- 1 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 29TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100016 OF 2016 (SP) BETWEEN: RAYAPPA S/O. YELLAPPA MALAGI, AGE: 63 YEARS, OCC: AGRICULTURE, R/O. GAMANGATTI-580025, TALUKA: HUBBALLI, DIST: DHARWAD. ...APPELLANT (BY SRI. RAJESH MAHALE, SENIOR COUNSEL FOR SRI. JALGAR ISMAIL DADASAHEB, ADVOCATE) AND 1. SMT. CHANNABASAVVA W/O. MALLANGOUDA PATIL, (RESPONDENT NO.1 DIED AND HER LEGAL REPRESENTATIVES ARE ALREADY ON RECORD AS RESPONDENT NOS.2 TO 5) 2. SMT. LALITA @ GEETA W/O. DYAVANGOUDA PATIL, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, R/O. BAGEWADI, TQ: MUNDARGI-582118, DIST: GADAG. Digitally signed by ANNAPURNA G Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 3. PUSHPA @ SHIVAMMA W/O. CHANDRU KADARMUNDI @ KADARMANDALGI, AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O. BYADGI-581106, DIST: HAVERI. 4. SMT. RATNA W/O. REVANAPPA BALOJI @ BALOLI, AGE: 46 YEARS, OCC: HOUSEHOLD WORK, R/O. BEHIND VIJAYA BANK, TADAS, TQ: SHIGGAON-581106, DIST: HAVERI. 5. SMT. GIRIJAVVA @ LALITA W/O. MAHADEVGOUDA PATIL, AGE: 52 YEARS, OCC: HOUSEHOLD WORK, R/O. ADARGUNCHI-580024, TQ: HUBBALLI, DIST: DHARWAD. …RESPONDENTS (BY SRI. MAHESH WODEYAR, ADV. FOR R2 & R3; R2 TO R5 ARE TREATED LRS OF DECEASED R1; NOTICE TO R4 AND R5 IS HELD SUFFICIENT) THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41 RULE 1 R/W. SECTION 96 OF CPC, PRAYING TO PASS THE JUDGMENT AND DECREE BY SETTING ASIDE THE PARTIAL JUDGMENT AND DECREE PASSED IN O.S.NO.4/2013 DATED 26.10.2015 PASSED BY LEARNED SENIOR CIVIL JUDGE KUNDAGOL AND GRANT DECREE FOR SPECIFIC PERFORMANCE OF CONTRACT WITH COST THROUGHOUT, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 28.03.2025 FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA - 3 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) 1. The plaintiff in O.S.No.4/2013 filed this appeal challenging the judgment and decree dated 26.10.2015 passed by the learned Senior Civil Judge, Kundagol (for short, ‘the trial Court’). He filed a suit for specific performance of contract. The trial Court after hearing the matter dismissed the relief of specific performance but granted alternate relief of refund of earnest money with interest. Being aggrieved by the same, the plaintiff preferred this appeal. 2. The parties are referred to as per their rankings before the trial Court. 3. It is the case of the plaintiff that the defendants are owners of the suit property. Defendant No.1 is the mother and defendant Nos.2 to 5 are her daughters and she was a widow and managing the family. The defendant No.1’s name was mentioned in the revenue records. - 4 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 Defendants agreed to sell the suit property and plaintiff was also intended to purchase the same. As per the sale talks, defendant executed an agreement of sale dated 25.03.2011. Defendant No.1 executed register agreement of sale dated 25.03.2011 and it was signed by defendant Nos.2 to 4 as attesting witnesses and at the time of agreement of sale an amount of ₹9,00,000/- was paid to defendant No.1 and sale consideration was fixed at ₹12,00,000/- and defendants agreed to execute registered sale deed after receiving balance sale consideration and handover possession of the property. Plaintiff was always ready and willing to perform his part of the contract. He was repeatedly requesting defendants to execute registered sale deed by receiving balance sale consideration. However on one or the other reasons defendants went on postponing execution of registered sale deed. Therefore he was constrained to file a suit. With these reasons, plaintiff prayed for decree of the suit. - 5 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 4. The sum and substance of the case of defendant No.1 is that she along with her children are owners of the suit property. They are not intending to sell the properties. Defendant No.1 had obtained loan from the plaintiff to an extent of ₹9,00,000/- and in the presence of the elders of the village, plaintiff agreed to pay the loan subject to condition that defendant No.1 had to execute registered agreement of sale and as per the said condition, he paid loan of ₹9,00,000/- and she took herself and defendant Nos.2 to 4 to the Office of sub-Registrar and obtained their signatures on a document assuring them that it was a security document for the loan obtained by defendant No.1. Defendant No.1 is illiterate and defendant Nos.2 to 4 were women, they could not read the contents of the documents in the Office of sub-Registrar and at the instance of plaintiff, they signed as attesting witnesses, they had no intention to sell the property at any time and she further contended that defendant No.1 had also agreed to part with the possession of the property to the - 6 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 plaintiff for repayment of the interest. The plaintiff was permitted to enjoy the said property and after repayment of the loan amount of ₹9,00,000/- he