part of the agreement and it is not an obligation at large against the whole world. Therefore, a purchaser under an agreement 77 of sale like the plaintiff herein, is obliged to demonstrate his ‘readiness and willingness’ only upto the point Ex.D.4 came into being. Thereafter, burden is entirely on the subsequent purchaser like the defendants herein to plead and establish that they are bonafide purchasers for value without notice. Hon’ble Supreme Court had an occasion to pronounce on the same : “6. Questioning the plea of readiness and willingness is a concept relatable to an agreement. After conveyance the question of readiness and willingness is really not relevant. Therefore, the provision of the Specific Relief Act, 1963 (in short the 'Act') is not applicable. It is to be noted that the decision in Ram Awadh's case (supra) relates to a case where there was only an agreement. After the conveyance, the only question to be adjudicated is whether the purchaser was a bona fide purchaser for value without notice. In the present case the only issue that can be adjudicated is whether the appellants were bona fide purchasers for value without notice. The question whether the appellants were ready and willing is really of no consequence.
7. Learned counsel for the appellants submitted that since the purchasers step into the shoes of the vendor, the question of readiness and willingness can be pressed into service. This plea is clearly without substance because the purchasers had to 78 prove that they are bona fide purchasers for value without notice. The readiness and willingness aspect will not give any relief to them. That being the position, the appeal is sans merit and is dismissed. There will be no order as to costs.” [Emphasis supplied]. [(2007) 9 SCC660- M.M.S. INVESTMENTS, MADURAI AND OTHERS Vs. V. VEERAPPAN AND OTHERS].
65. As already noticed, the pleading and the evidence let in by the plaintiff clearly shows that he was ready and willing to perform his part of the contract, namely to pay the balance amount of Rs.30,000/- and it was only on account of the vendor falling seriously ill and subsequently succumbing to the same that he could not take the contract forward and there was no wanton failure on his part which prevented the vendor from executing the sale deed.
66. Point No.4 : Now, the further question that requires to be examined is whether the plaintiff is entitled to a decree of specific performance of the agreement of sale dated 79 11.06.1997 (Ex.P.1) ?. The suit was instituted by the plaintiff on 12.03.1999 seeking specific performance of the agreement of sale against defendant No.1 who is the sister of deceased vendor – J.Anthony Swamy and defendant Nos. 2 and 3 who are the subsequent purchasers under Ex.D.4. It is evident that the suit was filed about 21 months after the agreement of sale. Even though the time fixed under the agreement of sale for executing the sale deed was three months from the date of the agreement, there was a condition super added for making payment of the balance consideration in two instalments on the demand made by the vendor. Unfortunately, the vendor died on 01.10.1997 due to a serious debilitating disease – diabetes. Plaintiff has averred and deposed that defendant did not have either wife or children and therefore he was making anxious enquiries to find out his legal representatives. He has also deposed that he came to know about Ex.D.4, the sale deed in favour of defendant Nos. 2 and 3 only after receiving the Court notice in HRC80No.1247/1998. Thereafter, he started making enquiries about the legal representatives of vendor and then he came to know about existence of defendant No.1 who is sister of the vendor. He has explained the delay in filing this suit seeking specific performance of the agreement to sell – Ex.P.1. Now the question is whether there was any unreasonable delay on the part of the plaintiff in filing the suit for specific performance so as to disentitle him from seeking the remedy which is at once equitable as well as statutory ?.
67. In this case, as is evident from the materials placed before the Court, the suit for specific performance was filed within the period of limitation. Further the time taken by the plaintiff to file this suit seeking specific performance has not led to acquisition of any third party interests in the suit schedule properties. The observation of Hon’ble Supreme Court in a similar situation is apposite. 81 “6. The first ground which the High Court took note of is the delay in filing the suit. It may be apt to bear in mind the following aspects of delay which are relevant in a case of specific performance of contract for sale of immovable property: (i) delay running beyond the period prescribed under the Limitation Act; (ii) delay in cases where though the suit is within the period of limitation, yet : (a) due to delay the third parties have acquired rights in the subject-matter of the suit; (b) in the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable to grant a discretionary relief. Here none of the above-mentioned aspects applies. That apart factually also, the High Court proceeded on an incorrect assumption with regard to cause of action. Ext.2 was executed on 20-2-1977 and under it the sale deed was to be executed on or before 19-7- 1977. The last notice was issued on 26-11- 1978 and from that date the suit was filed 82 only after nine months and not after more than a year as noted by the High Court. Therefore on the facts of this case the ground of delay cannot be invoked to deny relief to the plaintiff.” [(2000) 6 SCC420- Motilal Jain vs. Ramdasi Devi (Smt.) and others.)].
