Case Note & Summary
The matter originated as a suit for specific performance of an agreement of sale. The plaintiff (appellant) claimed that he was a tenant under one J.Anthony Swamy since 1988 and that on 11.06.1997, the said owner executed an agreement of sale (Ex.P.1) in his favour for a total consideration of Rs.1,05,000/-, out of which Rs.75,000/- was paid as advance. The plaintiff asserted that he was put in possession in part performance of the agreement and that he was always ready and willing to perform his part. He alleged that during September 1997, the vendor fell seriously ill, was hospitalized on 25.09.1997, and passed away on 01.10.1997. Meanwhile, defendants 2 and 3 had a registered sale deed (Ex.D.4) dated 25.09.1997 executed by the same vendor in their favour. The plaintiff contended that the vendor could not have executed that sale deed due to his illness, making it a false document. Defendants 2 and 3 contested the claim, stating that plaintiff was their tenant paying rent and that Ex.D.4 was valid. The trial court dismissed the suit, holding that the burden was on the plaintiff to prove that the registered sale deed was not genuine, and he failed to discharge that burden. The plaintiff appealed. The High Court heard the appeal ex parte against the respondents. The appellant’s counsel argued that Ex.P.1 was duly proved through oral and documentary evidence, and that Ex.D.4 was fabricated as the vendor was hospitalized. The court framed points for consideration regarding proof of the agreement, proof of the sale deed, readiness and willingness, and entitlement to specific performance. The judgment only addressed point no.1 partially before the available text ended, leaving the ultimate decision unstated in the provided excerpt.
Headnote
A) Civil Law - Specific Performance - Proof of Agreement - Code of Civil Procedure, 1908 Section 96 - Appeal against dismissal of suit for specific performance; plaintiff claimed agreement of sale Ex.P1 dated 11.06.1997 with part consideration of Rs.75,000/- and possession in part performance; defendants claimed Ex.D4 registered sale deed dated 25.09.1997; trial court dismissed suit holding plaintiff failed to prove Ex.D4 was fraudulent; High Court framed four points including proof of agreement, proof of sale deed, readiness, and entitlement; on Point 1, court observed plaintiff pleaded execution, consideration, and possession; evidence of P.W.1, P.W.2, P.W.3; judgment text incomplete. (Paras 12-14)
Issue of Consideration
Whether the agreement of sale dated 11.06.1997 is proved; whether the sale deed dated 25.09.1997 is proved; whether plaintiff was ready and willing; whether plaintiff is entitled to specific performance
Law Points
- agreement of sale must be proved in accordance with law
- burden of proof lies on plaintiff to show subsequent registered sale deed is fraudulent
- readiness and willingness essential for specific performance
Case Details
2021 LawText (KAR) (05) 16
R.F.A. No. 1211/2011 (SP)
M.S. Venugopal for A. Krishna Bhat
Smt. Joseph Sunder Augustine Reddy, Smt. S. Aktharunnisa Begum, Smt. S. Nasrathunnisa Begum
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Nature of Litigation
Suit for specific performance of an agreement of sale
Remedy Sought
Plaintiff sought a decree of specific performance directing defendants to execute a sale deed in respect of the suit schedule properties
Filing Reason
Defendants failed to execute the sale deed as per agreement Ex.P1 dated 11.06.1997 and instead defendants 2 and 3 obtained a registered sale deed Ex.D4 dated 25.09.1997 from the original owner
Previous Decisions
Trial court dismissed the suit on 23.04.2011; earlier HRC proceedings between the parties (HRC No.1247/1998 and HRC No.157/2002) were referenced
Issues
Whether the agreement of sale – Ex.P.1 dated 11.06.1997 set up by the plaintiff is proved in accordance with law?
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?
Whether the plaintiff has proved that he was ready and willing to perform his part of the contract under Ex.P.1?
Whether the plaintiff is entitled to a decree of specific performance prayed for by him?
Submissions/Arguments
Appellant argued that J.Anthony Swamy executed agreement of sale Ex.P1 on 11.06.1997 with consideration of Rs.1,05,000/- and part payment of Rs.75,000/-; plaintiff was put in possession in part performance; plaintiff always ready and willing to perform.
Sale deed Ex.D4 dated 25.09.1997 is false as vendor was seriously ill, hospitalized on that date, and unable to execute it.
Plaintiff proved his case through his own evidence as P.W.1 and attestors P.W.2 and P.W.3; trial court ignored admissions of D.W.1, D.W.2 and D.W.3 in earlier HRC proceedings.
Defendants had full knowledge of Ex.P1 but made no inquiry; their case of anterior agreement and sale deed is fabricated.
Judgment Excerpts
Unsuccessful 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
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.
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.
Procedural History
Original Suit No.2089/1999 filed before XI Additional City Civil Judge, Bangalore; dismissed on 23.04.2011; appeal filed under Section 96 CPC in the High Court of Karnataka.
Acts & Sections
- Code of Civil Procedure, 1908: Section 96
