- 1 - NC: 2025:KHC-D:5833 RFA No. 100292 of 2016 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 1ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR REGULAR FIRST APPEAL NO. 100292 OF 2016 BETWEEN: 1. JAMANNIGAR S/O ALLAUDDIN FARASH AGE: 6 YEARS, OCC: NIL, R/O: DOGI MOHALL, SAVANUR-581118, DIST: HAVERI. 2. JUNERA FATIMA D/O ALLAUDDIN FARASH AGE: 4 YEARS, OCC: NIL, R/O: DOGI MOHALLA, SAVANUR-581118, DIST: HAVERI. SINCE APPELLANTS ARE MINORS REPRESENTED BY NATURAL MOTHER SMT. NUSARTHABANU W/O ALLAUDDIN FARASH, AGE: 33 YEARA, OCC: AGRICULTURE, R/O: DOGI MOHALL, SAVANUR-581118, DIST: HAVERI. …APPEALLANTS (BY SRI. MADANMOHAN M KHANNUR, ADVOCATE) AND: 1. SATTAR S/O MOHAMMADSAB TINKER AGE: 55 YEARS, OCC: AGRICULTURE, R/O: SHOP NO.177, 2ND STAGE, LAXMI BALAKRISHNA SQUARE, STATION ROAD, HUBBALLI-580020. Digitally signed by R HEMALATHA Location: High Court of Karnataka - 2 - NC: 2025:KHC-D:5833 RFA No. 100292 of 2016 2. SHRI ALLAUDDIN S/O ABDUL GAFARSAB FARASH AGE: 38 YEARS, OCC: AGRICULTURE, R/O: DOGI MOHALL, SAVANUR-581118, DIST: HAVERI. 3. SHRI SHIRAJAHMED S/O ABDUL GAFARSAB FARASH AGE: 43 YEARS, OCC: AGRICULTURE, R/O: DOGI MOHALL, SAVANUR-581118, DIST: HAVERI. 4. SHRI ZAKEERAHMED S/O ABDUL GAFARSAB FARASH AGE: 38 YEARS, OCC: AGRICULTURE, R/O: DOGI MOHALL, SAVANUR-581118, DIST: HAVERI. …RESPONDENTS (BY SRI. PRAKASH K. JAWALKAR AND SRI. S.S. NIRANJAN, ADVOCATE FOR R1; SRI. SIDDAPPA S. SAJJAN, ADVOCATE FOR R-2; SRI. N P VIVEK MEHATA, ADVOCATE FOR R3 AND R4) THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.03.2016 IN OS NO.45/2013 PASSED BY THE COURT OF THE ADDL. SENIOR CIVIL JUDGE, HAVERI, PARTLY DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT AND ETC. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR - 3 - NC: 2025:KHC-D:5833 RFA No. 100292 of 2016 ORAL ORDER This Regular First Appeal is filed by the appellant challenging the Judgment and Decree dated 28.03.2016 passed in O.S. No. 45/2013 by the Learned Additional Senior Civil Judge, Haveri. 1.1 For convenience, the parties are referred to according to their positions before the Trial Court. The appellants were Defendants Nos 2 and 3, and the respondents were the Plaintiff and Defendants Nos 1, 4, and 5. 2. The brief facts of the case giving rise to the present appeal are as follows: 2.1 The Plaintiff instituted a suit for specific performance of contract, seeking a direction to Defendants No. 1 to 3 to perform their part of the contract and execute the sale deed in respect of a 1/3rd share in the suit schedule property pursuant to the agreement of sale dated 06.03.2012 executed by Defendant No. 1. The plaintiff also sought a direction for the payment of the balance sale consideration of Rs.10,000/-, a declaration that the unregistered relinquishment deed dated 05.01.2013 executed by Defendant No. 1 in favour of Defendants No. 2 and 3 is illegal, null, and void, and for a decree of partition and separate possession against Defendants No. 4 and 5 in respect of the suit schedule - 4 - NC: 2025:KHC-D:5833 RFA No. 100292 of 2016 property. In the alternative, the plaintiff claimed a sum of Rs.10,10,000/- with interest at 18% per annum till realisation. 2.2 It was contended by the Plaintiff that Defendant No. 1 was the owner of the suit property and entitled to a 1/3rd share, while Defendants No. 4 and 5 were entitled to the remaining 2/3rd share. Defendant No. 1 had agreed to sell his share to the Plaintiff through the sale agreement dated 06.03.2012 for valuable consideration of Rs.10,10,000/-. As part of the sale agreement, Defendant No. 1 was required to clear the charges created by the Bank and to partition and demarcate his share from Defendants No. 4 and 5. However, Defendants No. 2 and 3 denied Defendant No. 1’s right to alienate the suit property. Defendants No. 4 and 5 also contested the suit, asserting that the properties were ancestral and joint family properties, held by them as tenants-in- common. 2.3 Despite the service of summons, Defendant No. 1 remained unrepresented and was placed ex parte. Defendants No. 2 and 3 appeared and filed a written statement, and Defendants No. 4 and 5 filed their separate written statements. 3. Based on the pleadings of the parties, the Trial Court framed the following issues: - 5 - NC: 2025:KHC-D:5833 RFA No. 100292 of 2016 (i) Whether the plaintiff proves that Defendant No. 1 agreed to sell his 1/3rd share in the suit property to the plaintiff by virtue of the agreement of sale dated 06.03.2012? (ii) Whether the plaintiff proves that he paid an earnest amount of Rs.10,00,000/- to Defendant No. 1 on various dates as stated in paragraph 4 of the plaint? (iii) Whether the plaintiff proves that he was always ready and willing to perform his part of the contract? (iv) Whether the Court fee paid on the plaint is proper and in accordance with law? (v) Whether the plaintiff is entitled to the reliefs sought? (vi) What order or decree? 