HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF FEBRUARY, 2026 PRESENT THE HON'BLE MR. JUSTICE D K SINGH AND THE HON'BLE MS. JUSTICE TARA VITASTA GANJU REGULAR FIRST APPEAL NO. 139 OF 2015 (SP) BETWEEN: 1. SMT. PRABHAVATI W/O LATE S. NANJUNDAIAH, AGED ABOUT 72 YEARS, 2. KUM. SUMANA D/O LATE S. NANJUNDAIAH, AGED ABOUT 31 YEARS, BOTH ARE RESIDING AT RESIDING AT NO.24, PEARL GARDENS, VAJARAHALLI, TALAGHATTAPURA POST, KANAKAPURA MAIN RAOD, BANGALORE SOUTH TALUK, BANGALORE-560062. …APPELLANTS (BY SMT. SRUTI CHAGANTI, ADVOCATE FOR SRI. S. SUNIL, ADVOCATE) AND: 1. SMT. BHAGYAMMA W/O LATE KRISHNAPPA, AGED ABOUT 45 YEARS, 2. CHI. VISHAL S/O LATE KRISHNAPPA, AGED ABOUT 11 YEARS, MINOR, REPRESENTED BY HIS MOTHER/ NATURAL GUARDIAN, Digitally signed by S NOORUNNISABEGUM Location: HIGH COURT OF KARNTAKA HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 2 - SMT. BHAGYAMMA 3. SRI. CHOODAPPA S/O LATE DODDAIAH, AGED ABOUT 53 YEARS, RESPONDENTS NO.1 TO 3 ARE RESIDING AT BHAKTIPURA VILLAGE, MAYASANDRA POST, ATTIBELE HOBLI, ANEKAL TALUK, BANGALORE-562 107. …RESPONDENTS (BY SRI. T.N. VISWANATH, ADVOCATE FOR R1 (R2 IS MINOT REPRESENTED BY R1); SRI V. VISHWANATH SHETTY, ADVOCATE FOR R3) THIS RFA IS FILED U/S SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 21.10.2014 PASSED IN O.S.NO.771/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC AT ANEKAL, PARTLY DECREEING THE SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT. THIS RFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 03.11.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, HON'BLE MS. JUSTICE TARA VITASTA GANJU PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE D K SINGH & HON'BLE MS. JUSTICE TARA VITASTA GANJU CAV JUDGMENT (PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU) 1. The present appeal has been filed by the appellants/defendants seeking to set-aside the Judgment and Order dated 21.10.2014 in O.S.No.771/2011 passed by the learned Senior Civil Judge and JMFC at Anekal. HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 3 - (hereinafter referred to as "Impugned Judgment"). By the Impugned Judgment, the suit of the respondents/plaintiffs was partly-decreed and their prayer for the relief of specific performance of the contract was dismissed. In addition, the appellants/defendants were directed to refund to the respondents/plaintiffs the advance paid in sum of Rs.16,25,000/- along with interest at the rate of 9% per annum from the date of suit. The parties are also referred to as per their title before the learned Trial Court. 2. This Court by its order dated on 16.04.2015 has while admitting the appeal stayed the execution of the decree. 3. The facts that are relevant are, that one Sri.S.Nanjundaiah, who was the husband of appellant No.1/defendant No.1 and father of appellant No.2/defendant No.2 is the owner of the property bearing Sy.No.89 measuring 1 acre 21 guntas and Sy.No.28 measuring 0.20 guntas, both situated at Bhaktipura village, Attibele Hobli, Anekal Taluk, Bangalore District (hereinafter referred to as the 'suit properties’). The said HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 4 - Sri.S.Nanjundaiah agreed to sell the suit properties for Rs.21,25,000/- for which purpose an Agreement to Sell dated 15.11.2002 was executed in favour of one Sri. Krishnappa and Sri. Choodappa (plaintiffs) [hereinafter referred to as the “Agreement to Sell”] and an advance sale consideration of Rs.16,25,000/- was paid. It was further agreed by the parties in the Agreement to Sell that the registered sale deed would be executed after receiving the balance consideration amount of Rs.5,00,000/-. The Agreement to Sell, however did not set out any time frame for the completion of the sale. 3.1. It is the case of the respondents/plaintiffs that the said Sri. S.Nanjundaiah kept postponing the execution of the sale deed for one or another reason and subsequently the said Sri. S.Nanjundaiah passed away. The plaintiffs/ respondents approached the appellants/defendants on several occasions and requested them to execute the registered sale deed by receiving the balance consideration amount. However, the appellants/defendants HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 5 - failed to do so. The plaintiffs/respondents were thus constrained to send a legal notice dated 21.09.2011. 3.2. Since in spite of service of the notice calling upon the appellants/defendants to supply the revenue documents and execute the sale deed and receive the balance consideration, the appellants/defendants failed to execute the sale deed, the respondents/plaintiffs filed a suit seeking a decree for specific performance. 