IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 16’ DAY OF DECEMBER, 2011 THE HON’BLE MRJUSTICE K,SREEDHAR RAO AND THE HONBLE MR. JUSTICE U NARAYANA SWAMY REGULAR FIRST APPEAL NO.119 OF 2005 BETWEEN: 1. M.K,SRINIVASA Sb M.KRISHNAPPA MAJOR R/AT FORT ROAD, I WARD DODDABALLAPUR TOWN — 561 203 2. M. K. SHIVASHANKAR S/0 M.KRISHNAPPA MAJOR R/AT DURBAN CIIY SOUTH AFRICA ... APPELLANTh (BY SRI .AJAY SHANKAR RAO, ADVOCATE FOR MIS. INDUS LAW, ADVOCATES) AND: B.VISHWANATH Sb. T.N.BASAVARAJU MAJOR R/AT FORT ROAD, I WARD DODDABALLAPUR TOWN 561 203 ... RESPONDENT (BY SRI,SREEVATSA, SENIOR COUNSEL FOR SRIT.N.VISHWANATHA, ADVOCATE FOR CAVEATOR/RESPONDEN’fl THIS REGULJR FIRST APPEAL IS FILED UNDER SECTION 96 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 16.10.2004 PASSED IN O.S.NO.33/2002 (OLD NO.825/1995) ON THE FILE OF THE CIVIL JUDGE (SR.DN.). DODDABALLAPUR DECREEING THE SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT. THIS APPEAL COMING ON FOR FINAL IIEARING THIS DAY, SREEDI-IAR RAO.J. DELIVERED THE FOLLOWING: JUDGMENT Appellants are the defendants. Respondent/plaintiff filed a suit for specific performance of the contract for sale of 16 acres of land in survey Nos. 209, 210, 211 and 212 of Thirumagondanahalli, Tuhegere Hobli, Doddaballapur Taluk. Plaintiff entered into a contract for purchase of the suit land for a sum of 47,500/- per acre and paid advance of 50,000/-. A written agreement is executed on 25.3.1994 with 6 months time for completion of the sale transaction and for payment of balance amount. The sale agreement is executed by appellant No, 1 and also on the basis of power of attorney executed a sale deed on behalf of appellant No.2. The plaintiff contends that he offered to pay the balance of sale consideration and requested -3- registration of sale deed. The defendants did not accede to the request. Hence the suit Is filed for specific perfonnance. 2. Defendant No.1 flied written statement denying execution of the sale agreement. It Is submitted that the defendant was in need of money when he approached the plaintiff, he was paid loan of Z50.000/- In consideration the sale agreement is taken as security. There Is no Intention to sell the property. The defendant also contends that he Is not the exclusive owner of the property and there are other co-owners. 3. The Trial Court on the basis of the above pleadings as framed the following Issues: 1. Whether the plaintiff proves that defendants being absolute owners of suit schedule properties agreed to sell the same at the rate of !47,500/- per acre under an agreement of sale dated 25.3.1994 and the 1st defendant as GPA holder for 2nd defendant executed the agreement by receiving part consideration ofZ50,000/- and agreeing to execute registered sale deed within 6 months by receiving balance consideration as alleged? ‘4. 2. Whether the plaintiff was and is ever ready and willing to perform his part of the contract as alleged? 3. Whether there is cause of accident for filing this suit? 4. Whether the 1st defendant proves that the suit agreement is executed for security of the loan of 5O,OOO/ taken on 25.3.1994 from the plaintiff and the plaintiff got his signature on the document under the circumstances pleaded in paras 4, 5 and 11 of the written statement? 5. Whether the plaintiff is entitled for the relief of specific performance of contract against the defendants as prayed? 6. To what relief if any, the parties are entitled? 4. The Trial Court has found that Ex,P1 - the sale agreement is the one executed by the defendant and also finds that the plaintiff is always ready and willing to perform his part of the contract. Thus allowed the suit directing the defendants to execute the sale deed. The defendants aggrieved by the judgement and decree are in appeal. -5- 5. The points that arise for consideration In the appeal are as follows: (1) Whether the plaintiff proves that the defendants have executed sale agreement? (II) Whether the defendants have proved that the sale agreement was taken as a security for the loan advances and that there was no Intention to effect sale under the sale agreement? (ifi) Whether the plaintiff Is ready and willing to perform his part of the contract? (lv) Whether the plaintiff Is entitled to relief of specific performance? 6. It Is the contention of the defendants In the written statement that the plaintiff Is a money lender and the defendant approached for loan. The plaintiff taldng advantage of the situation took the sale agreement as a security for the loan advance. When the defendant wanted to return the amount, the plaintiff refused to receive the same and constrained to file the suit for specific performance. Defendant No.1 has examined himself In the suit. In the evidence, he gives an altogether different version. He states that his sister was constructing a ± -6- house and they were In need of ?50.000/-. Defendant No.1 approached one Muddarajappa who runs a finance corporation. The said person arranged the amount and obtained signatures on blank stamp paper and later on. the said stamp paper has been concocted as an agreement for sale of the land. There Is total variance between pleadings and proof. The theory of the plaintiff advancing loan Is not spoken to in the evidence. 7. The plaintiff on the other hand has examined one attesting witness and the scribe to support his case about the execution of the agreement of sale by the defendant. In view of the above evidence of the plaintiff, the findings of the Trial court that defendant No.1 has executed the sale agreement would be sound and proper. However, the finding of ihe Trial Court that the sale agreement executed by defendant No.1 on behalf of defendant No.2 is a valid agreement, does not appear to be just and proper because defendant No.1 has executed the sale agreement on the basis of the power of attorney - Ex.P4 executed by defendant No.2. The terms of the power of attorney does not authorlse defendant No.1 to effect sale or alienate I -7- property. The power of attorney is limited for management of the property. In that view, the contention that the sale agreement also binds defendant No.2, is incorrect. 8. In the evidence of DWI he has stated that the property is self-acquired of his father. His father left behind 3 SOflS and 3 daughters. Out of them one son died as a bachelor and one daughter is dead leaving behind her husband and children. The other co-owners of the property arc not parties to the agreement of sale. The decision of the Supreme Court in the case of SURINDER SINGH vs. KAPOOR SINGH (DEAD) THROUGH LRS. AND OTHERS reported in (2005) 5 SCC 142. while interpreting Sections 12 of the Specific Performance Act has held that when a party sells the joint property without authority and consent of other co-owners, the relief specific performance could be enforced in favour of the executant to the extent of his share, In that view of the matter, in this case, the share of defendant No. 1 would be 3 acres 28 guntas, to that extent the plaintiff would be entitled to decree for specific performance. Since the property is joint property without there being a definite share carved out, -8- the plaintiff would he entitled to file a suit for partition for seeking equitable partition for enforcing a decree of specific performance. For the reasons and discussions made, appeal is partly allowed in the terms indicated above. Sd, JUDE JTJIJGE AHB