68. In the facts placed before Court by the plaintiff, there is no reason to hold that there was any unreasonable delay on the part of the plaintiff to file the suit as to deny him the relief on the said ground.
69. One of the grounds on which learned trial Court has held the suit of the plaintiff untenable was, according to the view of the learned trial Court, plaintiff was obliged to seek cancellation of the sale deed – Ex.D.4 and his having not sought the said relief, suit was liable to be dismissed. The question now is, during the currency of the agreement of sale in respect of the suit schedule properties which evidently has resulted in the plaintiff 83 continuing in possession of the suit schedule properties in part performance of the agreement, is he obliged to seek the relief of cancellation of sale deed – Ex.D.4 ?.
70. A cursory reference to Section 19 of the Specific Relief Act, 1963 is sufficient to dispose of the view taken by the learned trial Court : “19. Relief against parties and persons claiming under them by subsequent title. – Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against – (a) either party thereto; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;” [Emphasis supplied].
71. When the provisions under Section 19 of the Act clearly provides for the mode of enforcing the agreement of sale by seeking specific performance of the same, an agreement purchaser like the plaintiff cannot be obligated in law to seek any other remedy beyond what is 84 specifically stated in the very provision itself. There is no dispute about the fact that Ex.D.4 is dated 25.09.1997 and therefore it has come into existence subsequent to the agreement of sale (Ex.P.1) in favour of the plaintiff. When the said provision of law provides for specifically enforcing the agreement against the defendants on account of their acquiring interest in the suit schedule properties subsequent to Ex.P.1, there is no warrant for holding that the plaintiff, in addition to enforcing the agreement and seeking specific performance of the same, is also required to seek cancellation of the document Ex.D.4 under which such interest was acquired by defendant Nos. 2 and 3. It is no doubt true that defendant Nos. 2 and 3 have pleaded in their written statement that there was an agreement of sale executed by the vendor – J.Anthony Swamy in their favour in respect of the suit premises anterior to Ex.P.1. However, neither in the pleadings nor in the evidence, the clear date of agreement of sale was disclosed. Further, in Ex.D.4 itself there is absolutely no indication about any 85 agreement of sale having been executed by the vendor in favour of defendant Nos. 2 and 3 prior to the sale deed Ex.D.4. During the trial, various contradictory statements have been made by D.W.1 and D.W.2 about the alleged date of agreement of sale, namely that it was on 05.08.1992 and on 10.04.1996 and even with regard to payment of the part of the consideration, the evidence of D.W.1 and D.W.2 is wholly inconsistent with what has been recited in Ex.D.4. On a detailed consideration of the material produced by defendants on this aspect, I have already come to the conclusion that prior agreement of sale is not supported by evidence. It is evident on a closer examination of the evidence let in that the agreement of sale set up by defendant Nos. 2 and 3 in their favour is a make believe one and only advanced so as to defeat the claim of the plaintiff. In that view of the matter, there was no requirement under law for the plaintiff to seek cancellation of the sale deed – Ex.D.4 and the view taken by the learned trial Court is wholly erroneous. 86
72. Plaintiff is not entitled to the relief of specific performance of an agreement of sale against a subsequent purchaser if the subsequent purchaser is a transferee for value who has paid his money in good faith and without notice of the original contract. The burden of proving the fact that the subsequent purchaser and in this case, defendant Nos. 2 and 3 had purchased the suit schedule properties for value and they had paid their money in good faith and without notice of the original contract is on such purchasers namely defendant Nos. 2 and 3 herein. (Vide (1973) 3 SCC418– Dr. Govinddas and another vs. Shrimati Shantibai and others).
73. In this case, the evidence let in by the defendants regarding their making payment towards consideration to the vendor – J.Anthony Swamy is highly discrepant and unworthy of credence. As per the sale deed – Ex.D.4, the total consideration amount is Rs.1,90,000/-. As per the sale deed, the payment was made in three spells beginning 87 from 1996. As already discussed, the first of the payments as per the sale deed was on 10.04.1996 and it was through a cheque for Rs.65,000/-. During the trial, D.W.1 has given entirely different version and according to her, the first of the payments was made on 05.08.1992 for a sum of Rs.45,000/- and as to the manner of the payment also, her version is divergent, namely that it was paid in hard cash and by cheque and according to her, she had paid further sum of Rs.40,000/- in four instalments of Rs.10,000/- each which is contrary to what is recited in Ex.D.4.
