- 1 - NC: 2025:KHC-D:3323 RFA No. 100062 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 19TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.100062 OF 2017 (SP) BETWEEN: 1. SMT. ARCHANA W/O. MARUTI KOUJALAGI, AGE: 27 YEARS, OCC: H.H. WORK, R/O: NANDIKURALI, TAL: RAIBAG, BELAGAVI DISTRICT-591317. 2. SMT. KALAVATI W/O. LAGAMA NAGARALE, AGE: 29 YEARS, OCC: H.H. WORK, R/O: BEKKERI, TAL: RAIBAG, DIST: BELAGAVI-591317. …APPELLANTS (BY SMT. BHARATHI G.BHAT, ADVOCATE) AND: 1. SRI. SAHADEV S/O. BABU ARAVALE, AGED ABOUT 45 YEARS, OCC. AGRICULTURE, R/O. CHINCHALI, TAL. RAIBAG, DIST. BELAGAVI-591217. 2. SRI. MAHADEV S/O. BALAPPA HOSURE, AGED ABOUT 48 YEARS, OCC. AGRICULTURE, 3. SRI. BHAGAPPA, S/O. BALAPPA HOSURE, SINCE DECEASED BY LR’S 3A. SMT. HUVAKKA W/O. BHAGAPPA HOSURE, AGED ABOUT 53 YEARS, OCC. HOUSE HOLD, 3B. SMT. KASTURI W/O. BHAIRU ARAWADE, AGED ABOUT 33 YEARS, OCC. HOUSE HOLD, RESPONDENTS NO.2, 3, 3A AND 3B ARE R/O. BEKKERI, TAL. RAIBAG, DIST. BELAGAVI-591317. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:3323 RFA No. 100062 of 2017 3C. SHRI MARUTI S/O. BHAGAPPA HOSURE, AGED ABOUT 31 YEARS, OCC. AGRICULTURE, R/O. CHINCHALI, TAL. RAIBAG, DIST. BELAGAVI. 3D. SMT. KANCHANA, W/O. SULTAN PUJERI, AGED ABOUT 53 YEARS, OCC. AGRICULTURE, R/O. RAIBAG STATION ROAD, NEAR AGRO NAGARAL ROAD, TAL. RAIBAG, DIST. BELAGAVI-591317. 4. SMT. DEVAKI W/O. MAHADEV HOSURE, AGED ABOUT 49 YEARS, OCC. H.H. WORK, 5. KUMAR HANMAN S/O. MAHADEV HOSURE, AGED ABOUT 19 YEARS, OCC. STUDENT, 6. KUMAR VITHAL S/O. MAHADEV HOSURE, AGED ABOUT 18 YEARS, OCC. NIL, RESPONDENTS NO.4 TO 6 ARE R/O: BEKKERI, TAL: RAIBAG, DIST: BELAGAVI-591317. …RESPONDENTS (BY SRI A.S. PATIL, ADVOCATE FOR R1; NOTICE TO R2 IS SERVED; SRI RAGHAVENDRA A. PUROHIT, ADVOCATE FOR R3; SRI SANTOSH B. RAWOOT, ADVOCATE FOR R4 TO R6) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULE 1 AND 2 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO THE JUDGMENT AND DECREE DATED 17.01.2017 PASSED IN O.S.NO.234/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, RAIBAG, MAY KINDLY BE SET ASIDE AND THE SUIT OF THE PLAINTIFF MAY KINDLY BE DISMISSED WITH HEAVY COST AND COMPENSATORY COST, TO MEET THE ENDS OF JUSTICE AND EQUITY. THIS REGULAR FIRST APPEAL COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - NC: 2025:KHC-D:3323 RFA No. 100062 of 2017 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by defendants No.3 and 4, challenging the judgment and decree dated 17.01.2017, passed in O.S.No.234/2015, by the Court of the Senior Civil Judge and JMFC, Raibag (hereinafter referred to as the ‘trial Court’), thereby the suit for specific performance of contract is decreed directing the legal heirs of deceased-Yankavva Hosure to execute registered sale deed in favour of respondent No.1(Plaintiff) in respect of suit schedule property by receiving balance sale consideration amount of Rs.3,80,000/- from the plaintiff. 2. For the purpose of convenience and easy reference, ranking of the parties is referred to as per their status before the trial Court. 3. The plaintiff has filed a suit for specific performance of contract with pleading that the defendants are owners of the suit schedule property as it was jointly standing in the name of Yankavva and her two sons. It is - 4 - NC: 2025:KHC-D:3323 RFA No. 100062 of 2017 pleaded that on 20.05.2014, the plaintiff has paid a sum of Rs.9,50,000/- to the deceased Yankavva as advance sale consideration and agreement of sale was executed on the same day. It is pleaded that the plaintiff was ready and willing to perform his part of contract but the defendants have not come forward to execute registered sale deed. Therefore, the plaintiff was constrained to file a suit for specific performance of contract. 