3.3. The appellants/defendants entered appearance and filed their Written Statement denying all the averments in the plaint. The appellants/defendants further contended that Sri. S.Nanjundaiah had not executed the Agreement to Sell since there was no legal or family necessity to enter into such an agreement. In addition, the appellants/defendants also took the defence that respondents/plaintiffs do not have the financial capacity to purchase the suit property or to pay the balance sale consideration. It was further stated that the Agreement to Sell has only been created with an intention to grab the suit properties. HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 6 - 3.4. On the basis of the pleadings and contentions of both the parties, the learned Trial Court framed the following issues: i. “Whether plaintiffs prove that the regarding executing an agreement dated 15.11.2002 by S. Nanjundaiah husband of defendant No.1 and father of defendant No.2 in favour of Krishnappa is the husband of plaintiff No.1 and father of plaintiff No.2 by agreeing to sell the suit schedule property for Rs.21,25,000/-? ii. Whether plaintiffs further prove regarding advancement Rs.16,25,000/- by the deceased Krishnappa and Choodappa, as earnest money? iii. Whether plaintiffs prove that they were ever ready and willing to perform their part of contract? iv. Whether defendants prove regarding concoction and creating of the agreement by plaintiffs? v. Whether the plaintiffs are entitled for the relief as sought? vi. What order or decree? 3.5. During the pendency of the suit, the handwriting expert was appointed by the Court to identify and detect any forgery in the Agreement to Sell. The report of the Expert Commissioner was exhibited as Ex.C1. The Commissioner, by his report dated 13.01.2014 gave a finding that signatures on the Agreement to Sell and HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 7 - signatures on the other documents are at variance with each other. 3.6. Plaintiff No.3 examined himself as PW1 and stated that Sri. S.Nanjundaiah offered to Sri. Krishnappa and Sri. Choodappa to sell the suit properties for a sum of Rs.21,25,000/- and paid an advance sale consideration of Rs.16,25,000/-. The sale deed was to be executed by paying the balance amount of Rs.5,00,000/-. However, it was contended that the sale deed was not executed since Sri. S.Nanjundaiah postponed the same and thereafter passed away and the legal heirs of Sri S. Nanjundaiah did not execute the sale deed. 3.7. Appellant No.1/Defendant No.1 examined herself and stated that her husband Sri. S.Nanjundaiah never executed any Agreement to Sell, that he never received any payment and that the plaintiffs/respondents have forged the signature of Sri. S.Nanjundaiah on the Agreement to Sell dated 15.11.2002. HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 8 - 4. The learned Trial Court also examined C.W.1, the officer of the Forensic Science Laboratory, Bangalore, and the report of C.W.1 and gave its finding that if the respondents/plaintiffs had created the Agreement to Sell by forging the appellants/defendants’ signatures, the appellants/defendants would have taken steps against the respondents/plaintiffs but since they did not do the same, it goes to show that the appellants/defendants were aware about the Agreement to Sell. It was further held by the learned Trial Court that the respondents/plaintiffs have proved their case by oral and documentary evidence. 4.1. In addition, on the issue of the readiness and willingness of the respondents/plaintiffs to perform the contract, the learned Trial Court also gave a finding that during the lifetime of Sri. S.Nanjundaiah, demands were made for execution of the sale deed and also after the death of Sri. S.Nanjundaiah, respondents/plaintiffs have paid more than 70% of the sale consideration. Thus it was held that the respondents/plaintiffs were ready and willing to perform the contract. In these circumstances, the HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 9 - learned Trial Court found that the respondents/plaintiffs have proved the execution of the Agreement to Sell and also proved that Sri. S.Nanjundaiah received Rs.16,25,000/- as earnest money and held that since the Agreement to Sell was of the year 2002 and the judgment was given in the year 2014, the suit properties could not be sold on the market value fixed in the year 2002. Thus, it was held that earnest money which was paid, be refunded to the respondents/plaintiffs along with interest at the rate of 9% per annum. 