G.T. GIRISH v. Y. SUBBA RAJU (D) BY LRs & Anr.
Case at a glance
Provisions considered
- Indian Contract Act, 1872 s. 23
- Constitution of India arts. 13, 136
- Transfer of Property Act, 1882 s. 52
- Specific Relief Act, 1963 s. 23
- Government. The Act
- City of Bangalore Municipal Corporation Act, 1949
- City of Bangalore Improvement Act, 1945
- Bangalore Development Authority Act, 1976
- City of Bangalore Municipal Corporations Act, 1949
Judgment
From the Judgment and Order dated 24.08.2016 of the High Court of Karnataka at Bengaluru in R.F.A. No. 1307 of 2002. With Civil Appeal No. 381 of 2022. H G.T. GIRISH v. Y. SUBBA RAJU (D) BY LRs AND ANOTHER 997 Ms. Kiran Suri, Basant R., Sr. Advs., Mrs. Kirti Renu Mishra, Ms. Apurva Upmanyu, S. J. Amith, Krishna Kumar, Dr. (Mrs.) Vipin Gupta, Ms. Pritha Srikumar, Abhinav Ramanand, Vishnu Pazhanganat, Ms. Mansi Binjrajka, Advs. for the appearing parties. The Judgment of the Court was delivered by K. M. JOSEPH, J.
Leave granted.
The appellants are defendant 1(a), defendant 1(b) and second defendant in a Suit filed for specific performance. Defendant 1(a) and Defendant 1(b) have filed SLP(C)No.6858/2017 while defendant No.2 has filed SLP(C)No.6857/2017. The Trial Court while refusing specific performance, directed the return of the amount paid by the plaintiff under the contract. By the impugned judgment, the High Court allowed the plaintiffs appeal and directed the appellants to execute the sale deed relating to the plaint schedule property in favour of the plaintiffs (legal representatives of original plaintiff). The parties will be hereinafter referred to by their status in the Trial Court. A BRIEF OVERVIEW OF FACTS
On 04.04.1979, the plaint schedule property, which consisted of a site, was allotted to the first defendant (since deceased), by the Bangalore Development Authority (hereinafter referred to as, ‘the BDA’). Based on the allotment, a lease-cum-sale agreement was entered into between the BDA and the first defendant on 04.04.1979. The first defendant was put in possession on 14.05.1979. On 17.11.1982, the first defendant entered into the agreement with the plaintiff agreeing to execute the sale deed of the site within three months from the date on which, the plaintiff obtained the sale deed from the BDA. On 01.03.1983 and 26.04.1984, the plaintiff issued letters to the first defendant, calling upon her to execute the sale deed. The first defendant issued letter dated 08.05.1984, intimating that the plaintiff was in breach. The agreement itself had lapsed and the advance amount by the plaintiff was forfeited. After issuing Notice on 14.02.1985, the plaintiff instituted the Suit in question, seeking specific performance. The first defendant, after filing Written Statement on 14.08.1986, died pending the Suit, on 18.07.1994. The plaintiff impleaded the husband of the defendant as Defendant-1(a). A sale deed came to be executed by the BDA in favour of the son of defendant no.1 and defendant-1(a), on 19.06.1996. A B C D E F G H 998 SUPREME COURT REPORTS [2022] 8 S.C.R. A B C D E F G H Thereafter, the son executed sale deed of the plaint schedule property in favour of the second defendant. It is further not in dispute that the son of the first defendant and defendant-1(a) was impleaded as defendant- 1(b) in the Suit in the year 1997. The second defendant came to be impleaded as second defendant in the Suit in the year 1997. Both the defendant-1(b) and second defendant filed Written Statements.
The Trial Court did not decree the suit for specific performance but directed return of Rs.50,000/- with 9 per cent interest. The High Court found that the Suit is maintainable. It was further found that the second defendant is not a bonafide purchaser for value without notice of the Agreement to Sell dated 17.11.1982. It was further found by the High Court that, the alienation made in favour of the second defendant, was hit by the provisions of Section 52 of the Transfer of Property Act, 1882. Answering the point, whether the plaintiff was entitled to the relief of specific performance, it was found that, in the facts, when the entire sale consideration was paid by the plaintiff to the first defendant, nothing more remained to be done by the plaintiff, and having found that the second defendant was not a bonafide purchaser for value without notice, and taking the view that Section 23 of the Specific Relief Act, 1963 did not apply at all and there being no reason to not exercise discretion in favour of the plaintiff, the Suit was decreed by directing defendant-1(a), defendant-1(b) and the second defendant to jointly convey the plaint schedule property to the plaintiff.
We heard Smt. Kiran Suri, learned Senior Counsel on behalf of the second defendant and Shri R. Basant, learned Senior Counsel on behalf of the plaintiff. Mrs. Kirti Renu Mishra, AOR, appears in the Appeal filed by defendant-1(a) and defendant 1(b). THE CONTENTIONS OF THE APPELLANTS
Smt. Kiran Suri, learned senior counsel appearing on behalf of second defendant contended that the finding that the Suit was maintainable, was unsustainable. She contended that an agreement must be lawful, in order that a court may grant specific relief. It’s her contention that the agreement is unlawful, being opposed to public policy, and also as it was a bargain, which would defeat the provisions of the law in question, within the meaning of Section 23 of the Indian Contract Act, 1872. She invited our attention to the terms of the lease-cum-sale agreement entered into between the first defendant and the BDA. She pointed out that there was clear prohibition against the alienation of the G.T. GIRISH v. Y. SUBBA RAJU (D) BY LRs AND ANOTHER [K. M. JOSEPH, J.] 999 site or the plaint schedule property for a period of ten years. She drew support from the Bangalore Rules of Allotment, 1972 (hereinafter referred to as, ‘the Rules’).
She pointed out that the court has erred in not noticing that Rule 18(2) proclaims an embargo against alienation for a period of ten years. The very agreement relied upon by the plaintiff was unlawful, and therefore, the court could not have granted specific performance. She drew support from Judgment of this Court in Kedar Nath Motani and others v. Prahlad Rai and others1 and Narayanamma and another v. Govindappa and others2. She further contended that the Suit itself, besides being not maintainable, was premature. She elaborated and contended that, what the agreement between the plaintiff and the first defendant contemplated, was that, the first defendant would execute the sale deed in favour of the plaintiff upon the expiry of three months from the date of conveyance of sale deed executed by the BDA. The agreement of lease-cum-sale contemplated such a conveyance in favour of the first defendant only after the expiry of ten years from the date of allotment and the date of the lease-cum-sale agreement dated 04.04.1979.
The Suit is filed a good four years prior to even the expiry of ten years. She attacked the finding of the High Court that the second defendant was not a bonafide purchaser for value. She pointed out that as far as knowledge of pendency of Suit is concerned, the evidence pointed to the second defendant not being aware of the Suit, defendant-1(b) has admitted to not disclosing about the pendency of the Suit to the second defendant. The second defendant inspected the site and found it to be a vacant land except for a small shed. Regarding the finding of the High Court that the original document, evidencing delivery of possession of the plaint schedule property by the BDA to the first defendant, was not given to the second defendant and that only a photocopy was given, it is contended that second defendant was informed that the original was lost. There was already an assignment in favour of defendant-1(b).
There was no need for the second defendant to make any further inquiry. All possible inquiry was conducted by the second defendant. There is no justification for the High Court to conclude that second defendant was not a bonafide purchaser for value. As far as finding of the High Court that the second defendant, a 20-years old, at the time of the sale, did not have the wherewithal to purchase the property, it could not be justified, having regard to the evidence which established
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
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