Karnataka High Court
B Venkataraju S/O. Late G Byrappa vs Smt Tarabai W/O. Changanlal on 10 March, 2026
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR JUSTICE M.G.S.KAMAL
REGULAR FIRST APPEAL NO.302 OF 2009 (SP)
BETWEEN:
B. VENKATARAJU
S/O. LATE G BYRAPPA
AGED ABOUT 59 YEARS
R/AT NO. 72-B 4
MAGADI ROAD
OLD TOLEGATE
BANGALORE - 560 023.
... APPELLANT
(BY SRI. RAGHU PRASAD B.S., ADVOCATE)
AND:
1. SMT TARABAI
W/O. CHAGANLAL
AGED ABOUT 50 YEARS
R/AT NO. 72/1
NEAR HALE TOLEGATE
MAGADI ROAD
BANGALORE - 560 023.
2. SMT YESHODABAI
W/O. S M MUNISWAMY
AGED ABOUT 80 YEARS
R/AT NO. 221/1
BALAJI ROAD
TYAGARAJANAGAR
BANGALORE - 560 028
... RESPONDENTS
(BY SRI. Y.K. NARAYANA SHARMA., ADVOCATE FOR R1;
-2-
R2-SERVED AND UNREPRESENTED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:
04.10.2008 PASSED IN OS.NO.1299/1989 ON THE FILE OF THE
XV ADDL.CITY CIVIL JUDGE, BANGALORE CITY, PARTLY
DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED ON 23.01.2026 FOR JUDGMENT COMING ON FOR
PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED THE
FOLLOWING:
CORAM: HON'BLE MR JUSTICE M.G.S.KAMAL
CAV JUDGMENT
(PER: HON’BLE MR. JUSTICE M.G.S.KAMAL)
Defendant No.2 in O.S No.1299/1989 is before this Court
being aggrieved by the Judgment and decree dated 04.10.2008
passed in the said suit on the file of XV Additional City Civil and
Sessions Judge, Bengaluru City (CCH.No.3), (hereinafter
referred to as ‘trial Court’) whereby, the trial Court while
decreeing the suit for specific performance, has directed
defendant Nos. 1 and 2 to execute registered deed of sale in
respect of the suit schedule property in favour of the plaintiff
within 6 months from the date of the judgment of the order. It
has further directed plaintiff to pay a balance consideration of
₹ 3,00,000/- to defendant No.2 on behalf of defendant No. 1,
because he has paid the amount of ₹3,00,000/- to defendant
-3-
No.1 while purchasing the schedule property under Ex.D5 dated
19.09.1996 and has further ordered that in the event of failure
to execute the registered sale deed by the defendant Nos.1 and
2, the plaintiff is entitled to get the registered sale deed
through the process of the Court in execution by depositing the
consideration amount of ₹3,00,000/- in the Court. It is further
ordered that suit filed by the plaintiff claiming ₹5,000/- as
additional advance paid by him was dismissed.
2. Subject matter of the suit is a site bearing No.5
situated near Hale Tolegate, Magadi Road, Bangalore-23,
measuring east to west 50 feet, north to south on the eastern
side 34 feet, on the western side 37 feet, bounded on the east
by : the site belonging to Hajee Pasha, west by : the property
belonging to Byrappa, north by : police quarters compound and
south by: Magadi Road (hereinafter referred to as ‘suit schedule
property’).
3. Originally plaintiff had filed a suit for permanent
injunction. The plaint was later amended on 09.10.1991 to
include the prayer for direction to execute and register the
deed of sale in favour of the plaintiff.
-4-
(a) That above suit is filed by plaintiff Smt. Tarabai,
w/o Sri Chaganlal, against defendant No.1/Smt. Yashodabai for
the relief of specific performance contending inter alia that;
(b) the defendant No.1 had entered into an agreement
dated 12.03.1988 agreeing to sell the suit schedule property
for a total sale consideration of ₹3,25,000/-. That in
furtherance to the said sale agreement, on 12.03.1988 plaintiff
had paid a sum of ₹25,000/- towards part payment of sale
consideration. That the remaining sum of ₹3,00,000/- was
agreed to be paid within 6 months and to obtain the registered
deed of sale subject to defendant No.1 furnishing all the
documents namely, (i) possession certificate from the
Bangalore Development Authority, (ii) permission letter from
the Urban Ceiling authorities, (iii) Khata and tax paid receipts
from the Corporation etc.,
(c) That plaintiff in addition to the above had also paid
a sum of ₹5,000/- towards the necessary expenditure enabling
the defendant No.1 to obtain the aforesaid documents from
competent authorities, as agreed. However, there was no shara
written on the sale agreement in that regard. That immediately
after about a month from the date of payment of ₹5,000/-,
plaintiff requested the defendant No.1 to obtain all documents
-5-as agreed under the agreement enabling him to pay the entire
balance sale consideration of ₹3,00,000/- within the stipulated
period of 6 months and to obtain the registered deed of sale.
However, defendant No.1 went on postponing for one reason or
the other.
(d) The plaintiff was always ready and willing to
perform his part of the contract by paying the balance sum of
₹3,00,000/- and to obtain the deed of sale. Defendant No.1
instead of complying with the demand and the request of the
plaintiff started negotiating with some third parties, namely,
Sri. Venkatesh/defendant No.2 for higher consideration
suppressing the agreement that she had entered into with the
plaintiff. In this regard plaintiff through her husband Chaganlal
contacted the broker namely, Sri Giraga Reddy who had
informed the plaintiff that defendant No.1 was not interested to
sell the suit schedule property as she had sent a letter to him
stating that some other party had approached to purchase the
suit schedule property offering higher consideration amount of
more than ₹4,00,000/-. Defendant No.1 had even handed over
the possession of the said property to the plaintiff and had
agreed to give rent of ₹101. That the rent was being collected
-6-
by defendant No.1 from one Sri.Shivanna who was running a
petty shop over the suit schedule property. Hence, the suit.
4. Defendant No.1 filed her written statement;
(a) defendant No.1 admitted that she had entered into
an agreement of sale on 12.03.1988, for a total sale
consideration of ₹3,25,000/- in respect of the suit schedule
property. She further contended that on the date of agreement
she received ₹25,000/- as earnest money, and the plaintiff had
agreed to pay the balance consideration of ₹3,00,000/- within
six months. However, payment of sum of ₹ 5,000/- by the
plaintiff as claimed, is denied. It is contented that after entering
into an agreement, defendant No.1 had given all the documents
which were in her possession to the plaintiff’s husband/ Sri
Chaganlal to pursue the matter as he voluntarily agreed to do
so. But he did not take any action for the reasons best known
to him. It is further contented there was no question of
defendant getting all the documents like possession certificate
etc., as the plaintiff’s husband himself had undertaken to do
the same. Defendant No.1 had no occasion to pursue the
matter.