5. Learned counsel for the appellants/defendants have contended that the Agreement to Sell is a false and fabricated document and that there was no legal or valid necessity to execute the alleged agreement. In addition, it was contended that the suit filed was barred by limitation and the court fee paid was insufficient despite which the suit was partly decreed. Lastly, it was contented that the respondents/plaintiffs were not ready or willing to pay the balance consideration and that the findings of the learned Trial Court in this behalf were not correct. HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 10 - 6. The respondents/plaintiffs on the other hand contended that the Agreement to Sell was a legal and valid document executed by Sri. S.Nanjundaiah and that the payment of Rs.16,25,000/- was made as an advance. It was further stated that despite the respondents/plaintiffs’ repeated request, the sale deed was not registered by Sri. S.Nanjundaiah during his life time. It was averred that subsequently, Sri. S.Nanjundaiah passed away and his legal heirs did not execute the sale deed in favour of the respondents/plaintiffs and that the respondents/plaintiffs had already paid Rs.16,25,000/- as consideration which is more than 70% advance and thus, the Agreement to Sell should not be interdicted. 7. The question that arises for the consideration of this Court is whether there existed a valid Agreement to Sell in performance of which an amount of Rs.16,25,000/- was paid in cash to Sri S.Nanjundaiah. 8. The appellants/defendants have challenged the Impugned Judgment and the finding that the Agreement to Sell was proved and that they are liable to refund the HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 11 - advance payment made. It is the case of the respondents/plaintiffs that the Agreement to Sell was executed by Sri. S.Nanjundaiah and that Rs.16,25,000/- was paid in cash. While it is the case of the appellants/defendants that no such agreement was ever entered into since there was no legal necessity or requirement to execute the same. 9. An examination of the Agreement to Sell dated 15.11.2002 (Ex.P1) sets out in its recitals that land is being sold for the needs of family and it further states that Agreement to Sell is being made for two parcels, 1 acre and 21 guntas in Survey No.89, Bhaktipura Village and 20 guntas in Survey No.28, Bhaktipura Village, for a total sale consideration of Rs.21,25,000/-. The Agreement to Sell further sets out that the balance sale consideration shall be paid at the time of registration and that the Purchaser(respondents/plaintiffs) shall be entitled to obtain necessary documents required for registration. The relevant extract of the agreement is below: “Out of the said total sale consideration, in the presence of the witnesses mentioned below, a sum of 16,25,000 HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 12 - (Rupees Sixteen Lakhs and Twenty-Five Thousand only) has been received in cash by me from the purchasers. The balance amount of ₹5,00,000 (Rupees Five Lakhs only) shall be paid before the Sub-Registrar at the time of registration, and I shall, without any dispute or obstruction, execute and register the sale deed in their favour. From this day onwards, the purchasers shall be entitled to obtain all the necessary documents required for registration, and on that very day, I shall execute and register the sale deed in their favour. If, for any reason, the purchasers fail to get the sale deed registered, the advance money received by me shall be treated as capital amount, and if we, the vendors, fail or neglect to execute the sale deed, the purchasers shall have every right to present this Agreement of Sale before the Court and get the same compulsorily registered through Court. From this date, the purchasers shall have absolute rights, title, interest, and enjoyment over the said lands including the right over trees, water sources, deposits, and all other natural and attached benefits-and they, their children, and descendants shall peacefully and happily enjoy the same hereditarily. There is no kind of dispute or encumbrance over the said lands. If, at any time, any dispute arises in connection with the said lands, we ourselves shall settle the same at our own cost and responsibility.” [Emphasis Supplied] 10. Since the signatures on the Agreement to Sell were disputed, the learned Trial Court got an expert opinion from the State Forensics Science Laboratory at Madiwala, Bangalore, wherein the Agreement to Sell with the questioned signatures [Ex.P1(a) and Ex.P1(b)] and other HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 13 - documents with the signatures of Sri S.Nanjundaiah [Ex.D1(a), Ex.D3(a) to Ex.D3(d)] were examined. The expert was also examined by the learned Trial Court. By its Report dated 13.01.2014, [Ex.CW-1], the officer opined that the signatures did not tally on the documents stated to be signed by Sri. S.Nanjundaiah and the Agreement to