S. SRINIVAS Vs. MALLAMMA

JUDGEMENT

(1.) Heard the learned Counsel for the appellant and the learned Counsel for the respondents. The parties will be referred by their rank before the trial court, for convenience.

(2.) The appellant was the defendant before the trial court. The suit of the plaintiffs was to the effect that the defendant was the absolute owner of the suit properties. On 09.05.1990, he had agreed to sell the suit properties to the husband of plaintiff no. 1 under an agreement of sale. The sale consideration was Rs. 1,50,000/- and the agreement was in respect of agricultural land bearing survey no. 432/2 measuring 3 acres 21 guntas of Harohalli village, Kanakapura taluk, Bangalore Rural District. It is claimed that under the agreement, the husband of the first plaintiff had paid a sum of Rs. 95,000/- by way of a demand draft drawn on M/s. Canara Bank, apart from having paid cash in a sum of Rs. 5000/- and therefore, it was contended that defendant had received a total sum of Rs. 1,00,000/- as advance, towards the sale price and the balance amount of Rs. 50,000/- was to be paid at the time of execution and registration of the sale deed, in favour of the husband of the first plaintiff. Subsequently, in June 1990, the defendant is said to have approached the husband of the first plaintiff and requested that a separate sale agreement in the English language be entered into between them. Accordingly, a second agreement in respect of the same property was entered into in English, incorporating the very terms under the agreement of sale dated 09.05.1990. However, the only difference was that the period prescribed for completion of the sale transaction was five years, instead of two years, as agreed earlier. The attesting witnesses to the second agreement were also different from the witnesses to the first agreement. It is further claimed that the plaintiffs husband was put in possession of the suit property. Thereafter, the defendant is said to have approached the husband of the first plaintiff for an additional amount of Rs. 10,000/- towards the balance sale consideration, as he was in urgent need of the same. This according to the plaintiff, was paid on 11.12.1991, to the defendant who in turn had issued a receipt in respect of such payment and it was further agreed that he would execute the sale deed on receiving the balance amount of Rs. 40,000/-. In the month of January 1992, it is claimed by the plaintiffs that the husband of the first plaintiff demanded execution of the sale deed and that he was ready and willing to pay the balance amount of Rs. 40,000/- but the defendant postponed the same, on one pretext or the other. And during the subsistence of the agreement, the first plaintiffs husband had died on 04.7.1993, leaving behind the plaintiffs as his legal heirs. That after the death of her husband, plaintiff no. 1 was put in possession of the suit property and that she was paying the defendant in kind, in consideration of being permitted to cultivate the land in question, by delivering 300 bags of rice and 300 coconuts per year pending the sale transaction. The plaintiffs claim that they are in possession of the suit schedule property. It was further urged that sale agreement of June 1990 was taken by the defendant on the pretext that lie-wanted to show it to his wife and had failed to return the same and therefore, the plaint was accompanied by a photo copy of the said document and it is in the above background that a suit was filed for specific performance of the contract.

(3.) The suit was resisted by the defendant who, in his written statement, contended that it was true that he was the owner of the suit property but it was denied that it was offered for sale under the agreement set up by the plaintiffs and he denied the relationship between the plaintiffs and the defendant and claimed that one Krishnamurthy who is said to be the husband of the first plaintiff was his servant and was helping him manage his properties. It was admitted that he received a sum of Rs. 95,000/- but it was not towards any sale consideration but an amount returned by Krishnamurthy which he had received on some other account and therefore, the claim that it was towards the sale price under any agreement was utterly false and it was denied that there was a "first agreement" or the "second agreement", as sought to be contended by the plaintiffs and it was reiterated that Krishnamurthy was a mere servant during his life time and before that Krishnamurthy's father, Ramaiah, was also helping the defendant to look after the properties and he had acted as a god father to the family of Ramaiah and his sons. The relationship of the parties was throughout cordial and they never coveted any of his properties and therefore, the plaintiffs have hatched a scheme to claim the suit property under false and concocted documents. It was also contended that after the death of Krishnamurthy, Ramaiah and his other sons approached the defendant to resume management of the suit land but the defendant had insisted that accounts be taken first and the amount outstanding be settled and therefore, at the instance of certain well wishers, it was agreed that the panchayathdars named by the parties would look into the matter in detail and determine a via media as to the amounts payable. As a token of agreement before the panchayath, the defendant had affixed his signature to an agreement and it is claimed by the defendant that it is possible that after he left the place, the plaintiffs must have connived with the panchayathdars to make it seem that there was a panchayath convened in respect of the lands alleged under the agreement of sale and therefore, the entire case of the plaintiffs is a concoction of lies and falsehood and therefore, it was contended that the suit be rejected. There were additional pleadings which however were only an enlargement of each others case on the basis of which the Court below had framed the following issues: