- 1 - NC: 2025:KHC-D:3731-DB RFA No. 100273 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100273 OF 2022 (SP) BETWEEN: KUM. MANJULA @ MANJAWWA D/O YALLAPPA HUKKERI, AGE. 46 YEARS, OCC: HOUSEMAKER, R/O. DESHPANDE PLOT, NEAR BUS STOP, MUDALAGI, TQ. GOKAK, DIST. BELAGAVI-591312. …APPELLANT (BY SRI. A.S. PATIL, ADV) AND: SRI. MALLAPPA S/O GURUSIDDAPPA HADIMANI, AGE. 42 YEARS, OCC. AGRICULTURIST, R/O. MUDALAGI, TQ. GOKAK, DIST. BELAGAVI-591312. …RESPONDENT (BY SRI. ASHOK R. KALYANASHETTY, ADV) THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 22.12.2021 PASSED IN O.S.NO.585/2019 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE GOKAK, DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER : CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.03.22 10:20:34 +0530 - 2 - NC: 2025:KHC-D:3731-DB RFA No. 100273 of 2022 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellant, challenging the judgment and preliminary decree dated 22.12.2021 passed in O.S. No.585/2019 by the learned Principal Senior Civil Judge, Gokak. 2. For convenience, the parties are referred to based on their ranking before the trial Court. The appellant was the defendant, and the respondent was the plaintiff. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendant for the relief of a specific performance of a contract. It is the case of the plaintiff that the defendant is the absolute owner of the suit schedule property and has put the property for sale to meet her family, and legal necessities and for the payment of hand loans. The plaintiff, interested in purchasing the suit schedule property, approached the - 3 - NC: 2025:KHC-D:3731-DB RFA No. 100273 of 2022 defendant along with elderly persons, after negotiations, the defendant agreed to sell the suit property in favour of the plaintiff for a total consideration of Rs.17,00,000/-. The plaintiff paid Rs.16,64,000/- to the defendant at the time of execution of a registered sale agreement dated 18.12.2013 and agreed to execute a registered sale deed by receiving the balance sale consideration amount of Rs.36,000/- within three years by removing the encumbrances and handover the possession of the suit schedule property to the plaintiff. Since the defendant did not execute the registered sale deed within three years, and kept on postponing the same on one or the other pretext, the plaintiff sent a legal notice dated 02.01.2018. The defendant did not reply to the legal notice. Hence, a cause of action arose for the plaintiff to file a suit for the specific performance of a contract, and in the alternative, a refund of the earnest money. Accordingly, prays to decree the suit. - 4 - NC: 2025:KHC-D:3731-DB RFA No. 100273 of 2022 4. The defendant filed a written statement denying the averments made in the plaint. It is contended that the defendant had taken a hand loan of Rs.10,00,000/- from the plaintiff and it was agreed to execute a security bond as a measure of securing the loan, and it was not at all intended by her to execute any sale agreement. It is contended that the plaintiff got executed the alleged sale agreement under the garb of executing a security bond behind the bails of the defendant. She was ever ready to return Rs.10,00,000/- along with the agreed interest. The plaintiff refused to accept the same, and filed the present suit on false and baseless grounds, to grab the suit property from her. It is also contended that, the suit property is the joint family property and the defendant alone has no right of sale regarding the suit property, accordingly prays to dismiss the suit. 5. The trial Court, based on the pleadings of the parties, framed the following issues: - 5 - NC: 2025:KHC-D:3731-DB RFA No. 100273 of 2022 ISSUES 1. Whether the plaintiff proves that defendant being the owner of the suit property executed the registered agreement of sale on 08/12/2014, to sell the suit property for Rs.17,00,000/-, has received Rs. 16,64,000/- towards earnest money and agreed to execute registered sale deed within 3 years from the date of agreement of sale? 2. Whether defendant proves that towards security of the hand loan of Rs.10,00,00/- borrowed by her in the month of December 2014 she has executed the document? 3. Whether plaintiff proves that he is ever ready & willing to perform his part of contract? 4. Whether the plaintiff is entitled for the relief sought? 