74. Was there any good faith on the part of the defendant in entering into the transaction ?. The evidence let in by the defendants show that suit schedule properties are situated in the same locality where at a short distance away from the same, the mother and younger brother of defendant Nos. 2 and 3 were residing as a tenant under the same landlord, namely J.Anthony Swamy. The evidence also shows that the brother of defendant Nos. 2 88 and 3 had subsequently purchased the said tenement from J.Anthony Swamy. The plaintiff had been a tenant in respect of the suit schedule properties under the vendor – J.Anthony Swamy ever since 1988 and yet D.W.1 frankly admits that she had not made any enquiry with the plaintiff regarding the nature of his possession of the premises and at one stage she admits that her vendor had informed her that plaintiff was in possession of the premises and he had filed eviction proceedings against him. She also admits that she had not entered inside the suit schedule premises before Ex.D.4 and she was not even able to give the description of the premises. She also admits that she had not scrutinized the documents of title pertaining to the suit schedule premises prior to Ex.D.4. The recitals in Ex.D.4 regarding vendor – J.Anthony Swamy handing over vacant possession of the suit schedule premises to defendant Nos. 2 and 3 is demonstrably false. Similarly, D.W.1 admits that she was not handed over the documents pertaining to the suit 89 schedule premises at the time of Ex.D.4 which clearly shows that recital in clause No.7 of the sale deed – Ex.D.4 is again blatantly false. In this state of the evidence, it can never be said that defendant Nos. 2 and 3 are transferees for value who had paid their money in good faith and without notice of the original agreement of sale – Ex.P.1. A useful reference in this behalf may be made to the observation of the Hon’ble Supreme Court which is as follows : “13. In paragraph 6 of the written statement defendants 2 to 4 stated that they had purchased the property only after contacting the plaintiff; they sought the permission of the plaintiff to inspect the suit godown informing him of their intention to purchase the same from the first defendant. The trial court did not accept this contention and rightly so in our opinion. In the ordinary course a reasonable prudent person placed in the position of the plaintiff would not have failed to mention about the existence of the prior agreement in his favour particularly when he is using the very same godown as a tenant under the first defendant for the last 20 years prior to the filing of the suit. Similarly the defendants 2 to 4 intending to purchase the property in possession of a tenant would not have failed to make inquiry as to any further interest in relation to possession or title of 90 the plaintiff over the suit property. It is not uncommon that where a tenant is in possession of the property, that too for a long time, using it for business purpose would always like to purchase the property getting all advantages if offered for sale. Normally the landlord or owner of the property would also be interested in selling the property to a person in possession if a reasonable price is given to avoid litigation and to have smooth transaction. In certain statutes even provisions are made to give first option to a tenant to purchase the property. In such situation the defendants 2 to 4 would have made inquiry with the plaintiff about the nature of his possession and title under which he is in possession on the date of sale deed (Exhibit B-1) executed in their favour. If they had made inquiry plaintiff would have certainly revealed about Exhibit A-3 the prior agreement in his favour. If such inquiry was not made it only means that the defendants 2 to 5 willfully abstained from making such inquiry or they grossly neglected to do so. The defence of defendants 2 and 4 is not consistent with regard to contacting the plaintiff and informing of their intention to purchase the property. Once they took a stand that they directly contacted the plaintiff seeking his permission to inspect the suit property and in the evidence of DW-1 it is stated that they sent their clerk to the plaintiff seeking permission to inspect the suit property. Neither the name of that clerk was given nor he was examined nor it is stated about the same in the written statement. As can be seen from Sections 19 (a) and (b) extracted above specific performance of a contract can be enforced against (a) either party thereto and (b) any person claiming under him by a title arising 91 subsequent to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. Section 19(b) protects the bona fide purchaser in good faith for value without notice of the original contract. This protection is in the nature of exception to the general rule. Hence the onus of proof of good faith is on the purchaser who takes the plea that he is an innocent purchaser. Good faith is a question of fact to be considered and decided on the facts of each case. Section 52 of the Penal Code emphasizes due care and attention in relation to the good faith. In the General Clauses Act emphasis is laid on honesty.
15. Notice is defined in Section 3 of the Transfer of Property Act. It may be actual where the party has actual knowledge of the fact or constructive. "A person is said to have notice" of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation II of said Section 3 reads:
"Explanation II - Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof."
