P VENKATESH RAJU Vs. KOTHAMUNIYAPPA

JUDGEMENT

(1.) This appeal is filed by unsuccessful plaintiff challenging the judgment and decree in O.S No.72/2009 and of the First Appellate Court in RA No.131/2015. Both the Courts held that the plaintiff is not entitled to the relief of specific performance of the agreement of sale dtd. 29/9/2003 and 13/8/2004.

(2.) The plaintiff claimed that the defendants being the owners of the suit property had executed an agreement of sale in favour of the brother of the plaintiff on 27/11/2002 agreeing to sell the suit property for a total consideration of Rs.2,50,000.00. Since the brother of the plaintiff died the defendants executed an agreement of sale on 29/9/2003 in favour of the plaintiff agreeing to convey suit properties for Rs.2,50,000.00- and received a sum of Rs.79,000.00 as advance. Later again on 5/2/2003, the defendants executed a mortgage deed in favour of the plaintiff which was duly registered and received a sum of Rs.50,000.00. Later, the defendants executed an agreement dtd. 13/8/2004 agreeing to sell the suit property for a sum of Rs.2,50,000.00- and acknowledged the receipt of a sum of Rs.1,79,000.00 towards the advance of sale consideration. Time fixed for completion of sale agreement was three years. The plaintiff claimed that defendants handed over possession of suit property on 27/11/2002 itself. The plaintiff claimed that defendants filed O.S No.46/2005 for redemption of the mortgage deed dtd. 5/2/2003 which was dismissed on 17/7/2006. The appeal preferred in R.A No.109/2008 was also dismissed. The plaintiff claimed that though he was ready and willing to perform his part of contract by paying balance consideration but the defendants refused to execute sale deed in his favour. Thereafter, the plaintiff caused notice and filed a suit for specific performance.

(3.) The suit was resisted by defendants 1 and 2 who contended that they had seven daughters, all of them were married prior to 31/1/2009. They claimed that suit properties were sold by defendant No.1 in favour of one Lala Shariff in terms of a sale deed dtd. 15/12/1977 which was subject to a condition to reconvey. It is stated that the said properties was re-purchased from Lala Shariff and registered in the name of defendant No.2. They admitted the execution of deed of mortgage on 5/2/2003 in favour of the plaintiff. They also admitted that they had received a sum of Rs.50,000.00- as mortgage apart from Rs.29,000.00 received as advance from the plaintiff. They claimed that they were ready to receive balance consideration of Rs.1,71,000.00 within 11 months from the date of sale agreement on 29/9/2003 and execute a deed of sale. They claimed that they had issued a notice in that regard to the plaintiff. The plaintiff failed to obtain an absolute sale deed. Therefore, the defendants were under no obligation to execute a deed of sale in respect of suit schedule property. They also contended that the daughters of the defendants had filed suit for partition and separate possession of their 7/9th share in suit properties and other properties. The said suit was compromised before the Lok Adalat on 31/1/2009 and the suit properties were allotted to the share of their daughters.