- 1 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 6TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100161 OF 2019 (SP) C/W REGULAR FIRST APPEAL NO. 100571 OF 2019 IN RFA NO. 100161 OF 2019 BETWEEN: RAYAPPA RAMAPPA CHIPPALAKATTI, AGE 49 YEARS, OCC: AGRICULTURE, R/O. MELAVANKI-591218, TQ: GOKAK, DIST: BELAGAVI. …APPELLANT (BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE) AND: 1. YALLAPPA RAMAPPA CHIPPALAKATTI, AGE 40 YEARS, OCC: AGRICULTURE & BUSINESS, NEAR GOVERNMENT SCHOOL, GOUDAR CROSS, R/O. MELAVANKI-591218, TQ: GOKAK, DIST: BELAGAVI. 2. SMT. ADIVEWWA W/O YALLAPPA CHIPPALAKATTI, AGE 34 YEARS, OCC: HOUSEHOLD, NEAR GOVERNMENT SCHOOL, GOUDAR CROSS, R/O. MELAVANKI-591218, TQ: GOKAK, DIST: BELAGAVI. Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 3. KUMARI RENAVVA D/O. YALLAPPA CHIPPALAKATTI, AGE 14 YEARS, OCC: STUDENT, NEAR GOVERNMENT SCHOOL, GOUDAR CROSS, R/O. MELAVANKI-591218, TQ: GOKAK, DIST: BELAGAVI. 4. KUMARI LAXMI D/O. YALLAPPA CHIPPALAKATTI, AGE 12 YEARS, OCC: STUDENT, NEAR GOVERNMENT SCHOOL, GOUDAR CROSS, R/O. MELAVANKI-591218, TQ: GOKAK, DIST: BELAGAVI. 5. KUMARI KAVERI D/O. YALLAPPA CHIPPALAKATTI AGE 10 YEARS, OCC: STUDENT, NEAR GOVERNMENT SCHOOL, GOUDAR CROSS, R/O. MELAVANKI-591218, TQ: GOKAK, DIST: BELAGAVI. 6. KUMARI SAVAKKA D/O. YALLAPPA CHIPPALAKATTI, AGE 04 YEARS, OCC: NIL, NEAR GOVERNMENT SCHOOL, GOUDAR CROSS, R/O. MELAVANKI-591218, TQ: GOKAK, DIST: BELAGAVI. (RESPONDENT NO.3 TO 6 ARE MINORS R/BY THEIR NATURAL MOTHER RESPONDENT NO.2 ADIVEWWA YALLAPPA CHIPPALAKATTI. …RESPONDENTS (BY SRI. SANJAY S. KATAGERI, ADV. FOR R1; NOTICE TO R2 SERVED; R3 TO R6 ARE MINORS REPRESENTED BY R2) THIS REGULAR FIRST APPEAL IS FILED UNDER SEC. 96 OF CPC, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 12.03.2019 PASSED IN O.S. NO.387/2015 PASSED BY THE 1ST ADDITIONAL SENIOR CIVIL JUDGE GOKAK AND DECREE - 3 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 THE SUIT O.S. NO.387/2015 AS PRAYED IN THE SUIT BY GRANTING SPECIFIC PERFORMANCE OF SUIT SALE AGREEMENT, IN THE INTEREST OF JUSTICE AND EQUITY. IN RFA NO. 100571 OF 2019 BETWEEN: SHRI. YALLAPPA S/O. RAMAPPA CHIPPALAKATTI, AGE 40 YEARS, OCC: AGRICULTURE & BUSINESS, R/O. NEAR GOVERNMENT SCHOOL, GOUDAR CROSS, MELAVANKI, TQ: GOKAK, DIST: BELAGAVI, PIN CODE: 591218. …APPELLANT (BY SRI. SANJAY S. KATAGERI, ADVOCATE) AND: 1. SHRI. RAYAPPA S/O. RAMAPPA CHIPPALAKATTI, AGE 49 YEARS, OCC: AGRICULTURE, R/O. MELAVANKI, TQ: GOKAK, DIST: BELAGAVI, PIN CODE: 591218. 2. SMT. ADIVEWWA W/O YALLAPPA CHIPPALAKATTI, AGE 34 YEARS, OCC: HOUSEHOLD WORK, R/O. NEAR GOVERNMENT SCHOOL, GOUDAR CROSS, MELAVANKI, TQ: GOKAK, DIST: BELAGAVI, PIN CODE: 591218. 3. KUMARI RENAVVA D/O. YALLAPPA CHIPPALAKATTI, AGE 14 YEARS, OCC: STUDENT, R/O. NEAR GOVERNMENT SCHOOL, GOUDAR CROSS, MELAVANKI, TQ: GOKAK, DIST: BELAGAVI, PIN CODE: 591218. - 4 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 4. KUMARI LAXMI D/O. YALLAPPA CHIPPALAKATTI, AGE 12 YEARS, OCC: STUDENT, R/O. NEAR GOVERNMENT SCHOOL, GOUDAR CROSS, MELAVANKI, TQ: GOKAK, DIST: BELAGAVI, PIN CODE: 591218. 5. KUMARI KAVERI D/O. YALLAPPA CHIPPALAKATTI, AGE 10 YEARS, OCC: STUDENT, R/O. NEAR GOVERNMENT SCHOOL, GOUDAR CROSS, MELAVANKI, TQ: GOKAK, DIST: BELAGAVI, PIN CODE: 591218. 6. KUMARI SAVAKKA D/O. YALLAPPA CHIPPALAKATTI, AGE 6 YEARS, OCC: NIL, R/O. NEAR GOVERNMENT SCHOOL, GOUDAR CROSS, MELAVANKI, TQ: GOKAK, DIST: BELAGAVI, PIN CODE: 591218. (THE RESPONDENTS NO.3 TO 6 HEREIN ARE MINOR AND ARE REPRESENTED BY THEIR NATURAL GUARDIAN-MOTHER RESPONDENT NO.2 HEREIN) …RESPONDENTS (BY SRI. SHRIHARSHA A. NEELOPANT, ADV. FOR R1; SRI. B. SHARANABASAWA, ADV. FOR R2 TO R6; R3 TO R6 ARE MINORS REPRESENTED BY R2) THIS REGULAR FIRST APPEAL IS FILED U/SEC. 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DTD 12.03.2019 PASSED IN O.S.NO.387/2015 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, GOKAK, PARTLY DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 5 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) 1. RFA No.100161/2019 is filed by the plaintiff and RFA No.100571/2019 is filed by defendant No.1, challenging decree and judgment dated 12.03.2019 passed by the 1st Addl. Senior Civil Judge, Gokak in O.S.N.387/2015. 2. The plaintiff filed suit for relief of specific performance of contract. The suit was decreed in part. The trial Court rejected the prayer for specific performance of contract and granted alternative relief of refund of the earnest money with interest at the rate of 8% per annum. Being aggrieved by the same, both plaintiff as well as defendant No.1 preferred these appeals. 3. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. 4. It is the case of the plaintiff that plaintiff and defendant No.1 are brothers. Defendant No.1 is the absolute owner of the suit properties. Father of the - 6 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 plaintiff and defendant No.1 had ancestral properties. From the income derived from the said ancestral properties, suit properties were purchased in the joint names of plaintiff and defendant No.1. 5. After the death of father of the plaintiff and defendant No.1 dated 03.08.2000, there was partition among the brothers in the joint family. The suit properties were jointly allotted to the shares of plaintiff and defendant No.1 and Sy.No.564 is kept in the joint name of all the brothers. 6. Defendant No.1 to clear the debts incurred in dealing with sand business, intended to sell the suit properties and the plaintiff agreed to purchase the same. During the sale talks, it was agreed that suit properties shall be sold at the rate of Rs.12,20,000/- and earnest money of Rs.12,00,000/- has to be paid and balance amount of Rs.20,000/- shall be paid within a period of 6 months and sale deed shall be executed, after receiving the balance amount of sale consideration. Possession shall be delivered at the time of execution of the sale deed. The - 7 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 said terms of sale agreement was reduced in writing as per Ex.P1 dated 29.04.2015 and it was registered. It is further contention of the plaintiff that he was ever ready and willing to perform his part of contract, but defendant No.1 did not come forward to execute the sale deed, by receiving balance amount of sale consideration. Plaintiff issued notice to the defendant No.1 calling upon him to execute the registered sale deed. Defendant No.1 even after receiving notice, did not execute sale deed or replied to the said notice. Therefore, the plaintiff was constrained to file the suit with the reasons prayed to grant the relief of specific performance of agreement. 7. Defendant No.1 contended that the suit property is a joint family property and there was no partition between the plaintiff and defendant No.1. Two years prior to the suit, there was misunderstanding between Basappa and Siddappa, and Siddappa separated from the joint family, however, the plaintiff, defendant No.1 and another brother Somappa continued in the joint family. - 8 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 8. Defendant further contended that, Defendant No.2 is the wife of defendant No.1. She was quarrelling with defendant No.1 on trivial issues. Thereafter, she left the home of defendant No.1 and started residing with her parents along with her children, defendant Nos.3 to 6. In spite of the request made by the plaintiff and defendant No.1, she did not turn up and continued to stay in her parents’ house. Looking to the conduct of the defendant No.2, plaintiff and defendant No.1 to teach her a lesson, got executed the alleged agreement of sale, just to threaten defendant No.2 and force her to reside with defendant No.1. Defendant No.1 never intended to sell the said property and has not taken any amount of sale consideration from the plaintiff. Defendant No.1 further contended that defendant No.2 on herself or on behalf of defendant Nos.3 to 6 filed a suit for partition in O.S.No.273/2015 on the file of Principal Senior Civil Judge, Gokak and it is pending for consideration. Defendant No.1 is not the absolute owner of the suit property and he had not executed agreement of sale in favour of the plaintiff. - 9 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 Alleged argument was created by the plaintiff. With these reasons prayed to dismiss the suit. 9. From the rival contention of the parties, the trial Court framed the following issues: “1. Whether the plaintiff proves that defendant No.1 and 2 on their behalf and on behalf defendant No.3 to 6 have executed agreement of sale on 29.04.2015 in respect of suit schedule property by receiving advance sale consideration of Rs.12 lakhs out of Rs.12,20,000/-? 2. Whether the plaintiff proves that he is ready and willing to perform his part of contract? 3. Whether the plaintiff is entitled for reliefs claimed in the suit? 4. What order or decree?” 