Prema Murthy vs Narayanaswamy

A.S. Pachhapure

The appellant has challenged the Judgment and Decree of the first appellate Court allowing the appeal of the respondent and granting a decree for specific performance of the contract. The facts relevant for the purpose of this appeal in brief are as under:

The parties are referred to as they were referred in the original proceedings, for the sake of convenience.

The appellant herein is the defendant, whereas the respondent is the plaintiff before the trial Court, who instituted a suit for specific performance of the contract and injunction. The suit property is the agricultural land bearing Sy. No.36/1, measuring 3 acres 6 guntas of Obdenahalli village, Doddaballapur Taluk, properly described in the schedule to the plaint. The plaintiff''s mother Buddamma was the absolute owner of the suit property. She executed a nominal Sale Deed in respect of the suit property for a sum of Rs.5,000-00, which was taken by her as loan and the deed was executed as a security. Despite the Sale Deed, she continued her possession in the suit property. It is on 2.05.1994, the plaintiff paid a sum of Rs.5,000-00 and the defendant''s husband executed a Compromise Deed, agreeing to execute the Sale Deed in favour of the plaintiff. After execution of the documents, though a request was made to execute the Sale Deed, the husband of the defendant post-phoned the same and a: he died later, the plaintiff called upon the defendant, who is the wife to execute the registered Sale Deed as agreed by her husband under the Compromise Deed dated 28.06.1994. As the defendant did not execute the Sale Deed, the suit came to be instituted by the plaintiff, seeking aforesaid reliefs.

The defendant in her written statement denying the allegations made and contended that the Sale Deed executed by the plaintiff''s mother in favour of her husband was an absolute Sale Deed and since from the date of sale transaction, her husband and after his death she has continued in possession of the suit property. She also denied execution of the Compromise Deed dated 28.06.1994 by her husband in favour of the plaintiff.

The trial Court framed the issues and the plaintiff was examined as P.W.1 and 3 witnesses P.Ws.2 to 4 were examined. In their evidence, documents Exs.P1 to 16(a) to (d) were got marked. The defendant was examined as D.W.1 and 2 witnesses D.Ws.2 and 3 were examined. In their evidence, documents Exs.D1 to 26 were got marked. The trial Court after hearing learned counsel for the parties and on appreciation of the material on record dismissed the suit, Aggrieved by the dismissal, the plaintiff preferred an appeal in R.A. No.41/2008 before the first appellate Court and the said appeal was heard. Ultimately it came to be allowed vide Judgment and Decree dated 30.01.2016. Under the impugned Order, a decree for specific performance was granted. Aggrieved by the Judgment add Decree of the first appellate Court, the present appeal has been filed.

This Court while admitting the appeal on 29.07.2010 raised the following substantial questions of law for consideration:

(i) Whether Ex. P16 and Ex. D1 is the absolute Sale Deed or a nominal Sale Deed as per the provisions of Section 58(c) of the Transfer of Property Act?

(ii) Whether the suit filed by the plaintiff is barred by time?

I have heard learned counsel for both the parties.

It is the contention of learned counsel for the appellant that the Sale Deed executed by the mother of the plaintiff in favour of the defendant''s husband is an absolute Sale Deed for a valuable consideration of Rs.5,000-00 and the husband of the defendant was in possession of the suit property all along since from the sale transaction and after his death, the defendant continued in possession of the suit property. The original Sale Deed has been produced at Ex.D1 and the certified copy has been produced by the plaintiff at Ex.P16. It is relevant to note that though the Sale Deed came to be executed on 07.01.1983 and under the document though it is said that the possession of the suit property was handed over to the husband of the defendant, the name of the husband of the defendant was entered in the owner''s column and the name of the mother of the plaintiff and after her death, the name of the plaintiff is continued in the cultivator''s column of the suit property. In addition to the documents produced by way of record of rights, to prove the actual possession - v. the suit property by the plaintiff P.W.1 in his oral evidence has said that he has been in possession of the suit property all along and it is relevant to note that the husband of the defendant was not residing at Obdenahalli he was permanent resident of Madaappanahalli. Ex. P4 is file mahazar dated 08.11.1991 and Ex. P5 is the Odder passed by the Tahsildar in R.R.T.C.R. Dispute 33/1992-93 which reveals that the plaintiff is 5n possession of the suit property. Ex.P8 is the record of rights of the suit property for the year 1969-79 to 1973-74 and Ex.P9 is the record of rights for the year 19''4-95 to 1996-1997 and though the name of the husband of the defendant appears in column No.9 in the possessor''s column, the name of the plaintiff finds a place. So, this material placed on record in the context of the contentions taken by the plaintiff proves that though the plaintiff''s mother executed the Sale Deed, she did not hand over the possession of the suit property to the husband of the defendant and the plaintiff continued in possession of the suit property all along. So, it is on the basis of this material that the first appellate Court has come to the conclusion that the Sale Deed Ex.P16 and Ex.D1 is not an absolute Sale Deed and it is a nominal sale transaction and I do not find any material to disagree with the findings arrived at by the first appellate Court. The trial Court has ignored the fact that the name of the plaintiff was appearing in the record of rights In the possessor''s column and that there is a presumption u/s 133 of the Karnataka Land Revenue Act about the entry in the cultivator''s column.

So far as Ex.P16(a) is concerned, it is the consent Compromise Deed in between the plaintiff and the husband of the defendant. It is relevant to note that the consideration amount of Rs.5,000-00 was paid on the date i.e., 28.06.1994. P. Ws. 2 to 4 are the attesting witnesses to this Deed at Ex. P16(A). Their signatures

have been marked as Ex.P16(b),(d) and (c) respectively. They have stated that the document was prepared by one Hanumanthappa and the husband of the defendant and his brother Munikrishnappa were present and that the document was executed by the husband of the defendant. All the witnesses P.Ws.2 to 4 have stated about execution of the document in favour of the plaintiff. Hence, it could be said from the evidence referred to supra that the husband of the defendant executed the Deed dated 22.05.1994 in favour of the plaintiff by receiving the amount of Rs. 5,000-00. The perusal of the document i reveal that time is not the essence of the contract. So, when the period is not fixed in the agreement to execute the Sale Deed, the limitation would commerce only alter refusal on the part of defew Jant to execute the Sale Deed in terms of the Agreement. Though this document is executed in the year'' 1994, the suit came to be filed in the year 2004. It is in the evidence that he requested the husband of the defendant to execute the Sale Deed as agreed upon and he went on post-phoning the execution. As the husband of the defendant died later, he made a request to the defendant to execute the Sale Deed. But, she refused to execute the Sale Deed and it is under this context, the suit came to be instituted by the plaintiff for claiming specific performance of the contract. Therefore, it cannot be said by any stretch of imagination that the suit filed by the plaintiff is barred by limitation.

Learned counsel for the appellant has relied upon the decision of the Apex Court reported in 2011 AIR SCW 3859 [Raj Kishore (dead) by L.Rs. Vs. Prem Singh & Ors.]; wherein there was a contract of re-conveyance and in the suit for specific performance, the plaintiff alleged that the transfer was only by way of security for repayment of the loan. But, the plaintiff had failed to establish that he tendered the amount of loan to the purchaser within the date stiplated in the agreement for re-conveyance. in the circumstances, the suit came to be dismissed holding that a decree for specific performance cannot be granted. The principle does not apply to the facts on hand for the reason that whatever amount was payable was paid on the Agreement Deeds and the husband of the defendant had agreed to execute the Sale Deed. So, in the aforesaid circumstances, I am of the opinion that the plaintiff is able to establish that the document-Ex.D1 is a nominal Sale Deed and the suit instituted is not barred by time. Hence, I answer the substantial question of law at S1. No.1 holding that it is a nominal Sale Deed and the substantial question of law at Sl. No.2 in negative holding that the suit is not barred by time.

In the result, the appeal fails and it is dismissed.