C. KEMPANNA Vs. MUNICHANNARAYAPPA

JUDGEMENT

(1.) This appeal is filed against the judgment and decree dtd. 3/11/2007 passed in R.A.No.161/2006, on the file of the Civil Judge (Sr.Dn.) and JMFC, Devanahalli, dismissing the appeal and confirming the judgment and decree dtd. 24/6/2006 passed in O.S.No.321/1995, on the file of the Civil Judge (Jr.Dn.) and JMFC, Devanahalli

(2.) The factual matrix of the case of the plaintiff in a suit for specific performance is that defendant No.1 Munichannarayappa entered into an agreement of sale dtd. 19/2/1987 and received an amount of Rs.23,500.00 as kartha of the joint family and he had borrowed loan from PLD Bank, Devanahalli for raising wine yard and it was over due until February 1987. Munichannarayappa's younger brother Venkatesha had left the village long ago and his whereabouts were not known. In order to repay the loan, Munichannarayappa offered to sell the suit properties and received entire sale consideration and executed an agreement for sale on 19/2/1987. On the same day, Munichannarayappa delivered the possession of the suit properties and agreed to execute the sale deed whenever called upon to do so. The plaintiff has always been ready and willing to perform his part of the contract. Whenever the plaintiff approached defendant No.1, he postponed the execution of sale deed on one pretext or the other. Hence, he got issued the notice dtd. 14/6/1995, but Munichannarayappa failed to comply with the demand made therein.

(3.) It is also the case of the plaintiff that subsequent to the filing of the suit, Munichannarayappa's wife Manjulamma got revenue records pertaining to the third item of the suit schedule changed to her name in collusion. Munichannarayappa's younger brother Venkatesha came to the village in the year 1995 and having come to know about the sale agreement, created a sale deed dtd. 22/5/1995 in favour of C. Kempanna. The purchaser was aware of the sale agreement in his favour and also his possession over the suit properties. C. Kempanna is also bound by the agreement dtd. 19/2/1987. Since the agreement was executed by Munichannarayappa as the kartha of the joint family for legal necessity, it is binding on all the members of the joint family. It is also the case of the plaintiff that he filed an application before the Tahsildar, Devanahalli to get his name entered in column 12 of the RTC in respect of the suit property in RRT.CR.646/93-94; the Revenue Inspector, Vijayapura Hobli, visited the suit property, has conducted mahazar dtd. 7/4/1994. Munichannarayappa issued reply on 14/6/1995 admitted delivery of possession and execution of the agreement. No partition has taken place between Munichannarayappa and Venkatesha. He is entitled to protect his possession over the suit properties by virtue of Sec. 53-A of the Transfer of Property Act. Manjulamma and Kempanna tried to dispossess him from the suit properties.