4. The defendants appeared in the suit and defendant No.3 who is daughter of Mahadev and grand- daughter of Yankavva filed written statement and denied all the plaint averments. It is pleaded in the written statement that the suit schedule property is ancestral and joint family property and defendants No.3 and 4 are also having their inherent right of share in the suit property. Therefore, Yankavva and her sons Mahadev and Bhagappa did not have competency to sell away the share in the properties belonging to defendants No.3 and 4. Thus, has taken pleading that the proposed sale of land by virtue of - 5 - NC: 2025:KHC-D:3323 RFA No. 100062 of 2017 agreement of sale causes deprivation of their right. Therefore, prays to dismiss the suit. 5. Upon the pleadings, the trial Court framed following issues: i. Whether the plaintiff proves that, the deceased Yankavva had executed an agreement of sale by receiving an earnest money of Rs.9.5 lakhs by proposed to sell the suit property on 20.05.2014, out of the total consideration of Rs.13.30 lakhs? ii. Whether the plaintiff proves that, the suit property is exclusive property of deceased Yankavva? iii. Whether the plaintiff proves that, he is always ready and willing to perform his part of contract? iv. Whether the defendant Nos.1, 3 and 4 prove that, the properties are joint without any division? v. Whether the plaintiff is entitled for the relief sought? vi. What order or decree? 6. The plaintiff is examined as PW-1 and examined one witness as PW-2 and got marked the documents at Ex.P- 1 to P-13. Defendant No.4 is examined as DW-1. Defendant - 6 - NC: 2025:KHC-D:3323 RFA No. 100062 of 2017 No.5 is examined as DW-3 and examined one witness as DW-2 and got marked documents at Ex.D-1 and D-2. The trial Court has decreed the suit by granting decree of specific performance of contract directing the legal heirs of Yankavva who are defendants, to execute registered sale deed. The trial Court assigned reason that Ex.P-1 is agreement of sale which is proved to have been executed by adducing the evidence of PW-2 and the plaintiff was ready and willing to perform his part of contract. Therefore, decreed the suit in favour of the plaintiff. 7. Being aggrieved by granting decree in favour of plaintiff, defendants No.3 and 4 who are daughters of Mahadev have preferred the appeal by raising various grounds in the judgment and learned counsel for appellants argued that Yankavva and her sons defendants No.1 and 2 did not have absolute right to sell the land as the property is ancestral property and defendants No.3 and 4 being daughters have inherent right of share in the suit schedule properties. Thus, agreement of sale deprives the right of defendants No.3 and 4. Hence, the decree granted is not - 7 - NC: 2025:KHC-D:3323 RFA No. 100062 of 2017 correct. Further submitted that the schedule property is the agricultural land which is only source of livelihood for defendants No.3 and 4 and if the said property is sold away then, the appellants-defendants No.3 and 4 would be deprived of their livelihood, which would be causing more hardship than the plaintiff comparatively. 8. It is further submitted that the defendants No.3 and 4 have filed suit for partition claiming partition in the schedule property but during pendency of the suit, defendants No.1 and 2 and Yankavva in O.S.No.1180/2013 against Mahadev and Bhagappa (defendants No.1 and 2 in the present suit) have got compromised the said suit within a period of three days from the date of institution of the suit. Therefore, submitted that this is collusive in nature just to cause deprivation of right of the daughters. Then, the daughters of Mahadev, who are appellants (defendants No.3 and 4) in the suit have filed a suit for permanent injunction and that is granted. Therefore, submitted that when this being the fact and still the O.S.No.694/2013 is pending for consideration, thus, in this interregnum period, if the - 8 - NC: 2025:KHC-D:3323 RFA No. 100062 of 2017 schedule property is sold away, then it would cause hardship to defendants No.3 and 4. Therefore, prays for grant of discretionary relief as per Section 20 of the Specific Relief Act would be granted in favour of defendants No.3 and 4 by refunding the earnest money but not by granting decree of specific performance of contract. Therefore, prays to allow the appeal and at the most, order for refund of earnest money to the plaintiff with interest. 