10. The plaintiff on his behalf examined 5 witnesses as PWs.1 to 5 and got marked 9 documents as per Exs.P1 to P9. Defendant No.1 on his behalf examined 2 witnesses as DWs.1 and 2 and got marked Exs.D1 to D4. It appears that on the application of the plaintiff, records were summoned from RTO Office and they were marked as Exs.C1 to C3. - 10 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 11. The trial Court heard the arguments of both the sides and after appreciating the pleading and evidence available on record, answered issue Nos.1 and 2 in the affirmative, issue No.3 partly in the affirmative and issue No.4 as per the final order. Accordingly, relief for specific of performance was rejected. But directed defendant No.1 to refund earnest money with interest. 12. I have heard the learned counsel for both the sides. 13. Learned counsel for the appellant/plaintiff submits that defendant No.1 had executed registered agreement of sale as per Ex.P1. In the written statement, he does not dispute the same, but he contends that it was executed to teach a lesson to defendant No.2. The said contention is not substantiated. 14. It is further contended that the plaintiff to prove his case examined himself as well as four witnesses and other witnesses have supported the case of the plaintiff and nothing is brought out in the cross-examination of PWs.1 to 4, to disbelieve their evidence. Ex.P1 itself - 11 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 indicates that the property was allotted to the share of defendant No.1 and even if it is considered as joint family property, there is no hurdle for the Court to decree the suit in view of the law laid down by the Apex Court in the case of A.Abdul Rashid Khan (dead) and Others Vs.P.A.K.A. Shahul Hamid and Others1 and in the case of Smt.Anitha Vaz Vs.Sri M.Rangappa Since dead by his LRs and Another2. 15. The learned advocate further contended that the plaintiff prior to filing of the suit, issued notice to defendant No.1, calling upon him to execute registered sale deed after taking balance amount of sale consideration. Defendant No.1 received the said notice, but did not respond to it; even he did not come forward to execute the registered sale deed. He committed breach of agreement. Therefore, plaintiff has filed the suit. 16. It is further contended on behalf of plaintiff that learned trial Judge answered issue Nos.1 and 2 in favour 1 (2000) 10 SSC 636 2 ILR 2007 KAR 3625 - 12 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 of the plaintiff. However, without justifiable reasons, denied the relief of specific performance under Section 20 of the Specific Relief Act, 1963. The said finding is erroneous. With these reasons, prayed to allow the appeals and direct defendant No.1 to execute registered sale deed after receiving balance amount of sale consideration. 17. Learned counsel for defendant No.1 submits that suit properties are joint family properties and jointly standing in the names of defendant No.1 and his brother. In the cross-examination of PW1, he admitted the said fact. The wife and children of defendant No.1 have filed suit for partition and it is still pending before the Court. It is case of defendant No.1 that Ex.P1 was created only to threaten or teach defendant No.2 a lesson to join his company and continue marital relationship with him. Misusing the said document, plaintiff has filed a suit. The trial Judge has not considered these facts. 18. He further contends that payment of sale consideration is not corroborated by the evidence of PWs.2 - 13 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 to 4. The plaintiff has contended that defendant No.1 intended to sell the property to re-pay the loan amount incurred in his sand business. But in the cross- examination, PW1 was unable to answer the question relating to the said fact. It indicates that there was no such loan transaction. Defendant No.1 was not in need of money to sell the suit property. Therefore, payment of Rs.12,00,000/- is also not proved. 