has to redeliver the possession of the property. Therefore the agreement of sale is created document just to suit the purpose of plaintiff. He intended to grab the property belonging to defendants and she also contended that plaintiff was not ready and willing to perform his part of the contract. The value of the suit property was more than ₹5,00,000/- per acre during the year 2011. Since they had no intention to sell the property, they had executed agreement of sale as a security document for refund of the loan obtained from the plaintiff and they had a trust and belief over the plaintiff and accordingly she along with defendant Nos.2 to 4 executed the said document. With these reasons she prayed to dismiss the suit. 5. Defendant Nos.2 and 3 adopted written statement of defendant No.1, defendant Nos.4 and 5 have filed separate written statements, defendant No.4 also - 7 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 denies the execution of agreement of sale she also contended that it was only security document executed and she signed the said document at the instance of plaintiff without reading the contents of the same and only after receipt of the notice by the plaintiff, she came to know that plaintiff has created this document. Therefore prays to dismiss the suit. 6. Defendant No.5 contends that it was an ancestral joint family property and she had share in the said property, she had not participated in alleged transactions between plaintiff and defendant No.1 and the said transaction do not bind her rights over the properties and subsequent to filing of the suit there was a partition between the defendant Nos.1 to 5 and her share was given in the said partition, therefore the said agreement of sale does not bind the rights of the defendant No.5. With these reasons she prayed to dismiss the suit. 7. From the rival contentions of the parties, the trial Court framed following issues: - 8 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 i. Whether the plaintiff proves that the defendants being the owners of the suit schedule property, on 25.03.2011 agreed to sell the suit property for valuable consideration of ₹12,00,000/- and received ₹9,00,000/- as an earnest money through registered agreement of sale executed by defendant No.1 and attested by defendant Nos.2 to 4? ii. Whether the plaintiff proves that the defendants have failed to perform their part of contract? iii. Whether the plaintiff proves that he was/is ready and willing to perform his part of the contract? iv. Whether defendant Nos.1 to 3 proves that Section 20(2) is hit by Specific Relief Act? v. What order or decree? Additional Issues: i. Whether the plaintiff is entitled for relief claimed in the suit? 8. Plaintiff to prove his case examined 3 witnesses as PWs1 to 3 and marked 16 documents as per Exs.P1 to P16. Similarly defendant Nos.1, 4 and 5 got examined themselves as DW1, 3 and 2 respectively and defendants marked 34 documents as per Exs.D1 to D34. - 9 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 9. The trial Court after hearing both parties and appreciating the pleading and evidence on record answered the Issue Nos.1 to 4 in the negative and partly decreed the suit, prayer of specific performance was rejected. However directed the defendants to refund earnest money of ₹9,00,000/- with interest at the rate of 18% from the date of the suit till its realization by the impugned judgment and the same is under challenge. 10. I have heard the arguments of learned advocates appearing for both parties. 11. Learned advocate for appellant contends that defendant No.1 had executed registered agreement of sale dated 25.03.2021 agreeing to sell the suit property for ₹12,00,000/- and received earnest money of ₹9,00,000/- and on the date of agreement of sale possession of the property was delivered in favour of the plaintiff and thereafter plaintiff has been in peaceful possession and enjoyment of the said land. The defendant Nos.2 to 4, who - 10 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 are daughters of defendant No.1 also signed as attesting witnesses to Ex.P1. Defendant No.5 though orally agreed for the said transaction but she was not present at the time of signing of the said document. Defendant No.1 admits that signing and execution of the document Ex.P1 but her contention is that this document is for security executed for obtaining the loan from plaintiff. She and her daughters never intended to sell the property. Her daughters could not read the contents of Ex.P1 since they were ladies and unable to deal freely in the Government Office. She further contends that if in the cross- examination of DW1 all these facts were admitted by the DW1 regarding sale talks and they agreed to sell the property, they came to the Office of sub-Registrar along with her relatives and well wishers. She had also admitted execution of document by herself and defendant Nos.2 to 4. These admissions are sufficient to hold that Ex.P1 was executed by defendant