- 1 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 27TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.4152 OF 2013 (SP) C/W REGULAR FIRST APPEAL NO.4155 OF 2013 IN R.F.A. NO.4152 OF 2013 BETWEEN: 1. VISHNU S/O. GHANTUSA DANI, AGED ABOUT 55 YEARS, OCC. BUSINESS, R/O. GAVI ONI, HUBLI, DIST. DHARWAD. SINCE DECEASED BY LR’S 1A) SMT. BHARATI W/O. VISHNU DANI, AGE. 51 YEARS, OCC. HOUSEHOLD, R/O. PLOT NO.78, ARIHANT NAGAR, SUBASH COLONY, KUSUGAL ROAD, KESHWAPUR, HUBLI, DIST. DHARWAD. 1B) KUMARI RAJESHWARI D/O. VISHNU DANI, AGE. 30 YEARS, OCC. HOUSEHOLD, R/O. PLOT NO.78, ARIHANT NAGAR, SUBASH COLONY, KUSUGAL ROAD, KESHWAPUR, HUBLI, DIST. DHARWAD. 1C) KUMARI KAVITA D/O. VISHNU DANI, AGE. 28 YEARS, OCC. HOUSEHOLD, R/O. PLOT NO.78, ARIHANT NAGAR, SUBASH COLONY, KUSUGAL ROAD, KESHWAPUR, HUBLI, DIST. DHARWAD. 1D) VISHAL S/O. VISHNU DANI, AGE. 25 YEARS, OCC. BUSINESS, R/O. PLOT NO.78, ARIHANT NAGAR, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 SUBASH COLONY, KUSUGAL ROAD, KESHWAPUR, HUBLI, DIST. DHARWAD. 1E) KUMARI SWATI D/O. VISHNU DANI, AGE. 22 YEARS, OCC. HOUSEHOLD, R/O. PLOT NO.78, ARIHANT NAGAR, SUBASH COLONY, KUSUGAL ROAD, KESHWAPUR, HUBLI, DIST. DHARWAD. 1F) VICKY S/O. VISHNU DANI, AGE. 20 YEARS, OCC. BUSINESS, R/O. PLOT NO.78, ARIHANT NAGAR, SUBASH COLONY, KUSUGAL ROAD, KESHWAPUR, HUBLI, DIST. DHARWAD. 1G) SMT. SNEHA U.METRANI, AGE. 26 YEARS, OCC. HOUSEHOLD, R/O. TAMBAN ONI, HIREPETH, HUBLI, DIST. DHARWAD. 2. SMT. VIJAYALAXMI W/O. NARAYANSA DANI, AGED ABOUT 50 YEARS, OCC: HOUSEHOLD WORK, R/O. GAVI ONI, HUBLI, DIST: DHARWAD. 3. SEETAL D/O. NARAYANSA DANI, AGE ABOUT 26 YEARS, OCC: STUDENT, R/O. GAVI ONI, HUBLI, DIST: DHAWAD. 4. NITIN S/O. NARAYANSA DANI, AGE ABOUT 25 YEARS, OCC: STUDENT, R/O. GAVI ONI, HUBLI, DIST: DHARWAD. 5. BHARAT S/O. NARAYANSA DANI, AGE ABOUT 23 YEARS, OCC: STUDENT, R/O. GAVI ONI, HUBLI, DIST: DHARWAD. 6. PAVAN S/O. NARAYANSA DANI, AGE ABOUT 22 YEARS, OCC: STUDENT, R/O. GAVI ONI, HUBLI, DIST: DHARWAD. 7. UJWAL S/O. NARAYANSA DANI, AGE ABOUT 20 YEARS, OCC: STUDENT, R/O. GAVI ONI, HUBLI, DIST: DHARWAD. 8. SANTOSH S/O. NARAYANSA DANI, AGE ABOUT 19 YEARS, OCC: STUDENT, - 3 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 R/O. GAVI ONI, HUBLI, DIST: DHARWAD. 9. ASHOK S/O. GHANTUSA DANI, AGE ABOUT 46 YEARS, OCC: STUDENT, R/O. GAVI ONI, HUBLI, DIST: DHARWAD. 10. SMT. PARVATI D/O. GHANTUSA DANI, AGE ABOUT 41 YEARS, OCC: HOUSEHOLD WORK, R/O. GAVI ONI, HUBLI, DIST: DHARWAD. …APPELLANTS (BY SRI S.S.PATIL, ADVOCATE AND SRI PRASHANTH S.HOSMANI, ADVOCATE.) AND: 1. SRI. RAMACHANDRASA S/O. NARASINGAPPA SOLANKE, SINCE DECEASED BY HIS LR’S., SRI. GANAPATASA S/O. RAMACHANDRASA SOLANKE, AGE: 64 YEARS, OCC: BUSINESS, R/O: DIVATE ONI, HUBLI, DIST: DHARWAD. 2. RANGANATHASA S/O. RAMACHANDRASA SOLANKE, AGE: 54 YEARS, OCC: BUSINESS, R/O: DIVATE ONI, HUBLI, DIST: DHARWAD. 3. MOTILALSA S/O. RAMACHANERASA SOLANKE, SINCE DEBASED BY HIS LEGAL REPRESENTATIVES. SMT. JAYA W/O. MOTILALSA SOLANKE, AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O: DIVATE ONI, HUBLI, DIST: DHARWAD. 4. SANTOSH S/O. MOTILALSA SOLANKE, AGE: 23 YEARS, OCC: HOUSEHOLD WORK, R/O: DIVATE ONI, HUBLI, DIST: DHARWAD. 5. KISHAN S/O. MOTILALSA SOLANKE, AGE: 21 YEAS, OCC: BUSINESS, R/O: DIVATE ONI, HUBLI, DIST: DHARWAD. 6. ASHWINI D/O. MOTILALSA SOLANKE, AGE: 20 YEARS, OCC: STUDENT, - 4 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 R/O: DIVATE ONI, HUBLI, DIST: DHARWAD. 7. SEEMA D/O. MOTILALSA SOLANKE, AGE: 19 YEARS, OCC: STUDENT, R/O: DIVATE ONI, HUBLI, DIST: DHARWAD. 8. SOMANATHSA S/O. RAMACHANDRASA SOLANKE, AGE: 46 YEARS, OCC: BUSINESS, R/O: DIVATE ONI, HUBLI, DIST: DHARWAD. 9. TULAJAPPA @ KAPU S/O. RAMACHANDRASA SOLANKE, AGE: 43 YEARS, OCC: BUSINESS, R/O: DIVATE ONI, HUBLI, DIST: DHARWAD. 10. SMT. NARMADABAI V.PAWAR, AGE: 63 YEARS, OCC: HOUSEHOLD WORK, R/O: SAHASRARJUN NAGAR, NEAR SIDDHARUDHASWAMY MATH, OLD HUBLI, DIST: DHARWAD. 11. SMT. SHAKUNTALABAI P.PAWAR, AGE: 61 YEARS, OCC: HOUSEHOLD WORK, R/O: CHANNAPETH MAIN ROAD, OLD-HUBLI, HUBLI, DIST: DHARWAD. 12. SMT. INDIRABAI B.PAWAR, AGE: 58 YEARS, OCC: HOUSEHOLD WORK, R/O: TORAVIHAKKAL, NEAR DURGADEVI TEMPLE, HUBLI, DIST: DHARWAD. 13. SMT. RUKMINIBAI S.JARTARGHAR, AGE: 56 YEARS, OCC: HOUSEHOLD WORK, R/O: GARDENPETH, HUBLI, DIST: DHARWAD. 14. SMT. RATNABAI Y.GUDI, AGE: 49 YEARS, OCC: HOUSEHOLD WORK, R/O: BHAVANINAGAR, HUBLI, DIST: DHARWAD. 15. SMT. VIMALABAI R.SHALAGAR, AGE: 47 YEARS, OCC: HOUSEHOLD WORK, R/O: SANMAN COLONY, HUBLI, DIST: DHARWAD. - 5 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 16. SMT. PUSHPABAI M.BHURE, AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O: DIVATE ONI, HUBLI, DIST: DHARWAD. 17. SMT. SAVITRIBAI W/O. KASHINATH DIVATE, (GAIKWAD), AGE: 70 YEARS, OCC: HOUSEHOLD WORK, R/O: SRINAGAR, KARWAR ROAD, HUBLI, DIST: DHARWAD. 18. PRABHAKAR S/O. KASHINATH DIVATE, (GAIKWAD), AGE: 55 YEARS, OCC: BUSINESS, R/O: SRINAGAR, KARWAR ROAD, HUBLI, DIST: DHARWAD. 19. SHANKAR S/O. KASHINATH DIVATE (GAIKWAD), AGE: 53 YEARS, OCC: BUSINESS, R/O: SRINAGAR, KARWAR-ROAD, HUBLI, DIST: DHARWAD. 19(A) RATANA W/O. SHANKAR GAIKWAD, AGE: 60 YEARS, OCC: HOUSEHOLD, R/O: H.NO.53, SRINAGAR, KARWAR-ROAD, NEAR SAI BABA TEMPLE, HUBLI, DIST. DHARWAD. 19(B) SUSHAS S/O. SHANKAR GAIKWAD, AGE: 29 YEARS, OCC: BUSINESS, R/O: H.NO.53, SRINAGAR, KARWAR-ROAD, NEAR SAI BABA TEMPLE, HUBLI, DIST. DHARWAD. 19(C) SHRIKANT S/O. SHANKAR GAIKWAD, AGE: 36 YEARS, OCC: NIL, R/O: ASHIRUKTIH, 49, 10TH A MAIN, 1ST CROSS, MUNESHWARA LAYOUT, VEDERAHALLI, DIST. BENGALURU-560097, KARNATAKA. 19(D) SOUMYA W/O. RAJENDRA D/O. SHANKAR GAIYKWAD (DECEASED), AGE: MAJOR, OCC: HOUSEHOLD, R/O: B 303, EMERALD PARK, PIMPRI CHINCHWAD, DIST. MAHARASHTRA-411033. - 6 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 20. RAMAKRISHNA S/O. KASHINATH DIVATE (GAIKWAD), AGE: 50 YEARS, OCC: BUSINESS, R/O: SRINAGAR, KARWAR ROAD, HUBLI, DIST: DHARWAD. 21. JAGANNATH S/O. KASHINATH DIVATE (GAIKWAD), SINCE DECEASED BY HIS LEGAL REPRESENTATIVES, SMT. GEETA W/O. JAGANNATH DIVATE (GAIKWAD), AGE: 43 YEARS, OCC: HOUSE HOLD WORK, R/O: SHRINAGAR, KARWAR ROAD, HUBLI, DIST: DHARWAD. 22. KIRAN S/O. JAGANNATH DIVATE (GAIKWAD), AGE: 17 YEARS, OCC: STUDENT, R/O. SHRINAGAR, KARWAR ROAD, HUBLI, DIST: DHARWAD A MINOR R/BY NATURAL GUARDIAN MOTHER, SMT. GEETA W/O. JAGANNATH DIVATE (GAIKWAD) RESPONDENT NO.21. 23. ANUSH S/O. JAGANNATH DIVATE (GAIKWAD), AGE: 15 YEARS, OCC: STUDENT, R/O. SHRINAGAR, KARWAR ROAD, HUBLI, DIST: DHARWAD, A MINOR BY NATURAL GUARDIAN MOTHER SMT. GEETA W/O. JAGANNATH DIVATE (GAIKWAD) RESPONDENT NO.21. 24. ANIL S/O. KASHINATH DIVATE (GAIKWAD), AGE: 35 YEARS, OCC: BUSINESS, R/O: SHRINAGAR, KARWAR ROAD, HUBLI, DIST: DHARWAD. 25. PRAVEEN S/O. KASHINATH DIVATE (GAIKWAD), AGE: 29 YEARS, OCC: BUSINESS, R/O: SHRINAGAR, KARWAR ROAD, HUBLI, DIST: DHARWAD. …RESPONDENTS (BY SRI MAHESH WODEYAR, ADVOCATE FOR R1 TO R16; SRI V.P. KULKARNI, ADVOCATE FOR R17 TO R25; (R22 AND R23 ARE MINORS REP. BY R21); R13-NOTICE HELD SUFFICIENT; SRI SANGRAM S.KULKARNI, ADVOCATE FOR R19 (A TO D)). - 7 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE DATED 27.04.2013 IN O.S.NO.195/2000 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE & JMFC, HUBLI AND DISMISS THE SUIT OF RESPONDENT NOS.1-16 IN THE INTEREST OF JUSTICE AND EQUITY. IN R.F.A. NO.4155 OF 2013 BETWEEN: 1. SMT. SAVITRI BAI W/O. LATE KASHINATH DIVATE (GAIKWAD), AGE: 71 YEARS, OCC: HOUSEHOLD, R/AT SRINAGAR, SRINAGAR-KARWAD ROAD, HUBLI-580024, DHARWAD DISTRICT. 2 PRABHAKAR S/O. KASHINATH DIVATE (GAIKWAD), AGE: 59 YEARS, OCC: BUSINESS, R/AT SRINAGAR, SRINAGAR-KARWAD ROAD, HUBLI-580024, DHARWAD DISTRICT. 3. SHANKAR S/O. LATE SHRI KASHINATH DIVATE(GAIKWAD), AGE. 57 YEARS, OCC. BUSINESS, R/AT SRINAGAR, SRINAGAR-KARWAD ROAD, HUBLI-580024, DHARWAD DISTRICT. SINCE DECEASED BY HIS LR’S 3(A) RATANA W/O. SHANKAR GAIKWAD, AGE: 60 YEARS, OCC: HOUSEHOLD, R/O: H.NO.53, SRINAGAR, KARWAD-ROAD, NEAR SAI BABA TEMPLE, HUBLI, DIST. DHARWAD. 3(B) SUSHAS S/O. SHANKAR GAIKWAD, AGE: 29 YEARS, OCC: BUSINESS, R/O: H.NO.53, SRINAGAR, KARWAR-ROAD, NEAR SAI BABA TEMPLE, HUBLI, DIST. DHARWAD. 3(C) SHRIKANT S/O. SHANKAR GAIKWAD, AGE: 36 YEARS, OCC: NIL, R/O: ASHIRUKTIH, 49, 10TH A MAIN, 1ST CROSS, MUNESHWARA LAYOUT, VEDERAHALLI, - 8 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 DIST. BENGALURU-560097, KARNATAKA. 3(D) SOUMYA W/O. RAJENDRA D/O. SHANKAR GAIYKWAD (DECEASED), AGE: MAJOR, OCC: HOUSEHOLD, R/O: B 303, EMERALD PARK, PIMPRI CHINCHWAD, DIST. MAHARASHTRA-411033. 4. SHRI RAMKRISHNA S/O. LATE SHRI KASHINATH DIVATE (GAIKWAD), AGE: 55 YEARS, OCC: BUSINESS, R/AT SRINAGAR, SRINAGAR-KARWAR ROAD, HUBLI-580024, DHARWAD DISTRICT. 5. 5A. SHRI JAGANNATH S/O. LATE SHRI KASHINATH DIVATE (GAIKWAD) SINCE DECEASED BY HIS LR’S SMT. GEETHA W/O. LATE SHRI JAGANNATH DIVATE, AGE: 40 YEARS, OCC: HOUSEHOLD, R/AT SRINAGAR, KARWAR ROAD, HUBLI-580024, DHARWAD DISTRICT. 