- 1 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 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 R.F.A. NO. 100525 OF 2022 (SP) BETWEEN: FAKKIRAPPA S/O. KALLAPPA NADATTI, SINCE DEAD, REP. BY HIS LRS. 1. MANJAVVA W/O. FAKKIRAPPA NADATTI, AGE 45 YEARS, OCC: HOUSEHOLD WORK, R/O. GOUDAR ONI, GULAGANJIKOPPA, DHARWAD, TQ AND DIST. DHARWAD. 2. KUMARI ANNAPURNA, D/O. FAKKIRAPPA NADATTI, AGE 24 YEARS, OCC: STUDENT, R/O. GOUDAR ONI, GULAGANJIKOPPA, DHARWAD, TQ AND DIST. DHARWAD. 3. KUMAR BASAVARAJ, S/O. FAKKIRAPPA NADATTI, AGE 18 YEARS, OCC: STUDENT, R/O. GOUDAR ONI, GULAGANJIKOPPA, DHARWAD, TQ AND DIST. DHARWAD. 4. KUMARI GAYATRI, D/O. FAKKIRAPPA NADATTI, AGE 16 YEARS, OCC: STUDENT, R/O. GOUDAR ONI, GULAGANJIKOPPA, DHARWAD, TQ AND DIST. DHARWAD. (APPELLANT NO.4 IS BEING MINOR REPRESENTED BY THEIR MOTHER NATURAL GUARDIAN APPELLANT NO.1. ….APPELLANTS (BY SRI. BASAVARAJ SABARAD,SENIOR COUNSEL FOR SRI. I. C. PATIL, ADVOCATE) R Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.05.28 10:33:55 +0530 - 2 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 AND: 1. MAHENDRA S/O. BASTIMAL RATHOD AGE 55 YEARS, OCC: BUSINESS, R/O. PANCHAKCHERI ONI, DHARWAD, TQ AND DIST. DHARWAD. MALLAVVA, SINCE DEAD REP. BY HER LRS. 2. SIDDAVVA W/O. VIRUPAKSH ALAGODI, AGE 53 YEARS, OCC: HOUSEHOLD WORK, R/O. NIGADI, TQ AND DIST. DHARWAD. 3. MALLIKARJUN S/O. SOMALINGA MALLIGWAD, AGE 41 YEARS, OCC: NOT KNOWN, R/O. KYARAKOPPA, TQ AND DIST. DHARWAD. 4. RAVI S/O. SOMALINGA MALLIGWAD, AGE 33 YEARS, OCC: HOUSEHOLD WORK, R/O. KYARAKOPPA, TQ AND DIST. DHARWAD. …RESPONDENTS (BY SRI. R. V. ITAGI, AND SRI. A. P. MURARI, ADVOCATES FOR R1; SRI. P. G. MUGALI, ADVOCATE FOR R2 TO R4) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 03.08.2022 PASSED BY THE COURT OF THE PRL. SENIOR CIVIL JUDGE AND CJM, DHARWAD IN O.S. NO.511/2014 AND ETC. THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED ON 17.04.2025 FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) The defendant Nos.2 (A to D) have filed this appeal challenging the judgment and decree dated 03.08.2022, passed by the learned Principal Senior Civil Judge and CJM, Dharwad, (for short, `trial Court'), in O.S.No.511/2014. Respondent No.1 herein, i.e., plaintiff, filed a suit for specific performance of contract and it was decreed by the trial Curt. The same is challenged in the present appeal. 2. The parties are referred to as per their ranking before the trial Court. 3. Brief facts of the case are that; It is the case of the plaintiff that, one Kallappa son of Fakirappa @ Fakirappa Nadatti, was the owner and in possession of the suit property bearing Block No.38/3, measuring 3 acres of Gulganjikoppa village of Dharwad Taluk. During his lifetime, along with his wife and son Fakeerappa (deceased defendant Nos.1 and 2) executed - 4 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 a registered agreement of sale dated 20.06.2011 (Ex.P-4) in favour of the plaintiff, agreeing to sell the suit property for Rs.13,80,000/- and received earnest money of Rs.1,00,000/ on the date of agreement. It was agreed that balance amount of Rs.12,80,000/- shall be paid at the time of registration of the Sale Deed. Thereafter, from time to time, Kallappa and his son-defendant No.2 received part of sale considerations i.e., Rs.1,00,000/- on 27.11.2011, Rs.1,00,000/- on 21.10.2013, Rs.1,50,000/- on 21.10.2013 and Rs.30,000/- on 20.06.2014. In this regard, supplementary agreements were executed by Kallappa as well as defendant No.1 and 2. 4. It is the further case of plaintiff that Kallappa died on 11.07.2014 leaving behind the defendants as his legal heirs to succeed to the property. After the death of Kallappa, defendants approached the plaintiff and obtained Rs.1,00,000/- out of balance amount of sale consideration. In all, Kallappa and defendants have received an amount - 5 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 of Rs.5,80,000/- towards sale consideration out of Rs.13,80,000/- and balance was only Rs.8,00,000/-. 5. It is further contended that plaintiff was always ready and willing to perform his part of the contract. But, defendants on one or the other reasons went on postponing execution of the sale deed. On 10.11.2014, plaintiff approached the defendants to execute the sale deed and defendants refused to do so. Hence he filed this suit. 6. Defendant Nos.1 and 2 during their lifetime did not file any written statement. After their death, their legal heirs were brought on record. The legal heirs of defendant No.1 did not file written statement. The legal heir of defendant No.2, i.e., Defendant No.2(A) filed written statement, denying the contentions of the plaintiff. It is her further contention that deceased Kallappa and his son Fakirappa were addicted to bad vices. They were drunkards and squandered the joint family income for - 6 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 their bad habits. The suit property is an ancestral joint family property. Plaintiff created the said agreement of sale taking undue advantage of bad habits of the said Kallappa and Fakeerappa. 7. She further stated that the suit property is situated in the heart of city and its value per acre is more than Rs.1.50 crore and even in the year 2011 to 2014, its value was more than Rs.80 lakhs per acre. Under such circumstances, no prudent man would agree to sell the said property for Rs.13,80,000/-. It shows that the plaintiff and his henchmen have created these documents. With these reasons she prayed to dismiss the suit with costs. 8. The trial Court framed the following issues: ISSUES 1. Whether the plaintiff proves that the deceased Kallappa and the defendant No.1 on 20.06.2011, executed an agreement of sale in his favour agreeing to sell the suit property for sale consideration of Rs.13,80,000/- and received earnest money of Rs.1,00,000/-? - 7 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 2. Whether the plaintiff proves that the defendants further received Rs.4,80,000/- on different dates by way of earnest money and executed supplementary agreements? 