No.1 along with defendant Nos.2 to 4. He further contends that defendant No.5 orally agreed - 11 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 to execute the said document but she was not present at the time of registering of the said document. Merely her absence will not make any difference. Moreover the said property was agreed to be sold by defendant No.1 for the benefit of the family that is for discharge of the debt incurred by the family. Under these circumstances, as a karta she had every right to execute the sale deed or sell the property for and on behalf of the family. It is nobody's case that the said agreement was executed for immoral purpose. Under these circumstances the trial Court erred in not holding that defendants executed agreement of sale as per Ex.P1. 12. He further submits that plaintiff was always ready and willing to perform his part of the contract. However, defendants did not come forward to execute the sale deed and it is not the case of defendants that plaintiff was not ready and willing to perform his part of the contract. Under these circumstances the plaintiff is entitled for relief of specific performance. The trial Court without - 12 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 any justifiable reasons rejected the relief of specific performance of contract and granted the relief of refund of earnest money with interest which is erroneous. With these reasons prayed to reverse the judgment and decree the suit. 13. The learned counsel for defendant Nos.2 and 3 contends that the trial Court rightly rejected the claim of the plaintiff for relief of specific performance of the contract. The so called witnesses to the agreement of sale have denied the execution of the document and they were unaware about the contents of the document, their evidence clearly goes to show that they know nothing about the said agreement of sale. The plaintiff has not examined scribe who has written the document. The defendant No.1 contended that it was not an agreement of sale but document executed for security of the loan obtained by the defendant No.1 from the plaintiff. From the cross-examination of DW1, it clearly indicates that it was not an agreement of sale. The trial Court has properly - 13 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 appreciated the same and rightly held that plaintiff failed to prove that defendants have executed an agreement of sale intending to sell the property in favour of the plaintiff. 14. It is further contended by the defendants that plaintiff was not ready and willing to perform his part of the contract. He had not proved before the Court that he had sufficient source of income to pay balance amount of sale consideration. She had not initiated any action till the defendant No.5 issued a notice to him. It indicates that he was not ready and willing to perform his part of the contract. He further submits that in the cross-examination, PW1 himself admits that value of the suit property was increased multiple times and as per the case of the defendants, as on the date of the alleged agreement of sale, the property was worth ₹5,00,000/- per acre and it is difficult to believe that defendants agreed to sell such valuable property at paltry sum of ₹12,00,000/-. Therefore the contention of plaintiff is not probable on the contrary contention of the defendants that they had executed an - 14 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 agreement just as a document of security is probable that was upheld by the trial Court and the trial Court has not committed any error. Therefore the trial Court rejected the relief of specific performance of contract and granted the refund of the earnest money. Even the amount of interest awarded by the trial Court is on higher side which needs to be considered by this Court. 15. He further submitted that if the relief of specific performance is granted then defendants will be put to irreparable loss and hardship. The defendants are women and they had no other source of income. Admittedly defendant No.1 lost her young sons due to illness and their bad habits, there were nobody to look after the family and defendant No.1 alone was looking after the family and brought up her daughters by much difficulties and in the meanwhile there was a partition as per the demand of defendant No.5 and properties were divided among the defendants. Therefore if the defendants are directed to - 15 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 execute the sale deed, then it will cause hardship to them. With these reasons prayed to dismiss the appeal with cost. 16. The following points emerge for determination: i. Whether the trial Court is justified in holding that plaintiff has failed to prove that defendants have executed an agreement of sale in his favour agreeing to sell the suit property for ₹12,00,000/- and received earnest money of ₹9,00,000/-? ii. Whether the trial Judge is justified in holding that plaintiff was not ready and willing to