-7-
(b) The allegation of defendant No.1 went on
postponing the matter on one ground or the other is denied.
That the plaintiff’s husband had promised to pay a sum of
₹1,00,000/- to meet the marriage expenses of the defendant’s
daughter Sow.Malathi and consequent to said assurance, the
date for marriage was fixed on 21.05.1989. Despite the
defendant No.1 approaching the plaintiff on several occasions,
the plaintiff’s husband failed to fulfill his obligation, causing the
defendant No.1 to seek alternate financial arrangements to
ensure the marriage was solemnized as scheduled.
(c) That after waiting for sometime defendant No.1 was
constrained to cause issuance of a notice dated 27.01.1989 to
the plaintiff apprising her that as no action was taken by the
plaintiff’s husband and as had not evinced any interest to
complete the sale transaction, defendant No.1 requested all the
papers must be returned to her and that she herself would
rectify all the defects and on failing to comply with this, she
would be forced to refund the advance amount, and thereafter
to treat the agreement as cancelled. That, it is only after
receiving the said notice the plaintiff caused issue of a notice
through her advocate suppressing all the above facts alleging
-8-
defendant No.1 was attempting to sell the property in favour of
third party.
(d) It is further contented that suit schedule property
was in possession of one Sri Venkataraju and it is not in the
possession of plaintiff’s husband. Recitals made in the
agreement are written at the instance of the plaintiff’s husband
and so called rent of ₹101 was to be paid was false.
(e) that entire agreement was one sided and intended
only to defeat the rights of the defendant No.1. Defendant No.1
was owning only the suit property and she would put to greater
hardship, loss and difficulty if she was directed to receive the
balance sale consideration and to execute the sale deed and to
get the same registered.
(f) It is contented there is no merits in the content of
plaintiff’s allegation that she was always ready and willing to
perform her part of the obligation. That the plaintiff had failed
to do so within the time stipulated under the agreement. That
she had failed to execute the sale deed within a period of 6
months after paying the balance sale consideration to the
defendant No.1. As such, defendant No.1 was not obligated to
execute the Sale Deed. As such, sought for dismissal of suit.
-9-
5. Defendant No.2 filed his written statement
contending inter alia;
(a) That he had entered into an agreement with
defendant No.1 on 12.01.1988 in respect of the suit schedule
property for a sale consideration of Rs.3,00,000/-. The
defendant No.1 went on receiving the various sums as per her
needs as she had a big family. The payment of various amount
done by defendant No.2 to defendant No.1 has been endorsed
on the agreement of sale. Defendant No.2 is in possession of
the property in terms of the sale agreement.
(b) That plaintiff’s husband/ Chaganlal was aware of
the aforesaid agreement. Plaintiff’s husband has deliberately
entered into suit agreement on 12.03.1988 that is one and half
month subsequent to his agreement dated 12.01.1988 in the
name of his wife. As such, the agreement of sale dated
12.03.1988 executed between the plaintiff and the defendant
No.1 is void and it is not a concluded contract.
(c) That the agreement dated 12.03.1988 is a result of
fraud played by plaintiff’s husband against the defendant No.2
to defeat his lawful rights over the suit schedule property.
Hence, sought for dismissal of the suit.
– 10 –
6. Based on the pleadings, trial Court framed the
following issues:
“(1) Whether plaintiff proves that she has paid further
sum of ₹ 5,000?
(2) Whether the plaintiff proves that she is ready and
willing to perform her part of the contract?
(3) Whether plaintiff proves that the defendant failed
to perform her obligation?
(4) Whether defendant proves that the plaintiff did
not show interest, so she got issued a legal notice?
(5) Whether the defendant proves that the object of
sale is frustrated by delay?
(6) Whether the defendant proves that Venkat Raju is
in possession and decree?.
(7) What decree or order?.”
7. Husband of the plaintiff Sri.Chaganlal examined
himself as PW.1 and another witness Sri.Jayaram examined as
PW.2 and marked 5 documents as Ex.P1 to Ex.P5. Defendant
No.1/Yashodabai and defendant No.2/B Venkataraju examined
themselves as DW.1 and DW.2 and marked 6 documents as
Ex.D1 to Ex.D6.
8. It is necessary also to note that the plaintiff
Smt.Tharabai had filed another suit in O.S No. 5081/1992
seeking relief of permanent injunction claiming to be in
possession of the suit property. The trial Court had taken up
– 11 –
the above O.S. No.1299/1989 and O.S No. 5081/1992 for
common trial and disposal. On appreciation of the evidence, the
trial Court decreed the suit in O.S. No. 1299/1989 as prayed for
and dismissed the suit in O.S.No. 5081/1992. The plaintiff has
not chosen to file any appeal as against dismissal of her suit in
O.S. No. 5081/1992.
Aggrieved by the judgment and decree, defendant No.2 is
before this Court in this appeal.
9. Sri Raghuprasad B. S. learned counsel appearing for
the appellant taking this Court through the records submitted;
(a) that the trial Court erred in granting the relief of
specific performance without appreciating the pleading,
material evidence and the settled position of law.
(b) that the plaintiff has not entered the witness box to
prove her readiness and willingness. Plaintiff has
examined her husband Chaganlal instead. The
evidence of Chaganlal being the power of attorney holder
of the plaintiff cannot be relied upon as he is not a
competent witness to speak about readiness and
willingness of the plaintiff.
– 12 –
(c) that the plaintiff neither having entered the witness box
nor having proved the ready and willingness in the
manner known to law, the suit could not have been
decreed in the light of mandatory provisions of Section
16(c) of the Specific Relief Act, 1963.
(d) that the agreement is not a concluded agreement it is a
sham agreement. That the husband of the plaintiff
Chaganlal was admittedly running a pawn broker
business therefore an inference has to be drawn that the
agreement was in the nature of mortgage obtained by the
husband of the plaintiff.
(e) that the plaintiff has not produced any documentary
evidence to justify her claim of she being ready and
willing to perform her part of the contract.
(f) Referring to Ex.P3 learned counsel pointed out that,
defendant No.1 at an undisputed point of time,
admittedly forwarded a communication through a
middleman to the plaintiff expressing her intention of
revoking the agreement on the premise of plaintiff not
paying the sale consideration within the time stipulated.