Section 3 was amended by the Amendment Act of 1929 in relation to the definition of 'notice'. The definition has been amended and supplemented by three explanations, which settle the law in several matters of great importance. For the immediate purpose Explanation-II is relevant. It states that 92 actual possession is notice of the title of the person in possession. Prior to the amendment there had been some uncertainty because of divergent views expressed by various High Courts in relation to the actual possession as notice of title. A person may enter the property in one capacity and having a kind of interest. But subsequently while continuing in possession of the property his capacity or interest may change. A person entering the property as tenant later may become usufructuary mortgagee or may be agreement holder to purchase the same property or may be some other interest is created in his favour subsequently. Hence with reference to subsequent purchaser it is essential that he should make an inquiry as to title or interest of the person in actual possession as on the date when sale transaction was made in his favour. The actual possession of a person itself is deemed or constructive notice of the title if any, of a person who is for the time being in actual possession thereof. A subsequent purchaser has to make inquiry as to further interest, nature of possession and title under which the person was continuing in possession on the date of purchase of the property. In the case on hand defendants 2 to 4 contended that they were already aware of the nature of possession of the plaintiff over the suit property as a tenant and as such there was no need to make any inquiry. At one stage they also contended that they purchased the property after contacting the plaintiff, of course, which contention was negatived by the learned trial court as well as the High court. Even otherwise the said contention is self- contradictory. In view of Section 19(b) of the Specific Relief Act and definition of 'notice' given in Section 3 of the Transfer of Property Act read along with explanation II, it is rightly held by the trial court as 93 well as by the High Court that the defendants 2 to 5 were not bona fide purchasers in good faith for value without notice of the original contract.
16. ……… The leading case on the subject, relied on in a number of Indian decisions is - 'Daniels v. Davision', (1809) 16 Ves Jun 249 (B). The Lord Chancellor held that:
"Where there is a tenant in possession under a lease, or an agreement, a person purchasing part of the estate must be bound to inquire on what terms that person is in possession..........that a tenant being in possession under a lease, with an agreement in his pocket to become the purchaser, those circumstances altogether give him an equity repelling the claim of a subsequent purchaser who made no inquiry as to the nature of his possession"."
[Emphasis supplied]. As can be seen from the paragraph, extracted above, that in case of contradictory evidence the circumstances have to be kept in view in deciding whose version is more acceptable. One of the circumstances that was held against the subsequent purchasers was that the parties were residents or had shops in the same vicinity and it was not probable that the subsequent purchasers would not have come to know of the execution of the agreement. In the case on hand the trial court as well as the High Court have given reasons based on evidence and have indicated several circumstances for not accepting the version of defendants 2 to 4 that they had no knowledge of the prior agreement A-3; one of the circumstances being that the parties are neighbours in place of 94 business as well as in residential locality. We have also already referred to that briefly.” (2000) 6 SCC402- R.K. Mohammed Ubaidullah and others vs. Hajee C. Abdul Wahab (D) by LRs. and others 75. As noticed in the above decision, the plaintiff in this case is also a tenant in respect of the suit schedule premises and it is impossible for defendant Nos. 2 and 3 in the ordinary course not to be aware of the fact that plaintiff was residing in the suit schedule premises for a considerable number of years in view of the evidence clearly suggesting that their mother was also a tenant in the same neighbourhood and if what they have stated is true about Ex.D.4, not to have spoken to the plaintiff, in which event, being a tenant who was eager to take the deal through, he would naturally have mentioned about the original contract namely Ex.P.1. It is observed by the Hon’ble Supreme Court in a similar situation as follows : “34. The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so 95 that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misled the Court then such discretion should not be exercised by refusing to grant specific performance.” [(2000) 6 SCC420- Motilal Jain vs. Ramdasi Devi (Smt.) and others.].
76. It is well settled that the remedy of specific performance is an equitable one and the Court while granting decree of specific performance exercises its discretionary jurisdiction. Such exercise of discretion should be within the parameters of Section 20 of the Act and to be done in accordance with sound and reasonable judicial principles. What are these principles which should guide the Court in exercising the discretion have been noted by the Hon’ble Supreme Court as follows : “24. It is well settled that remedy for specific performance is an equitable remedy. The Court while granting decree of specific performance exercises its discretionary jurisdiction. Section 20 of the Specific Relief Act specifically provides that Court’s discretion to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in 96 accordance with sound and reasonable judicial principles.