3. Whether the plaintiff proves that he has ever been ready and willing to perform his part of contract? 4. Whether the defendant Nos.2(a) to (d) prove that the plaintiff created the alleged agreement of sale by taking undue advantage of bad habits of deceased Kallappa? 5. Whether the plaintiff is entitled for the relief of specific performance of contract or for alternative relief of refund of earnest money as prayed? 6. What order or decree? 9. Plaintiff to prove his case, examined himself as PW-1 and marked 14 documents as per Exs.P1 to 14. The defendant No.2(A) was examined as DW-1 and she examined one witness as DW-2; and on her behalf marked Exs.D1 to 4. - 8 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 10. The trial Court after hearing both parties and appreciating pleadings and evidence on record, answered issue Nos.1 to 3 and 5 in the affirmative and issue No.4 in the negative and granted the relief of specific performance, directing the defendants to execute the registered sale deed in favour of plaintiff, after receipt of balance of sale consideration of Rs.8,00,000/- and additional sale consideration of Rs.7,00,000/- and to hand over the possession of the property in favour of plaintiff, by the impugned judgment. Same is challenged in the present appeal. 11. The learned Senior Counsel for the appellants/defendants argued in line with the grounds made out in the appeal memo. He contends that defendant Nos.1 and 2 and Kallappa, who have executed the document, are no more. They were alcoholics and were always intoxicated. Plaintiff was a real estate dealer. Knowing the weakness of Kallappa and his son and to gulp their properties, created the alleged agreement of sale as - 9 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 well as supplementary agreements. Either deceased Kallappa or defendants No.1 and 2 or the legal heirs of the defendants at any time received any amounts from the plaintiff. In the original agreement of sale produced before the Court, it is attested by two witnesses. The defendants obtained certified copy the same, which shows that only one person attested the document before the Sub-Registrar. It clearly indicates manipulation of record by the plaintiff to get the relief. 12. Learned Senior Counsel appearing for the defendants further submitted that, admittedly the suit property was granted during 1999 to Kallappa under the Land Reforms Act. There was bar to alienate the property for a period of 15 years. Agreement of sale was executed during non-alienation period. Under Section 61 of Land Reforms Act the said agreement is void, contrary to law and public policy. It is not enforceable. The trial Court did not consider these facts. It is true that the said fact was not urged before the trial Court but materials are available - 10 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 on record to show that said agreement was not enforceable. Still the trial Court granted the relief. Therefore the said finding is erroneous. 13. Learned Senior Counsel for the appellants further contended that the property worth few crores was agreed to be sold for paltry sum of Rs.13,80,000/-. It clearly indicates that the said transaction was not bona fide. Agreement said to be executed by the Kallappa, defendant Nos.1 and 2 was not out of free mind and volition. It appears, signature of Kallappa and his son were taken on the document when they were intoxicated. Till the death of Kallappa, the agreement was not enforced. Only after his death, the suit was filed. No prior notice was issued to enforce the said agreement. Alleged agreement was executed during 2011 and suit was filed after 3 years. No reliable evidence was placed on record to show that plaintiff had sufficient source of income to pay balance amount of sale consideration. These facts shows - 11 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 that plaintiff was not ready and willing to perform his part of contract. 14. It is further contended that defendants are depending upon the income earned from the said property. If relief of specific performance is granted in favour of the plaintiff, defendants would be put to hardship and irreparable loss. The trial Court did not properly appreciated the evidence led by both the party. It has not considered that plaintiff has failed to prove the execution of agreement of sale and supplementary agreements. It also not properly considered that plaintiff was not ready and willing to perform his part of contract. It also not considered the comparative hardship if relief of specific performance is granted. The trial Court totally failed to understand that said agreement is not enforceable under Section 61 of Land Reforms Act. The trial Court erroneously decreed the suit. With these reasons, Learned Senior Counsel prayed to allow the appeal by setting aside the impugned judgment and decree. - 12 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 15. The learned counsel for the plaintiff vehemently contended that deceased Kallapa, defendant Nos.1 and 2 had executed a registered agreement of sale, agreeing to sell the suit property for Rs.13,80,000/- in favour of the plaintiff, after receiving part of sale consideration. Deceased Kallappa, his wife and his son subsequently also received amounts from time to time, in all Rs.5,80,000/- from the plaintiff out of sale consideration and executed supplementary agreements. The said facts are stated by PW1. 