He submits perusal of the said document also indicate
– 13 –
that the defendant No.1 was in dire need of the financial
assistance to meet the marriage expenses of her
daughter. Therefore, the agreement has to be construed
as one having time being essence of contract.
(g) that the plaintiff had originally filed a suit for bare
injunction on 01.03.1989. However, the same was
amended and converted to one for specific performance
on 09.10.1991. Though, the suit agreement having been
purportedly entered into on 12.03.1988, the suit for
specific performance had been filed by way of
amendment on 09.10.1991. Thus, the same was barred
by limitation, is his submission.
He relied upon the following judgments in support of his
submissions;
1 RAJESH KUMAR V/S ANAND KUMAR AND
OTHERS reported in AIR 2024 SC 3017
2. GURAPPA @ RAJASHEKARAPPA V/S
BASAVARAJ CHENNAPPA NELAVAGI
reported in 2022(1) AKR 391
3. JANKI VASHDEO BHOJWANI AND OTHERS
V/S INDUSIND BANK LTD., reported in AIR
2005 SC 439
4. R.SHAMA NAIK V/S G.SRINIVASAIAH reported
in (2025) 1 KLR 9(SC)
– 14 –
5. PYDI RAMANA @RAMULU V/S DAVARASETY
MANMADHA RAO reported in AIR 2024 SC
3242
6. C.S.VENKATESH V/S ASC MURTHY AIR 2020
SC 930 reported in
7. PUNNY AKAT PHILIP RAJU V/S DINESH
REDDY reported in ILR 2016 KAR 2252
8. H.P.PYAREJAN V/S DASAPPA reported in AIR
2006 SC 1144
9. V.K.RAMEGOWDA V/S T.SHANKARA
CHIKKATHIMMEGOWDA AND OTHERS
reported in 2025(3)AKR 706
10. SMT NARASAMMA V/S NIRANNANILATHA
MOMMEN JOHN reported in (2007)2 c vKLJ
427(DB)
11. RAJU AND OTHERS V/S
BASAAVARJUBASAVE GOWDA AND
OTHERS reported in AIR 2024 KAR 210
12. P.K.JAGANNATHA RAO V/S MURALIDHAR
BHAT ] reported in 2022 AIR CC 658
13. ALAGAMMAL AND OTHERS V/S GANESAN
AND ANOTHER reported in AIR 2024 SC 604
14. MANILAL V/S K.RAMACHANDRA RAJU
reported in AIR 2024 ΚAR 303(DB)
15. SHIVAGOPAL SAH @SAHU V/S SITARAM
SARANGI reported AIR 2007 SC 1478
16. RAHEJA CONSTRUCTIONS V/S ALLIANCE
MINISTRIES reported in 1995 SUPP (3) SCC
17. RAMAWADH DEAD BY LRS VS ACHHAIBAR
DUBEY AND ANOTHER reported in
2000(2)SCC428
– 15 –
18. RAMACHANDRA VS RAMAKRISHNAIAH 2025(3)
KCCR 2726
10. Sri. Y. K. Narayana Sharma, learned counsel for the
plaintiff/respondent on the other hand submitted;
(a) that strict rule of ready and willingness is not applicable
to the facts and circumstances of the instant case. He
submitted that the agreement was a contingent
agreement in that the performance on the part of the
plaintiff was dependent upon the performance of the
terms of the agreement by the defendant No. 1.
(b) That it is a settled position of law that if the
defendant/vendor was required under the agreement to
perform certain terms of the contract and without
performing such part of the contract, the defendant
cannot call upon the plaintiff to perform his part of the
contract.
(c) that despite the plaintiff issuing the notice as per Ex.P4
dated 27.01.1989 calling upon the defendant No.1 to
perform her part of the contract, she has not performed
any of her obligation. Therefore, the plaintiff was not
required to prove about her readiness and willingness
– 16 –
until and unless the defendant No.1 had performed all her
part of the contract.
(d) That the suit though initially filed for injunction, the same
was amended and relief of specific performance was
sought. The agreement also provided a period of 6
months for the payment of money and statutory period of
3 years has to be calculated after expiry of said 6
months. In any event, even the amendment sought for
was within statutory period of 3 years, the suit was well
within period of limitation.
(e) That very issuance of notice and filing of the suit
within a month thereafter has to be construed as plaintiff
having proved her intention of readiness and willingness
to perform her part of the contract.
(f) That after passing of the decree as in compliance of the
direction issued by the trial Court the plaintiff has
deposited ₹ 3,00,000/- in the Execution Proceedings and
a deed of sale has already been executed by the Court
for and on behalf of defendant Nos. 1 and 2. As such, the
transaction has been completed warranting no
interference at the hands of this Court.
– 17 –
(g) As regards competency of PW1, he submitted that PW1 is
none other than the husband of the plaintiff and he had
personal knowledge of the entire transactions. He
submitted even the defendants in the written statement
have pleaded about the involvement of the husband of
the plaintiff in the entire transactions. Therefore, he is a
competent witness to depose for and on behalf of the
plaintiff and no in-competency can be attributed to the
said witness. Contending as above, sought for dismissal
of the appeal.
He relied upon the following judgments in support of his
case;
1. BEEMANENI MAHA LAKSHMI VS. GANGUMALLA
APPA RAO (SINCE DEAD BY LRS reported in AIR
20019 SC 3013
2. PANDURANG GANPAT TANAWADE VS. GANPAT
BHAIRU KADAM AND OHERS reported in AIR
1997 SC 464
3. MOTILAL JAIN VS. SMT. RAMDASI DEVI AND
OTHERS reported in AIR 2000 SC 2408
4. MAHARAJ SINGH VS. KARAN SINGH (DEAD) THR.
LRS. reported in AIR 2024 SC 3328
5. P. RAMASUBBAMMA VS. V.VIJAYALAKSHMI
reported in AIR 2022 SC 1793
6. P.DAIVASIGAMANI VS. S.SAMBANDAN reported in
AIR 2022 SC 5009
7. DURGA PRASAD AND ANOTHER VS. DEEP CHAND
AND OTHERS reported in AIR 1954 SC 75
– 18 –
8. RAMESH CHANDRA CHANDIOK AND ANOTHER VS.
CHUNI LAL SABHARWAL (DEAD) BY HIS LEGAL
REPRESENTATIVES AND OTHERS reported in AIR
1971 SC 1238
9. RATHNAVATHI AND ANOTHER VS. KAVITA
GANASHAMDAS reported in 2014 AIR SCW 6288
10. CHANDER BHAN(D) THROUGH LR SHER SINGH
VS. MUKHTIAR SINGH reported in AIR 2024 SC
2267
11. ILR 2019 KAR 1899
11. Heard. Perused the records.
12. The points that arise for consideration is;
“(1) Whether the plaintiff has proved she
entering into agreement of sale dated
12.03.1988 with defendant No.1 as per Ex.P2?