5B. MASTER KIRAN S/O. LATE SHRI JAGANNATH DIVATE, AGE: 15 YEARS, OCC: STUDENT, R/O. SRINAGAR, SRINAGAR-KARWAR ROAD, HUBLI-580024, DHARWAD DISTRICT. 5C. KUM. ANUSHA D/O. LATE SHRI JAGANNATH DIVATE, AGE: 12 YEARS, OCC: STUDENT, R/AT SRINAGAR, KARWAR ROAD, HUBLI-580024, DHARWAD DISTRICT. 6. ANIL S/O. LATE SHRI KASHINATH DIVATE (GAIKWAD), AGE. 40 YEARS, OCC. BUSINESS, R/AT SRINAGAR, KARWAR ROAD, HUBLI-580024, DHARWAD DISTRICT. 7. SHRI PRAVEEN S/O. LATE SHRI KASHINATH DIVATE (GAIKWAD), AGE. 38 YEARS, OCC. BUSINESS, - 9 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 R/AT SRINAGAR, KARWAR ROAD, HUBLI-580024, DHARWAD DISTRICT. …APPELLANTS (BY SRI V.P. KULKARNI, ADVOCATE FOR A5 (A TO C), A6 AND A7; SRI SANGRAM KULKARNI, ADVOCATE FOR A1, A2 AND A4, A3 (A TO D). AND: 1. SHRI RAMACHANDRASA NARASINGAPPA SOLANKE, SINCE DECEASED BY HIS LR’S. SHRI GANAPATTASA S/O. LATE SHRI RAMACHANDRASA SOLANKE, AGE: 61 YEARS, OCC: BUSINESS, R/AT: DIVATE ONI, HUBLI, DHARWAD DISTRICT. 2. SHRI RANGANATHSA S/O. LATE SHIR RAMACHANDRASA SOLANKE, AGE: 51 YEARS, OCC: BUSINESS, R/AT: DIVATE ONI, HUBLI, DHARWAD DISTRICT. 3. 3A SHRI. MOTILALSA S/O. LATE SHIR RAMACHANDRASA SOLANKE, SINCE DECEASED BY HIS LR’S. SMT. JAYA W/O. LATE SHRI MOTILALSA SOLANKE, AGE: 41 YEARS, OCC: HOUSEHOLD, R/AT: DIVATE ONI, HUBLI, DHARWAD DISTRICT. 3B. SHRI SANTOSH S/O. LATE SHRI MOTILALSA SOLANKE, AGE: 23 YEARS, OCC: HOUSEHOLD, R/AT: DIVATE ONI, HUBLI, DHARWAD DISTRICT. 3C. SHRI KISHAN S/O. LATE SHRI MOTILALSA SOLANKE, AGE: 21 YEAS, OCC: HOUSEHOLD, R/AT: DIVATE ONI, HUBLI, DHARWAD DISTRICT. - 10 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 3D. MS. ASHWINI D/O. LATE SHRI MOTILALSA SOLANKE, AGE: 20 YEARS, OCC: STUDENT, R/O: DIVATE ONI, HUBLI, DHARWAD DISTRICT. 3E. MS. SEEMA D/O. LATE SHRI MOTILALSA SOLANKE, AGE: 18 YEARS, OCC: STUDENT, R/O: DIVATE ONI, HUBLI, DHARWAD DISTRICT. 4. SHRI SOMANATHASA S/O. LATE SHIR RAMACHANDRASA SOLANKE, AGE: 46 YEARS, OCC: BUSINESS, R/O: DIVATE ONI, HUBLI, DHARWAD DISTRICT. 5. SHRI TULAJAPPA @ KAKKU S/O. LATE SHRI RAMACHANDRASA SOLANKE, AGE. 46 YEARS, OCC: BUSINESS, R/AT: DIVATE ONI, HUBLI, DHARWAD DISTRICT. 6. SMT. NARMADA BAI W/O. SHRI V. PAWAR, AGE: 63 YEARS, OCC: HOUSEHOLD, R/AT: SAHASARJUN NAGAR, NEAR SIDDHARUDASWAMY MATH, OLD HUBLI, DHARWAD DISTRICT. 7. SMT. SHAKUNTALA BAI W/O. SHRI P.PAWAR, AGE. 61 YEARS, OCC: HOUSEHOLD, R/AT: CHENNAPETH MAIN ROAD, HUBALI, DHARWAD DISTRICT. 8. SMT. INDIRA BAI W/O. SHRI B.PAWAR, AGE: 59 YEARS, OCC: HOUSEHOLD, R/O: TORAVI AKKALA, NEAR DURGA DEVI TEMPLE, HUBLI, DHARWAD DISTRICT. 9. SMT. RUKMINIAI W/O. S.JARTARGAR, AGE: 57 YEARS, OCC: HOUSEWIFE, R/O: GARDENPETH, HUBLI, DHARWAD DISTRICT. - 11 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 10. SMT. RATNABAI Y.GUDI, AGE: 55 YEARS, OCC: HOUSEHOLD, R/O: BHAVANI NAGAR, HUBLI, 11. SMT. VIMALABAI W/O. SHRI R.SHALAGAR, AGE: 53 YEARS, OCC: HOUSEHOLD, R/AT: SANMAN COLONY, HUBLI, DHARWAD DISTRICT. 12. SMT. PUSHPABAI W/O. SHRI M.BHURE, AGE: 51 YEARS, OCC: HOUSEHOLD, R/AT: DIVATE ONI, HUBLI. 13. SHRI VISHNU S/O. SHRI GNANTUSA DANI, AGE. 60 YEARS, OCC. BUSINESS, R/AT: NO.101, GAVI ONI, HUBLI-580024, DHARWAD DISTRICT. SINCE DECEASED BY HIS LR’S 13A ST. BHARATI W/O. VISHNU DANI, AGE. 61 YEARS, OCC. HOUSEHOLD WORK, R/O. PLOT NO.78, ARIHANT NAGAR, SUBHASH COLONY, KUSUGAL ROAD, KESHWAPUR, HUBLI, DIST. DHARWAD. 13B KUMARI RAJESHWARI D/O. VISHNU DANI, AGE. 40 YEARS, OCC. HOUSEHOLD, R/O. PLOT NO.78, ARIHANT NAGAR, SUBHASH COLONY, KUSUGAL ROAD, KESHWAPUR, HUBLI, DIST. DHARWAD. 13C KUMARI KAVITA D/O. VISHNU DANI, AGE. 38 YEARS, OCC. HOUSEHOLD, R/O. PLOT NO.78, ARIHANT NAGAR, SUBHASH COLONY, KUSUGAL ROAD, KESHWAPUR, HUBLI, DIST. DHARWAD. 13D VISHAL S/O. VISHNU DANI, AGE. 35 YEARS, OCC. BUSINESS, R/O. PLOT NO.78, ARIHANT NAGAR, SUBHASH COLONY, KUSUGAL ROAD, KESHWAPUR, HUBLI, DIST. DHARWAD. 13E KUMARI SWATI D/O. VISHNU DANI, AGE. 32 YEARS, OCC. HOUSEHOLD, - 12 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 R/O. PLOT NO.78, ARIHANT NAGAR, SUBHASH COLONY, KUSUGAL ROAD, KESHWAPUR, HUBLI, DIST. DHARWAD. 13F VICKY S/O. VISHNU DANI, AGE. 30 YEARS, OCC. HOUSEHOLD, R/O. PLOT NO.78, ARIHANT NAGAR, SUBHASH COLONY, KUSUGAL ROAD, KESHWAPUR, HUBLI, DIST. DHARWAD. 13G SMT. SNEHA U.METRANI, AGE. 36 YEARS, OCC. HOUSEHOLD, R/O. PLOT NO.78, ARIHANT NAGAR, SUBHASH COLONY, KUSUGAL ROAD, KESHWAPUR, HUBLI, DIST. DHARWAD. 14. SHRI NARAYANA S/O. SHRI GNANTUSA DANI SINCE DECEASED BY HIS LR’S 14A SMT. VIJAYALAXMI W/O. LATE SHRI NARAYANA GNANTUSA DANI, AGE: 50 YEARS, OCC: HOUSEHOLD, R/AT. NO.101, GAVI ONI, HUBLI-580024. 14B MS. SEETHALA D/O. LATE SHRI NARAYANA GNANTUSA DANI, AGE: 30 YEARS, OCC: STUDENT, R/AT. NO.101, GAVI ONI, HUBLI-580024, DHARWAD DISTRICT. 14C MR. NITHIN S/O. LATE SHRI NARAYANA GNANTUSA DANI, AGE. 28 YEARS, OCC. STUDENT, R/AT: NO.101, GAVI ONI, HUBLI-580024, DHARWAD DISTRICT. 14D MR. BHARATH S/O. LATE SHRI NARAYANA GNANTUSA DANI, AGE. 26 YEARS, OCC. STUDENT, R/AT: NO.101, GAVI ONI, HUBLI-580024, DHARWAD DISTRICT. 14E MR. PAVANA S/O. LATE SHRI NARAYANA GNANTUSA DANI, AGE. 24 YEARS, OCC. STUDENT, - 13 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 R/AT: NO.101, GAVI ONI, HUBLI-580024, DHARWAD DISTRICT. 14F MR. UJWALA G O BALU S/O. LATE SHRI NARAYANA GNANTUSA DANI, AGE. 22 YEARS, OCC. STUDENT, R/AT: NO.101, GAVI ONI, HUBLI-580024, DHARWAD DISTRICT. 14G MR. SANTOSH S/O. LATE SHRI NARAYANA GNANTUSA DANI, AGE. 20 YEARS, OCC. STUDENT, R/AT: NO.101, GAVI ONI, HUBLI-580024, DHARWAD DISTRICT. 15 SHRI ASHOK S/O. SHRI GNANTUSA DANI, AGE. 55 YEARS, OCC. BUSINESS, R/AT: NO.101, GAVI ONI, HUBLI-580024, DHARWAD DISTRICT. 16 SMT. PARVATI D/O. SHRI GNANTUSA DANI, AGE. 53 YEARS, OCC. HOUSEHOLD, R/AT: NO.101, GAVI ONI, HUBLI-580024, DHARWAD DISTRICT. …RESPONDENTS (BY SRI MAHESH WODEYAR, ADVOCATE FOR R1, R2, R3(A-E), R4 TO R12; SRI PRASHANTH S.HOSMANI, ADVOCATE FOR R13 (A TO G); NOTICE TO R14(A), R14(B), R14(C), R14(D), R14(E), R14(F) AND R14(G) ARE SERVED; R15 AND R16 – NOTICE SERVED.) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 27.04.2013 PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, HUBLI, IN O.S.NO.195/2000 BY ALLOWING THIS REGULAR FIRST APPEAL AND DISMISS THE SUIT AND ETC.,. THESE REGULAR FIRST APPEALS COMING ON FOR DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 14 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) RFA No.4152/2013 is filed by defendants No.8 to 11 in the suit questioning the judgment and decree dated 27.04.2013, passed by the Prl. Senior Civil Judge and JMFC, Hubballi, in O.S.No.195/2000. RFA No.4155/2013 is filed by defendants No.1 to 7, questioning the very same judgment decree passed by the trial Court. 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 plaintiffs have filed suit for specific performance of contract of agreement dated 06.03.1995 by pleading that defendants No.1 to 7 are the owner of suit property and they have offered the suit property for sale and hence the plaintiffs have entered into agreement dated 06.03.1995 and paid an amount of Rs.50,000/- as part payment. It was agreed that rate was fixed at Rs.40,201/- per gunta. Defendants No.1 to 7 also agreed to seek - 15 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 permission from the competent authorities under the Urban Land (Ceiling and Regulation) Act, 1976 (the ULCR Act, for short) within 15 days from the date of agreement. It is pleaded in the plaint that thereafter defendants No.1 to 7 have sold the property to defendants No.8 to 11 with mala fide intention to defeat the right of the plaintiffs. Therefore the plaintiffs put a claim to execute the sale deed in favour of plaintiff, but the defendants No.1 to 7 denied, resulting into filing of suit for specific performance of contract. 4. Defendants No.1 to 7 being owners of the property have filed the written statement and defendants No.8 to 11 have adopted the written statement filed by defendants No.1 to 7. The defendants have denied execution of agreement of sale averred in the plaint. They also denied receipt of part of sale consideration amount. It is pleaded in the written statement that the son of the plaintiff who is main cause for all these acts and deeds had received signatures on blank bond papers and created a fraudulent agreement of sale. Therefore, it is pleaded, there was no execution of agreement of sale and receipt of amount as part - 16 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 payment. Therefore, with all these pleadings, the suit filed by the plaintiff is opposed and contested. 5. The trial Court on the basis of the pleadings, framed the following: ISSUES 1. Whether the plaintiff proves that, the defendants No.1 to 7, have agreed to sell the suit property to him @ Rs.40,201/- per gunta and executed sale agreement in his favour on 6.3.1995, having received earnest money of Rs.50,000/-? 