- 1 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 178 OF 2007 (SP) BETWEEN: 1. SRI B K NAGARAJ, S/O LATE DODDAKANUMAPPA, DIED REP BY HIS LRS, a) YESHODAMMA, W/O LATE B.K. NAGARAJA, AGED ABOUT 53 YEARS, b) SHESHIDHARA, S/O LATE B K NAGARAJA AGED ABOUT 29 YEARS, BOTH HAVE ADDRESS AT R/AT ANJUMAN ROAD, HORAPETE , HOUSE NO.10, BEHIND ANGADO, CHITRADURGA. …APPELLANTS (BY SRI VISHNU HEGDE, ADVOCATE) AND: 1. J P NAGARAJ, SINCE DEAD BY HIS LRS 1(a) SMT JAYAMMA, AGED ABOUT 63 YEARS, W/O LATE J.P NAGARAJ, 1(b) SURESH BABU J N, AGED ABOUT 49 YEARS, S/O LATE J.P NAGARAJ, Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 1(c) RAMESH S N, AGED ABOUT 47 YEARS, S/O LATE J.P NAGARAJ, 1(d) PRAKASH J.N, AGED ABOUT 45 YEARS, S/O LATE J.P NAGARAJ, 2. B K GANGADHARAPPA, S/O LATE DODDA KANUMAPPA SINCE DEAD BY HIS LRS 2(a) B V GANGAMMA, W/O B K GANGADHARAPPA, AGED ABOUT 69 YEARS, POST OFFICE ROAD, THYAGARAJANAGAR, CHALLAKERE TALUK, CHITRADURGA DISTRICT. 2(b) B.V LAKSHMI, W/O G V PUTTASWAMY, AGED ABOUT 52 YEARS, BANNIMANTAPA SANTHE BEEDHI, HIRIYUR TALUK, CHITRADURGA DISTRICT. 2(c) G YESHWANTH KUMAR, S/O B K GANGADHARAPPA, AGED ABOUT 49 YEARS, POST OFFICE ROAD, THYAGARAJANAGAR, CHALLAKERE TALUK, CHITRADURGA DISTRICT. 2(d) G LAKSHMAN KUMAR, S/O B K GANGADHARAPPA, AGED ABOUT 47 YEARS, POST OFFICE ROAD, THYAGARAJANAGAR, CHALLAKERE TALUK, CHITRADURGA DISTRICT. 2(e) G SAVITRI, W/O V ANAND, AGED ABOUT 45 YEARS, BELEGARA STREET, BEHIND BAPUJI SCHOOL, PAVAGADA, PAVAGADA TALUK, - 3 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 TUMKUR DISTRICT. 2(f) G LALITHAMMA, W/O ADINARAYANA CHETTI KONDAIAH, AGED ABOUT 43 YEARS, PATHAPURA, ANANTHAPURA DISTRICT, ANDHRA PRADESH. 2(g) G VENKATESH, S/O B K GANGADHARAPPA, AGED ABOUT 41 YEARS, POST OFFICE ROAD, THYAGARAJANAGAR, CHALLAKERE TALUK, CHITRADURGA DISTRICT. 2(h) G VIJAYA LAKSHMI, W/O ANGADI BHARATHESH, AGED ABOUT 37 YEARS, HIRE HADAGALI, HOOVINAHADAGALI TALUK, BELLARY DISTRICT. 3. SANNA JAYAMMA J, W/O GOVINDAPPA D/O LAE DODDA KANUMAPPA AGED ABOUT 65 YEARS, R/AT POONA TAILOR, CHALLAKERE TOWN. 4. LAKSHMIDEVI, W/O LACHANNA, D/O LATE DODDA KANUMAPPA, AGED ABOUT 62 YEARS, R/AT INDUSKATTE VILLAGE, HIRIYUR TALUK, CHITRADURGA DISTRICT. 5. PADMAKKA, W/O NARASIMHAIAH, D/O LATE DODDA KANUMAPPA, AGED ABOUT 58 YEARS, 6. SHARADAMMA, W/O NARASIMHAPPA, - 4 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 AGED ABOUT 57 YEARS, TADDY SALES MEN, VALMIKINAGAR, CHANNAGIRI. 7. RATHNAMMA, W/O NARAYANA SWAMY, D/O LATE DODDA KANUMAPPA, AGED ABOUT 53 YEARS, HORAPETE, KUMKUM TRADERS, R/AT KALYANA DURGA, ANANTHAPURA DISTRICT, ANDRAPRADESH. 8. GANGAMMA, SINCE DEAD BY HIS LRS 8(a) SMT VENKATAMMA, W/O VENKATESHELU, D/O LATE GANGAMMA, AGED ABOUT 49 YEARS, 8(b) SMT UMA DEVI, W/O SHANKRAPPA, AGED ABOUT 48 YEARS, 8(c) SMT ALLIVELAMMA, W/O SRINIVASALU, D/O LATE GANGAMMA, AGED ABOUT 47 YEARS, 8(d) SRI BALAJI, S/O LATE GANGAMMA, AGED ABOUT 46 YEARS, 8(e) SRI SUBRAMANIANM, S/O LATE GANGAMMA, AGED ABOUT 44 YEARS, 8(f) SRI LOKESH, S/O LATE GANGAMMA, AGED ABOUT 41 YEARS, …RESPONDENTS (BY SMT JAYASHREE NARASIMHAN, ADVOCATE FOR R1(A), SRI PRADEEP SOMAIAH B C, ADVOCATE FOR R2(A-H) & R3 TO R7, V/O/DT 09.01.2023, PARVATHI NAIR, FOR LR'S OF R1, R8(A), R8(B), R8(D) - SERVED, V/O/DT 15.04.2024 SERVICE OF NOTICE TO R8(E) - HELD - 5 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 SUFFICIENT R8(F) - HELD SUFFICIENT, V/O/DT 26.03.2024 - SERVICE OF NOTICE TO R8(C) H/S) THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 2.12.2006 PASSED IN R.A.NO.5/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), CHALLAKERE, PARTLY ALLOWING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 30.11.2004 PASSED IN OS.NO. 1907/1994 ON THE FILE OF THE ADDL.CIVIL JUDGE (JR.DN.), CHALLAKERE. THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT This Second Appeal is arising from the concurrent decree for specific performance of the contract dated 04.06.1977. The plaintiff claims that Dodda Kanumappa agreed to sell the suit property to one Obamma for a consideration amount of Rs.17,500/- and Rs.6,500/- was paid as an advance consideration amount on the date of the agreement for sale. 2. The suit is filed by the legatee of the agreement holder-Obamma on 02.06.1994. The defendants, who are - 6 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 the children of Dodda Kanumappa contested the suit, and primarily urged that the suit is time-barred. 3. Defendants also disputed the plaintiff’s claim as the legatee of Obamma. The plaintiff also asserted that he is in possession of the property. 