(2) Whether the plaintiff in the facts and
circumstances of the case has proved her
readiness and willingness to perform her part
of the contract?
(3) Whether PW.1 is a incompetent witness
as such the trial Court ought not to have relied
upon his evidence?
(4) Whether the defendant No.2 proves that
he had entered into agreement dated
12.1.1988 and was put in possession of the
property pursuant to thereof?
– 19 –
(5) Whether the trial Court is justified in
decreeing the suit for specific performance as
sought for by the plaintiff?”
REGARDING POINT NO.1:
13. There is no dispute of the fact that defendant No.1
being the owner of suit schedule property had indeed entered
into agreement of sale dated 12.03.1988 as found in Ex.P2.
There is also no dispute of the fact that plaintiff having agreed
to pay the sale consideration of ₹3,25,000/-, had indeed paid
₹25,000/- towards advance consideration of sale on the date of
the agreement. Defendant No.1 in her written statement has
admitted to these facts. As such, point No.1 is answered in the
affirmative.
REGARDING POINT NO.2:
14. The dispute is only with regard to allegation made
by the plaintiff that the defendant No.1 had not furnished the
documents as undertaken by her in the agreement resulting in
delay in plaintiff obtaining the registered deed of sale. While
defendant No.1 has alleged that the plaintiff despite several
requests had failed and neglected to pay the balance sale
consideration as agreed. It is also contended by defendant No.1
that she had handed over all the documents as agreed on the
– 20 –
very date of entering into the agreement to the plaintiff and
there was nothing required on her behalf to be performed.
15. Appropriate for this purpose to extract the contents
of the agreement of sale at Ex.P2, which are as under;
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50 CrUÀ¼ÀÄ GvÀÛgÀ zÀQët 34+37 Cr C¼ÀvÉAiÀÄ ¤ªÉñÀ£ÀªÀ£ÀÄß
G½¹PÉÆAqÀzÉÝ EzÀgÀ°è ¥ÀƪÀðzÀ PÀqÉ 5 CUÀ® £ÀªÀÄUÀÆ ²æà ºÀAiÀiÁvï
¥ÁµÀ gÀªÀjUÀÆ NqÁqÀ®Ä PÁªÀÄ£ï ¥Áå¸ÉÃeï ©lÄÖPÉÆArgÀÄvÉÛãÉ. F ¸ÀéwÛ£À
ªÉÄÃ¯É ©rJ AiÀĪÀjUÉ PÁ£ÀƤ£ÀAvÉ C¢üPÁgÀ E®è¢zÀÝgÀÆ CªÀgÀ
PÉÆÃjPÉAiÀÄAvÉ £À£Àß §½¬ÄzÀÝ Mjf£À¯ï PÀæAiÀÄ ¥ÀvÀæ PÀAzÁAiÀÄzÀ gÀ¹Ã¢UÀ¼ÀÄ
ªÀÄvÀÄÛ J£ïPÀA¨Éæ¸ï ¸Ànð¦üÃPÉÃlÄUÀ¼À£ÀÄß ¥ÀqÉzÀÄ F ¸ÉÊlÄ £À£ÀUÉ ©lÄÖ
PÉÆnÖgÀĪÀÅzÁVAiÀÄÆ ºÉý £À¤ßAzÀ vÁ 14.07.1977gÀ°è gÀÆ 566/- £ÀÄßö
24489£Éà £ÀA§gï ZÀ®£ï ªÀÄÆ®PÀªÀÇ vÁjÃRÄ 20.07.77gÀ°è gÀÆ 1696/-
£ÀÄß 35243£Éà £ÀA§gï ZÀ®£ï ªÀÄÆ®PÀªÀÇ ¥ÀqÉzÀÄPÉÆArgÀÄvÁÛgÉ.
©rJAiÀĪÀgÀÄ ªÉÄîÌAqÀ DzsÁgÀzÀ°è PÉ®ªÀÅ £ÀÆå£ÀvÉUÀ½gÀĪÀÅzÀ£ÀÄß
¸Àj¥Àr¸À¨ÉÃPÉAzÀÄ vÁ 1-8-1977 gÀ°è Cfð PÉÆnÖgÀÄvÉÛÃ£É EzÀgÀ ªÉÄïÉ
©rJ AiÀĪÀjAzÀ AiÀiÁªÀ GvÀÛgÀªÀÇ §A¢gÀĪÀÅ¢®è ªÀÄvÀÄÛ £ÀÆå£ÀvÉUÀ¼À£ÀÄß
¸Àj¥Àr¹gÀĪÀÅ¢®è. ªÉÄîÌAqÀAvÉ £Á£ÀÄ G½¹PÉÆArgÀĪÀ ¤ªÉñÀ£ÀªÀ£ÀÄß £À£ÀUÉ
– 21 –