2. Does he further prove that, he is put in possession of suit property in pursuance of suit sale agreement and he is in possession and enjoyment of the same? 3. Whether the plaintiff proves that defendants No.1 to 7 executed another agreement on 12.9.1996 in his favour acknowledging the receipt of Rs.90,000/- from him? 4. Whether the plaintiff proves that, defendants No.1 to 7 had executed the power of attorney in favour of Y.N.Ladwa, to get permission under Urban Land Ceiling Act? 5. Doest he prove further that, defendants No.8 to 11 were aware of suit sale agreement before they got the sale deed from defendants No.1 to 7 on 22.8.2000? - 17 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 6. Whether the plaintiff was always ready and willing to perform his part of contract? 7. Whether he is entitled for specific performance of sale agreement or in the alternative, the refund of earnest money? 8. What decree or order? ADDITIONAL ISSUES: 1. Whether the plaintiff proves that the sale deed executed by defendants No.1 to 7 in favour of defendants No.8 to 11 dated 22.3.2000 is illegal, null and void and not binding on the plaintiff? 2. Whether the plaintiff is entitled for declaration as prayed for? 3. Whether the plaintiff has not paid the court fee properly on the relief of declaration? 4. Whether the suit is bad for list joinder of cause of action? 5. Whether the suit of the plaintiff is barred by limitation? 6. What order?” 6. In order to prove his case, plaintiff No.1 is examined as PW.1 and other witnesses are examined as PW.2 to PW.5 and got marked the documents at Exs.P.1 to P.19. On the other hand, defendant No.1 is examined as - 18 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 DW.1 and other witnesses were examined as DW.2 to DW.5 and got marked the documents at Ex.D.1 to D.10. 7. The trial Court after appreciating the evidence on record has decreed the suit in favour of the plaintiff thereby issued a direction to defendants No.1 to 7 to execute the registered sale deed in favour of the plaintiff after receiving the remaining sale consideration amount from the plaintiff at the rate of Rs.40,201/- per gunta, after ascertaining the exact measurement of the suit property and directed defendants No.8 to 11 to join with defendants No.1 to 7 in executing the registered sale deed. Further it is decreed that the sale deed executed by defendants No.1 to 7 in the name of defendants No.8 to 11 is illegal, null and void and not binding on the plaintiff. Thus in this way the trial Court has decreed the suit in full in favour of the plaintiff. 8. The trial Court assigned reason that execution of agreement of sale dated 06.03.1995 is proved and also it is proved that defendants No.1 to 7 have received part of sale consideration amount. It has assigned reason that defendants No.1 to 7 ought to have performed their part of - 19 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 contract, but they did not do so though the plaintiff was ready and willing to perform his part of contract. Therefore, by holding that the defendants were never ready and willing to perform their part of contract, accordingly decreed the suit. 9. Further assigned reason that when it is the stipulation in the agreement that necessary permission ought to be taken from the competent authorities for selling the land, and when the said ULCR Act is repealed on 22.03.1999, then defendants No.1 to 7 ought to have performed their part of contract by executing the sale deed, but without doing so failed to execute the sale deed to perform their part of contract. Hence, decreed the suit in favour of the plaintiff. The trial Court upon answering issue No.6 regarding whether the plaintiff was ready and willing to perform his part of contract, held that the plaintiff was ready and willing to perform his part of contract. Hence as per section 16(c) of the Specific Relief Act, 1963 (‘the Act’ for short), the plaintiff has proved his readiness and willingness and accordingly decreed the suit in favour of the plaintiff as above stated. - 20 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 10. Being aggrieved by it, defendants No.8 to 11 have preferred the present appeal in RFA No.4152/2013 raising various grounds that the defendants No.1 to 7 have never executed agreement of sale dated 06.03.1995 and have not received partial consideration amount. Further raised ground that defendants No.8 to 11 are bona fide purchasers of the suit property and in this regard there is no specific issue framed, but holding that defendants No.8 to 11 are not bona fide purchasers and declaring the sale deed executed dated 22.8.2000 in favour of defendants No.8 to 11 by defendants No.1 to 7 is not correct. Further raised ground that though there is stipulation in the agreement for getting permission from the competent authorities under the ULCR Act, but the said Act is repealed on 22.03.1999. Thereafter the plaintiffs have not issued any notice to defendants No.1 to 7, but straight way has filed suit on 05.09.2000 after lapse of more than 1½ years. This itself shows the fact that the plaintiff was never ready and willing to perform his part of contract. Further, raised ground that though the agreement of sale stated to have been executed on - 21 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 06.03.1995, but the plaintiff never came forward for getting execution of sale deed and also the plaintiff never proved his readiness and willingness till the date of filing of the suit. But the trial Court has not properly appreciated the evidence on record in this regard and has wrongly decreed the suit. Therefore on all these grounds prays to allow the appeal. 11. Heard the arguments of learned counsels appearing for both the sides and perused the records. 12. Upon perusing the evidence on record, material placed on record and submission of learned counsels appearing for both the parties, the points that arise for my consideration are as follows: i) Whether, under the facts and circumstances involved in the case, the plaintiff proves that he was ready and willing to perform his part of contract as per section 16(c) of the Specific Relief Act, 1963? ii) Whether, under the facts and circumstances involved in the case, the decree of specific performance of contract is causing hardship to defendants No.8 to 11 and defendants No.1 to 7? iii) Whether, under the facts and circumstances involved in the case, the - 22 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 discretion exercised by the trial Court is valid, justified and correct as per section 20 of the Specific Relief Act, 1963? 13. Learned counsel for the appellants in both cases, who were arrayed as defendants No.1 to 7 and defendants No.8 to 11 respectively, have argued that though there is a condition in agreement of sale regarding appellants obtaining permission from competent authorities for selling the land under the ULCR Act and even after repealing the said Act on 22.03.1999, the plaintiff has never come forward after issuing notice to him to get the sale deed executed. But straightaway the suit came to be filed on 05.08.2000 itself. Therefore, it shows that the plaintiff was never willing to perform his part of contract and it was wrongly held by the Trial Court while answering Issue No.6 that plaintiff was ready and willing to perform his part of contract. Further submitted that there is no issue framed by the Trial Court whether defendants No.8 to 11 are bono fide purchasers or not. But straightaway coming to the conclusion that defendants No.8 to 11 are not bona fide purchasers, is not correct. Therefore, prayed this Court to allow the appeals - 23 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 and set aside the judgment and decree passed by the Trial Court. 14. In support of his arguments, learned counsel for the respondent No.19 (a to d) has placed reliance on the judgment of the Hon’ble Supreme Court in the case of U.N.KRISHNAMURTHY (SINCE DECEASED) AND OTHERS LRS. Vs. A.M.KRISHNAMURTHY1 wherein it is held as under: “32. In a suit for specific performance of a contract, the Court is required to pose unto itself the following questions, namely: 32.1. Whether there is a valid agreement of sale binding on both the vendor and the vendee. 32.2. Whether the plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16(c) of the Specific Relief Act, 1963. 33. There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of specific performance. In Acharya Swami Ganesh Dassji v. Sita Ram Thapar [Acharya Swami Ganesh Dassji v. Sita Ram Thapar, (1996) 4 SCC 526] cited by Mr Venugopal, this Court said that there was a difference between 1 (2023) 11 SCC 775 - 24 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 readiness and willingness to perform a contract. While readiness means the capacity of the plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the plaintiff. The same view was taken by this Court in Kalawati v. Rakesh Kumar [Kalawati v. Rakesh Kumar, (2018) 3 SCC 658 : (2018) 2 SCC (Civ) 609] . 