perform his part of the contract? iii. Whether the trial Court is justified in refusing the relief of specific performance of the agreement in favour of the plaintiff? iv. Whether the findings of the trial Court is erroneous and interference by this Court is required? v. What order? Point No.1: 17. Undisputedly there is a registered agreement of sale which is produced at Ex.P5 by PW1, it is dated - 16 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 25.03.2011. It is not in dispute that defendant No.1 signed on the said document and defendant Nos.2 to 4 signed the said document as witnesses. It was also signed by other witnesses including PWs.2 and 3. Contents of the said document reveals that defendant No.1 was absolute owner of the property and to clear the debt and for the family necessity she intended to sell the said land and plaintiff approached her and he offered highest price, therefore she agreed to sell the said land for ₹12,00,000/- and received earnest money of ₹9,00,000/-. She also agreed in the said document that she would execute the registered sale deed as and when called upon by the plaintiff after receiving balance of sale consideration. It appears that delivery of the possession of the property was not a condition in the agreement of sale. Even defendant No.1 to 4 do not dispute that they signed on the said document but their contention is that they did not read the document at the time of preparing the same. - 17 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 18. PW1 in his evidence has deposed in line with plaint averments and he has stated about the execution of the said document. His evidence is corroborated with evidence of PWs.2 and 3, who are witnesses to the said document. In their evidence they have stated in detail about the execution of the said document. Their signature was also identified. 19. In the cross-examination of PWs.1 to 3 nothing much was brought out to disbelieve their evidence regarding execution of Ex.P5. 20. Defendant No.1 was examined as DW1. In her examination-in-chief she has stated that she had executed a registered document in favour of the plaintiff but the said document was not an agreement of sale but it was only document of security. She and her daughters had not executed it for the purpose of sale of the suit property and the daughters had also signed the documents as witness and all of them were unable to read the contents of the - 18 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 document. Therefore it was not an agreement of sale but only document of security. 21. In her cross-examination, she has stated that after death of her husband and sons, she was looking after the family. About 20 days prior to execution of the document she discussed and deliberated about execution of the document with her daughters and son-in-laws. She was also liable to pay ₹3,25,000/- to her daughter-in-law i.e., wife of her deceased son, who filed a ease before the Revenue Courts and she has also stated that on the date of execution of the document, she along with her daughters except defendant No.5, her relative one Ravigowda and Chumbangouda, Samboji Basanna etc. went to sub-Registrars office in an Omini vehicle. They were in the sub-Registrar office about 2 to 3 hours. Prior to signing of this document someone read all the contents of the said document but she doesn't know his name. Thereafter it was registered and her photos were taken. She identifies her photo on Ex.P5. She also identified - 19 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 signature of her daughters by name Ratna, Geeta and Lalita (defendant Nos.2 to 4). 22. In the further cross-examination she admits that one S.B. Ganti Indur is her younger sister’s son and she volunteers that the said S.B.Ganti cheated her and he played major role in execution of the said document. She has also stated that her daughter Ratna signed on the said document about 3 to 4 months after the document but it is a registered document and it bears signature of the said Ratna also. 23. From the contentions of the defendant Nos.1 to 4 as well as from the cross-examination of DW1, referred above, it is proved that it is deliberated, discussed and thereafter agreed to sell the property and executed the registered agreement of sale. 24. Registered agreement executed between the parties is produced before the Court. Under Section 92 of the Indian Evidence Act, a party cannot lead evidence - 20 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 contrary to contents of such agreement. For the benefit of the parties, it is necessary to refer Section 92 of the Indian Evidence Act. 25. Section 92 of the Indian Evidence Act reads as under: “92. Exclusion of evidence of oral agreement.-When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: Proviso (1). -- Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, 7[want or failure] of consideration, or mistake in fact or law. Proviso (2). -- The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso (3). -- The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4). -- The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or - 21 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5). Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract. Proviso (6). -- Any fact may be proved which shows in what manner the language of a document is related to existing facts.” 26. Hence, contentions of the defendants that Ex.P5 was a document of security and they had no intention to sell the property and they did not read the contents of document and signed it cannot be considered, to hold that the defendants have not executed Ex.P5. It is also worth to know that said agreement of sale was executed on 25.03.2011. Even if we accept the contention of the defendants that without reading the said document they signed on the document, nothing was prevented them to obtain true copy of the same and read the contents of the said document. No prudent man would keep quiet for - 22 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 such a long period when a registered document was executed by them. Hence, it has to be inferred that with an intention to sell the property they had executed the documents. Even it is not their case that they have paid or tried to repay the loan, if really it was executed as document of security. 27. The learned trial Judge has not appreciated the facts properly. Only on the basis of cross-examination of PW2, wherein he has stated that they were unaware about the contents of the documents or they were not knowing the survey number of the property cannot be a ground to hold that they were not present at the time of execution of the document.. It is suffice for them to prove that they were present on that day and the parties to the agreement were present on that day and all of them had signed on the document. The document itself is placed on record and therefore any question in respect of the contents of the document are irrelevant and hence the said findings of the trial Court is erroneous. - 23 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 It appears the learned trial Judge did not go through the cross-examination of DW1, wherein she has specifically stated that there was discussion and deliberation among the family members, thereafter all of them went in a car to the sub-Register office & signed the document and her relatives also witnessed the said document. In spite of all these evidence, the trial Court did not believe it. The plaintiff has proved execution of Ex.P5 and that defendant No.1 agreed to sell the property in favour of the plaintiff for ₹12,00,000/- and received earnest money of ₹9,00,000/-. Therefore the above said point No.1 is answered in the affirmative. Point No.2: 28. It is also duty of the plaintiff to prove that he is always ready and willing to perform his part of the contract, without proving the same, he is not entitled to decree. - 24 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 29. Ex.P5 was executed on 25.03.2011. As per the terms of the agreement plaintiff had to pay ₹12,00,000/- to purchase of the property and paid earnest money of ₹9,00,000/- on the date of or prior to execution of the said document. Defendants do not dispute receipt of ₹9,00,000/-. After execution of the said document plaintiff was not at all acted upon the said document till defendant No.5 issued notice to him stating that the said agreement do not bind her rights and she was joint owner of the said property. It is not clarified either in the pleading or evidence of plaintiff that what were the hurdles for them to get registered the sale deed on the date of agreement of sale, instead of executing the agreement of sale. 30. As already stated above, as per the terms of the agreement possession, of the property was not delivered and both parties are silent regarding delivery of the possession of the property or date of delivery of possession of the property. - 25 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 31. Defendant No.1 contend that as per the discussion made before the elders of village, possession was delivered to the plaintiff on the ground that whatever income he derives from the said property would be utilised for the payment of interest to the loan obtained by her. 32. The notice given by defendant No.5 is at Ex.P6 dated 27.10.2012. Thereafter on 23.11.2012 plaintiff issued notice to all the defendant Nos.1 to 5, copy of which is at Ex.P9. It is not in dispute that the said notice was served on the defendants. Plaintiff had to pay balance amount of ₹3,00,000/- for completion of the transaction. As already stated above, as per the terms of agreement of sale no clauses are there which come in the way of execution of the registered sale deed. However on the date of agreement of sale, said transaction was not completed and it is mentioned in Ex.P5 that whenever plaintiff call upon the defendants to execute the sale deed by paying the balance amount of sale consideration defendants