Judgment:
D.V. Shylendra Kumar
1. The plaintiff in O.S. 153/82 on the file of the Court of the Additional Munsif and II Addl. J.M.F.C., Ranebennur, whose attempt to obtain a decree for directing the defendants for specific performance of an agreement for conveying the subject immovable property -- a shop in Ranebennur Town, did not succeed before the trial Court as well as before the Lower Appellate Court, is in second appeal before this Court.
2. The plaintiff had brought the suit praying for directions to defendants 1 to 4 and 6 and 9 to execute a registered sale deed in respect of the suit property by receiving the balance sale consideration of Rs. 7,000/-which the plaintiff claims as had been paid under an agreement dated 21-8-1979 between the plaintiff and one Fakirappa Joger who was no more and as such had impleaded his legal representatives as defendants to the suit. The plaintiff had also pleaded in the alternative for the refund of the earnest money and damages by way of interest on this amount. The plaint averment was that the deceased Fakirappa Joger had executed this agreement dated 21-8-1979 agreeing to convey the property in question for a sum of Rs. 10,000/- and he had received a sum of Rs. 3,000/- as part of the sale consideration. The plaintiff had also asserted that the property was the self acquired property of said Fakirappa Joger. The agreement though recited that the suit property was delivered to the plaintiff on the same day of execution of the said agreement, it was not actually delivered to him but was allowed to be in possession of the tenant, who had been impleaded as a defendant to the suit. It was also the pleading in the plaint that the said Fakirappa Joger died after the execution of the agreement, that he had executed the agreement to sell the property for family necessity and for raising capital to his business and also for the expenses to be incurred in connection with the marriage of his children etc., that as the said Fakirappa Joger had failed to do so during his life time and that the defendants being in possession and enjoyment of the property, suit for specific performance had been brought by impleading the legal representatives of the defendant to the suit.
3. The suit was contested. It was contended that late Fakirappa Joger was not the exclusive owner of the property in question, that it was not even his self acquired property but it was a joint family property, that the suit was bad for non joinder of other necessary parties such as the daughters of late Fakirappa, that the property was not sought to be sold for any family necessity or for the capital for his business, that the amount of Rs. 3,000/-, assuming that it had been received by Fakirappa by way of advance, had not been utilised for any family purpose, that there was no family necessity either, after 21-8-1979 such as performance of any marriage in the family, that the agreement was not binding on the defendants, that the tenant continued to be in possession and that the plaintiff has to establish that he had actually paid the sum of Rs. 3,000/- which he had claimed as having been paid by way of advance and as such as an alternative relief the plaintiff had sought for refund of this amount as damages and pleaded for the dismissal of the suit.
4. In view of such, rival pleadings, the trial Court framed the following issues :--
' 1) Whether the plaintiff proves the agreement of sale dated 21-8-1979?
2) Whether the plaintiff is ready and willing to perform his part of contract
3) Does the plaintiff prove legal necessity as pleaded by him to enter into sale agreement ?
4) Whether the defendants prove that Defendant No. 1 was managing the family on behalf of defendant Nos. 1 to 4
5) What decree or order
5. The trial Court held that an agreement of this nature had been executed by the deceased Fakirappa but answered the issue relating to the plaintiff establishing the legal necessity for executing the same as pleaded by the plaintiff against the plaintiff, in this view of the matter, the trial Court, while declined to grant the relief of specific performance, nevertheless decreed the suit to the extent of directing the defendants to refund the amount of Rs. 3,000/- with interest at 6% per annum as damages from the date of agreement till the date of payment.
6. The Lower Appellate Court to whom the plaintiff appealed, formulated the following points for determination :--
'1) Whether trial Court erred in holding that the suit property was joint family property of deceased Fakeerappa and defendants?
2) Whether the trial Court erred in holding that the plaintiff is not entitled for decree of specific performance of contract
3) Whether the trial Court erred in holding that there was no family necessity to sell the suit property by the deceased Fakeerappa
4) Whether appellant establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not after exercise of due diligence, be produced by him at the time when the decree appealed against was passed
5) Whether the judgment and decree of the Trial Court warrants any interference
6) What Order?'