16. DW1 in her cross-examination pleads ignorance about these facts and documents. She had not examined any witness to disprove the said documents. Defendant Nos.1 and 2 were alive at the time of filing of the suit. They didn’t file written statement during their life time. They didn’t deny the execution of the agreement of sale or supplementary agreements and receipt of part of sale consideration. In the cross-examination of PW-1, - 13 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 nothing was brought about to disbelieve his evidence. Therefore plaintiff proved his case. 17. Learned advocate for the plaintiff further contended that agreement of sale does not require attestation as provided under Section 68 of the Indian Evidence Act. Plaintiff has not manipulated any records. Out of two witnesses, one witness signed the document before its registration. Another witness came little late to the office of Sub-Registrar and hence he signed the document later in the presence of Sub-Registrar. Hence his signature might not be found in the certified copy of the agreement. When the attestation is not required to agreement of sale, even if it is presumed that he signed at later point of time, it does not affect its credibility. 18. He further contended that Section 61 of the Land Reforms Act is not applicable to the agreement of sale. It prohibits transactions such as sale, gift and mortgage etc. The said definition does not contain the term ‘agreement of sale’. Agreement of sale does not confirm any right over - 14 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 the property. In this case, even possession was not delivered to the plaintiff. After completion of the period of non-alienation, the suit is filed. Hence, Section 61 of the Land Reforms Act does not come in the way of plaintiff to enforce the agreement. 19. The learned counsel for the plaintiff further submitted that defendants have not pleaded that plaintiff had no money to pay balance of sale consideration and he was not ready and willing to perform his part of contract. They have also not pleaded about hardship if the relief of specific performance is granted. It is not their case that, except the said property, they do not have any other property. Merely price of the land is increased, cannot be the ground for denial of specific performance of the agreement. The trial Court has taken care of rights of the defendants and directed the plaintiff to pay additional sum of Rs.7,00,000/-, i.e., more or less 60% of the sale price, as compensation for executing the sale deed, thereby hardship of the defendants was considered. There were - 15 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 no difficulties to the trial Court to pass the decree of specific performance. The trial Court considered the contentions of both side and rightly decreed the suit. It does not call for interference. With these reasons prayed to dismiss the appeal with costs. 20. The learned counsel for respondent Nos.2 to 4 submits that contention of the plaintiff is not sustainable. Agreement of sale is not enforceable. The trial Court erroneously decreed the suit. They support the arguments advanced on behalf of defendant No.2 (a to d) and prayed to allow the appeal. 21. Both side Advocates have filed written submissions in addition to oral arguments. 22. From the contentions of the parties, the following points arise for determination of this court; (i) Whether the trial Court is justified in holding that deceased Kallappa and defendant No.1 executed an agreement of sale dated 20.06.2011, agreeing to sell the suit property for Rs.13,80,000/- and received an amount of Rs.1,00,000/- on the date of - 16 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 agreement of sale and subsequently received Rs. 4,80,000/- on different dates in all Rs.5,80,000/- from the plaintiff and executed supplementary agreements? (ii) Whether the trial Court is justified in holding that plaintiff was/is always ready and willing to perform his part of the contract? (iii) Whether the agreement of sale executed by the deceased Kallappa and defendant No.1 is not enforceable in view of prohibition under section. 61 of the Land Reforms Act ? (iv) Whether defendants would suffer hardship if relief of specific performance is granted? (v) Whether interference in the trial court finding is required? (vi) What order? 23. Point No.1: Plaintiff to prove his case examined himself as PW1. In his evidence he has reiterated the plaint averments. He has stated about execution of agreement of sale; payment of part of sale consideration on the date of execution of agreement of sale and also supplementary agreements executed by the - 17 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 deceased Kallappa as well as defendant No.1 and 2 on different dates by receiving additional amount of sale consideration. He says that in all he had paid Rs.5,80,000/- towards part of sale consideration. PW1 further stated that He was requesting the deceased Kallappa and defendantNo.1and 2 to execute the sale deed and they went on postponing it on one or the other reason. After death of Kallappa, he requested defendant No.1 and 2 to execute registered sale deed. But they did not come forward to execute the sale deed. Prior to filing of the suit, he came to know that defendants No.1 and 2 were trying to alienate the suit property and hence he filed suit for specific performance of contract. He has also stated that he was always ready and willing to perform his part of contract. He had sufficient funds to pay balance amount of sale consideration. 24. PW1 has stated that the said land was granted by the competent authority and there was restriction for alienation. The deceased Kallappa and defendants ought - 18 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 to have taken permission for alienation of the property as per the agreement. Sale could be possible only after change of condition or expiry of period of 15 years. Defendants did not take permission and got changed the condition and hence after expiry of non-alienation period of 15 years, he filed the suit. 25. Plaintiff has produced RTC of suit property at Ex.P-1 and P-3 and Mutation at Ex.P-2. They show that Kallappa was owner of the said land. Original registered agreement of sale at Ex.P-4, It was executed by Kallappa, his wife Mallawwa and his son Fakeerappa on 20-6-2011. They agreed to sell the suit property Sy No. 30/3 measuring 3 acres of Gulaganjikoppa village of Dharwad Taluk, for Rs.13,80,000/- and received earnest money of Rs.1,00,000/- through cheque. Kallappa and his wife put their thumb impression on it and Fakeerappa signed on it. Plaintiff also signed on it. Photo of all the four persons are on it. Two witnesses signed on it. Exs.P-5 to P-9 are supplementary agreements. Ex.P-5 and P-6 bears LTM and - 19 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 signature of Kallappa and his son Fakeerappa respectively. Ex.P-7 bears LTM of Kallappa and his wife Mallawwa and signature of Fakeerappa. In Ex.P-8, both Kallappa and his wife put their LTM. Ex.P-9 bears LTM of Mallawwa and signature of Fakeerappa. Ex.P-12 and P-13 are certified copy of order of Tahsildar and Land Tribunal. 