would execute the registered sale deed by - 26 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 receiving the balance of sale consideration and handover the possession of the property. Therefore option was with the plaintiff. Nothing was to be done by the defendants for completion of the sale transaction. After execution of Ex.P5 for the first time, plaintiff woke up on 27.10.2012 nearly after one year and 7 months. There is no explanation in the pleading or evidence for waiting for so long to enforce said agreement of sale. 33. The plaintiff has not produced any materials to show that he had ₹3,00,000/- and he always kept it with him for payment of the balance sale consideration. In his cross-examination he has stated that except income from the agriculture lands, he has no other source of income and he also stated that his annual income from the agriculture was ₹20,000/-. These facts indicates that he was not ready and willing to perform his part of the contract. Since he was in possession of the property, he slept over his right to enforce agreement of sale or payment of the balance of sale consideration to the - 27 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 defendant No.1. These facts indicate that plaintiff was not ready and willing to perform his part of the agreement. 34. The trial Court did hold that plaintiff was not ready and willing to perform his part of the contract. It has not assigned proper reasons for the same. Under such circumstances he is not entitled to the relief of specific performance of the contract. 35. For the aforesaid reasons, I answer point No.2 in negative. Point No.3: 36. Admittedly defendant No.1 was a widow and she had to face lot of tragedy in her life, she lost her husband and young sons. Her both sons addicted to bad vices and one son is said to be died of AIDS and another son is said to be squandering the family property and obtained loan from different persons including the plaintiff for satisfying his thirst to drink alcohol and the said poor - 28 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 lady has 4 daughters. She alone has been managing the property as well as performed the marriages of her daughters. In addition to that daughter-in-law, filed the litigation before the Revenue Authorities and to satisfy her she executed the present agreement of sale and paid ₹3,25,000/- to her and she had executed Ex.P15 relinquishing her rights over the property. She has to suffer all these facts. Unfortunately during pendency of this appeal, she died. According to the evidence of defendants, in all the family has 15 acres of land and out of the said properties some of the properties are given to others on contract basis. Their only source of income is agricultural lands. The plaintiff is in possession of the property and enjoying the fruits of the property. Defendant No.1 fairly stated before the Court that possession of the property was delivered to the plaintiff so that whatever the yields he gets from the said property will be adjusted towards interest. Delivery of possession of the property was not - 29 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 condition in the agreement. If the defendants are directed to execute the sale deed then they would be put to hardship. On this count also plaintiff is not entitled for relief of specific performance of agreement. Accordingly this point is answered in the affirmative. Point No.4: 37. The trial Court though assigned different reasons has rightly held that plaintiff is not entitled for relief of specific performance. The said findings are in accordance with law and it does not call for any interference. The trial Court awarded interest at the rate of 18% per annum on the earnest money received by the defendants. It is true that defendants have not preferred any appeal. However it is an equitable relief. Therefore exercising the power under XLI Rule 22 of CPC as well as Order XLI Rule 33 of the CPC, this Court can interfere in the findings. As already discussed above, plaintiff has been - 30 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 in possession of the property and enjoying its fruits. It was not as a part of agreement of sale. Therefore awarding of the interest at the rate of 18% is inequitable. Therefore, it shall be reduced to 12% per annum from the date of suit till its realization. 38. For the aforesaid reasons, following order is passed: ORDER i. Appeal is dismissed. ii. Both parties shall bear their own costs. iii. The impugned judgement and decree dated 26.10.2015 passed by the Senior Civil Judge, Kundgol in O.S.No.4/2013 is confirmed with a modification in the rate of interest. iv. Defendants are directed to refund the earnest money with interest at the rate of 12% per annum from the date of suit till its realization. - 31 - HC-KAR NC: 2025:KHC-D:8694 RFA No. 100016 of 2016 Send back the TCR along with copy of the judgement to the trial Court. Sd/- (UMESH M ADIGA) JUDGE kgk/CT-AN / List No.: 1 Sl No.: 3