4. To substantiate his case, the Plaintiff examined himself as PW-1 and another witness as PW-2, and marked documents as Ex. P1 to P27. On the other hand, Defendant No. 5 was examined as DW-1, and the guardian of minor Defendants No. 2 and 3 was examined as DW-2. The defendants marked documents as Ex. D1 to D7. Additionally, Ex. C1 was marked during the cross-examination of DW-2. 5. Upon considering the materials on record and after hearing both parties, the Trial Court partly decreed the plaintiff’s suit with costs by judgment dated 28.03.2016. The Court directed Defendants No. 1 to 3 to pay a sum of Rs.10,00,000/- with interest at the rate of 6% per annum from the date of the suit until realization, within 30 days from the date of the decree. The suit was dismissed against - 6 - NC: 2025:KHC-D:5833 RFA No. 100292 of 2016 Defendants Nos. 4 and 5 and as regards the relief of specific performance. 6. The learned counsel for the appellants submitted that the Trial Court erred in directing Defendants No.1 to 3 to refund the amount when the plaintiff had failed to prove the execution of the agreement. There were no allegations against Defendants No.2 and 3, who are minors, and the suit is liable to be dismissed for misjoinder of parties. The Trial Court also failed to consider the oral gift dated 01.03.2012 executed by Defendant No.1 in favor of Defendants No.2 and 3. Further, it was contended that the judgment of the Trial Court is liable to be set aside as it failed to notice that the market value of the property exceeds Rs.12,00,000/-, and that the plaintiff had fabricated documents with an intention to illegally acquire the property. 7. Per contra, Shri Prakash Jawalkar, learned counsel for the respondents, submitted that the plaintiff had paid a sum of Rs.10,00,000/- to Defendant No.1 towards the purchase of the suit property, pursuant to an agreement of sale dated 06.03.2012. He contended that the defendants fabricated a relinquishment deed with an intention to defraud the plaintiff and prevent him from claiming specific performance of the contract. - 7 - NC: 2025:KHC-D:5833 RFA No. 100292 of 2016 In support of his submission, he relied on the following cases: (i) M/s Verizon Builders and Developers v. Jyoti and Others, (2018) SCC OnLine Ker 5291, para 21. (ii) Jayakrishna Debata v. Chaitan Pani, (1973) SCC OnLine Ori 134, Paras 3, 8–11. (iii) All India Handloom Fabrics v. B.P. Ramkumar and Others, ILR (2010) KAR 4973, Paras 3 and 4. 8. I have heard the learned counsel for the parties. 9. After perusing the materials on record and considering the arguments advanced by both parties, the following issues arise for consideration: (i) Whether the plaintiff has proved that Defendant No.1 executed a sale agreement to transfer his 1/3rd share in the suit property in favor of the plaintiff? (ii) Whether the Trial Court was justified in holding that Defendants No.1 to 3 are liable to pay Rs.10,00,000/- along with interest at the rate of 6% per annum to the plaintiff? (iii) Whether the impugned judgment passed by the Trial Court is arbitrary and perverse? (iv) What order or decree should be passed? 10. Since Points (i) and (ii) are interrelated, they are considered together to avoid repetition. - 8 - NC: 2025:KHC-D:5833 RFA No. 100292 of 2016 10.1 The plaintiff, examined as PW-1, reiterated the statements made in the plaint during his examination-in-chief. He deposed that Defendant No.1 was the co-owner of the suit property, holding a 1/3rd share, and that Defendant No.1 expressed his intention to sell his share to the plaintiff. During cross-examination, PW-1 admitted that he was not engaged in agricultural activities. He further stated that Defendant No.1 used to visit one A.R. Chatani and had availed a loan from the plaintiff by offering the suit properties as security, although PW-1 admitted he was unaware that Chatani was a moneylender. 10.2 To prove the execution of the sale agreement (Ex.P-1), the plaintiff examined A.R. Chatani as PW-2. PW-2 supported the plaintiff’s version. However, in cross- examination, he admitted that Defendant No.1 had agreed to execute the sale deed only after partitioning the property among the co-owners. He also stated that a balance of Rs.10,000/- was to be paid by the plaintiff at the time of executing the sale deed. 10.3 The plaintiff relied on the following documents: • Ex.P1: Agreement of Sale • Ex.P1(a): Signature of Defendant No.1 • Ex.P2 and Ex.P15: RTC extracts • Ex.P5 to Ex.P11: Receipts issued by various banks • Ex.P13: Syndicate Bank account statement • Ex.P14: Plaintiff’s State Bank of India account statement - 9 - NC: 2025:KHC-D:5833 RFA No. 100292 of 2016 • Ex.P19: Certified copy of Mutation Order • Ex.P22: Certified copy of Relinquishment Deed • Ex.P22(a): Signatures of witnesses to the Relinquishment Deed • Ex.C1: Signature found in a written agreement The plaintiff thus attempted to substantiate his claim with both oral and documentary evidence. 