19. It is further contended that since it was not an agreement of sale, question of defendant No.1 executing sale deed does not arise. Moreover, merely he had not replied to the notice, cannot be a ground to believe that he accepted the contention of the plaintiff. Learned trial Judge did not consider these points and erroneously answered issue Nos.1 and 2 in favour of the plaintiff, which needs to be interfered with by this Court. He further submits that the suit properties are the only lands belonging to defendant No.1. Wife and children of defendant No.1 have also filed suit for partition, which is still pending. If relief for specific performance of contract is granted, then - 14 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 defendant No.1 will be put to irreparable loss and hardship. The trial Court has considered the said fact and rejected the relief of specific performance of contract. The said finding does not call for any interference. With these reasons, prays to allow the appeal and set aside the findings on issue Nos.1 and 2 and also set aside the grant of alternative relief of refund of earnest money with interest, since defendant No.1 did not receive any amount from the plaintiff. 20. Learned counsel for the respondent Nos.2 to 6 contends that suit properties are joint family properties and they have filed suit for partition and hence the trial Court considering the said contention rejected the relief of specific performance. The amount alleged to be received by defendant No.1 is not for the benefit of the family or legal necessity. Therefore it will bind the rights of defendant Nos.2 to 6. With these reasons, prays to pass suitable orders. 21. Following questions arise for consideration: - 15 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 i. Whether, the trial Court erred in holding that Ex.P1 was executed by the defendant No.1 with an intention to sell the property? ii. Whether, the trial Judge erred in holding that the plaintiff was always ready and willing to perform his part of contract? iii. Whether, the trial Judge erred in rejecting the relief of specific performance of contract? iv. Whether, interference in the findings of the trial Court is required? v. What order? Point Nos.1 and 2: 22. PW1 is the plaintiff. In his evidence, he has reiterated the plaint averments, and through him, the plaintiff got marked Exs.P1 to P9. Ex.P1 is the original agreement of sale. Exs.P2 to P4 is RTC extracts. Ex.P5 is the notice sent to defendant No.1 by the plaintiff. Ex.P6 is the postal acknowledgement; and Exs.P7 to P9 is R.C. extract. 23. The plaintiff examined PW2 to PW5, who are the witnesses to Ex.P1. In their evidence, they have stated about the execution of Ex.P1 by the defendant No.1 and receipt of Rs.12,00,000/-. Ex.P1 is a registered agreement - 16 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 of sale, dated 29.04.2015. The sale consideration was fixed at Rs.12,20,000/- and it is mentioned therein that Rs.12,00,000/- has been paid and the balance amount of Rs.20,00,000/- would be paid within six months and all the expenses to be incurred to execute the sale deed would be borne by the plaintiff and defendant No.1 had to execute the sale deed, after measuring the property and releasing it from all the encumbrances. 24. Plaintiff has issued notice as per Ex.P5 calling upon the defendant No.1 to execute the sale deed after receiving balance of sale consideration. Thereafter filed the suit in time. All these facts prove that he was ready and willing to perform his part of agreement. 25. The main defence of defendant No.1 is that, the property was joint family property and he was not absolute owner. PW1 in his cross-examination has stated that, “properties agreed to be sold are joint family properties”. DW1 in his cross-examination says that “there was partition between the members of the family”. Ex.P1 itself indicates that he sold joint 1/3rd share in the - 17 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 said properties. Extent as land in each survey numbers for which he is entitled are also mentioned in Ex.P1. There is no hurdle for a member of the joint family to sell his share in the property. Therefore, the said contention will not come in the way of execution of the sale deed. 26. Defendant Nos.2 to 6 have said to be filed suit in O.S. No.273/2015. Defendant Nos.2 to 6 did not file any written statement in the present case, though they have appeared through an advocate. The even not prosecuted the case or cross-examined the witnesses. 27. The contention of the defendant No.1 is that, the sale consideration was not paid to defendant No.1 by the plaintiff. PW1 in his evidence has stated about payment of part of sale consideration. PW2 in his cross- examination has stated that at the request of the plaintiff, he went to the Sub-Registrar Office at Gokak and signed on Ex.P1 and other particulars were not known to him. 28. PW4 in his cross-examination has stated that, he was not present when Rs.12,00,000/- was paid to the defendant No.1. However, he says that he signed at Ex.P1 - 18 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 after completely reading the said document and he enquired with a defendant No.1 regarding payment of the amount, thereafter signed on the said document. 