5. What Order or Decree? 6. The plaintiff to substantiate his case, examined himself as PW.1, examined two witnesses as PWs.2 and 3, and marked 6 documents as Exs.P-1 to P-6. On the other hand, the defendant examined herself as DW.1, and no documents were marked. 7. The trial Court, after recording the evidence, hearing on both sides, and assessing the oral and documentary evidence, answered issue Nos.1, 3 and 4 in - 6 - NC: 2025:KHC-D:3731-DB RFA No. 100273 of 2022 the affirmative, issue No.2 in the negative, and Issue No.5 as per the final order. The suit of the plaintiff was decreed with costs vide judgment dated 22.12.2021. It was declared that, the plaintiff is entitled to the relief of specific performance of a registered agreement of sale dated 18.12.2014 and the defendant shall execute a registered sale deed in terms of the registered sale agreement dated 18.12.2014 by receiving the balance sale consideration of Rs.36,000/- within three months from the date of passing of the judgment, failing which, the plaintiff was at liberty to get executed the registered sale deed through, the agency of the Court. 8. The defendant, aggrieved by the judgment and preliminary decree dated 22.12.2021 passed in O.S. No.585/2019, has filed this regular first appeal. 9. Heard the arguments of the learned counsel for the defendant, and the learned counsel for the plaintiff. - 7 - NC: 2025:KHC-D:3731-DB RFA No. 100273 of 2022 10. The learned counsel for the defendant submits that the trial Court failed to note that, mere admission of execution of the sale agreement does not amount to proof of the contents of a document. The trial Court committed an error in passing the impugned judgment on the ground that, the defendant admitted her signature on the alleged agreement of sale. He submits that, the said document was executed as a security bond. He contends that the defendant has not received Rs.16,64,000/- as mentioned in the sale agreement. The transaction between the plaintiff and the defendant is a loan transaction, not a sale transaction. He submits that, the suit filed by the plaintiff is barred by limitation. He submits that, the plaintiff has failed to prove his readiness and willingness. Hence, on these grounds, he submits that, the judgment and decree passed by the trial Court is perverse, and arbitrary, and accordingly prays to allow the appeal. - 8 - NC: 2025:KHC-D:3731-DB RFA No. 100273 of 2022 11. Per contra, the learned counsel for the plaintiff submits that, the transaction between the plaintiff and the defendant is a sale transaction, and not a loan transaction as alleged by the defendant in the written statement. He submits that the transaction was reduced into writing, and the same was registered. Further, he submits that there is a presumption regarding the registered document. He submits that, the plaintiff was/is always ready and willing to perform his part of the contract. He submits that to show his readiness, he has issued a legal notice calling upon the defendant to receive the balance consideration amount, and execute a registered sale deed. The defendant did not reply to the said legal notice. He submits that, in the absence of a reply, the defendant has admitted the execution of the sale agreement. The plaintiff has proved due execution of the sale agreement by producing a registered sale agreement, and examining the attesting witnesses. He also submits that, any amount of oral evidence to vary the terms of instrument is inadmissible in evidence as per Sections 91 and 92 of the - 9 - NC: 2025:KHC-D:3731-DB RFA No. 100273 of 2022 Indian Evidence Act. He submits that the defendant, by leading oral evidence, is trying to vary the terms and conditions of the sale agreement. He also submits that the plaintiff had paid the defendant a substantial consideration amount of Rs.16,64,000/-. Hence, the trial Court was justified in passing the impugned judgment. He submits that the judgment and decree passed by the trial Court is just and proper and does not call for any interference. Hence, on these grounds, he prays to dismiss the appeal. 12. Perused the records, and considered the submissions of the learned counsel for the parties. 