25. The King’s Bench in Rookey’s Case [77 ER209 (1597) 5 Co.Rep.99]. it is said : 'Discretion is a science, not to act arbitrarily according to men’s will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly; in others assists it, and advances the remedy; in others again, it relieves against the abuse, or allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the constitution entrusted with' 26. The Court of Chancery in Attorney General vs. Wheat [(1759) 1 Eden 177; 28 ER652 followed Rookey’s case and observed : 'The law is clear and courts of equity ought to follow it in their judgments concerning titles to equitable estates; otherwise great uncertainty and confusion would ensue. And though proceedings in equity are said to be secundum discretionem boni vin, yet when it is asked, vir bonus est quis?. The answer is, qui consulta partum, qui leges juraq servat. And as it is said in Rooke’s case, 5 Rep. 99 b, that discretion is a science not to act arbitrarily according to men’s will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn the 97 grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the constitution entrusted with. This description is full and judicious, and what ought to be imprinted on the mind of every judge.' 27. In Satya Jain vs. Anis Ahmed Rushdie, (2013) 8 SCC131 at page 145, this Court observed:- '40. ……. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. It must however be emphasised that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance. Such a view has been consistently adopted by this Court. By way of illustration opinions rendered in P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi (2007) 10 SCC231and more recently in Narinderjit Singh v. North Star Estate Promoters Ltd.(2012) 5 SCC712may be usefully recapitulated.' 30. In a recent judgment dated 22.9.2014 in Civil Appeal No.9047 of 2014 entitled K. Prakash vs. B.R. Sampath Kumar, this Court observed that: '16. ………Normally, when the trial court exercises its discretion in one way or other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated under Section 20 of the Specific 98 Relief Act, that a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirements for getting such a decree is established then the Court has to exercise its discretion in favour of granting relief for specific performance.
18. Subsequent rise in price will not be treated as a hardship entailing refusal of the decree for specific performance. Rise in price is a normal change of circumstances and, therefore, on that ground a decree for specific performance cannot be reversed.
33. The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misled the Court then such discretion should not be exercised by refusing to grant specific performance.” [(2015) 1 SCC705– Zarina Siddiqui Vs A.Ramalingam Alias R. Amarnathan].
77. The plaintiff had been a long standing tenant in respect of the premises. That he was in need of that premises for his personal purposes is beyond the realm of any doubt. The fact that he had entered into an agreement of sale with the owner of the premises – J.
Anthony Swamy 99 has also been established very clearly in this case and so also his payment of the substantial portion of the consideration amount, namely Rs.75,000/- out of Rs.1,05,000/- and also the fact that he was put in possession of the premises in part performance of the said agreement. The character and quality of the evidence placed from the side of the defendants creates a strong suspicion that they were indulging in speculative investment and the participation of D.W.3 as an attestor who is admittedly a realtor shows that the alleged transaction – Ex.D.4 is a make believe one. Even though substantial portion of the payment as per the recital in Ex.D.4 is stated to be through cheques, no such Bank statements have been produced before the Court. D.W.1 has stated that for the amount of Rs.45,000/- paid on 05.08.1992 by cheque, J.Anthony Swamy had made an endorsement on the counter foil of the cheque book. Even such counter foils have not been produced before the Court. The defendants have not pleaded any hardship 100 which would be caused to them on account of grant of relief of specific performance to the plaintiff. On the entirety of materials placed before the Court, plaintiff has made out a strong case for exercise of discretion in his favour by granting specific performance of the contract for sale.
78. The next question is the manner of granting of the relief to the plaintiff after having come to the conclusion that plaintiff is entitled to specific performance of the contract of sale. The authorities, all of them emanating from the Hon’ble Supreme Court, are unanimous that both the original vendor and the subsequent purchasers should join together in executing the sale deed in favour of the plaintiff : (AIR1954SC75– Lala Durga Prasad and Another Vs Lala Deep Chand and others. 1973 (1) SCC179– Dwaraka Prasad Singh and Another Vs Harikant Prasad Singh and others.) 101 79. The original vendor – J.Anthony Swamy has expired. The plaintiff has let in evidence to show that defendant No.1 is the sole legal representative of original vendor – J.Anthony Swamy. Under Ex.D.4, ostensibly, title has been transferred in respect of the suit schedule properties to defendant Nos. 2 and 3.
80. Hence, the following : The above appeal is allowed. The judgment and decree passed in O.S.No.2089/1999 dated 23.04.2011 by the learned XI Additional City Civil Judge, Bangalore City (CCH No.8), is set aside. Defendant Nos. 1 to 3 (respondent Nos. 1 to
3) are directed to execute a sale deed in favour of the plaintiff – appellant, transferring and conveying the property described in the schedule to the plaint with a further direction that in the event of defendants – respondents failing to execute the sale deed, for execution of the sale deed by the learned trial Court on behalf of the defendants in favour of the plaintiff, through 102 a Court Commissioner within three months from today. The plaintiff – appellant is directed to deposit the balance consideration of Rs.30,000/- before the learned trial Court within 60 days from today. Sd/- JUDGE Mgn/-