Sell. In addition, it was opined that the signatures on the other documents are smooth, clear and rhythmic and are found written by one person in the normal form of execution. However the questioned signatures [Ex.P1(a) and P1(b)] are not so freely and firmly written and the quality of the strokes is also not smooth and uniform. The relevant extract of the forensic expert report [Ex.CW-1] is as under: “My opinion is based on the following observations” The signatures marked as Ex.D1(a), Ex.D3(a) to Ex.D3(d) are freely and firmly written along with smooth, clear, rhythmic and uniform quality of strokes formation. These signatures are showing internal consistency in writing habits and possess natural variations between them without any differences in basic writing habits and they are found written by one and the same person in normal form of executions. HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 14 - On examination of the signatures marked as Ex D1(a), Ex.D3(a) to Ex.D3(d) on one hand and the questioned signatures marked as Ex.P1(a), P1(b) on the other, it is found that the questioned signatures marked as ExP1(a), P1(b) are not so freely and firmly written as that of the signatures marked as Ex.D1(a), Ex.D3(a) to Ex.D3(d), the quality of strokes in questioned signatures marked as Ex.P1(a), P1(b) is not so smooth, clear, rhythmic and uniform as that of in signatures marked as Ex.D1(a), Ex.D3(a) to Ex.D3(d). In addition, the questioned signatures marked as Ex. P1(a), Ex.P1(b) are also showing significant divergences with that of the signatures marked as Ex.D1(a), Ex.D3(a) to Ex.D3(d) in the minute and inconspicuous details of the execution of characters "S.N.a.n,d & terminal finish" with respect to nature and movement of their commencement, shape and movement in formation of their body strokes, movement in combination and termination of strokes, nature and direction of finishing strokes, as found in signatures marked as Ex.D1(a), Ex.D3(a) to Ex.D3(d) are altogether found divergent in questioned signatures marked as Ex.P1(a), P1(b) with different movement, shape, formation and finish. Divergences in freedom of movement, writing skill, speed, rhythm and quality of strokes formation are also observed. The divergences in writing habits which observed in questioned signature marked as Ex.P1(a), P1(b) with that of the signatures marked as Ex.D1(a), Ex.D3(a) to Ex.D3(d) are fundamental in nature and they are beyond the range of natural variations and intended disguise and when they are considered collectively, they are sufficient to express the negative authorship of questioned signatures marked as Ex.P1(a) & P1(b). [Emphasis supplied] 11. The Report of the expert (Ex.CW-1) is clear wherein it is stated that the signatures on the documents submitted by the learned Trial Court do not tally with HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 15 - those on the Agreement to Sell. However, the learned Trial Court, despite taking the opinion into consideration, gave its finding that the Agreement to sell stood proved by comparing the admitted signatures and relying on Section 73 of the Indian Evidence Act, 1872. It was held that Section 73 of the Evidence Act permits the comparison of admitted and disputed signatures, and that the admitted signatures appear to be similar with the disputed signatures. However, since there is a gap of more than 10 years, a natural difference would occur between the signatures of a person. In addition, a finding was given by the learned Trial Court holding that if indeed the Agreement to Sell was fabricated, the appellants/defendants would have taken steps against the respondents/plaintiffs, but no such steps have been taken. {{{{ 12. This Court is unable to agree with the findings of the learned Trial Court. Since the signatures were disputed, the learned Trial Court appointed a handwriting expert from the department of Forensic Science Laboratory to examine the documents. However, thereafter the learned HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 16 - Trial Court failed to rely on the expert’s opinion. The expert examined the documents as is set out in the paragraphs above. The expert found a clear distinction between the two signatures. In these circumstances, for the learned Trial Court to give a finding that the 10 years gap would alter the signatures, and that the appellants/defendants did not take any steps against the respondents/plaintiffs upon becoming aware of the Agreement to Sell, cannot be the adequate ground for the learned Trial Court to ignore the opinion of the expert and the evidence on record. 