13. The points that arise for our consideration are: i. Whether the plaintiff prove that the defendant executed a registered sale agreement dated 18.12.2014 for consideration of Rs.17,00,000/- and received Rs.16,64,000/- towards earnest money and agreed to execute a registered - 10 - NC: 2025:KHC-D:3731-DB RFA No. 100273 of 2022 sale deed within three years from the date of the sale agreement? ii. Whether the plaintiff prove that he was/is always ready and willing to perform his part of the contract? iii. Whether the defendant prove that the judgment and decree passed by the trial Court is arbitrary and erroneous? 14. Points No.(i) and (ii): These points are inter connected, and are taken for common discussion, to avoid repetition of facts. 15. The plaintiff, to substantiate his case, examined himself as PW.1. He reiterated the plaint averments in his examination-in-chief. He deposed that, the defendant is the absolute owner of the suit schedule property. She offered to sell the suit schedule property for a total consideration of Rs.17,00,000/-. The plaintiff agreed to purchase the suit schedule property for the aforesaid consideration amount, the plaintiff paid Rs.16,64,000/- to the defendant. The defendant, after receiving the earnest - 11 - NC: 2025:KHC-D:3731-DB RFA No. 100273 of 2022 money of Rs.16,64,000/- executed a registered sale agreement dated 8.12.2014. It was agreed that the defendant, after receiving the balance consideration amount, shall execute a registered sale deed within three years from the date of execution of the sale agreement. The plaintiff, to show that he was is always ready and willing to perform his part of the contract, got issued a legal notice calling upon the defendant to receive the balance sale consideration amount, and execute a registered sale deed. A notice was duly served upon the defendant. The defendant had neither replied to the legal notice nor performed her part of the contract. The plaintiff to substantiate his case produced the documents. Ex.P-1 is the registered sale agreement, which discloses that the defendant agreed to sell the suit schedule property for a total consideration of Rs.17,00,000/-, and received Rs.16,64,000/- towards earnest money. The signatures of the parties to the sale agreement are marked as Ex.P1(a) to (h). The plaintiff produced the RTC extract, marked as Ex.P-2, which discloses that the defendant is the absolute - 12 - NC: 2025:KHC-D:3731-DB RFA No. 100273 of 2022 owner of the suit schedule property. Ex.P-3 is the office copy of the legal notice, which discloses that the plaintiff was issued a legal notice calling upon the defendant to receive the balance sale consideration amount, and execute a registered sale deed. Ex.P-3(a) is the postal receipt. Ex.P-4 is the postal acknowledgement, which discloses that, the notice was duly served on the defendant. Exs.P-5 and 6 are the mutation extracts. During the course of cross-examination, it was suggested to PW.1 that, the transaction between the plaintiff and the defendant is not a sale transaction, but it is a loan transaction, and the defendant borrowed Rs.10,00,000/- from the plaintiff, and executed a security bond, and further, the defendant has not received Rs.16,64,000/- as alleged in the sale agreement. The said suggestion was denied by PW.1. Further, the plaintiff also examined one Ramappa as PW.2, an attesting witness to the sale agreement. He has deposed that, the defendant executed a sale agreement as per Ex.P-1, after receiving an amount of Rs.16,64,000/- towards the earnest money and he - 13 - NC: 2025:KHC-D:3731-DB RFA No. 100273 of 2022 identified his signature. During the cross-examination, it is suggested that, the plaintiff, in collusion with PW.2, and the scribe, created a sale agreement. The said suggestion was denied by PW.2. Further, the plaintiff also examined the scribe to Ex.P-1 as PW3. He has deposed that, as per the instructions given by the defendant, he drafted Ex.P-1. He has deposed that, he has read the contents of Ex.P-1 and explained to the defendant and the plaintiff. After having understood the contents of Ex.P-1, the defendant executed Ex.P-1, and the same was registered. During the cross-examination, it was denied that, the defendant has not given the instruction to draft Ex.P-1, and further denied that, the plaintiff, PWs.2 and 3 colluded with each other and created the sale agreement. 