7. The Lower Appellate Court found that the trial Court had rightly concluded the suit property to be joint family property and the sale agreement executed by the deceased Fakirappa was not binding on the shares of other co-sharers and declined to interfere with the judgment and decree of the trial Court observing it did not find any occasion to interfere with the discretion exercised by the trial Court for not decreeing the suit for specific performance inasmuch as even if the agreement was held to be binding to the extent of the share of deceased Fakirappa, it was not feasible to pass a decree to the extent of such share as the suit property was measuring only an extent of 36' x 16' and the share of Fakirappa in this was so small as not to compel the other co-sharers to part with this extent of land in favour of the plaintiff.
8. The Lower Appellate Court also found that the trial Court was right in concluding that the plaintiff had not established his plea that late Fakirappa had agreed to sell the property to meet the expenses in connection with family necessities/requirements. Appeal was accordingly dismissed. Under such circumstances, the present second appeal.
9. I have heard Sri. Prabhulinga K. Navadgi, learned Counsel for the appellant.
10. Learned Counsel for the appellant firstly submits that the Courts below have committed a grave error in placing the burden of proof to prove that the suit schedule property was joint family property, on the plaintiff. Learned Counsel, relying upon a decision of the Supreme Court in : [1969]3SCR245 (Mudigowda v. Ramachandra) submits that the burden is on such party who pleads that the properly in question is a joint family property to establish the same and it was not incumbent upon the plaintiff to have established that it was not a joint family property and the Courts below having placed this burden wrongly on the plaintiff, the same has vitiated the conclusion.
11. Learned Counsel also submits that the Courts below having held that there was an agreement of this nature executed by late Fakirappa and also having held that late Fakirappa had received a sum of Rs. 3,000/- by way of advance and further, having found that the plaintiff was ready and willing to perform his part of the contract, it was inevitable that the suit praying for specific performance of the agreement should have been decreed. Non exercise of the discretion in favour of the plaintiff on the ground of hardship to the defendants for sharing the property, is an error in law and dismissal of the suit militates against settled principles of law in the light of the provisions of Section 22 of the Specific Relief Act and as recognised by the Courts. In support of this submission, learned Counsel has placed reliance on a single Bench decision of the Madras High Court in S. Ramalinga Pillai v. G.R. Jagadammal alias Jagadamba Ammal : AIR1951Mad612 as also a Division Bench decision of the Allahabad High Court in Hari Krishna Agarwala v. K.C. Gupta : AIR1949All440 . The learned Counsel in this regard submits that the Trial Court, as well as the Lower Appellate Court having not exercised the discretion for decreeing the suit in accordance with the settled principles and the trial Court denying decree in favour of the plaintiff on the ground of hardship to the defendant, is opposed to the settled principles of law. Learned Counsel submits that these questions arise for consideration in this appeal.
12. I have given my serious consideration to the submissions urged by Sri. Prabhulinga K. Navadgi, learned Counsel for the appellant.
13. The aspect of burden of proof in the present case and on the ratio laid down by the Supreme Court in : [1969]3SCR245 (supra) is not applicable to the facts of this inasmuch as it was the pleading of the plaint in his plaint that not only the suit schedule property was the self-acquired property of deceased Fakirappa, but he had executed this agreement for the purpose of meeting the family necessities. While the former plea is negatived on the ground that it is not a joint family property, the latter plea indicates that late Fakirappa had to incur expenses in connection with the family. These have been denied by the defendants. It is elementary that in the circumstances it was for the plaintiff to have proved his case as pleaded in the plaint. The Trial Court had framed issues on this aspect and they have been answered against the plaintiff. The Lower Appellate Court did not find any occasion to interfere with the same. The suit was dismissed as the plaintiff did not establish his case.
14. In so far as the exercise of discretion is concerned, the stage would have arisen only when the plaintiff had established his case and when the Court had found that the agreement was binding on the legal representatives/successors to the estate of late Fakirappa or even if the property was a joint family property that it was for the family needs and necessities that it had been agreed to be sold. The Trial Court though held that to the extent of share of Fakirappa, agreement could bind and could be enforced, found it not possible to direct specific performance of the entire property as the property could not be divided into such small portions and it is on this aspect that the Trial court has exercised discretion in not decreeing the suit, even to the extent of the share of late Fakirappa in the suit schedule property.
15. It cannot be said that the Trial Court has not exercised the discretion either in a proper manner or on relevant considerations.
16. In a suit for specific performance where the Courts below have concurrently held against the plaintiff particularly for not making home the plaint averments for granting the relief of specific performance, I do not find any scope for interference in the exercise of jurisdiction under Section 100 C.P.C.
17. Accordingly the second appeal is dismissed.