29. PW5 also in his cross-examination has stated that, in his presence no amount was paid to defendant No.1. 30. Ex.P1 is a registered agreement of sale. The recitals of the said document shows about payment of Rs.12,00,000/- to defendant No.1; merely defendant No.1 contended in the written statement as well as in the oral evidence that he had not received the said amount and it was executed only to teach a lesson to defendant No.2 cannot be a ground to ignore or disbelieve the contents of a registered document. The said defence of the defendant No.1 is contrary to Section 90 of the Indian Evidence Act. He cannot be permitted to take a defence contrary to the contents of registered documents. Therefore, the said contention is not acceptable. 31. The learned trial Judge discussed the evidence of both the side in detail. Hence repetition of the same is - 19 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 not required. Learned trial Judge rightly held that defendant No.1 has executed Ex.P1 and received sale consideration of Rs.12,00,000/- with an intention to sell the property mentioned in the plaint. It is also held that PW1 was ready and willing to perform his part of agreement. 32. The defendant No.1 himself was examined as DW1 and examined one witness to disprove the case of the plaintiff. In the cross-examination he denied suggestions of the plaintiff’s case. He admits execution of Ex.P1 and signing it at the office of Sub-Registrar but says that it was executed as nominal document just to put pressure on defendant No.2 to join him. The said contention is not probable. Plaintiffs suggested that he sustained losses in sand business and hence intended to sell the properties. DW1 denied all the said suggestion. Plaintiff has proved execution of Ex.P1. Defendant No.1 has not disputed the execution and registration of said document. He contends that it was nominal document, - 20 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 executed to force his wife to join him. Said case is not probable. 33. DW2 was examined to prove that suit properties are Joint family properties and Ex.P1 was executed to force defendant No.2 to join defendant No.1. In his affidavit he has made out new case from that of defendant No.1. Looking into the contents of the affidavit filed in lieu of his examination-in-chief, shows that DW2 has more knowledge about the case than defendant No.1. From his evidence, it appears that he was examined just to prove that there was no partition between the family properties. However he admits the execution of a document. In his cross-examination, he specifically says that he saw the agreement of sale and it was not registered. Defendant No.1 executed the said document in favour of the plaintiff to sell the property for Rs.12,00,000/-. He was not present at the time of executing the said document. 34. The agreement of sale was executed on 29.04.2015; six months time was granted to execute the - 21 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 registered sale deed and before the period of six months, the plaintiff had issued the notice dated 18.09.2015 calling upon defendant No.1 to execute the sale deed by receiving the balance amount of sale consideration. The said notice was served upon defendant No.1, in spite of that, he did not execute the sale deed or responded to the said notice. It is true that, merely defendant No.1 did not respond to the said notice does not lead to presumption that he has executed the agreement of sale. However it gives an inference that inspite of notice given to him, he did not respond to it and stated his defence, which he has taken in the present suit. Therefore the defence taken in the present suit appears to be afterthought and only after filing of the suit. By oral and documentary evidence the plaintiff was able to prove before the trial Court that he was ready and willing to perform his part of the contract. Considering these evidence, the trial Court rightly held issue Nos.1 and 2 in the affirmative. 35. The trial Court mainly rejected the relief of specific performance of agreement on two grounds; one is - 22 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 hardship that would be caused if the relief of specific performance is granted and the second is the property standing in the joint name of parties and there is no partition. 