26. Defendant No.2 (a) examined herself as DW1. In her evidence she has reiterated contents of written statement. She denied the case of the plaintiff. In her cross-examination, she denied the suggestions of plaintiff that Kallappa, his wife and son together executed the agreement of sale. She pleaded ignorance to other suggestions. She has stated that she agreed to sell the said property to another for Rs.1.50 crores and received earnest money. 27. Defendants examined DW-2 to prove that both Kallappa and Fakeerappa were habitual drunkards. In his evidence, he has stated that both were known to him and they were meeting daily and both were habitual - 20 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 drunkards. In his cross-examination, he pleads ignorance about the agreement of sale executed by them in favour of plaintiff. He has stated both were cultivating their lands and earning income. 28. DW 1 in her evidence marked Exs.D-1 to D-4. Ex.D-1 is copy of plaint, Ex.D-2 is xerox copy of agreement of sale, Ex.D-3 is certified copy of agreement of sale and Ex.D-4 is valuation slip. 29. Ex.P-4 is registered agreement of sale. It is signed by deceased Kallappa, defendant No.1 and 2. Even if we believe the defence of defendants that defendant No.2 and Kallappa were drunkards and signed without understanding the contents of documents, but it was also signed by the defendant No.1, i.e., wife of Kallappa. No allegation is made against her. Why she also consented to execute the same is not explained. No prudent woman agrees to sell family property on which entire family dependent, just to enable her husband and son to satisfy their habits. Plaintiff produced - 21 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 supplementary agreements executed by Kallappa, defendant No.1 and 2 for payment of part of sale consideration from time to time at Exs.P-5 to P-9. They are unregistered. Whatever amount received by the Kallappa, his wife and son on the date of execution of the said documents, were mentioned in them and they are signed by the Kallappa, defendant No 1 and 2. 30. PW1 was cross-examined at length, but nothing was brought out to discard his evidence. He denied the suggestions that he created the documents taking undue advantage of bad habits of Kallappa and Fakirappa. He also denied the suggestion that no amount was paid to Kallappa, his wife, or Fakirappa. Ex.P-4 is a registered document, executed in the office of Sub-registrar. Kallappa, his wife and son till their death never challenged said document. During the life time defendant No. 1 and 2, they did not file written statement or disputed Exs.P-4 to P-9. Hence contention of plaintiff regarding execution Exs.P-4 to P-9 is believable. - 22 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 31. DW-1 in her examination, denied the said transaction and execution of documents. She did not explain as to why Mallavva also signed on Ex.P-4. From the answers given by her in the cross-examination, it appears that she knows nothing about the said agreement of sale and supplementary agreements. Hence, there is no proper rebuttal evidence. Mere denial of the pleading is not sufficient. It is not the case of defendants that plaintiff was related to Kallappa or his close friend. It is also not brought out that the plaintiff was aware that both of them were addicted to liquor. It is difficult to believe that without any reasons, Kallappa, Mallawwa and Fakeerappa would execute registered document in favour of an unknown person (plaintiff). Hence, plaintiff proved that deceased Kallappa, defendant No.1 and 2 had executed Ex.P-4, agreeing to sell suit property for Rs.13,80,000/- and received advance amount from time to time and in all received Rs.5,80,000/- from the plaintiff towards part of sale consideration and executed Exs.P-5 to P-9. - 23 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 32. It is true that in Ex.P-4, two witnesses have signed, one is by name V.B. Karmarkar and another is B H Mogali. Defendants have obtained certified copy of Ex.P-4 from the office of Sub-Registrar as per Ex.D-3, it shows signature of only one witness, i.e., B H Mogali and the Signature of Karmarkar is missing in it. On the basis of absence of signature of another witness, the learned Senior Counsel for the appellant (defendants No.2 (a to d) vehemently contends that Ex.P-4 is a manipulated document. It was created to grab the property of the defendants. The said document was not at all executed by the Kallappa and defendants. Even it is contended that action shall be initiated against the plaintiff under Section 340 of Cr.P.C, for manipulating the records produced before the Court. The learned Senior counsel submits that in the cross-examination, PW-1 unable to identify the LTM found on Ex.P-4. These facts create doubt about execution of said document by the Kallappa and defendant No.1 and 2. - 24 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 33. Ex.P-4 is registered agreement of sale. As stated above, it bears signatures of the executants and their photos also found on it. Except bare denial and contending that by playing fraud on the executants, it was got created, there is no other explanation. DW-1 is not a party to the said document. It is not her case that she was present at the time of execution of Ex.P-4. Hence she is not a competent person to challenge the said document. She has not disclosed source of information to contend that it was got executed when Kallappa and Fakeerappa were intoxicated or by playing fraud and misrepresentation on them, it was got executed. Therefore, cross-examination of PW-1 or evidence of DW-1 and DW-2 do not help the defendants to disprove the case of plaintiff. 