9. On the other hand, learned counsel for the respondents/plaintiff submitted that Yankavva and her children- defendants No.1 and 2 have executed agreement of sale on 20.05.2014 for total consideration of sale at Rs.13,30,000/- and paid substantial amount towards sale consideration of Rs.9,50,000/- and the remaining balance would be only Rs.3,80,000/- which itself proved the fact that the plaintiff is entitled to relief of decree of specific performance of contract which is rightly exercised by the trial Court. Therefore, prays to dismiss the appeal. Therefore, submitted that when execution of agreement of sale is proved and plaintiff has paid substantial sale consideration - 9 - NC: 2025:KHC-D:3323 RFA No. 100062 of 2017 amount more than 50% of total sale amount and plaintiff has proved that he was ready and willing to perform his part of contract. Hence, the trial Court has rightly exercised discretion by granting decree of specific performance of contract. Therefore, submitted that there is no need to make interference in the decree granted by the trail Court. Hence, prays to dismiss the suit. 10. Upon hearing the arguments by both sides, the points that arise for my consideration are as follows: i. Whether, under the facts and circumstances involved in the case, the grant of decree of specific performance of contract by the trial Court which is causing deprivation of right of share of defendants No.3 and 4(appellants herein), thus, exercising discretionary under Section 20 of Specific Relief Act is justified? ii. Whether the judgment and decree passed by the trial Court requires interference by this Court? 11. The suit schedule property is agricultural land to the extent of one acre within the limits of Chinchali village of Raibag Taluka. The alleged agreement of sale is dated - 10 - NC: 2025:KHC-D:3323 RFA No. 100062 of 2017 20.05.2014 and the total sale consideration amount is Rs.13,30,000/-. The plaintiff has paid a sum of Rs.9,50,000/- to Yankavva at the time of execution of agreement of sale which is consented by defendants No.1 and 2. It is not disputed that the suit schedule land is the ancestral property. Therefore, defendants No.3 and 4 (appellants herein) are having their inherent right of share by birth. When this being the fact, the agreement of sale by Yankavva consented by defendants No.1 and 2 causes deprivation of right of defendants No.3 and 4 since they are daughters of defendant No.1. 12. The nature of property is agricultural land and it is a cultivable land. If the scheduled land is sold away, then it would cause deprivation of right of share of defendants No.3 and 4. Therefore, neither Yankavva nor defendants No.1 and 2 have absolute right to make agreement of sale in favour of plaintiff, unless, it is family and legal necessities to sell away the land, but here, there is no evidence that the agreement of sale was executed for family and legal necessity of the family. Therefore, the discretionary power - 11 - NC: 2025:KHC-D:3323 RFA No. 100062 of 2017 under section 20 of the Specific Relief Act could be considered on the principles stated therein. 13. Defendants No.3 and 4 have filed suit for partition in O.S.No.694/2013 claiming their legitimate share. As per submission made at the Bar, the said suit in O.S.No.694/2013 is still pending for consideration. In the meantime, Yankavva filed suit in O.S.No.1180/2013 for partition on 23.11.2013 against defendant No.1 Mahadev and defendant No.2 Bhagappa. Within a period of three days, on 26.11.2013 Yankavva and defendants No.1 and 2 have got compromised the matter, which itself proves that to cause deprivation of property to defendants No.3 and 4, the said suit is filed and got compromised, which is nothing but an hectic effort made to cause deprivation of share of defendants No.3 and 4. When such attempt of alienation is made, then defendants No.3 and 4 to protect their interest and right in the schedule land, have filed O.S.No.1122/2014 for permanent injunction, which was decreed. Therefore, upon considering all the scenarios of facts in issue, whether - 12 - NC: 2025:KHC-D:3323 RFA No. 100062 of 2017 the relief granted by the trial Court is the correct exercise of discretion is to be considered. 