N.G. Hiriyanna vs Lakshmamma and Others

Anand Byrareddy, J.

Heard the learned counsel for the appellant and the learned counsel for the respondents.

The appellant was Defendant No. 8 in the suit filed by respondents 2 and 3. It was the case of the plaintiffs that property bearing No. 1571 measuring 12.20 mts. East to West and 9.14 mts. North to South, 9'' Cross Road, Chandra Layout, Kempapura Agrahara, Vijayanagar, Bangalore, was allotted to late H.P. Gangaiah by the Bangalore Development Authority (BDA), which had executed a lease-cum-sale agreement dated 1.12.1998. Gangaiah having died as on 7.9.1999 intestate, the BDA is said to have executed a sale deed in favour of his widow Smt. Lakshmamma. It was the further case of the plaintiffs that they along with Defendants 1, 2, 4, 6 and 7 were the children born to Defendant No. 1 and late H.P. Gangaiah and it was the self-acquired property of H.P. Gangaiah. On his death, they have succeeded to the same and each of them were entitled to one-seventh share. There was no partition effected in the suit properties and the plaintiffs claim that they demanded partition. But though Defendant No. 1 had promised that partition would be effected, it was never done and it is the case of the plaintiffs that they learnt that the defendants had entered into an agreement of sale with the present appellant herein who was Defendant No. 8, agreeing to sell the property in his favour and again, they had protested and approached Defendant No. 1, who did not heed to their request for partition and it is their allegation that without their knowledge, a registered sale deed dated 22.07.2005 had been executed in favour of Defendant No. 8 and therefore, it was not binding on them since they were not signatories to the sale deed and that they had an undivided share in the property as on the date of the sale and sought division of property by metes and bounds.

The defendants 1, 2, 4, 6 and 7 had filed joint written statement. Though Defendant No. 8 - appellant had not filed any written statement, it is claimed that he however adopted the written statement filed by the aforesaid defendants. Since the plaintiffs were inadvertently named as Defendants 3 and 5, the mistake having been realized later, a memo was filed seeking deletion of their names and they were promptly deleted. It was their contention that the plaintiffs were before the court on false allegations. Though the relationship was admitted and even though the property was the self-acquired property of their father, it is contended that to perform the marriages of the plaintiffs and Defendants 2 and 4, Gangaiah had raised loans and that he had died without repaying the said loans and it is in order to repay the loans that Defendant No. 1 as the head of the family, had decided to sell the suit property in order to discharge the loan and that all the parties including the plaintiffs had entered into an agreement of sale with Defendant No. 8. However, at the time of execution of the sale deed, it is only Plaintiff No. 1 who had failed to execute the sale deed. Plaintiff No. 2 had indeed executed the sale deed. Though the suit was filed even before the execution of the sale deed, Plaintiff No. 2 had joined the suit. On these pleadings, the court below had framed the following issues:

"1. Whether the plaintiffs prove that the suit properties are the joint family properties as pleaded?

Whether the plaintiffs prove that the sale deed dated 22.1.2005 referred to in the plaint is not binding on their share?

Whether the plaintiffs are entitled to 1/5th share in the suit properties?

To what other relief?"

The court below held Issue No. 1 in the affirmative, Issue No. 2 partly in the affirmative and Issue No. 3 in the negative, but it was held that Plaintiff No. 1 was entitled to one-seventh share of the suit property and the suit was partly decreed. It is that which is sought to be questioned in the present appeal.

The learned counsel for the appellant would contend that Plaintiff No. 1 was a signatory to the agreement of sale that was executed in favour of Defendant No. 8 in the first instance and she had received the sale consideration along with other defendants. Without having terminated the agreement insofar as she was concerned, she could not have sought for partition of the suit property. Therefore, the court below was not justified in decreeing the suit in her favour to the extent of one-seventh share of the suit property. It is further pointed out that the miscarriage of justice is also apparent in the said one-seventh share which would come to about 171 square feet of the suit property, is not capable of being conveniently culled out of the suit property for the better enjoyment of the same. It would also disable the appellant from having the complete benefit of the suit property which is merely a site measuring 30'' x 40''. If the property has to be divided to the extent of 171 square feet as the share of Plaintiff No. 1, it would require an almost impossible exercise of creating such a pocket in the suit property and would submit that the Plaintiff No. 1 having received a substantial advance as early as in the year 2004 and having had the benefit of the same, the decree does not refer to or deal with the aspect of the plaintiff having received part of the consideration. Hence, the judgment of the court below is neither just nor equitable and results in gross injustice being caused to the appellant, as the only object of the plaintiff was to bring pressure on the present appellant in parting with a higher sum of money over the price agreed upon at the relevant point of time which was in accordance with the market rate of the land. Therefore, the learned counsel would seek to emphasise that the unreasonable claim of the plaintiff and the decree now granted in her favour suffers from want of equity and hence would seek modification of the judgment in appropriate terms.