34. As rightly submitted by the learned counsel for the plaintiff, agreement of sale does not require attestation and it is optional. It is true that Ex.P-4 bears signature of two witnesses, but Ex.D-3 (certified copy of - 25 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 Ex.P-4) shows signature of only one witness. It indicates that one of the witnesses signed said document subsequent to registration of the document. It is pertinent to note that there is no alteration of any of the terms and condition of the agreement. Hence, said alteration of adding signature of another witness on Ex.P-4 does not amount to material alteration and it does not affect credibility of Ex.P-4. If the Ex.P-4 requires compulsory attestation, then it would seriously affect its credibility. Moreover, the said V.B.Karmakar, who signed on Ex.P-4 at later point of time, was not examined to prove Ex.P-4. Hence, the arguments of learned Senior Counsel for defendants in this regard are not acceptable. PW-1 could not identify one of the LTMs found on Ex.P-4 is also not reason to disbelieve his case. Looking to the signatures of deceased defendant No.2 in all these documents appear to be similar. Evidence of defendants does not help to disprove Exs.P-4 to P-9. Thus, plaintiff proved that kallappa, his wife and son executed the said agreement of - 26 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 sale with an intention to sell the suit property to plaintiff and received earnest money of Rs.5,80,000/- 35. The learned trial Judge has considered all these facts and rightly held that plaintiff was able to prove execution of Exs.P-4 to P-9 and payment of Rs.5,80,000/- to the deceased Kallappa, defendant Nos.1 and 2. The said finding is based on evidence. On re-appreciating the evidence, it does not call for interference by this Court. For above reasons point no 1 is answered in the AFFIRMATIVE. 36. Point No.2: PW-1 in his evidence has stated that he was always ready and willing to perform his part of contract. He requested defendants to execute the registered sale deed by receiving balance of amount of sale consideration. But defendants did not come forward to execute the sale deed. Ex.P-4 was executed on 20.06.2011. One of the conditions of the agreement is that after necessary entry in the revenue records i.e., change of old condition to new condition, they would execute the registered sale deed. Nowhere in the said - 27 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 agreement, it is clearly stated that it was granted land and there was ban for alienation for a period of 15 years. Even in the pleading also, both the parties have not disclosed the said facts. But it is undisputed fact that the suit land was tenanted land and occupancy right was granted in favour of Kallappa on 22.4.1999. The Plaintiff has produced order of the Land Tribunal, Dharwad, dated 22.04.1999, at Ex.P-13. It shows that suit property was granted by the Land Tribunal in favour of Kallappa with certain conditions. As per the Land Reforms Act, for a period of 15 years from the date of grant, such land shall not be alienated. Said 15 years would be over by the April 2014. Thereafter, deceased Kallappa obtained permission from the Tahasildar, Dharwad as per Ex.P-12 to alienate the property since 15 years period was completed. The suit was filed on 18.11.2014, i.e., within a period of three months from the date of permission obtained by Kallappa to alienate the property. Plaintiff has not caused unnecessary delay to initiate the proceedings to enforce the agreement. - 28 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 37. Defendants nowhere contended that the plaintiff was not ready and willing to perform his part of the contract and he had no money to pay balance of sale consideration. In the cross examination of PW-1, nothing brought out to show that he was not ready and willing to perform his part of contract. 38. Plaintiff has produced bank pass book and statement of account, capital account and balance sheet at Exs.P-10, P-11 and P-14. It is true that these documents were not signed by its author or Chartered Accountant and they were not examined to prove them. Only on that ground said documents cannot be discarded. Plaintiff in his evidence has stated about them. Said documents were not seriously challenged in his evidence, except their denial. He is said to be real estate dealer. It is settled law that there is no need for the plaintiff to deposit balance amount of sale consideration in the Court. 39. As stated above immediately after expiry of non-alienation period, suit was filed. Whenever Kallappa, - 29 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 his wife and son demanded, he paid part of sale consideration. DW-1 has not able to show that plaintiff had no sufficient funds to pay balance of sale consideration. It is not case of the defendants that they were ready to execute sale deed and in view of default of the plaintiff to pay balance amount of sale consideration, sale was not completed. In view of these reasons, undisputed contention of plaintiff that he was ready and willing to perform his part of transaction it is to be believed. 40. Defendants spent most of their energy in denying Exs.P-4 to P-9. The learned trial Judge on appreciation of the evidence, held that plaintiff was ready and willing to perform his part of contract. The said finding does not call for interference. For above reasons point No.2 is answered in the AFFIRMATIVE. 