34. Even in a first appeal, the first appellate court is duty-bound to examine whether there was continuous readiness and willingness on the part of the plaintiff to perform the contract. This proposition finds support from Balraj Taneja v. Sunil Madan [Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396] and H.P. Pyarejan v. Dasappa [H.P. Pyarejan v. Dasappa, (2006) 2 SCC 496] where this Court approved the views taken by the Privy Council in Ardeshir Mama v. Flora Sassoon [Ardeshir Mama v. Flora Sassoon, 1928 SCC OnLine PC 43 : (1927-28) 55 IA 360 at p. 372 : AIR 1928 PC 208] .” 15. On the other hand, learned counsel for the respondents/plaintiffs submitted that Ex.P2 is the agreement of sale dated 06.03.1995 and possession of the property was given to the plaintiff. When this being the fact mentioned in the agreement of sale, Section 20 of the Act is not applicable. Further submitted that, as per Section 55 of the Transfer of Property Act, the defendants No.1 to 7 being - 25 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 vendors have not discharged their duties. Hence, submitted that defendants No.8 to 11 are not bona fide purchasers, which is correctly held by the Trial Court. Further submitted that at many interval of time including soon after execution of agreement of sale, the plaintiff paid part payment to the defendants No.1 to 7 and defendants No.1 to 7 have received part payment. Hence, the Trial Court is correct in holding that agreement of sale is proved to have been executed and defendants No.1 to 7 have received the said amount. 16. It is further submitted that defendants No.1 to 7 were having knowledge of the fact that the plaintiffs were ever ready and willing to perform their part of contract. When such being the state of affairs, defendants No.1 to 7 have sold their property to defendants No.8 to 11 on 22.08.2000, with mala fide intension. Thus, defendants No.8 to 11 being purchasers are not bona fide purchasers. Further submitted that defendants No.1 to 7 have sold the property even to the lesser consideration than what is agreed with the plaintiffs. This itself shows the fact that defendants No.1 to 7 - 26 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 were having mala fide intension to defeat the rights of the plaintiffs. Hence, submitted that the defendants No.8 to 11 are not the bona fide purchasers. Hence, it is rightly considered by the Trial Court. Therefore, prays to dismiss the appeal by confirming the judgment and decree passed by the Trial Court. 17. In support of arguments, the learned counsel for the respondents/plaintiffs relies on the following judgments: 1. T.MOHAN VS. KANNAMMAL AND OTHERS - MANU/SC/0261/2002 2. P.DAIVASIGAMANI VS. S.SAMBANDAN - (2022) 14 SCC 79 3. J.P.BUILDERS AND ANOTHER VS. A.RAMDAS RAO AND ANOTHER - (2011) 1 SCC 429) 4. VIJAY A. MITTAL AND OTHERS VS. KULWANT RAI (DEAD) THROUGH LEGAL REPRESENTATIVES AND ANOTHER - (2019) 3 SCC 520 5. TEK CHAND AND OTHERS VS. DEEP CHAND AND OTHERS - (2001) 4 SCC 488 6. RAM NIWAS (DEAD) THROUGH LRS. VS. BANO (SMT) AND OTHERS - (2000) 6 SCC 685 - 27 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 7. ZARINA SIDDIQUI VS. RAMALINGAM ALIAS R.AMARNATHAN - (2015) 1 SCC 705 8. JAYAKANTHAM AND OTHERS VS. ABAYKUMAR2 - (2017) 5 SCC 178. 9. R. SHAMA NAIK Vs. G.SRINIVASIAH - 2024 SCC ONLINE 3586. 18. The suit is filed for specific performance of contract or in the alternative for refund of earnest money and damages. Earlier the suit was decided and decreed on 28.01.2005 and it was challenged before the Division Bench of this Court in RFA No.524/2005 C/w RFA No.737/2005. The Division Bench of this Court while remanding the matter on 16.03.2011 has directed the Trial Court to frame issue regarding whether the plaintiffs were ready and willing to perform their part of contract. After remanding the case to the Trial Court, as per Section 16(c) of the Act, regarding proof by the plaintiffs, whether they are ready and willing to perform their part of contract, this is the 2nd round of 2 (2017) 5 SCC 178 - 28 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 litigation in respect of the same matter before this Court. The earlier appeals, RFA Nos.534/2005 and RFA No.737/2005, were before the Hon’ble Division Bench for the reason that, according to the pecuniary jurisdiction of the subject matter, the appeals were heard by the Hon’ble Division Bench and the matter was remanded to the Trial Court for fresh consideration. 19. After remanding the matter, the Trial Court has framed Issue No.6 regarding proving of readiness and willingness by the plaintiffs in performing their part of contract and it is held that the plaintiffs have proved they were ever ready and willing to perform their part of contract and accordingly, decreed the suit. 20. Upon considering the principle of law laid down by the Hon’ble Supreme Court and by this Court, the two aspects are to be considered in these appeals i.e., whether the plaintiffs have proved that they were ever ready and willing to perform their part of contract, under Section 16(C) of the Act and the other aspect to be considered is whether - 29 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 the Trial Court has exercised its discretion correctly as per Section 20 of the Act. 21. The Hon’ble Supreme Court in the case of T. MOHAN VS. KANNAMMAL AND OTHERS3, has observed at paragraph No.10 as under: “10. Coming to the question of readiness and willingness of the plaintiff to perform her part of the contract, it was so averred in the plaint and reiterated in the notice dated 18/19.5.1981 and also in the evidence of the plaintiff. Further, the question of readiness and willingness to pay the balance consideration money is not of much importance in view of the admitted factual position that the vendor had parted with possession of the property in favour of the purchaser even before expiry of the period stipulated in the agreement. In that view of the matter, no exception can be taken to the finding of the High Court that the plaintiff duly satisfied the requirement of law of readiness and willingness to perform her part of the contract.” 22. The Hon’ble Supreme Court in the case of P.DAIVASIGAMANI VS. S.SAMBANDAN4, has held as under: 3MANU/SC/0261/2002 - 30 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 “21.Readiness and willingness are not one, but two separate elements. Readiness means the capacity of the plaintiff to perform the contract, which would include the financial position to pay the purchase price. Willingness refers to the intention of the plaintiff as a purchaser to perform his part of the contract. Willingness is inferred by scrutinising the conduct of the plaintiff purchaser, including attending circumstances5. Continuous readiness and willingness on the part of the plaintiff purchaser from the date the balance sale consideration was payable in terms of the agreement to sell, till the decision of the suit, is a condition precedent for grant of relief of specific performance6. 22. The expression “readiness and willingness” used in Section 16 (c) of the said Act, has been interpreted in catena of decisions by this Court, in the light of facts and circumstances of the cases under consideration for the purpose of granting or refusing to grant the relief of Specific Performance of a contract. The said expression cannot be interpreted in a straitjacket formula. In a very apt decision of this Court in case of Syed Dastagir vs. T.R. Gopalakrishna Setty (1999) 6 SCC 337, a three-Judge Bench of this Court, construing a plea of “readiness and willingness to 4 (2022) 14 SCC 793 5 See para 2 in Ganesh Dassji v. Sita Ram Thapar, (1996) 4 SCC 526 6 See para 5 in N.P.Thirugnanam v. R. Jagan Mohan Rao, (1995) 5 SCC 115. Also see Anleshir Manu v. Flora Sassoon, 1928 SCC Online PC 43: (1927-28) 55 IA 360 : AIR 1928 PC 208 - 31 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 perform” in view of the requirement of Section 16(c) and its explanation, observed as under: “9. So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded - 32 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 then that has to be pleaded may be in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of “readiness and willingness” has to be in spirit and substance and not in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded”. 