36. Whether the joint family property could be sold by one of the member of the family is not remained res integra. 37. The Coordinate Bench of this Court in the case of ANITHA VAZ VS. M.RANGAPPA SINCE DEAD BY HIS LRS. AND ANOTHER3, wherein at paragraph No.18, it is held as under: “18. Where the agreement of sale of a family property made by the kartha of the family is challenged by the members of the family on the ground of want of legal necessity and the prospective purchaser is not able to establish the legal necessity, the agreement is enforceable to the extent of share of the contracting party in the family property. In that event, if that share is ascertainable, the decree that can be passed would be in respect of the share of the seller in the property and the purchaser may be asked to apply for partition and get the share demarcated….” 3 ILR 2007 KAR 3625 - 23 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 38. Similarly in the case of DEVALSAB (DEAD) BY LRS. VS. IBRAHIMSAB F.KARAJAGI AND ANOTHER4, wherein it is held that, if a collusive suit is filed by a member of the family seeking for the partition that will not come in the way to direct the seller of the property to execute the sale deed. In the present case, after filing of this suit, defendant No.2 to 6 have said to be filed a suit in O.S. No.273/2015 on 07.08.2015. Therefore, the rights of the defendant Nos.2 to 6 will not come in the way to direct defendant No.1 to execute the sale deed. Therefore, the findings of the trial Court in this regard is not sustainable. 39. For above said reasons Point No.1 and 2 answered in the negative. Point No.3: 40. Learned advocate for defendant No.1 contends that defendant No.1 is agriculturist. Except suit properties, he has no other properties. He is having wife and 5 children. If specific performance is granted, defendant No.1 would be put to irreparable loss and hardship. The 4 ILR 2005 KAR 1757 - 24 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 alleged sale consideration stated in Ex.P1 is highly inadequate and its market value is more that 20 to 25 lakhs. Hence prayed to consider hardship. The properties which are stated to be allotted to the share of defendant No.1 were agreed to be sold under the agreement of sale; as per the plaint averments, only one property is left over i.e., Sy. No.285 measuring 1 acre 24 guntas. 41. In the written statement, defendant No.1 has mentioned the properties belonging to the family which are as under: !" #$"% &" '(")" '*+, - '' . / 01234*+5 6 7 8 . 6 7 8 # 3 9: # ;+ . 2 < : = 5(>?@ A :$B C@(>DA :$B C8<!& C(>A :>!9 C)-=@>BA :>?9$$@??&!9!! C$DA :B 9!D C(D?A :&9!> C@B!$A :!?9&> C (D A : ! 9 &! C@ 6 (DB A : & 9 $E C , F 2 76 8 # *+ F 6 )G F ) . 6 5 6 78 #G6)G :- 4 ' 2 F 7 ) . 6 5H - 25 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 42. Defendant No.1 contends that out of the 5 brothers, 2 brothers have separated from the family by taking the properties excluding the property mentioned in the agreement of sale. There are other properties belonging to the family. 43. Defendant Nos.3 to 6 filed suit in O.S.No.273/2015. In the said suit, after amendment to the plaint, she included in all 17 properties said to be the joint family properties and sought for partition in the said properties. 44. Plaintiff, who is defendant No.3 in the said suit, in his written statement mentioned the properties belonging to joint family and division of the property. That contention is not accepted by the defendants herein in the present suit. Moreover, undisputedly, in the written statement, the defendant himself has mentioned that the properties belong to the joint family. All these facts indicate that defendant No.1 that there are some more properties other than the properties agreed to be sold under Ex.P1. Therefore even if defendant No.1 is directed - 26 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 to execute the sale deed, no hardship will be caused to the defendant No.1. 