4. The defendants took a stand that, though Obamma came into possession of the property, later noticing the fact that there is a suit between Dodda Kanumappa and his son, the possession was handed over to the defendants. 5. Defendants also contend that the possession was handed back to Dodda Kanumappa, as the agreement holder Obamma could not discharge her obligation under the agreement for sale. 6. The Trial Court concluded that the Will by Obamma in favour of the plaintiff is proved. The Trial Court also held that the plaintiff has proved the agreement for sale and he is ready and willing to perform his part of the contract. However, the Trial Court found that the defendants are in possession of the property and the plaintiff is not in - 7 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 possession and decreed the suit for specific performance, overruling the contention relating to limitation. 7. The defendants’ appeal is also dismissed. First Appellate Court also concurred with the finding of the Trial court relating to proof of the agreement, readiness and willingness and the limitation. 8. Aggrieved by the aforementioned judgments and decrees, the defendants are before this Court. 9. This appeal was admitted on 01.02.2008 to answer the following substantial question of law: “Whether the Courts below were justified in granting a decree for specific performance of an agreement of sale in a suit filed 17 years after the agreement, when the plaintiff claimed to be legatee under the Will executed by the agreement holder-purchaser?” 10. After considering the submissions made before the Court, this Court is of the view that one more substantial question of law is required to be framed and accordingly framed as under: - 8 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 “Whether the plaintiff establishes that he was ready and willing to perform his part of the contract and whether Obamma was ready and willing to perform her part of the contract”? 11. Learned counsel appearing for the defendants/ appellants would submit that the execution of the agreement was not seriously disputed. However, the execution of Will was disputed, and the legatee has not led any evidence to substantiate the claim under the Will. Instead, general power of attorney holder has been examined, and the attesting witnesses have not supported the execution of the Will. The finding relating to the proof of Will is erroneous. 12. Learned counsel urges that Obamma was illiterate, and she was unable to read and write and she has not understood the contents of the alleged Will and these suspicious circumstances are not explained by the propounder. 13. In addition, it is urged that assuming that the Will is proved and the execution of the agreement for sale is also - 9 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 proved, still the plaintiff could not succeed in the suit for two reasons, (a) there is no pleading and evidence to show that Obamma was ready and willing to perform her part of contract till her death, when she died on 08.04.1988. For 10 years, she did not make any attempt to pay the balance consideration amount, (b) there is no pleading and evidence to show that the plaintiff was ready and willing to perform his part of contract since the death of Obamma in the year 1988. 14. It is also urged that the suit is filed in the year 1994 and the suit is clearly time-barred. 15. Referring to the agreement for sale, it is urged that time was made the essence of the contract, and the agreement for sale stipulated 3 months' time to pay the balance consideration amount. The said three-months time was never relaxed, and there is no pleading that parties varied the terms relating to the time stipulation under the agreement for sale. In the absence of such pleading and - 10 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 evidence, the Trial Court could not have held that the suit is in time. 16. Learned counsel for the appellants would further submit that though a suit was filed after the agreement for sale, by vendor’s son seeking partition in O.S.No.171/ 1977, the pendency of the said suit did not come in the way of the plaintiff seeking specific performance of the contract. Assuming that because of the suit by the vendor’s son seeking partition, the purchaser did not file the suit, at least purchaser or the legatee from the purchaser should have filed suit immediately after the dismissal of the suit for partition. 