23. It was further observed therein that: (Syed Dastagir case7, SCC p.342, para11) “11........It is significant that this explanation carves out a contract which involves payment of money as a separate class from Section 16(c). Explanation (i) uses the words “it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court”. (emphasis supplied) This speaks in a negative term 7 Syed Dastagir v. T.R. Gopalakrishna setty, (1999) 6 SCC 337 - 33 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 what is not essential for the plaintiff to do. This is more in support of the plaintiff that he need not tender to the defendant or deposit in court any money but the plaintiff must [as per Explanation (ii)] at least aver his performance or readiness and willingness to perform his part of the contract”. (emphasis in original) 24. In Sukhbir Singh v. Brij Pal Singh8 this Court had laid down that law is not in doubt and it is not a condition that the respondents (Plaintiffs) should have ready cash with them. It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till the date of the decree. The said principle was followed in A. Kanthamani v. Nasreen Ahmed9, in case of C.S. Venkatesh v. A.S.C. Murthy10 etc. 25. Section 20 of the Specific Relief Act (Pre- amendment), which confers discretion on the court to exercise jurisdiction to decree of specific performance, states that this exercise should not be arbitrary, but guided by sound and reasonable judicial principles. Interpreting and elucidating on Section 20 of the Specific Relief Act (pre-amendment) and factors to be considered, this Court in Kamal Kumar v. 8 (1997) 2 SCC 200 9 (2017) 4 SCC 654 : (2017) 2 SCC (Civ) 596 10 (2020) 3 SCC 280 : (2020) 2 SCC (Civ) 90 - 34 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 Premlata Joshi11 has also referred to Sections 16(c), 22, 23 and 24 of the Specific Relief Act and Forms 47/48 of Appendix A to C of the Code of Civil Procedure, 1908, to summarise: (SCC pp.705-706, paras 7-8) “7. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance are: 7.1 First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; 7.2 Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; 7.3 Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract. 7.4 Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what 11 (2019) 3 SCC 704 : (2019) 2 SCC (Civ) 405 - 35 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 manner and the extent if such relief is eventually granted to the plaintiff. 7.5 Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds. 8. In our opinion, the aforementioned questions are part of the statutory requirements [See Sections 16 (c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and the Forms 47/48 of Appendix A to C of the Code of Civil Procedure]. These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts.” 23. The Hon’ble Supreme Court in the case of J.P.BUILDERS AND ANOTHER VS. A.RAMDAS RAO AND ANOTHER12, has held as under: 12 (2011) 1 SCC 429 - 36 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 “20. Section 16(c) of the Specific Relief Act, 1963 provides for personal bars to relief. This provision states that: “16.Personal bars to relief:--- Specific performance of a contract cannot be enforced in favour of a person --- a) who would not be entitled to recover compensation for its breach; or b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation.- For the purposes of clause (c),- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; - 37 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction." 21. Among the three clauses, we are more concerned about clause (c). "Readiness and willingness" is enshrined in clause (c) which was not present in the old Act of 1877. However, it was later inserted with the recommendations of the 9th Law Commission's report. This clause provides that the person seeking specific performance must prove that he has performed or has been ready and willing to perform the essential terms of the contract which are to be performed by him. 22. In N.P. Thirugnanam vs. Dr. R. Jagan Mohan Rao & Ors13., at SCC para 5, this Court held: (SCC pp. 117-18) "5......Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is 13 (1995) 5 SCC 115 - 38 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his part of the contract." 24. In P.D'Souza vs. Shondrilo Naidu14, this Court observed: (SCC p. 654, paras 19 and 21) "19. It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to 14 (2004) 6 SCC 649 - 39 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstance of each case. No straitjacket formula can be laid down in this behalf.... 21......The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale." 25. Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff. 26. It has been rightly considered by this Court in R.C. Chandiok & Anr. vs. Chuni Lal Sabharwal & Ors15., that "readiness and willingness" cannot be treated as a straightjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. 15 (1970) 3 SCC 140 - 40 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non- compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties.” 24. Regarding subsequent purchasers as contended by the learned counsel for the respondents/plaintiffs that defendant Nos.8 to 11 are not bona fide purchasers, he places reliance on the judgment of VIJAY A. MITTAL AND OTHERS VS. KULWANT RAI (DEAD) THROUGH LEGAL REPRESENTATIVES AND ANOTHER16, wherein it is held as under: “18. In the first place, in our considered opinion, when the three courts below have held against the defendants and in favour of the plaintiffs that the plaintiffs were ready and willing to perform their part 16 (2019) 3 SCC 520 - 41 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 of the agreement, this finding was binding on the High Court and also on this Court. 19. Indeed, the Trial Court had already recorded this finding in plaintiffs’ favour but since the Trial Court dismissed the suit on other grounds, the defendants had a right to challenge this finding by filing cross objection before the First Appellate Court in plaintiffs’ appeal but the defendants did not do so and accepted this finding. The First Appellate Court while decreeing the plaintiffs’ suit upheld this finding being not under challenge and the High Court upheld it by dismissing defendants’ second appeal. 20. A finding on the issue of readiness and willingness is one of the important and relevant findings in a suit for specific performance of an agreement. It is a finding based on facts and once it is recorded, it becomes a finding of fact. 21. In this view of the matter, unless such finding is found to be against the pleadings or contrary to the evidence or the law governing the issue, it is binding on the High Court and also on this Court. 22. The learned counsel for the appellants was not able to point out any infirmity or illegality in this finding. It is apart from the fact that the appellants (defendants) failed to challenge its legality and correctness at the first appellate stage in an appeal filed by the plaintiffs, which was the appropriate stage to challenge. It is, therefore, binding on this Court.” - 42 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 25. The Hon’ble Supreme Court in the case of TEK CHAND AND OTHERS VS. DEEP CHAND AND OTHERS17, has held as under: “7. It has been found by all the courts that the agreement entered into by the first respondent with Kare was a true and genuine document and the first respondent had paid Rs.8000 as advance. It was also proved that Kare had committed a breach of contract and failed to execute the sale deed in favour of the first respondent. 9. The counsel for the appellants contended that the appellants had entered into an agreement with Kare as early as on 20-10-1986 for purchase of suit property for a consideration of Rs.32,000 per acre, but Kare, in turn, defeated their interest and transferred the property to his children. It is important to note that the appellants had not taken any steps to enforce the agreement entered into by them with Kare and they did not adduce any evidence to prove that they had taken any steps to enforce the alleged agreement. The two courts have rightly held that the family settlement, the decree passed by the civil court and the various sale deeds executed by Defendants 2 to 4 in favour of the appellants are collusive transactions brought about to defeat the interest of the first respondent. Respondents 2 to 4 had no previous agreement with the appellants for sale of this property 17 (2001) 4 SCC 488 - 43 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 event then they readily executed the sale deeds in their favour.” 