16. In rebuttal, the defendant examined herself as DW.1. She has deposed that the transaction between the plaintiff and the defendant is a loan transaction and not a sale agreement. She submits that the defendant had obtained a hand loan of R.10,00,000/- from the plaintiff - 14 - NC: 2025:KHC-D:3731-DB RFA No. 100273 of 2022 and as a security for the said loan, she had executed a security bond. The plaintiff instead of executing a security bond, executed a sale agreement. The plaintiff played fraud on the defendant. During the cross-examination, Ex.P-1 was confronted to DW.1. She admitted her signature on Ex.P-1, and also her presence in the photo affixed on Ex.P-1. She admits that, she had a financial crises in 2014, and she approached the plaintiff for financial assistance. She acknowledges the receipt of Rs.10,00,000/-and denied the receipt of Rs17,00,000/-. She pleads ignorance as to her failure to reply to the legal notice. 17. From the perusal of the entire evidence on record, it is clear that, the defendant is the absolute owner of the suit schedule property. The defendant was in a financial crisis in 2014. The defendant offered to sell the suit schedule property in favour of the plaintiff for a total sale consideration of Rs.17,00,000/-, and the plaintiff paid Rs.16,64,000/- towards the earnest money. It was agreed - 15 - NC: 2025:KHC-D:3731-DB RFA No. 100273 of 2022 that, the balance consideration amount was to be paid within three years from the date of registration of the sale deed. It was agreed that, the defendant shall execute a registered sale deed in favour of the plaintiff within three years from the date of execution of a sale agreement. The plaintiff requested the defendant to receive the balance sale consideration amount, and execute a registered sale deed, but the defendant did not heed the request made by the plaintiff. The plaintiff, to show that he was/is always ready and willing to perform his part of the contract, issued a legal notice as per Ex.P-3. The said legal notice was served on the defendant. Despite service of notice, the defendant neither replied to the legal notice nor performed her part of the contract. The silence amount to conduct must be what may be styled “positive silence” and in the context of a clear duty to speak. The conduct indicated by silence must be assessed with all other relevant circumstances. In the instant case, the defendant did not reply to the legal notice, which asserted that the plaintiff has proved that the defendant executed a - 16 - NC: 2025:KHC-D:3731-DB RFA No. 100273 of 2022 registered sale agreement in favour of the plaintiff and received Rs.16,64,000/- towards earnest money. The plaintiff also examined the attesting witnesses PW.2, and the scribe as PW.3. 18. From the perusal of the oral evidence of PWs.1 to 3 and Ex.P-1, it is clear that the plaintiff has proved that the defendant agreed to sell the suit schedule property for a total consideration of Rs.17,00,000/- and the plaintiff paid Rs.16,64,000/- as earnest money. Thus, in view of the above discussion, we answer point Nos.(i) and (ii) in the affirmative. 19. Point No.(iii): We have already recorded a finding that the plaintiff has proved the execution of the sale agreement by the defendant by receiving Rs.16,64,000/- and the plaintiff was/is always ready and willing to perform his part of the contract. The trial Court has rightly exercised the judicial discretion under Section 20 of the Specific Relief Act, and rightly decreed the suit of - 17 - NC: 2025:KHC-D:3731-DB RFA No. 100273 of 2022 the plaintiff. We do not find any error in the impugned judgment. We concur with the judgment passed by the trial Court. 20. Accordingly, we answer point No.(iii) in the negative. 21. A proposal was given by the learned counsel for the plaintiff that, the plaintiff is ready to pay additional consideration of Rs.9,00,000/- and also the plaintiff had brought the Demand Draft of Rs.9,00,000/-. The plaintiff is present before the Court, and the plaintiff requested the defendant to accept the Demand Draft of Rs.9,00,000/-, the defendant refused to accept the Demand Draft of Rs.9,00,000/-. 22. In view of the above discussion we proceed to pass the following - 18 - NC: 2025:KHC-D:3731-DB RFA No. 100273 of 2022 ORDER The Appeal is dismissed. The judgment and decree dated 22.12.2021 in O.S. No.585/2019 is hereby confirmed. No order as to the costs. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE kmv CT: BSB List No.: 1 Sl No.: 11