FUÀ ºÀtzÀ CªÀ±ÀåPÀvÉ EgÀĪÀÅzÀjAzÀ ¤ªÀÄUÉ ªÉƧ®UÀÄ 3,25000/- ªÀÄÆgÀÄ
®PÀëzÀ E¥ÀàvÉÛÃzÀÄ ¸Á«gÀzÀ gÀÆ¥Á¬ÄUÀ½UÉ ±ÀÄzÀÞ PÀæAiÀÄPÉÌ PÉÆqÀ®Ä M¦à F
¢ªÀ¸À F PɼÀUÉ gÀÄdÄ ªÀiÁrgÀĪÀ ¸ÁQëUÀ¼À ¸ÀªÀÄPÀëªÄÀ ¤«ÄäAzÀ gÀÆ.25,000/-
E¥ÀàvÉÛöÊzÀÄ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼À£ÀÄß CqÁé£ïì DV ¥ÀqÉzÀÄPÉÆArgÀÄvÉÛÃ£É ¨ÁQ
G½PÉ ªÉƧ®UÀ£ÀÄß ¤ÃªÀÅ F¯ÁUÁ¬ÄvÀÄ 6 wAUÀ¼À M¼ÀUÁV CxÀªÁ £Á£ÀÄ
©rJAiÀĪÀjAzÀ ¥ÉÆeɵÀ£ï ¸Énð¦üPÉÃmï ªÀÄvÀÄÛ PÀæAiÀÄ¥ÀvÀæªÀ£ÀÄß ¥ÀqÉzÀÄ
¥ÀjäµÀ£ïUÁV Cfð ¸À°è¹zÀ JgÀqÀÄ wAUÀ¼À M¼ÀUÁV ¥ÁªÀw ªÀiÁr ¤ÃªÀÅ ¤ªÀÄä
¸ÀéAvÀ Rað¤AzÀ ¤ªÀÄä ºÉ¸ÀjUÉ DUÀ° ¤ÃªÀÅ PÀµÀÖ¥ÀqÀĪÀ EvÀgÉAiÀĪÀgÀ
ºÉ¸ÀjUÁUÀ° jf¸Àëgï ªÀiÁr¹PÉƼÀîvÀPÀÌzÀÄÝ – F ¸ÀévÀÄÛ £À£Àß ¸ÀéAiÀiÁfðvÀªÁzÀ
¸ÀévÁÛVgÀÄvÉÛ JAzÀÄ M¦à §gɬĹPÉÆlÖ SÁ° ¤ªÉñÀ£ÀzÀ ±ÀÄzÀÞ PÀæAiÀÄzÀ
CqÁé£ïìPÀgÁgÀÄ ¸ÀºÀ µÉqÀƯïì – ¨ÉAUÀ¼ÀÆgÀÄ ¹n ªÀiÁUÀr gÀ¸ÉÛ ºÀ¼É
mÉÆïïUÉÃmï §½AiÀÄ ¨ÉAUÀ¼ÀÆgÀĹn PÁ¥ÉÆðgÉõÀ£ï¤AzÀ »AzÉ 5£ÉÃ
£ÀA§gÁV zÁR¯ÉVzÀÝ ¤ªÉñÀ£ÀPÉÌ ZÀPÀÄÌ §A¢ ¥ÀƪÀðPÉÌ ²æà ºÀAiÀiÁvï
¥ÁµÁAiÀĪÀgÀ ¸ÉÊmï ¥À²ÑªÀÄPÉÌ ¯ÉÃmï ¨ÉÊgÀ¥Àà£ÀªÀgÀ ¸ÀévÀÄÛ GvÀÛgÀPÉÌ ¥ÉÆð¸ï
PÁélð¸ï PÁA¥Ëqï zÀQëtPÉÌ ªÀiÁUÀr gÀ¸ÉÛ F ªÀÄzsÉå EgÀĪÀ ¥ÀƪÀðzÀ ¥À²ÑªÀÄ
50 Cr (LªÀvÀÄÛ Cr) PÁªÀÄ£ï ¥Áå¸ÉÃeï 5 Cr ¸ÉÃj) GvÀÛgÀ zÀQët
¥ÀƪÀðzÀ PÀqÉ 34 (ªÀÄƪÀvÀÛ £Á®Ì) CrUÀ¼ÀÄ ¥À²ÑªÀÄzÀ PÀqÉ 37
(ªÀÄƪÀvÉÛüÀÄ CrUÀ¼ÀÄ) C¼ÀvÉAiÀÄ SÁ° ¤ªÉñÀ£À F PÀgÁjUÉ M¼À¥ÀnÖgÀÄvÉÛ.-
MAzÀÄ ªÉÃ¼É F ¸ÉÊmï£ÀÄß FZÉUÉ AiÀiÁgÁzÀgÀÆ MvÀÄÛªÀj ªÀiÁrzÀÄÝ PÀAqÀÄ
§AzÀ°è CzÀ£ÀÄß ¤ÃªÀÅ F PÀgÁj£À DzsÁgÀzÀ ªÉÄÃ¯É ¤ªÀÄä ¸ÀéAvÀ Rað¤AzÀ
©r¹PÉƼÀî®Ä §zÀÞgÁVgÀvÀPÀÌzÀÄÝ”
16. Thus as seen above, parties had agreed that the
plaintiff who has paid ₹25,000/- towards part payment of sale
consideration out of the agreed sale consideration of
₹ 3,25,000/-, was required to pay the balance amount of sale
consideration within 6 months or within 2 months from the date
on which the defendant was required to obtain and furnish the
possession certificate, sale deed, permission from the
Bangalore Development Authority.
17. Ex.P4 is the notice dated 27.01.1989 issued by the
plaintiff through her counsel to the defendant No.1 in which
reiterating the facts narrated above, it is contented that plaintiff
in addition to sum of ₹25,000/- had paid another sum of
– 22 –
₹5,000/- towards the necessary expenditure in order to get the
possession certificate from the BDA and also permission letter
from the Urban Ceiling Authority. That by the said notice
plaintiff has called upon the defendant No.1 to intimate about
securing the documents and to receive the balance
consideration of ₹3,00,000/- and to execute the deed of sale in
favour of the plaintiff within 7 days from the receipt of the said
notice. The said notice further calls upon the defendant No.1
that she should not alienate the suit schedule property which is
in possession of the plaintiff’s husband to any other person.
There is admittedly no reply issued to the said notice.