11. The mother and guardian of minor Defendants No.2 and 3 was examined as DW-2. In cross-examination, she stated that she was unaware of any transaction between the plaintiff and her husband, Defendant No.1. The defendants relied on the following documents: • Ex.D1: Complaint before the Superintendent of Police, Haveri • Ex.D2 to Ex.D4: Postal receipts. • Ex.D5: Postal acknowledgement. These documents primarily relate to a police complaint and do not establish any financial dealings between the plaintiff and Defendant No.1. 12. The genealogy of the propositus of the suit property, Abdul Gaffersab Farash (1909–2003), reveals that Defendant No.1 has one brother and five daughters. Thus, Defendant No.1 could not have unilaterally alienated the suit schedule property, as all members hold the property as tenants-in- common. - 10 - NC: 2025:KHC-D:5833 RFA No. 100292 of 2016 12.1 Furthermore, Defendant No.1 had orally gifted the property to Defendants No.2 and 3 on 01.03.2012, and later executed a relinquishment deed dated 05.01.2013 in their favour. The mutation was recorded under MR H145/2012-13. 13. The respondents relied on various judgments, including Verizon Builders, Jayakrishna Debata, and All India Handloom Fabrics. However, in the present case, the agreement of sale (Ex.P-1) does not create title or possession in favour of the plaintiff without a registered sale deed, as reiterated in Munishamappa v. M. Rama Reddy (Civil Appeal No.10327/2011), where the Hon'ble Supreme Court held that an agreement of sale does not amount to conveyance and does not transfer ownership. Therefore, the possession of the suit property continues with Defendants No.2 and 3 by virtue of the mutation entry in their favor. 14. It is a well-established principle that under Muslim Law, there is no concept of a joint family system. Family members residing jointly cannot claim a share in property as a matter of right unless it is shown that the property was acquired through the pooled resources of all. 15. In the present case, the plaintiff failed to prove that Ex.P-1 was executed by Defendant No.1 with the intention to - 11 - NC: 2025:KHC-D:5833 RFA No. 100292 of 2016 transfer his 1/3rd share in the suit property. Although the agreement mentioned a total consideration of Rs.10,10,000/-, and various payments were made by the plaintiff, there is no evidence of a registered sale deed or any legal charge created on the property. 16. Under Section 59 of the Transfer of Property Act, 1882, a charge over immovable property must be created by a registered document. In the absence of such a charge, Defendant No.1 was not prevented from transferring his share to Defendants No.2 and 3. 17. Defendants No.2 and 3 were not parties to the agreement of sale. The plaintiff failed to establish that the agreement was executed for family necessity or that it binds the minor defendants. As Defendant No.1 was ex parte, the Trial Court erred in directing Defendants No.2 and 3 to refund the sale consideration of Rs.10,10,000/- merely because they received possession of the property from their father. 18. Accordingly, Points No.1 and 2 are answered in the negative. Point No.3: 19. The Trial Court was not justified in holding that Defendants Nos 2 and 3 are liable to refund the sale consideration of Rs.10,10,000/- to the plaintiff. Since they - 12 - NC: 2025:KHC-D:5833 RFA No. 100292 of 2016 were not parties to the agreement, were minors, and the plaintiff failed to establish that the agreement was executed for family necessity, the judgment is erroneous. Defendant No.1 had already gifted the property to his minor children through an oral gift dated 01.03.2012 and a relinquishment deed dated 05.01.2013, which was followed by mutation under MR H145/2012-13. Point No.4: 20. In light of the findings on Points No.1 to 3, it is held that Defendants No.2 and 3 are not liable to refund the sale consideration amount to the plaintiff, as no charge or lien was created on the suit property. Only Defendant No.1 can be held liable for any consequences arising from the agreement of sale. The Trial Court itself recorded that the money advanced was towards a loan transaction. Therefore, Defendants No.2 and 3 cannot be held liable to return the loan amount merely because Defendant No.1 transferred his share in the property to them, especially in the absence of any charge on the said property. Accordingly, I pass the following order. ORDER: i) The Appeal is allowed. - 13 - NC: 2025:KHC-D:5833 RFA No. 100292 of 2016 ii) The impugned Judgement and decree dated 28.03.2016 in O.S No.45/2013 passed by the learned Trial Court is hereby set aside, and the suit is dismissed. iii) No orders as to the costs. Sd/- (HEMANT CHANDANGOUDAR) JUDGE bkm List No.: 19 Sl No.: 1