17. It is also submitted that even after the dismissal of the partition suit filed by the vendor’s son and the dismissal of R.A.No.20/1983, which arose from said partition suit, the plaintiff almost took three years to file a suit and both Trial Court and First Appellate Court erred in holding that the cause of action arose after dismissal of R.A. No.20/1983 in 1991. It is urged that almost 3 years of time - 11 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 is taken by the plaintiff to initiate a suit after the dismissal of R.A.No.20/1983, and it demonstrates that the plaintiff was not ready and willing to perform his part of the contract. 18. Learned counsel for the appellants would also submit that the pendency of the suit between the vendor and his family members is not a ground for the plaintiff to defer his action for specific performance. He would also submit that there was no interim order granted by First Appellate Court restraining the party to the said proceeding from alienating the property, and the suit ought to have been filed at least after dismissal of the suit in O.S.No.171/1977. 19. Learned counsel appearing for respondents No.2 to 7 would support the submission of the learned counsel for the appellants and would submit that the plaintiff is not entitled to the discretionary relief of specific performance of the contract. It is also his further submission that the Will could not have been executed in respect of the suit property as the testator had no right over the property. The relief of specific performance is available only to the person who had - 12 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 agreed to purchase the property and not to the legatee, and for this reason, he would submit that the impugned judgments and decrees have to be set aside. 20. Learned counsel appearing for the plaintiff/ respondent would submit that the Will is duly established, and there is no need to examine the propounder to prove execution of the Will. There is no bar to examine the power of the attorney holder of the propounder to prove the execution of the Will. The law only mandates evidence of one of the attesting witnesses, and said requirement is complied and the defendants cannot dispute the execution of the Will, as the defendants are not legal heirs of deceased Obamma, the testator. 21. It is also submitted that the agreement for sale is not disputed, the executant Dodda Kanumappa has admitted the execution of the Will in the earlier suit in OS No.171/1977, and he had stated that he was ready and willing to perform his part of the contract. That being the position, the agreement is duly established. Defendants’ - 13 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 predecessor, Dodda Kanumappa, having received Rs 6,500/- in the year 1977, which formed a substantial part of the consideration amount, was bound to execute the sale deed. However, the suit for specific performance was not filed, and the sale deed was not executed, as there was an interim order granted in O.S.No.171/1977, the suit by vendor’s son, restraining the defendant-vendor in the said suit, namely Dodda Kanumappa, from alienating the suit property. 22. It is also submitted that the plaintiff was ready and willing to perform his part of the contract, but there was an appeal in R.A. No.20/1983 after the dismissal of the suit, and the appeal came to be disposed of in the year 1991. After the dismissal of the appeal, the plaintiff has approached the defendants on many occasions, requesting them to execute the sale deed. However, defendants have not denied the agreement for sale; they just postponed execution of the sale deed on one pretext or the other. And only when the plaintiff finally realised that the defendants were not willing to execute the sale deed after the notice issued by the plaintiff, the suit was filed, and the cause of - 14 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 action arose when the demand made in the notice was not complied with by the defendants. 23. Learned counsel for the plaintiff/respondent would also submit that in an agreement for sale in respect of immovable property, time is not the essence of the contract, and no prejudice is caused to the defendants in the plaintiff not filing a suit for specific performance. 24. It is also urged on behalf of the plaintiff that the plea of hardship is not raised by the defendants, and there is no reason why the Court could not have passed a decree for specific performance when execution of the agreement for sale is proved. 