14. Section 20 of the Specific Relief Act is a discretionary relief. Just because an agreement of sale is proved and grant of decree is lawful to do so, but still the Court has discretion to decide whether to grant decree or not. The agreement of sale is dated 20.05.2014 and sale consideration amount is Rs.13,30,000/-. Though the plaintiff might have paid an amount of Rs.9,50,000/-, but if the schedule land is sold away, whether it causes deprivation of livelihood of defendants No.3 and 4 is to be considered in the background of comparative hardship to be faced by the plaintiff and defendants No.3 and 4. If the schedule land is sold away, then defendants No.3 and 4 would get only a bit of money as per their share at the most, but certainly defendants No.3 and 4 cannot purchase a land by that paltry amount. Therefore, this causes hardship to defendants No.3 and 4 and therefore defendants No.3 and 4 would be put to more hardship compared to the plaintiff. The plaintiff could be compensated by refund of earnest amount with interest. - 13 - NC: 2025:KHC-D:3323 RFA No. 100062 of 2017 Then in such an event, there would not be any hardship on behalf of the plaintiff. 15. Further, one more aspect to be considered is, if granting of decree causes unfair advantage over the defendants by the plaintiff, then the discretion could not be exercised in favour of plaintiff. If, by the decree the schedule land is sold out, then it would be an unfair advantage over defendants No.3 and 4 by the plaintiff, because defendants No.3 and 4 are not able to purchase another land out of the share in the sale proceeds. Then it causes deprivation of livelihood of defendants No.3 and 4. Therefore, upon considering all the aspects emerged in the case, the relief of granting decree of specific performance of contract could not be exercised as per section 20 of the Specific Relief Act. In this regard the trial Court has committed error. Accordingly, I answer point No.1 in the negative and the therefore, judgment and decree passed by the trial Court requires interference. Accordingly, I answer point No.2 in the affirmative. Therefore, the judgment and decree passed by the trial Court is liable to be set aside. - 14 - NC: 2025:KHC-D:3323 RFA No. 100062 of 2017 16. It is proved that the plaintiff has paid an amount of Rs.9,50,000/- to Yankavva. Therefore, all the defendants are hereby directed to refund the said amount to the plaintiff with interest at the rate of 12% p.a. from the date of agreement of sale, till the date of deposit of the said amount before the trial Court. Hence, the appeal is liable to be allowed in part holding that the plaintiff is entitled for refund of earnest amount as stated above. Therefore, I proceed to pass the following: ORDER i) The appeal is allowed in part. ii) The judgment and decree dated 17.01.2017, passed in O.S.No.234/2015, by the Court of the Senior Civil Judge and JMFC, Raibag, is hereby set aside. iii) O.S.No.234/2015 is partly decreed that the plaintiff is entitled for refund of earnest amount of Rs.9,50,000/- with interest at the rate of 12% p.a. from the date of agreement of sale till deposit of amount is made before the trial Court in O.S.234/2015. - 15 - NC: 2025:KHC-D:3323 RFA No. 100062 of 2017 iv) The defendants are hereby directed to deposit the above said amount before the Court of Senior Civil Judge and JMFC, Raibag, in O.S.No.234/2015 within a period of three months from today. v) If the defendants fail to deposit the amount, then the plaintiff may initiate recovery proceedings as per law. vi) No order as to costs. vii) Draw decree accordingly. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE RKM-para 1 to 12 MRK-para 13 to end. CT: UMD. List No.: 1 Sl No.: 16