41. Point No.3: The main ground urged by the learned Senior Counsel for the appellant is that according to Section 61 of the Land Reforms Act, 1961 (for short, `Act'), alienation of granted land for a period of 15 years - 30 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 is prohibited. In the present case before completion of the said period of 15 years, the agreement of sale was executed. The said agreement itself is illegal, void ab initio and not enforceable by law. Such agreement is against public policy. He elaborated the said points and contended that trial court has not considered the same and erroneously granted the relief. He has relied on the judgment of Hon’ble Supreme Court in the case of Narayanamma and another Vs. Govindappa and others, reported in (2019) 19 SCC 42. 42. Learned counsel for plaintiff contends that Section 61 of the Land Reforms Act is not applicable to agreement of sale. The term ‘agreement of sale’ is not included in Section 61 of the Land Reforms Act. It only prohibits sale, gift, exchange, mortgage, lease or assignment. What is not stated by the Legislation cannot be incorporated by the Courts. If Legislature intended to prohibit even an agreement of sale, then they could have included the same in Section 61 of the Land Reforms Act. - 31 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 It means that an agreement of sale could be executed and the only restriction is such an agreement cannot be enforced till completion of non alienation period. 43. I have anxiously considered the contention of both the parties in this regard. To analyze this contention, it is necessary to refer to Section 61 of the Land Reforms Act, which reads as under: “ Section 61: Restriction on transfer of land of which tenant has become occupant.— (1) Notwithstanding anything contained in any law, no land of which the occupancy has been granted to any person under this Chapter shall, within fifteen years from the date of the final order passed by the Tribunal under subsection (4) or subsection (5) or subsection (5A) of section 48A be transferred by sale, gift, exchange, mortgage, lease or assignment; but the land may be partitioned among members of the holder’s joint family, (2) Notwithstanding anything contained in subsection (1), it shall be lawful for the occupant registered as such or his successor in title to take a loan and mortgage or create a charge on his interest in the land in favour of the State Government, a - 32 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 financial institution, a co operative land development bank, a cooperative society or a company as defined in Section 3 of the Companies Act, 1956 in which not less than fifty one per cent of the paid up share capital is held by the State Government or a Corporation owned or controlled by the Central Government or the State Government or both for development of land or improvement of agricultural practices; or for raising educational loan to prosecute the higher studies of the children of such person and without prejudice to any other remedy provided by any law, in the event of his making default in payment of such loan in accordance with the terms and conditions on which such loan was granted, it shall be lawful to cause his interest in the land to be attached and sold and the proceeds to be utilised in the payment of such loan. Explanation – For the purpose of this subsection, “Higher Studies” means the further studies after Pre-university Examination or 12th Standard Examination conducted by CBSE or ICSE or any Diploma courses. (3) Any transfer or partition of land in contravention of Subsection (1) shall be invalid and such land shall vest in the State Government free from all encumbrances and shall be disposed in accordance with the provisions of Section 77.” - 33 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 44. Section 61 of the Act makes it very clear that no land of which the occupancy right has been granted to any person under this Chapter shall, within fifteen years from the date of the final order passed by the Tribunal, shall transfer by sale, gift, exchange, mortgage, lease or assignment. Section 61(3) of the Act is like a penal proviso. It states that any transfer of such land in contravention of Section 61(1) of the Act, is invalid and such land vests in Government free from all encumbrances. The grantee as well as transferee will lose their respective rights over such property. 45. The object of enactment of the Karnataka Land Reforms (Amendment) Act, 1974 was to implement more equitable land distribution and abolish intermediaries in land ownership, in line with the principles of social justice enshrined in the Indian constitution. The act aimed to eliminate absentee landlordism by conferring ownership rights on actual tillers of the land. It recognized rights including conferring ownership rights to the tenants under - 34 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 specific conditions, aiming to enhance agricultural productivity and rural welfare. 46. Similarly restriction imposed by the Section 61 of the Act is with intent to prevent exploitation of land grantees, who may be socially or economically vulnerable, by the wealthier individuals who could coerce or manipulate them into selling their land. It was also intended to protect the interest of the beneficiaries to retain the land granted to them, thereby safeguarding their long-term economic interest as well as to prevent the re-concentration of land in the hands of a few and stop the reversal of land reforms. 47. Section 61 the Act prohibits sale along with other mode of transfer. Execution of an agreement of sale is nothing but an intention to sell the property on future date. Sale of granted land within prohibited period of 15 years is illegal sale. Therefore any agreement entered into sell such land within prohibited period is also illegal agreement. It was executed in contravention of the - 35 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 provisions of the law. Hence such an agreement is void and an unlawful agreement. 