25. Learned counsel appearing for the contesting respondent has relied on the judgment of the Hon'ble Apex Court in Sughar Singh vs Hari Singh (Dead) through Legal representatives1. 26. This Court has considered the contentions raised at the bar and perused the records. 1 Civil Appeal No.5110/2021 - 15 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 27. The Trial Court has concluded that the plaintiff is not in possession of the suit property; however, it had granted a decree for specific performance, holding that the agreement for sale dated 04.06.1977 is proved. First Appellate Court, on an appeal filed by the defendants, has dismissed the appeal; however recorded a finding that the plaintiff is in possession of the property. 28. It is noticed from the agreement for sale dated 04.06.1977, there is no recital that Dodda Kanumappa- vendor transferred the possession of the property to Obamma-purchaser. Based on the contention in the written statement that the defendants claimed that the possession was earlier transferred to the purchaser and later Obamma, after realizing that she is not in a position to purchase the property, has handed over the possession to the defendants, First Appellate Court concluded that the plaintiff is in possession of the property. 29. As can be noticed from the recital in the agreement for sale dated 04.06.1977, there is no recital that - 16 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 Obamma was put in possession of the property pursuant to the said agreement. The Trial Court has noticed that in column No.12 of the record of right, though for some period, the name of Obamma was appearing in column No.12, later, names of the defendants were entered, and based on that has concluded that the plaintiff is not in possession. 30. First Appellate Court is not justified in concluding that the plaintiff is in possession of the property. The finding of the trial Court relating to the defendants’ possession is based on the recital in the agreement and also the revenue records. The presumption/inference from those documents is not rebutted by the plaintiff. 31. As far as the contention relating to the readiness and willingness, it is noticed that though the agreement was executed on 04.06.1977 with a stipulation that the sale deed has to be executed within three months from the date of execution of the agreement by paying the balance consideration amount. The purchaser, Obamma, has not come forward to purchase the property. It is not brought out - 17 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 in the evidence that she was ready with a balance consideration amount, or that she was ready and willing to perform her part of the contract. 32. It is also relevant to notice that a suit in O.S.No.171/1977 is filed by the son of Dodda Kanumappa seeking a share in the property. In the said suit, Obamma was made a party. There was an order of injunction against Dodda Kanumappa not to alienate the property. In the said suit, Dodda Kanumappa filed a written statement admitting the execution of the agreement and also agreed to sell the property. The said suit was dismissed in the year 1983, and an appeal was filed in R.A.No.20/1983; it was dismissed in the year 1991. 33. There is nothing on record to show that in the appeal, which was pending from 1983 to 1991, there was a restraint order against Dodda Kanumappa from alienating the property. 34. It is also forthcoming from the records that Obamma died in the year 1988; the plaintiff claims to be a - 18 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 legatee of Obamma. If that is the case, the plaintiff ought to have filed a suit immediately after the death of Obamma. That is not done. 35. Assuming that after the death of Obamma, Dodda Kanumappa agreed to sell the property and there was no cause of action for the plaintiff to file a suit, at least after the death of Dodda Kanumappa in 1990, the plaintiff should have filed a suit. The suit is not filed within 3 years from the date of the death of Dodda Kanumappa. The appeal was dismissed on 25.07.1991. Suit is filed on 02.06.1994, though technically the suit is filed within 3 years from the date of dismissal of R.A.No.20/1983; dismissal of R.A.No.20/1983 cannot be taken as the date of cause of action to file a suit. The cause of action to file a suit has arisen three months after the expiry of the agreement for sale, which stipulated three months' time to pay the balance consideration amount by the purchaser, Obamma. 