While the learned counsel for Respondent No. 2 would admit that even during the pendency of the suit, the property having been sold and Plaintiff No. 2 having joined the sale deed, the suit of Plaintiff No. 2 has been dismissed. However, insofar as the contention that Plaintiff No. 1 ought to have terminated the agreement of sale and thereafter should have filed a suit, was an option open to the plaintiff. However, the sale having been completed, she had no choice but to seek division of the property as she had not participated in the sale transaction. It was for her either to complete the sale transaction or otherwise even if she had not terminated the agreement of sale. That by itself would not disentitle her from seeking her legitimate right to the suit property. On the other hand, it was open for the appellants to have sought division of the property if Plaintiff No. 1 had not joined the sale deed to the extent of her share. Hence, there is no substance in the contention that the share of the plaintiff is not capable of division from out of the suit property. It is a matter that could be addressed in execution proceedings and would not be a ground to question the wisdom of the court below in having granted the decree in favour of the plaintiff recognizing her legitimate right to the property. There is no inequity or injustice caused by the judgment. The exaggerated pain and suffering sought to be expressed by the appellant is no concern of the plaintiff No. 1 and the judgment of the court below being in accordance with law, cannot be termed as unjust or inequitable. There is no legal ground on which the appellant seeks to question the judgment but merely want of convenience, which is not a ground to set-aside or modify the judgment. The share of the plaintiff is worth Rs. 22,00,000/- as on date and the paltry amount paid as advance to the plaintiff is part of the price which the others have also received and therefore, having regard to the appreciation of the value of the property, any such advance amount paid is not unjustified and would not be a ground again to set-aside the judgment and decree. It is pointed out that the sale consideration was Rs. 20,20,000/- as of 1.12.2004 and having regard to the phenomenal escalation in cost of land, any relief to be granted in favour of the appellant would necessarily have to be with regard to the escalated value of the land and therefore, there are no viable terms on which the judgment of the Trial Court could be modified and seeks dismissal of the appeal.

On these rival contentions, it is not in dispute that under the agreement of sale, Plaintiff No. 1 had acknowledged receipt of the advance amount. Though she has not joined the other defendants in executing the sale deed, the appellant claims to have deposited the share of the sale price of Plaintiff No. 1 in a Nationalised Bank, which she has not availed of. In any event, the site in question measures 30'' x 40''. A division of the same to cull out an area of 171 sq. ft. as the share of Plaintiff No. 1 would not only reduce the extent of the land available for beneficial enjoyment but will also result in the property being unattractive for development by the defendant or beneficial enjoyment of the plaintiff herself. This aspect of the matter has not been addressed by the Trial Court and merely deciding the case on the rights of the parties has in fact resulted in a lopsided decision, which does not benefit either of the parties and caused inconvenience and possible hardship to both of them in the enjoyment of the property nor could it be conveniently transferred in favour of third parties having regard to the resultant property which would be skewered and would lead to further friction as to which property has to be earmarked as the share of the plaintiff This would be a difficult task even for the Executing Court to effect partition. A more viable remedy to the controversy would be to value the share that has befallen the Plaintiff No. 1 and to afford her reasonable compensation relatable to the extent of her share. According to the learned counsel for the parties, it is not in dispute that a square foot of land in the vicinity of the suit property is anywhere between the guideline value of the property which is at Rs. 5,000/- per sq. ft. and in terms of the share of the plaintiff, if the same is computed, it would be a phenomenal amount of more than Rs. 22,00,000/-. However, it is to be kept in view that a willing purchaser would never offer such a princely sum for property which is yet to be culled out and without knowing the advantage or disadvantage of the share of the plaintiff culled out in the suit property, may suffer. Therefore, this is mere speculation to hold that the share of the plaintiff is worth the guidance value or more than the guidance value as may be prescribed. More realistic measure of the value of the property vis-a-vis the parties to the proceedings would be to address the advance amount that was received by Plaintiff No. 1 as her share under the agreement of sale and the amount that was in deposit as the plaintiffs share of the advance amount paid under the agreement of sale is Rs. 71,000/-. Even attributing nominal interest of 10% per year of the amount paid in the year 2004, the appellant would have the benefit of interest of such advance amount in a sum of Rs. 79,000/-. Therefore, she has benefited by Rs. 1,50,000/- as advance price paid inclusive of interest on the advance price paid. If the share of one-seventh of the plaintiff is to be equated in terms of money, it cannot be the guidance value of Rs. 22,20,000/- as projected by the learned counsel for the appellant. Therefore, if the appellant is directed to pay an amount of Rs. 10,00,000/- after accounting for Rs. 1,50,000/-, it would meet the ends of justice.

Therefore, the appellant shall pay Rs. 8,50,000/- towards the one-seventh share of the plaintiff and the plaintiff shall be obliged to execute a sale deed in favour of the plaintiff in the event the plaintiff should refuse to do so and abide by this judgment, it is open for the appellant to seek execution of this judgment and obtaining a sale deed to the extent as aforesaid. With that, the appeal is allowed. The judgment of the court below stands modified in the above respects and the amount shall be paid by the appellant forthwith, in any event, within a period of four weeks if not earlier.