Interestingly, on the very same day i.e., on 27.01.1989 the
defendant No.1 has also caused issue of a notice produced at
Ex.D1, contents of the said notice are extracted hereunder;
“¸À£ï MAzÀÄ ¸Á«gÀzÀ ಒಂ ೈನೂರ JA¨sÀvÉÆÛA§vÀÛ£Éà E¸À« ಜನವ ಾ ೆ
E¥ÀàvÉÛüÀgÀ°è¨ÉAUÀ¼ÀÆgÀĹn ªÀiÁUÀr gÉÆÃqï ºÀ¼Éà mÉÆïïUÉÃmï §½AiÀÄ 72: ©
£ÀA§gÀÄ ªÀÄ£ÉAiÀÄ°è ªÁ¸ÀªÁVgÀĪÀ ²æ ZÀUÀ¯ï¯Á¯ïರವರ zsÀªÀÄð¥Àwß ೕಮ
ಾ ಾ ಾ AiÀÄವ ೆ: ¨ÉAUÀ¼ÀÆgÀĹn vÁåUÀgÁd£ÀUÀgÀ 2£Éà ¨ÁèPï ¨Á¯Áf
gÀ¸ÉÛAiÀÄ 221:1£Éà £ÀA§gÀÄ ªÀÄ£ÉAiÀÄ°è ªÁ¸ÀªÁVgÀĪÀ AiÀıÉÆÃzÁ¨Á¬Ä DzÀ
£Á£ÀÄ w½AiÀÄ¥Àr¸ÀĪÀÅzÉãÉAzÀgÉ:-
ನನ ¨Á§ÄÛ ಾಗ ೋಡು ಹ ೇ mÉÆïïUÉÃmï §½AiÀÄ ಮು!”ಪ$
ನಂ.5 %ೇ ನಂಬರು ಪ’ವ( ಪ )ಮ PÁªÀÄ£ï ¥Áå¸ÉÃdÄ *ೇ 50 ಅ ,
ಉತ.ರ ದ0ಣ ಪ’ವ(ದಕ3ೆ 34 ಆ , ¥À²ÑªÀÄzÀ PÀqÉ 37 Cr C¼ÀvÉAiÀÄ
¸ÉÊlÄ ¤ÃªÀÅ gÀÆ. 3,25000-00 (ªÀÄÆgÀÄ ®PÀëzÀ E¥ÀàvÉÛöÊzÀÄ ¸Á«gÀ
gÀÆ¥Á¬Ä)UÀ½UÉ PÀæAiÀÄPÉÌ ¥ÀqÉAiÀÄ®Ä M¦à gÀÆ.25,000-00 (E¥ÀàvÉÛöÊzÀÄ ¸Á«gÀ
– 23 –
gÀÆ¥Á¬Ä)UÀ¼À£ÀÄß CqÁé£Àì DV PÉÆlÄÖ vÁ 10.03.88 gÀ°è CVæªÉÄAmï
§gɹPÉÆArgÀĪÀÅzÀÄ ¸ÀjAiÀĵÉÖ. F ¸ÉÊlÄ «ZÁgÀzÀ°è CVæªÉÄAmï£À°è
PÁt¹gÀĪÀ PÉ®ªÀÅ £ÀÆå£ÀvÉUÀ¼À£ÀÄß ¸Àj¥Àr¹PÉÆArgÀĪÀÅzÁV ºÉý ¤ªÀÄä
¥ÀwAiÀĪÀgÀÄ F DVæªÉÄAmïUÉ ¸ÁQëzÁgÀgÁzÀ ²æà UÉjV gÉrØAiÀgÀªÀgÀ ¸ÀªÀÄPÀëªÀÄ
§AzÀÄ F ¸ÉÊnUÉ ¸ÀA§AzsÀ¥ÀlÖ DVæªÉÄAmï£À°è £ÀªÀÄÆ¢¹gÀĪÀ J¯Áè D¸À®Ä
zÁR¯É PÁUÀzÀ ¥ÀvÀæUÀ¼À£ÀÄß vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃVzÀÄÝ, EzÀĪÀgÉ«UÀÆ K£ÀÄ
PÀæªÀÄ dgÀÄV¹gÀÄvÁÛgÉA§ÄzÀ£ÀÄß w½¹gÀĪÀÅ¢®è. C®èzÉà PÀ¼ÉzÀ ¢Ã¥ÁªÀ½
ªÀiÁgÀ£Éà ¢ªÀ¸À 2£É CqÁé£ïì gÀÆ.1,00,000/-UÀ¼À£ÀÄß PÉÆqÀĪÀÅzÁV ºÉý
CzÀ£ÀÄß ¸ÀºÀ PÉÆnÖgÀĪÀÅ¢®è. MAzÀÄ ªÉÃ¼É ¤ÃªÀÅ AiÀiÁªÀ PÀæªÀĪÀ£ÀÄß dgÀÄVzÀ¸ÉÃ
EzÀÝ°è ¸ÀA§AzsÀ¥ÀlÖ J¯Áè D¸À®Ä zÁR¯É¥ÀvÀæUÀ¼À£ÀÄß ªÁ¥À¸ÀÄì ªÀiÁrzÀ°è J¯Áè
£ÀÆå£ÀvÉUÀ¼À£ÀÄß £Á£Éà ¸Àj¥Àr¸ÀÄvÉÛêÉ. F £ÀÆå£ÀvÉUÀ¼À£ÀÄß ¸Àj¥Àr¸À®Ä ºÉZÀÄÑ
¸ÀªÀÄAiÀiÁªÀPÁ±À ¨ÉÃPÁVgÀÄvÉÛ. CµÀÖgÀªÀgÉUÉ ¤ÃªÀÅ PÁAiÀÄ®Ä EµÀÖ¥ÀqÀzÉ EzÀÝ°è
¤ÃªÀÅ ¥ÁªÀw ªÀiÁr CqÁé£ïì ªÉƧ®UÀ£ÀÄß ªÁ¥À¸ÀÄì ¥ÀqÉAiÀħºÀÄzÁVgÀÄvÉÛ”.
18. That on perusal of the aforesaid notice dated
27.01.1989 produced at Ex.D1, it appears that the defendant
No.1 had handed over all the original records which were in her
possession to the plaintiff. It is further contended that the
plaintiff had not taken any action. That apart the plaintiff had
also not paid further sum of ₹1,00,000/- as promised. The said
notice further calls upon the plaintiff that if no action was taken
and if all the records were returned, defendant No.1 would
herself rectify all the defects which would take further time and
that if the plaintiff was not willing to wait till such time, plaintiff
was at liberty to receive back the advance amount paid to the
defendant No.1.
19. Holistic reading of the contents of the agreement of
sale of dated 12.03.1988 at Ex.P2 and the contents of notices
at Ex.P4 and Ex.D1 both are dated 27.01.1989 would indicate
– 24 –
that the defendant No.1 was required to furnish certain
documents as noted above and though the plaintiff had issued
notice calling upon the defendant No.1 to perform her part of
the contract, on the very same day the defendant No.1 has
called upon the plaintiff to return the so called documents
submitted by her and asking her if the plaintiff was not ready to
wait till the defendant No.1 rectified all the defects with an
option to receive back the advance amount. Clearly, defendant
No.1 has apart from admitting to entering into agreement and
receiving the advance sale consideration had also admitted that
she would, rectify all the defects and convey the property after
obtaining the documents which would take time. This in any
event cannot be construed as defendant No.1 cancelling the
agreement for non-performance of terms of contract by the
plaintiff. It would only indicate the defendant No.1 herself had
sought for extension of time. The language employed above
justifies this reasoning.
20. As rightly pointed out by learned counsel for the
plaintiff/respondent No.1 relying upon the judgment of the
Apex Court in the case of BEEMANENI MAHA LAKSHMI VS.
GANGUMALLA APPA RAO, SINCE DECEASED BY LRS.
reported in AIR 2019 SC 3013 once a finding is recorded by
– 25 –
the trial Court and the High Court that the vendor did not
perform her part of the contract, failure on the part of the
vendee to demonstrate that she was having sufficient money
with her to pay the balance sale consideration is not of much
consequences. The facts and circumstances of the case as
narrated above would clearly indicate that the defendant No. 1
had not only failed to perform her part of the contract but had
even sought for extension of further time to perform her part of
the contract. In the circumstances, the plaintiff requiring to
plead and prove her readiness and willingness to perform her
part of the contract in the stricto sensu would not apply.