13. In addition, the learned Trial Court has failed to consider the evidence of DW1, who is the wife of Sri. S.Nanjundaiah who, in her cross-examination has stated that the Sri. Krishnappa and Sri. Choodappa were tenants and wanted Sri. S.Nanjundaiah to sell the property to them. However, no Agreement to Sell was executed by Sri. S.Nanjundaiah and no payment was received as advance. DW 1 has also averred in her evidence that revenue records of the suit properties were updated after HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 17 - the death of her husband. The cross-examination of D.W.1 is extracted below: “I have visited Bhaktipura, seen the lands, and the last time I went there have was about three to four months ago. The suit lands are vacant; no crops are being cultivated there. It is true that in the pahani of 2010-11 it is written that there was a ragi crop, but we did not grow it. When the law 'Tenant is the Owner' came into force, Krishnappa and Choodappa had also thought of filing an application, but to say that my husband told them not to apply because he would sell it to them is not true. Survey number 89, item number 1, was regularised in 2003-04, and survey number 28 was re-regularised in 2009-10. Suit item number 1 was mutated in 2003-04, and suit item number 2 was mutated in 2009-10. Regarding that, I have the documents with me and I will produce them before the court. It is true that my husband has passed away. My husband died in the month of November 2004. Even though he died within six months after the khata was made. It is not true that during my husband's lifetime he had made an agreement with Krishnappa and the third party to sell the suit property. It is not true that for house expenses, my husband agreed to sell the suit properties for Rs.21,25,000 and wrote an agreement. It is false that he received Rs.16,25,000 as advance. It is false that the balance 5,00,000 was to be received at the time of registration after getting the khata and revenue records transferred. It is false that such an agreement took place and that my husband had told me about it. It is not true that even though I know all the facts of the case, I am giving false evidence. lt is not true that according to the agreement, if registration was not done, my husband had agreed that the money paid could be recovered by attachment. It is false that my husband had decided that if he failed to act according to the agreement, a case could be filed in court and the sale could be enforced. I do not know who Lakshmaiah, Muniraju, Pillappa, B. Patel, Muniyappa, and Basappa are. It is not true that the sale transaction HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 18 - took place in the presence of the above-said persons and that all of them signed as witnesses, and that I know all these facts. I do not know that the person who has put the initials (B-kalam) is Anil Kumar, advocate from Bengaluru. [Emphasis Supplied] 14. In addition and in any event, in the entire judgment there is no finding either on the delay in filing of the suit or whether it has been filed within limitation. No finding on the readiness and willingness of the plaintiffs/respondents has been given either. ]15. The limitation period applicable to a suit for specific performance is set out in Article 54 of the Schedule to the Limitation Act, 1963 and states that limitation for a contract of specific performance is three years from the date fixed for such performance, or if no such date for specific performance is fixed, the limitation period starts when the plaintiff has noticed that the performance is refused. Article 54 of the Schedule to the Limitation Act is extracted below: 54. For specific performance of a contract. Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 19 - 15.1. The review of the Agreement to Sell shows that no such date for specific performance was fixed. 16. Indisputably, the alleged Agreement to Sell was entered into in the year 2002, while the said Sri. S.Nanjundaiah died in the year 2004. During this interregnum period, concededly no efforts were made by the respondents/plaintiffs to get the agreement executed. The legal notice dated 21.09.2011 was sent by the respondents/plaintiffs to the legal heirs of Sri. S. Nanjundaiah several years after the death of Sri.S.Nanjundaiah. No reason or explanation has been set- forth as to why the respondents/plaintiffs waited for a lapse of almost nine years to file the suit and why the suit was not filed during the lifetime of Sri.S.Nanjundaiah. 