26. The Hon’ble Supreme Court in the case of RAM NIWAS (DEAD) THROUGH LRS. VS. BANO (SMT) AND OTHERS18, has held as under: “18. Both the learned Single Judge as well as the learned Judges of the Division Bench of the High Court dealt with the question whether the purchasers had actual knowledge of Ext.1, the earlier contract, and on evidence found that the purchasers did not have any knowledge of it. But they failed to notice the provisions of Explanation II to Section 3 of the Transfer of Property Act which is germane on the point of notice. Indeed, issue No.10 was not properly framed. The word “notice” should have been used in issue No.10 instead of knowledge because Section 19(b) uses the word “notice”. From the definition of the expression, a person is said to have notice in Section 3 of the Transfer of Property Act, it is plain that the word “notice” is of wider import than the word “knowledge”. A person may not have actual knowledge of a fact but he may have notice of it having regard to the aforementioned definition and Explanation II thereto. If the purchasers have relied upon the assertion of the vendor or on their own knowledge and abstained from making enquiry into the real nature of the possession of the tenant, they cannot escape from the 18 (2000) 6 SCC 685 - 44 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 consequences of the deemed notice under Explanation II to Section 3 of the Transfer of Property Act. On this point, in the light of the above discussion, we hold that the purchasers will be deemed to have notice of Ext.1, should it be found to be true and valid.” 27. The Hon’ble Supreme Court in the case of ZARINA SIDDIQUI VS. RAMALINGAM ALIAS R.AMARNATHAN19, has held as under: “30. In a recent judgment dated 22.9.2014 in Civil Appeal No. 9047 of 2014 entitled K. Prakash vs. B.R. Sampath Kumar20, this Court observed that: (SCC p.605 and paras 16 & 18-19) “16. The principles which can be enunciated are that where the plaintiff brings a suit for specific performance of contract for sale, the law insists a condition precedent to the grant of decree for specific performance: that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises its discretion in one way or other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against 19 (2015) 1 SCC 705 20 (2015) 1 SCC 597 - 45 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 judicial principles. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated under Section 20 of the Specific Relief Act, that a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirements for getting such a decree are established then the Court has to exercise its discretion in favour of granting relief for specific performance. 18. Subsequent rise in price will not be treated as a hardship entailing refusal of the decree for specific performance. Rise in price is a normal change of circumstances and, therefore, on that ground a decree for specific performance cannot be reversed. 19. However, the court may take notice of the fact that there has been an increase in the price of the property and considering the other facts and circumstances of the case, this Court while granting decree for specific performance can impose such condition which may to some extent compensate the defendant-owner of the property. This aspect of the matter is considered by a three-Judge Bench of this Court in Nirmala Anand vs. Advent Corporation (P) Ltd. and Others21,....” 21 (2002) 8 SCC 146 - 46 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 33. The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misled the Court then such discretion should not be exercised by refusing to grant specific performance.” 28. The Hon’ble Supreme Court in the case of JAYAKANTHAM AND OTHERS VS. ABAYKUMAR22, has held as under: 7. While evaluating whether specific performance ought to have been decreed in the present case, it would be necessary to bear in mind the fundamental principles of law. The court is not bound to grant the relief of specific performance merely because it is lawful to do so. Section 20(1) of the Specific Relief Act, 1963 indicates that the jurisdiction to decree specific performance is discretionary. Yet, the discretion of the court is not arbitrary but is “sound and reasonable”, to be “guided by judicial principles”. The exercise of discretion is capable of being 22 (2017) 5 SCC 178 - 47 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 corrected by a court of appeal in the hierarchy of appellate courts. Sub-section (2) of Section 20 contains a stipulation of those cases where the court may exercise its discretion not to grant specific performance. Sub-Section (2) of Section 20 is in the following terms : “20. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance- (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.” 8. However, Explanation 1 stipulates that the mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, will not constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of - 48 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 clause (b). Moreover, Explanation 2 requires that the issue as to whether the performance of a contract involves hardship on the defendant has to be determined with reference to the circumstances existing at the time of the contract, except where the hardship has been caused from an act of the plaintiff subsequent to the contract. 9 The precedent on the subject is elucidated below : 9.1. In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son23 and Ors[1] ,this Court held that : (scc p. 345, para 14) “…14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff…” 9.2 A similar view was adopted by this Court in Sardar Singh v. Krishna Devi24:(SCC p.26, para 14) “14……. Section 20(1) of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary, and the court 23 1987 Supp SCC 340 :AIR 1987 SC 2328 24 (1994) 4 SCC 18 - 49 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 is not bound to grant such relief, merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. The grant of relief of specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract.” 9.3. Reiterating the position in K. Narendra v. Riviera Apartments (P) Ltd25, this Court held thus : (SCC p.91, para 29) “29…… Performance of the contract involving some hardship on the defendant which he did not foresee while non-performance involving no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognized in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature , shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant. The principle underlying Section 20 has 25 (1999) 5 SCC 77 - 50 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 been summed up by this Court in Lourdu Mari David v. Louis Chinnaya Arogiaswamy26 by stating that the decree for specific performance is in the discretion of the Court but the discretion should not be used arbitrarily; the discretion should be exercised on sound principles of law capable of correction by an appellate court.” 9.4. These principles were followed by this Court in A.C. Arulappan v. Ahalya Naik27, with the following observations : (SCC pp.604 & 606, paras 7 & 15) “7…… The jurisdiction to decree specific relief is discretionary and the court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act, 1963 as to under what circumstances the court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is inequitable to grant 26 (1996) 5 SCC 589 27 (2001) 6 SCC 600 - 51 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 specific relief, then also the court would desist from granting a decree to the plaintiff.” …….. “15…… Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the court…..” 9.5. A Bench of three Judges of this Court considered the position in Nirmala Anand Vs. Advent Corporation (P) Ltd28., and held thus : (SCC p.150, para 6) “6…... It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency 28 8 (2002) 8 SCC 146 - 52 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.” 29. The Hon’ble Supreme Court in the case of R. SHAMA NAIK Vs. G.SRINIVASIAH29 has held as under: “8. Section 16(C) of the Specific Relief Act, 1963 (prior to amendment w.e.f. 1.10.2018) bars the relief of the specific performance of a contract in favour of a person who fails to aver readiness and willingness to perform his part of the contract. 9. There is a legion of precedents on the subject of readiness and willingness. 29 2024 SCC ONLINE 3586 - 53 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 10. The law is well settled. The plaintiff is obliged not only to make specific statement and averments in the plaint but is also obliged to adduce necessary oral and documentary evidence to show the availability of funds to make payment in terms of the contract in time. 11. There is a fine distinction between readiness and willingness to perform the contract. Both the ingredients are necessary for the relief of specific performance.” 