21. Infact, plaintiff who had issued notice dated
27.01.1989 as per Ex.P4, had specifically called upon the
defendant No.1 to perform her part of the contract and to
execute the deed of sale by receiving balance sale
consideration of ₹ 3,00,000/- within a period of 7 days. The
said notice has not been replied by the defendant No.1. Soon
thereafter the plaintiff has filed the suit in O.S.No.1299/1989
on 01.03.1989 initially for permanent injunction has
subsequently sought amendment of the same.
– 26 –
22. Though a plea of limitation is raised, this Court
however is of the considered view that said plea is not
acceptable for the following reasons;
(i) The suit in O.S.No.1299/1989 was initially
filed on 01.03.1989 for relief of injunction. The
amendment for the same was allowed on
27.09.1991 seeking relief of specific
performance.
(ii) The agreement of sale entered into
between the parties is dated 12.03.1988. The
time for performance fixed in the agreement is
six months or on obtaining the possession
certificate and sale deed from the BDA. Thus, the
time was not the essence of the contract and it
was contingent upon happening of certain
events. In any event the time cannot be
considered as the essence of the agreement in
view of the contents of notice at Ex.D1 dated
27.01.1989 issued by the defendant No.1,
wherein she had sought extension of time to
procure the documents and requested the
plaintiff either to wait till such time or to seek
refund of amount paid.
(iii) Therefore, the contention that time is the
essence of the contract cannot be made
applicable in the instant case.
– 27 –
23. The other aspect of the matter which heavily relied
upon by the counsel for the defendant No.2/appellant is to the
letter dated 28.10.1988 at Ex.P3. The said letter apparently
addressed to one Reddy, who had facilitated the said
transaction. Perusal of the said document indicate that the
defendant No.1 had requested said Sri. Reddy to convey her
requirement of money to the husband of the plaintiff. The said
letter also indicates defendant No.1 requiring money to meet
the marriage expenses of her daughter and for her other
domestic requirements. The said letter also do not in any
manner whatsoever would indicate that she was intending to
cancel the agreement except stating that she wanted higher
sale consideration. The said letter is therefore is of no
consequences for the defendant No.2/appellant. However, it
only reaffirms the fact that the plaintiff, her husband and the
defendant No.1 were in constant touch and intended to
continue the transaction.
24. Trial Court at para 22 of its judgment has taken
note of the oral and documentary evidence produced by the
parties and has also come to the conclusion that the contention
of defendant No.1 of she having delivered the said documents
to plaintiff was unbelievable. The trial Court has further held
– 28 –
that defendant No.1 not having complied with the terms and
conditions of the agreement as she was expected to obtain
necessary permission from the CITB, income tax clearance
certificate etc., which are required for the purpose of execution
of the registered sale deed, she had committed default in
complying with the terms and conditions of the agreement.
25. In the light of the aforesaid factual aspect of the
matter and the settled position of law, this Court is inclined to
accept the submission made by learned counsel for the plaintiff
in the light of judgment of the Apex Court in the case of
BEEMANENI MAHA LAKSHMI (supra) that when there is a
failure on the part of the vendor in performing her part of the
contract, failure on the part of the vendee to demonstrate that
she was having sufficient money with her to pay the balance
sale consideration is of no consequences.
26. Nonetheless, the plaintiff was permitted by the trial
Court to pay the sum of ₹3,00,000/- at the time of execution of
the deed of sale as extracted in the decree passed above.
There is no dispute of the fact that the plaintiff has indeed paid
the sum of ₹3,00,000/- and with the assistance of the Court a
sale deed has been executed. Thus, the averments contained in
the notice at Ex.P4, plaint and payment of ₹3,00,000/- by the
– 29 –
plaintiff in furtherance to the order passed by the trial Court
read in the light of contents of the agreement of sale at Ex.P2
and notice at Ex.D1 issued by the defendant No.1 expecting
plaintiff to wait till she obtains the document would only
indicate that the requirement of plaintiff to pleading and
proving readiness and willingness and if there is any
discrepancy thereof could not change the situation. Hence,
points No.2 is answered in affirmative.
REGARDING POINT NO.3:
27. The other contention raised by the learned counsel
for the defendant No.2/appellant is with regard to competency
of husband of the plaintiff to step into the witness box and
depose on behalf of the plaintiff. Relying upon the judgments of
Apex Court in the cases of RAJESH KUMAR, GURAPPA
RAJASHEKARAPPA, JANKI VASHDEO (supra)., he submitted
that readiness and willingness being a mental element, can
only be explained by the person who had personal knowledge
and none else, therefore he submits plaintiff not having
personally entered the witness box, the evidence of defendant
No.1 cannot therefore be accepted. This Court cannot accept
the said submission for the reason that the Apex Court in the
case of RAJESH KUMAR V/S ANAND KUMAR AND OTHERS
– 30 –
reported in AIR 2024 SC 3017 at para 18, referring to the
earlier judgment of the Apex Court in the case of MANKAUR
Vs HARTAR SINGH SANGHA (2010) 10 SCC 512 has
summarized the position as to who should give the evidence.
The said paragraph is extracted hereunder;
“10. xxx
18. We may now summarise for convenience, the
position as to who should give evidence in regard
to matters involving personal knowledge:
(a) An attorney-holder who has signed the
plaint and instituted the suit, but has no
personal knowledge of the transaction can only
give formal evidence about the validity of the
power of attorney and the filing of the suit.
(b) If the attorney-holder has done any act or
handled any transactions, in pursuance of the
power of attorney granted by the principal, he
may be examined as a witness to prove those
acts or transactions. If the attorney-holder
alone has personal knowledge of such acts and
transactions and not the principal, the attorney-
holder shall be examined, if those acts and
transactions have to be proved.
(c) The attorney-holder cannot depose or give
evidence in place of his principal for the acts
done by the principal or transactions or dealings
of the principal, of which principal alone has
personal knowledge.
(d) Where the principal at no point of time had
personally handled or dealt with or participated
in the transaction and has no personal
knowledge of the transaction, and where the
entire transaction has been handled by an
attorney-holder, necessarily the attorney-holder
alone can give evidence in regard to the
transaction. This frequently happens in case of
principals carrying on business through
authorised managers/attorney-holders or
persons residing abroad managing their affairs
through their attorney-holders.
