KHANDERAO SUBBARAO NADAGIR Vs. HULAGAVVA

JUDGEMENT

(1.) THE plaintiff in O. S. 153/82 on the file of the Court of the Additional Munsif and II Addl. J. M. F. C. , Ranebennur, whose attempt to obtain a decree for directing the defendants for specific performance of an agreement for conveying the subject immovable property - a shop in Ranebennur Town, did not succeed before the trial Court as well as before the Lower Appellate Court, is in second appeal before this Court.

(2.) THE plaintiff had brought the suit praying for directions to defendants 1 to 4 and 6 and 9 to execute a registered sale deed in respect of the suit property by receiving the balance sale consideration of Rs. 7,000/- which the plaintiff claims as had been paid under an agreement dated 21-8-1979 between the plaintiff and one Fakirappa Joger who was no more and as such had impleaded his legal representatives as defendants to the suit. The plaintiff had also pleaded in the alternative for the refund of the earnest money and damages by way of interest on this amount. The plaint averment was that the deceased Fakirappa Joger had executed this agreement dated 21-8-1979 agreeing to convey the property in question for a sum of Rs. 10,000/- and he had received a sum of Rs. 3,000/- as part of the sale consideration. The plaintiff had also asserted that the property was the self acquired property of said Fakirappa Joger. The agreement though recited that the suit property was delivered to the plaintiff on the same day of execution of the said agreement, it was not actually delivered to him but was allowed to be in possession of the tenant, who had been impleaded as a defendant to the suit. It was also the pleading in the plaint that the said Fakirappa Joger died after the execution of the agreement, that he had executed the agreement to sell the property for family necessity and for raising capital to his business and also for the expenses to be incurred in connection with the marriage of his children etc. , that as the said Fakirappa Joger had failed to do so during his life time and that the defendants being in possession and enjoyment of the property, suit for specific performance had been brought by impleading the legal representatives of the defendant to the suit.

(3.) THE suit was contested. It was contended that late Fakirappa Joger was not the exclusive owner of the property in question, that it was not even his self acquired property but it was a joint family property, that the suit was bad for non joinder of other necessary parties such as the daughters of late Fakirappa, that the property was not sought to be sold for any family necessity or for the capital for his business, that the amount of Rs. 3,000/-, assuming that it had been received by Fakirappa by way of advance, had not been utilised for any family purpose, that there was no family necessity either, after 21-8-1979 such as performance of any marriage in the family, that the agreement was not binding on the defendants, that the tenant continued to be in possession and that the plaintiff has to establish that he had actually paid the sum of Rs. 3,000/- which he had claimed as having been paid by way of advance and as such as an alternative relief the plaintiff had sought for refund of this amount as damages and pleaded for the dismissal of the suit.