30. The principles of law laid down by the Hon’ble Supreme Court referred supra, as produced by the counsel for the respondents/plaintiffs, the aspect of readiness and willingness would be considered on the facts and circumstances in each case. There is no straightjacket formula to hold regarding readiness and willingness to perform their part of contract. 31. The principles of law laid down by the Hon’ble Supreme Court as above discussed are considered in the present set of facts, circumstances and evidence adduced in the present case. In the present case, Ex.P2 is an agreement of sale dated 06.03.1995. As per the case of plaintiffs that defendants No.1 to 7 being owners of the suit property, have offered the suit property for sale. Accordingly, an agreement - 54 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 of sale came to be executed on 06.03.1995 for sale consideration of Rs.40,201/- per gunta. Admittedly, Ex.P2 is an unregistered agreement. The learned counsel for respondents/plaintiffs submits that as per this agreement - Ex.P2, the defendants No.1 to 7 have put the plaintiffs into possession. Therefore, the plaintiffs are in possession over the suit property. Hence, Section 20 of the Specific Relief Act is not applicable to exercise discretionarily. There is a stipulation in the agreement of sale - Ex.P2 that defendants No.1 to 7 have given possession to the plaintiffs, but this agreement is unregistered one. Therefore, in the absence of registration of agreement as per law, there is no valid conveyance regarding possession of property in favour of the plaintiffs. At the most, it can be said that, there is an agreement of sale executed by the defendants in favour of plaintiffs, but not took possession of the property. Therefore, Section 20 of the Specific Relief Act is to be considered in this case with regard to the parameters involved therein are complied with or not while passing decree by the Trial Court. - 55 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 32. There is stipulation in the agreement that as per the prevailing enactment in the ULCR Act, the defendant Nos.1 to 7 before selling the suit property were required to obtain permission from the competent authorities as required under the said Act. Thereafter, in order to assure the sale of property to the plaintiff, the defendants No.1 to 7 have executed GPA in favour of Ganapatsa, who is the son of plaintiff No.1, to get permission from the competent authorities. 33. It is the case of the respondents/plaintiffs that they have paid amount to defendants No.1 to 7 at different interval of time to the extent of Rs.50,000/- on 09.06.1995, Rs.15,000/- and Rs.25,000/- on 12.09.1996 and defendants No.1 to 7 have received the said amount. Further it is the case of the plaintiffs that they have also given a sum of Rs.10,000/- on 01.02.1997. Therefore, the plaintiffs in all have paid part of sale consideration of Rs.1,50,000/- to defendants No.1 to 7. When it is the assertion of the plaintiffs that possession was given to them by defendant Nos.1 to 7 at that time of agreement of sale, but the - 56 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 agreement of sale is unregistered one. Agreement of sale is not a compulsorily registerable document. But when by virtue of agreement of sale if possession of property is conveyed to the vendee, then it shall have to be registered one. Otherwise, it is a mere agreement of sale to the plaintiffs as per article 5(e)(ii) of the Karnataka Stamp Act, 1957. When by virtue of agreement of sale, possession is also given, under article 5(e)(i) read with Article 20 of the Karnataka Stamp Act, 1957, the agreement has to be registered, otherwise the sale agreement can be considered only as a mere agreement of sale without possession. 34. Upon considering the aspect of whether the plaintiffs have proved their readiness and willingness in respect of performance of contract, the fact reveals that till the date of filing of suit on 05.08.2000, there is no evidence that the plaintiffs have called upon defendants No.1 to 7 to perform their part of contract. There is no evidence by the plaintiffs that they have issued legal notice soon after repealing ULCR Act. The ULCR Act is repealed on 22.03.1999. As per agreement though there was need to - 57 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 obtain permission from the competent authorities for selling the land, but the said requirement has been removed by virtue of the repealing the ULCR Act on 22.03.1999. Even thereafter also there is no evidence to prove that the plaintiffs have called upon defendants No.1 to 7 to execute the Sale Deed. But straightaway the plaintiffs have filed the suit on 05.08.2000. The readiness to perform contract is that the plaintiff has to prove that he was ever ready to pay the agreed amount to vendors and willingness is an element of mental intention of the plaintiff to show interest in purchasing property as per agreement of sale. But in this regard, upon considering the evidence, it is seen that the plaintiffs have produced bank account extract pertaining to the year 2003-2009. But subsequent to the agreement of sale, till the date of filing of the suit, there is no proof on the part of the plaintiffs that they were having capacity to pay the agreed sale consideration amount. Whatever financial capacity shown by the plaintiffs as per the evidence by producing bank account details as per Ex.P18 and Ex.P19 from 01.01.2003 to 03.11.2008 and from 01.01.2009 to - 58 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 23.09.2011, are subsequent to filing of the suit. But there is no evidence produced by the plaintiffs to prove that they were having financial capacity to purchase property as per agreed terms and conditions by virtue of agreement of sale dated 06.03.1995 at that relevant point of time. 35. Though the Trial Court observed that plaintiff was doing contract work of KEC and PWD and also running factory, but at the time, subsequent to the agreement of sale till repeal of the Act on 22.03.1999 and even subsequently also till filing of the suit, there is no evidence by the plaintiff that they were having financial capacity to purchase the property. In this regard, the Trial Court has not appreciated evidence on record correctly. The reason to specific performance of contract is proving the financial capacity of the plaintiff to purchase the property at the time of agreement of sale and subsequent to the stipulated period. In this regard, there is no proof that the plaintiffs were having financial capacity at that relevant point of time to purchase the property. The plaintiffs might have attained the financial capacity subsequently, but at the time of execution - 59 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 of agreement of sale and soon after within stipulated period to which the period is stipulated, in that period, it is necessary to prove that the plaintiffs were having financial capacity, but that is lacking in the present case. Therefore, the plaintiffs have failed to prove their readiness to perform their part of contract. 36. Just because the plaintiff was willing is not sufficient, but at the same time the plaintiffs shall have to prove their financial capacity also the plaintiffs have not produced any evidence to show that they acted upon and shown their readiness and willingness and this readiness and willingness must be continuous one, but the plaintiffs have not called upon defendant Nos.1 to 7 intending to purchase the property. Therefore, in this regard there is no compliance of Section 16(c) of the Specific Relief Act. But the submission made by the plaintiffs is with regard to the year 1997 and thereafterwards there is no evidence to show that the plaintiffs were having financial capacity to purchase the property. Therefore, the principle of law considered by the Hon’ble Supreme Court in regard to proving readiness and - 60 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 willingness is considered in the case and in the background of evidence tendered by the plaintiffs and by cogent evidence which fails to prove their readiness and willingness on part of the plaintiffs. 