48. It is settled law that by virtue of an agreement of sale, proposed purchaser will not get any right or interest over the said property and it will not amount to transfer. It is not mandatory that before sale of a property, there shall be an agreement to sell. Therefore it appears, in Section 61 of the Act, agreement of sale is not included. That does not mean that execution of an agreement of sale during prohibition period is permitted. Such an interpretation is not possible. 49. According to Section 2(h) of the Indian Contract Act, 1872, an agreement enforceable by law is a contract, and as per Section 2(g) of the Indian Contract Act, an agreement not enforceable by law is said to be void. In the present case, undisputedly subject matter of suit is tenanted land and occupancy right was granted in favour of Kallappa during 1999 as per Ex.P-13. Undisputedly he was prohibited and prevented from alienating the said land - 36 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 for a period of 15 years. Ex P4 was executed during 2011, i.e., before completion of period of 15 years. Therefore, the said agreement of sale was executed in contravention of Section 61 of the Act. It was a void agreement and not enforceable under law. It will not become legally enforceable agreement after expiry of period of prohibition. If it is interpreted in that fashion, then all transfers which are mentioned in the said section, would also become valid after expiry of prohibited period. Hence, said argument of plaintiff is not tenable. Such an interpretation is contrary to object of Karnataka Land Reform Amendment Act, 1974, as well as Section 61 of the said act. It will allow the wealthier individuals who could coerce or manipulate a poor tenant to sell his land or to overcome the section, get execute an agreement of sale and enforce the same after period of ban imposed by the Section 61 of the Act. Then it would defeat the object of the Act. Moreover, the intention of the legislature was for the beneficiaries to retain the land granted to them, thereby safeguarding their long term economic interests. - 37 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 This also aimed to prevent the re-concentration of land in the hands of a few and to stop the reversal of land reforms efforts. All such efforts would be defeated. 50. In the case of Narayanamma (supra), the Hon’ble Supreme Court relying on its earlier judgment held that such an agreement is not enforceable at law. It is observed therein that: “ The unambiguous legislative intent was that no such mortgage, transfer, sale, etc. was permitted for a period of 15 years from the date of grant. Further, when both the parties before the court are confederates in the fraud, the court will have to find out which approach would be less injurious to public interest and in the present case, on facts, held, both, the plaintiff and the predecessor-in-title of the defendant(s) could be said to be equally responsible for violation of law. Held, if the decree were to be granted in favour of the plaintiff on the basis of an illegal agreement, which is hit by statute, it will be rendering an active assistance of the Court in enforcing an agreement which is contrary to law while rendering assistance to defendants would be purely of a passive character.” - 38 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 51. Similar facts are involved in the present case and hence the principle of law laid down in the above said judgment is applicable to the facts of the present case. In both cases question involved is whether such an agreement is enforceable? The Hon’ble Apex Court held that such an agreement is a void agreement and cannot be enforceable. 52. In the above said judgment it is also observed that, “it is a pure question of law and there is no need for pleading or framing of an issue and it could be raised even for the first time in the appellate forum”. In the present case also there was no such pleading and no issue was framed by the trial court. For the first time such point is raised before this court. Hence this court has to consider the same point since it is a question of law. 53. Co-ordinate Benches of this Court, in similar facts and circumstances, relying on the judgment of Hon’ble Apex court in the case of Narayanamma (supra), - 39 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 in the following cases held that such agreements are not enforceable and specific relief cannot be granted; (i) RSA 2221 of 2005 dated 12th March 2020, in the case of Late Laxman Lakkappa Durgannavar since dead by Lrs., Kumar Lakkappa Durugannavar and others V/s Late Donkappa Fakirappa Durugannavar since dead by Lrs., (ii) RSA 1597 of 2013 dated 2nd April 2024, in the case of T Annayappa since dead by Lrs V/s Smt Chinnamma and others, and (iii) RSA 5863/2013 and RSA 100172/2014 dated 19 November 2024 in the case of Annappa Lakkappa Biradar Patil and others V/s Bhagawwa Chimmad and others. 54. Learned counsel for the plaintiff tried to distinguish the facts of the present case with facts of Narayanamma’s case (supra) and contends that in that case prior to execution of agreement of sale, defendant had mortgaged very same property in favour of plaintiff and possession was handed over to the plaintiff. The Hon’ble Supreme Court considering transfer of possession under mortgage held that the said transaction is illegal - 40 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 and not enforceable. Apex court has not held that in case of granted land execution of an agreement of sale is not permissible during non alienation period. 55. The said submission of the learned counsel for the plaintiff is not tenable. The disputed point in the case of Narayanamma (Supra) was regarding execution of the agreement of sale and right of the agreement holder to enforce such agreement during non-alienation period. The mortgage was not disputed fact in the said case and law laid down is not in respect of mortgage. In view of the law laid down by the Hon’ble Supreme Court, in the case of Narayanamma (supra) Ex.P-4 is not an enforceable agreement. Therefore, findings of the trial Court that it is an enforceable agreement and granting the relief of specific performance of contract is contrary to the legislation as well as law laid down by the Hon’ble Apex Court. Hence, it needs interference by this Court. 