17. In addition, the readiness and willingness of the respondents/plaintiffs must also be proved in order for relief to be granted in a suit for specific performance. It is settled law that specific performance of a contract cannot be granted unless the person (plaintiff) proves his readiness and willingness to perform the contract as per HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 20 - the terms of the contract. It is apposite to set out Section 16(1)(c) of the Specific Relief Act, 1963 (hereinafter referred to as ‘the S.R. Act’) below in this behalf: “16. Personal bars to relief. -Specific performance of a contract cannot be enforced in favour of a person- (a) xxxx (b) xxxx (c) who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. 2) Explanation. For the purposes of clause (c), (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court; (ii) the plaintiff must prove performance of, or readiness and willingness to perform, the contract according to its true construction. 17.1. The Supreme Court in Kamal Kumar Vs. Premlatha Joshi and Others1 has held that specific performance is an equitable relief and that for the grant of such relief, the following material questions are required to be answered: “7. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, 1 (2019) 3 SCC 704 HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 21 - which are required to be gone into for grant of the relief of specific performance, are: 7.1. First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property. 7.2. Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract. 7.3. Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; 7.4. Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; 7.5. Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money, etc. and, if so, on what grounds. [Emphasis Supplied] 18. Although no finding has been given by the learned Trial Court on these aspects, the learned Trial Court has gone on to direct the respondents/plaintiffs to refund the amount stated to have been paid as advance with a finding that the Agreement to Sell was executed. HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 22 - 19. Concededly, the Agreement to Sell was executed between Sri. Krishnappa, Sri. Choodappa and Sri. S.Nanjundaiah. Out of the three executants of the Agreement to Sell, Sri. S.Nanjundaiah and Sri. Krishnappa had already passed away prior to the suit being filed. Smt. Prabhavathi, wife of Sri. S.Nanjundaiah who was examined as DW-1, had contended that the execution of the Agreement to Sell in respect of suit properties was sham, that the signature of Sri. S. Nanjundaiah in the Agreement to Sell was forged and that there was no legal necessity for such sale. However, the respondents/plaintiffs did not bring any evidence on record to counter this contention of appellants/defendants, or to prove the execution of the Agreement to Sell. 20. In addition, no proof of payment of money was produced by the respondents/plaintiffs before the learned Trial Court. PW1 in his evidence, other than stating that he made the payment in cash and that he approached Sri. S.Nanjundaiah on several occasions, did not produce any document in support of the fact that he had the HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 23 - money available for the payment of sale consideration. The Respondents/plaintiffs are also unable to show any such documents qua the payments made. The appellants/defendants have steadfastly denied that any payment was made to Sri S.Nanjundaiah. No evidence has been placed on record that there was legal necessity or reason for them to execute the Agreement to Sell and have deposed as such. 21. In addition, and as discussed above, the evidence of a handwriting expert [CW-1], which set out that the signatures on the Agreement to Sell are at variance, was totally ignored by the learned Trial Court. Without a valid Agreement to Sell, there would be no question of making any payment of an advance. As stated above, no evidence qua such payment has been produced either. 22. In view of the aforegoing discussions, this Court finds that the learned Trial Court has erred in its finding that Agreement to Sell was validly signed by Sri. S.Nanjundaiah and that he had received payment of advance sale consideration in a sum of Rs.16,25,000/-. HC-KAR NC: 2026:KHC:7171-DB RFA No. 139 of 2015 - 24 - Thus, so far as concerns the finding of the learned Trial Court that the suit for specific performance is dismissed, this Court is not inclined to interfere with. However, the finding that the Agreement to Sell was validly signed by Sri. S.Nanjundaiah and the advance sale consideration in a sum of Rs.16,25,000/- was received, which the appellants/defendants are liable to return along with interest, is not in accordance with law and is set aside. 23. The appeal is allowed in the aforegoing terms. All pending applications stand closed. 24. The Registry shall draw up a decree sheet accordingly. Sd/- (D K SINGH) JUDGE Sd/- (TARA VITASTA GANJU) JUDGE YN List No.: 1 Sl No.: 1