37. The aspect of readiness and willingness is a question of facts to decide during adjudication of the case and in this regard, it is mandatory on part of the plaintiffs to give sufficient evidence to prove they were ever ready and willing to perform their part of contract, but that is lacking in the present case. On the contrary, the Trial Court has put burden on defendant Nos.1 to 7 to prove that they were ready and willing to perform their part of contract. It is always on the part of the plaintiffs to prove their burden of readiness and willingness of contract and that is not on part of defendants No.1 to 7. In this regard, the Trial Court has committed an error by fixing reverse burden on defendant Nos.1 to 7. The plaintiffs being purchasers have to show their readiness and willingness, but not defendants No.1 to 7 to show their readiness and willingness. In this regard, Section 55 of the Transfer of Property Act, is not applicable - 61 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 in the present set of facts and circumstances involved in the case. Accordingly, I answer point Nos.1 in the negative. 38. As per Section 20 of the Act, the grant of decree of specific performance is discretionary relief. The Hon’ble Supreme Court in the case of JAYAKANTHAM AND OTHERS VS. ABAYKUMAR reported in (2017) 5 SCC 178, while interpreting Section 20 of the Act, has laid down principle of law at paragraph Nos.7, 8, 9, 9.1, 9.2, 9.3, 9.4 and 9.5 as follows: “7. While evaluating whether specific performance ought to have been decreed in the present case, it would be necessary to bear in mind the fundamental principles of law. The court is not bound to grant the relief of specific performance merely because it is lawful to do so. Section 20(1) of the Specific Relief Act, 1963 indicates that the jurisdiction to decree specific performance is discretionary. Yet, the discretion of the court is not arbitrary but is “sound and reasonable”, to be “guided by judicial principles”. The exercise of discretion is capable of being corrected by a court of appeal in the hierarchy of appellate courts. Sub- section (2) of Section 20 contains a stipulation of those cases where the court may exercise its discretion not to grant specific performance. Sub-section (2) of Section 20 is in the following terms: “20. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance— (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not - 62 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 voidable, gives the plaintiff an unfair advantage over the defendant; or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.” 8. However, Explanation 1 stipulates that the mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, will not constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Moreover, Explanation 2 requires that the issue as to whether the performance of a contract involves hardship on the defendant has to be determined with reference to the circumstances existing at the time of the contract, except where the hardship has been caused from an act of the plaintiff subsequent to the contract. 9. The precedent on the subject is elucidated below: 9.1. In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son3 , this Court held that: (SCC p. 345, para 14) “14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff.” 9.2. A similar view was adopted by this Court in Sardar Singh v. Krishna Devi4: (SCC p. 26, para 14) “14. … Section 20(1) of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief, merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. The grant of relief of - 63 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract.” 9.3. Reiterating the position in K. Narendra v. Riviera Apartments (P) Ltd.5, this Court held thus: (SCC p. 91, para 29) “29. … Performance of the contract involving some hardship on the defendant which he did not foresee while non-performance involving no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognised in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant. The principle underlying Section 20 has been summed up by this Court in Lourdu Mari David v. Louis Chinnaya Arogiaswamy6 by stating that the decree for specific performance is in the discretion of the Court but the discretion should not be used arbitrarily; the discretion should be exercised on sound principles of law capable of correction by an appellate court.” 9.4. These principles were followed by this Court in A.C. Arulappan v. Ahalya Naik7, with the following observations: (SCC pp. 604 & 606, paras 7 & 15) “7. The jurisdiction to decree specific relief is discretionary and the court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act, 1963 as to under what circumstances the court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is inequitable to - 64 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 grant specific relief, then also the court would desist from granting a decree to the plaintiff. * * * 15. Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the court. …” 9.5. A Bench of three Judges of this Court considered the position in Nirmala Anand v. Advent Corpn. (P) Ltd.8, and held thus : (SCC p. 150, para 6) “6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.” - 65 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 39. Though agreement of sale is proved and grant of decree is lawful to do so, still the Court is having discretion whether to grant decree or not to grant. Though passing of decree is lawful to do so on the aspect that the agreement of sale is proved, but the grant of decree shall not be arbitrary and the decree must be sound and reasonable and guided by judicial principles and capable of corrections by the Court of Appeal. At the same time, the grant of decree should not put to the vendors/owners into hardship. The agreement is dated 06.03.1995. Though there was restriction as per ULCR Act that permission was to be obtained from the competent authorities, before selling the suit property, but that is not possible till the date of 22.03.1999 on which date the ULCR Act was repealed, by that time the price was escalated. Though rising of price may not be the factor for refusing grant of decree of specific performance, but this particular aspect is not considered. Otherwise, it would cause hardship to defendants No.1 to 7 being vendors of the property. Therefore, mere proving of agreement of sale does not entitle the plaintiff to get decree of specific performance of - 66 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 contract, since, it is a discretionary relief of the Court whether to grant decree or not. 40. Defendants No.1 to 7 being owners have sold the property to defendants No.8 to 11 by virtue of registered sale deed dated 22.08.2000 after repeal of the ULCR Act, 1999 and by virtue of registered sale deed, defendant Nos.8 to 11 are presumed to be in possession as owners of the property. As held above, agreement of sale is executed without possession, then it could not be said that the plaintiffs are in possession of the property. But regarding possession of the property, the presumption lies in favour of defendants No.8 to 11 by virtue of registered sale dated 22.08.2000. At this stage if relief of decree of specific performance of contract is granted, then it would cause hardship to defendants No.8 to 11. Therefore, under these circumstances, upon re-appreciating the evidence on record, it is proved that the plaintiffs had no financial capacity to purchase the property and hence failed to prove their readiness and willingness in this regard, hence are not entitled for the relief of decree of specific performance of - 67 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 contract. In this regard, the findings given by the Trial Court are perverse in nature as contra burden is put on defendants No.1 to 7 as discussed above. Therefore, the judgment and decree passed by the Trial Court is liable to be set aside. Accordingly, I answer point No.2 in the affirmative and point No.3 in the negative. Therefore, both the appeals are liable to be allowed. 41. Hence, I proceed to pass the following: ORDER i. Both the appeals are allowed in part. ii. The judgment and decree dated 27.04.2013, passed in O.S.No.195/2000 by the Prl. Senior Civil Judge and JMFC, Hubballi, is hereby set aside. iii. Consequently, the suit filed for specific performance of contract is dismissed. iv. Defendants No.1 to 7 shall refund the earnest amount of Rs.1,50,000/- to the plaintiffs with interest at the rate of 9% p.a. from the date of - 68 - NC: 2025:KHC-D:1557 RFA No. 4152 of 2013 C/W RFA No. 4155 of 2013 agreement 06.03.1995 till the date of repayment. v. Defendants No.1 to 7 shall deposit the above said amount with interest as stated above, before the Court of Principal Senior Civil Judge and JMFC, Hubli, in O.S.No.195/2000, within a period of three months from the date of receipt of copy of this judgment. vi. In the event defendants No.1 to 7 fail to deposit the said amount, then the plaintiff is at liberty to file an execution petition for recovery proceedings as per law. vii. Draw decree accordingly. viii. No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MRK-para 1 to 12. PMP-para 13 to 34, SRA-para 35 to end. CT: UMD. List No.: 1 Sl No.: 1