56. Learned counsel for the appellant has relied on the following judgments: - 41 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 1. 2020 SCC Online Kar 5237 – Sri Gurumallappa and others vs. Anjaneyaswamy Trust and others. 2. R.S.A. No. 1597/2013 – Sri T. Annayappa by Lrs. Vs. Smt. Chinnamma and others. 3. (2024) 3 SCC 489 – Maj Gen Darshan Singh (D) by LRs. And another Vs. Brij Bhushan Chaudhary (D) by LRs. 4. (1982) 3 SCC 508 – Valiammal Rangarao Ramachar Vs. Muthukumar Swamy Gounder and Anr. 5. AIR 1986 Mad 156 – S.K. Panchaksharam Mudaliar (died) and others Vs. T.V. Kannaiah Naidu and others. 6. R.F.A. No. 1060/2003 – Moula by Lrs. Vs. Nagappa by LRs and others. 7. (2016) 1 SCC 567 – Hemanta Mondal & Ors. Vs. Ganesh Chandra Naskar) 8. 2022 LiveLaw (SC) 588 – U.N. Krishnamurthy (since deceased) thr LRs Vs. A.M. Krishnamurthy. 9. (2015 14 SCC 241 – Nanjappan Vs. Ramaswamy 10. ILR 2015 KAR 2695 – V.P. Venkatesh Vs. Smt. G. Padmavathi. 11. (1994) 1 SCC 1 – S.P. Chengalavaraya Naidu (dead) by LRs. Vs. Jagannath (dead) by LRs and others. - 42 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 Some of the judgments relied above are not relevant to the fact of present case. In some of the cases judgment in the case of Narayanamma(supra) is followed. Therefore detailed discussion is not required. 57. Learned counsel for the respondent No.1 has relied on the following judgments: 1) Parvatagouda Ninganagouda Patil and others V. Guddappa and Anr. – (2009) 1 Kant LJ 547 2) Kanai Lal Sur V. Paramnidhi Sadhukhan – AIR 1957 SC 907 3) Nathi Devi V. Radha Devi Gupra – AIR 2005 SC 648 4) State of Jharkhand and another V. Govind Singh– 2005 (10) SCC 437 5) Vemareddy Kumaraswamy Reddy V. State of A.P. – 2006 (2) SCC 670 58. The law laid down in the above judgments is not applicable to facts of present case. Undisputedly the agreement of sale was executed during the non-alienation period. It is a void and unenforceable agreement. Therefore, when the suit was filed the period of - 43 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 non-alienation was completed does not make such void agreement as valid agreement. The law laid down in the case of Narayanamma (supra) is applicable on all force to the facts of present case. The law laid down in the aforesaid cases is not applicable to the present case. 59. The trial Court has not considered this point at all. Both parties have not pleaded said facts before the trial Court and no such issue was raised. Hence, said point was not arisen for consideration. It is raised for the first time before this Court. In view of the law laid down in the case of Narayanamma (supra), said point has to be considered by this Court. For above discussion, this point is answered in the AFFIRMATIVE. 60. Point No. 5: Hardships of the parties has to be considered under Section 20 of the Specific Relief Act before granting or rejecting the relief of specific performance. Undisputedly defendant No.2 (a) lost her husband in her middle age. She has two daughters and one son. They were said to be students at the time of - 44 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 filing of the suit. According to the contention of the defendant, except income from the suit property, they have no other source of income. She has to educate and arrange marriage of two daughters out of them one is minor. Both her husband and father-in-law were said to be drunkards and squandered the family income. Under such circumstances, if relief of specific performance is granted, defendants will be put to more hardship. 61. Plaintiff is a real estate dealer. He could be compensated by ordering of refund of earnest money with reasonable rate of interest. Undisputedly possession of property was not given to him. Hence, if specific relief is not granted he would not be put irreparable loss. 62. It is true that in the cross-examination of DW-1, she has stated that she has executed an agreement of sale in favour of a third person agreeing to sell the property for Rs.1,50,00,000/-. But there is no material on record about the same. It is a stray statement. Without pleadings, a stray question was asked to DW-1. Probably she must - 45 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 have stated to show that the present market value of the property is more than Rs.1.50 crores. Much importance can’t be given to such statement. Considering these facts she would suffer more hardship if the relief of specific performance is granted. For above discussion point No.5 is answered in favour of appellant. 63. Plaintiff is not entitled for the relief of specific performance on two grounds; firstly the agreement is void and not enforceable and secondly on the ground of hardship caused to the defendants. Therefore alternative relief of refund of earnest money with interest at the rate of 15% pa is to be granted. It appears, during 2011-12 lending rate of interest charged by the commercial banks was around 15% pa. Hence, same rate of interest is to be applied to the facts of present case. Interest shall be payable from the date of suit till its realization. 64. For the aforesaid discussion, I proceed to pass the following: - 46 - NC: 2025:KHC-D:7065 RFA No. 100525 of 2022 ORDER Appeal is allowed. No costs. Judgment and decree dated 03.08.2022, passed by the Principal Senior Civil Judge and CJM Dharwad in O.S.No.511/2014 is set aside. Defendants are directed to refund the earnest money to the plaintiff with interest at the rate of 15% p.a. from the date of suit till its realization; Draw decree accordingly. Registry is directed to send back the trial Court records along with a copy of this judgment. Sd/- (UMESH M ADIGA) JUDGE bvv /ct-an List No.: 2 Sl No.: 6