45. Learned counsel for the plaintiff submits that no such ground was taken by defendant No.1 in the written statement and no issues were framed by the trial Court. Both the sides have not led any evidence in this regard. Therefore, the Court for the first time cannot reject the specific performance of agreement on that ground. In support of his submission, he relied on the judgment of the Hon’ble Apex Court in the case of Prakash Chandra Vs.Narayan5, wherein the Hon’ble Apex Court at paragraph 17 held as under: “17. The question as to whether the grant of relief for specific performance will cause hardship to the defendant within the meaning of clause (b) of sub-section (2) of Section 20 of the Specific Relief Act, 1963, being a question of fact, the first appellate court without framing such an issue ought not to have reversed the finding of the trial court while concurring with it on all other issues with regard to the appellant’s entitlement of relief for specific performance of contract.” 5 (2012) 5 SSC 403 - 27 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 46. In a suit filed under the provisions of Specific Relief Act, it is duty of the Court to consider the facts of readiness and willingness of plaintiff to perform his part of contract as well as hardship if any, would be caused to the defendant, if such relief is granted, as per Sections 16 & 20 of Specific Relief Act. 47. In this case the defendant No.1 denied execution of Ex.P1 and entire case of the plaintiff; then also the Court has to frame an issue in respect of “readiness and willingness” of the plaintiff to perform his part of obligation. 48. In addition to that defendant Nos.2 to 6 have also filed suit for partition in respect of suit property of the present suit as well as other properties. Considering the facts of circumstances, it is necessary to consider the hardship of defendant No.1, if specific relief is granted. 49. The law laid down in the case of Prakash Chandra was under different context and not applicable to the facts and circumstances of present case. - 28 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 50. Undisputedly defendant No.1 is an agriculturist. The contention of PW1 that defendant No.1 was dealing with sand business is not proved. He has a wife and 5 children. There is some dispute in respect of entitlement of defendant No.1 in respect of other properties belonging to the family, of course it is not relevant to this suit. In the cross-examination as PW1 it was suggested that value of the property per acre was more that 15 to 20 lakhs and PW1 has denied said suggestion but stated that it might be 3 to 4 lakhs. 51. Agreement of sale was executed during the year 2015 i.e., about 10 years prior to this date. Suit properties are said to be irrigated lands. Normally the value of the landed properties multiplies due to inflation. Considering the facts and circumstances of the case and also looking to the contention of defendant No.1 on hardship, he may suffer if specific relief is granted without rewarding additional benefit. Hence ends of justice would be met by directing the plaintiff to pay additional amount - 29 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 of Rs.10,00,000/- towards sale consideration, in addition to whatever is agreed in Ex.P1, by them. 52. For the aforesaid discussions, point No.3 is answered in the affirmative. 53. In RFA No.100571/2019, defendant No.1 challenged the finding on issue Nos.1 and 2 by the trial Court. By detailed discussion, it is answered in favour of the plaintiff in the above paragraphs. Therefore, interference in the said finding is not required. 54. For the reasons stated above, on point No.4, I proceed to pass the following: ORDER i. RFA No.100161/2019 is allowed. ii. RFA No.100571/2019 is dismissed. iii. The judgment and decree dated 12.03.2019 passed in O.S.No.387/2015 by the I Addl. Senior Civil Judge, Gokak is modified. iv. The suit for specific performance of contract is decreed. The defendant No.1 is directed to execute registered sale deed after receiving balance amount of sale consideration of - 30 - NC: 2025:KHC-D:4376 RFA No. 100161 of 2019 C/W RFA No. 100571 of 2019 Rs.20,000/- and additional sum of Rs.10,00,000/- from the plaintiff as observed in the judgment, within a period of 3 months from the date of this order. If defendant No.1 fails to execute the sale deed, then the plaintiff is at liberty to approach the Executing Court to enforce the decree passed by this Court. v. Both the parties shall bear their own costs. vi. Draw decree accordingly. vii. Send back the trial Court records. viii. It is made clear that the said judgment will not come in the way of contentions of the parties as well as rights of the parties litigating in O.S.No.273/2015 pending on the file of the Principal Senior Civil Judge, Gokak. Sd/- (UMESH M ADIGA) JUDGE KGK, VNP /CT-AN List No.: 1 Sl No.: 5