– 31 –
(e) Where the entire transaction has been
conducted through a particular attorney-holder,
the principal has to examine that attorney-
holder to prove the transaction, and not a
different or subsequent attorney-holder.
(f) Where different attorney-holders had dealt
with the matter at different stages of the
transaction, if evidence has to be led as to what
transpired at those different stages, all the
attorney-holders will have to be examined.
(g) Where the law requires or contemplated the
plaintiff or other party to a proceeding, to
establish or prove something with reference to
his “state of mind” or “conduct”, normally the
person concerned alone has to give evidence
and not an attorney-holder. A landlord who
seeks eviction of his tenant, on the ground of
his “bona fide” need and a purchaser seeking
specific performance who has to show his
“readiness and willingness” fall under this
category. There is however a recognised
exception to this requirement. Where all the
affairs of a party are completely managed,
transacted and looked after by an attorney (who
may happen to be a close family member), it
may be possible to accept the evidence of such
attorney even with reference to bona fides or
“readiness and willingness”. Examples of such
attorney-holders are a husband/wife exclusively
managing the affairs of his/her spouse, a
son/daughter exclusively managing the affairs
of an old and infirm parent, a father/mother
exclusively managing the affairs of a
son/daughter living abroad.”
28. Clause (g) of the said paragraph makes it very clear
that where all the affairs of the party are completely managed,
transacted and looked after by the attorney, who may happen
to be a close family member, as husband in the instant case, it
may be possible to accept the evidence of such attorney even
with the reference to bona fides or readiness and willingness.
– 32 –
Husband of the plaintiff/Chaganlal, being power of attorney of
the plaintiff, having played pivotal role in the entire transaction
is emanating even from the written statement filed by
defendant No.1, wherein at paragraph No.2 she has specifically
pleaded that she had given the documents which were in her
possession to the husband of the plaintiff to pursue the matter
as he had voluntarily agreed to do so, but, she has alleged he
did not take any action for the best reason known. She has
further alleged that it was the husband of the plaintiff who had
promised to pay ₹1,00,000/- based on which she had fixed the
marriage date of her daughter as 21.05.1989. She has also
pleaded that recitals in the agreement were written at the
instance of the husband of the plaintiff. Even in the notice at
Ex.D1 dated 27.01.1989, she has reiterated the role of husband
of the plaintiff in entering into agreement and she purportedly
handing over the documents to him. The letter dated
28.10.1988 at Ex.P3 addressed by the defendant No.1 to said
Sri. Reddy, also indicate the defendant No.1 intended to convey
her requirement for money to the husband of the plaintiff. It is
not uncommon that transaction of this nature, husband could
play the role and he would be privy to every minute details of
the contract. There is no reason not to rely upon the evidence
and the testimony of husband of the plaintiff with regard to the
– 33 –
performance of the terms of the agreement. Therefore, the
contention urged by the appellant that the evidence led by the
husband of the plaintiff is unreliable cannot be accepted.
REGARDING POINT NO.4:
29. As regards the claim of the appellant
/defendantNo.2 of he having entered into an agreement of sale
dated 12.01.1988 produced at Ex.D4 as rightly taken note of
by the trial Court there is no disclosure of the said agreement
either in the agreement of sale dated 12.03.1988 produced at
Ex.P2 or in the letter written by the defendant No.1 to Reddy
on 28.10.1988 as per Ex.P3 or in her letter/notice dated
27.01.1989 produced at Ex.D1 issued by defendant No.1 to the
plaintiff.
30. In the cross -examination, defendant No.1 who has
examined as DW1 has deposed that she did not sign any
agreement prior to Ex.P2. That there was only a talk. She has
also admitted that before executing Ex.P2 she had not executed
any agreement in favour of any person regarding the suit
schedule property. That she do not know as to the discussions
as those discussions were between the male members of the
family. She was not present when her husband had a talk with
– 34 –
DW.2 at Gundlupet. That she was not aware of the amounts
paid by DW.2 as those things were looked after by her
husband. She never had any discussion with DW.2 in this
context. It was only her husband who used to take money from
DW.2 and not she. That she has not signed any document in
favour of defendant No.2. That her husband used to receive
money and signed the document in favour of defendant No.2.
In respect of suit schedule property she had not executed any
document in favour of defendant No.2.
31. In the cross-examination by advocate for defendant
No.2, she has stated that she signed Ex.D4 as and when her
husband asked her to do on the respective dates, which she
has repeated in the further cross-examination of the plaintiff.
She has stated that personally she do not know the contents of
Ex.D4. That she do not remember who had written the contents
of Ex.D4 which confronted to her. She did not give instruction
to prepare Ex.D4.
32. Defendant No.2 who has examined as DW.2 in his
cross-examination admitted that in Ex.D5 deed of sale there is
no mention of Ex.D4 agreement. He has admitted that he did
not issued any notice pursuant to Ex.D4. He did not filed any
suit pursuant to Ex.D4. That he obtained the deed of sale in the
– 35 –
year 1996. He was not aware of the pendency of the suit. That
Ex.D4 agreement was signed at the house of Smt. Yashoda bai.
That she was present when the discussion took place in
connection with the agreement. There were other persons
present along with Yashoda Bai namely, Muniswamy Rao,
Sathya, Smt. Vijaya but they have not signed the document.
33. Perusal of deposition of Yashoda Bai, DW.1 who has
pleaded complete ignorance of existence of Ex.D4 and has
repeatedly asserted that she was not aware of any discussions
taken place in respect of said agreement as it was by her
husband, the same runs contrary to the deposition of DW.2
who has asserted that the discussions of the terms of the
agreement and execution of the same was done in the
presence and in the house of Yashoda Bai/defendant No.1. No
witness has been examined by defendant No.2 to prove the
execution of Ex.D4. Execution of the said agreement has not
been proved by the defendant No.2. Hence, point No.4 is
answered in negative.
34. Ex.D5 is the deed of sale dated 19.09.1996 which
has come into existence during the pendency of the suit. The
same is thus hit by doctrine of lis pendency.
– 36 –
35. In the light of reasons and analysis on point Nos.1
to 4 as above, this Court is of the considered view that the trial
Court has in the facts and circumstances of the matter has thus
come to just conclusion in decreeing the suit of the plaintiff.
Hence, point No.5 is answered in affirmative.
36. In such circumstances, this Court does not find any
merits in the appeal. Accordingly, the appeal is dismissed.
Judgment and decree dated 04.10.2008 passed by the trial
Court in O.S.No.1299/1989 is confirmed.
Sd/-
(M.G.S. KAMAL)
JUDGE
RU