36. It is also relevant to notice that from 1983 to 1991, there was no interim order against the vendor, and - 19 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 the purchaser died in the year 1988, and thereafter the plaintiff, who is claiming through the Will said to have been executed by the vendor, filed a suit. These aspects were not considered by the Trial Court. 37. It is also relevant to notice that, assuming that the cause of action arose after the dismissal of the appeal on 25.07.1991, still the plaintiff has not chosen to file the suit immediately, and he has filed the suit almost 2 years and 7 months after the dismissal of the appeal. This factor would suggest that the plaintiff was not ready and willing to perform his part of the contract. 38. Moreover, it is also noticed that he is not the person who has entered into the contract; it was Obamma who had entered into the contract, and she did not pursue a remedy by filing a suit for specific performance, though she lived 10 years after the agreement which stipulated three months to perform the contract. 39. Learned counsel appearing for the contesting respondents has relied on the judgment passed by the - 20 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 Hon'ble Apex Court in the case of Sughar Singh supra to contend that once the agreement is held to be proved, there has to be a decree for specific performance. 40. This Court has considered the said judgment. It is noticed from the facts of the said case that there was an agreement for sale dated 10.10.1976, which stipulated the sale deed to be executed before the expiry of two years from the date of the agreement. The purchaser paid one more installment and thereafter, after the expiry of the year's period stipulated in the agreement, the purchaser paid one more installment, which clearly would indicate that the condition was relaxed and the time stipulated under the agreement for sale was extended, which is not the case here. It is also noticed that in the said case, the suit was filed in the year 1984 after the extension of time by both parties. 41. Under these circumstances, the Hon'ble Apex Court has held that the agreement for sale was proved, and there has to be a decree for specific performance. It is also - 21 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 relevant to notice that in the said case, the property was agreed to be sold for Rs.56,000/- and Rs.40,000/- was paid in different installments. The remaining balance amount was only Rs.16,000/-, and a substantial amount was paid, which would in any way indicate readiness and willingness and the suit was filed within the extended time. 42. Whereas in the instant case, the property was agreed to be sold for Rs.17,500/- and the amount paid was only Rs.6,500/-. Hence, this Court is of the view that the said judgment does not come to the aid of the contesting respondents. 43. The revenue records would indicate that Obamma's name was deleted from column No.12 and name of Dodda Kanumappa was entered in column No.12, which would demonstrate that Obamma was not keen on specific performance. 44. Learned counsel for the appellants submits on instructions from the appellants that despite there being no liability to pay the consideration amount as the suit is time - 22 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 barred, and even if the consideration amount if repaid along with interest @ 8% per annum, the amount payable does not exceed Rs.25,000/-, to put a quietus to the litigation, the appellants are ready to pay Rs.1.00 lakhs without prejudice to the contentions. 45. Submission is placed on record. 46. Hence, the following: ORDER (i) Appeal is allowed. (ii) Judgment and decree dated 02.12.2006 in R.A. No.05/2005 on the file of Civil Judge (Sr.Dn.) Challakere are set-aside. (iii) Judgment and decree dated 30.11.2004 in O.S. No.1907/1994 on the file of Additional Civil Judge (Jr.Dn.) Challakere are set-aside. (iv) Suit of the plaintiff for specific performance of contract in O.S. No.1907/1994 on the file of Additional Civil Judge(Jr.Dn.)Challakere is dismissed. (v) Since the appellants / defendants have undertaken to pay Rs.1,00,000/-, same shall - 23 - HC-KAR NC: 2025:KHC:27332 RSA No. 178 of 2007 be deposited within 60 days from today before the Trial Court. (vi) In case, amount is not deposited within 60 days from today, same shall carry interest at the rate of 6% per annum after expiry of 60 days from today till payment. Sd/- (ANANT RAMANATH HEGDE) JUDGE GVP/BRN List No.: 1 Sl No.: 44