The High Court
Case Details
- 1 - NC: 2025:KHC:13040 RSA No. 1051 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO.1051 OF 2014 (SP) BETWEEN: 1. 1(a) 1(b) Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka 1(c) MR ROBERT PINTO, S/O LATE PETER PAUL PINTO, R/AT 201, KADRI TOWERS, ALVARES ROAD, KADRI, MANGALORE-575 002. SINCE DEAD BY LRs 1(a-d) SMT. LILY PINTO, W/O ROBERT PINTO, AGED ABOUT 72 YEARS, R/A FLAT NO.201, KADRI TOWERS, ALVARES ROAD, KADRI, MANGALORE - 575 002. ROSHAL PINTO, D/O ROBERT PINTO, AGED ABOUT 44 YEARS, R/A FLAT NO.201, KADRI TOWERS, ALVARES ROAD, KADRI, MANGALORE - 575 002. REYNOL JOSEPH PINTO, S/O ROBERT PINTO, AGED ABOUT 40 YEARS, R/A FLAT NO.201, KADRI TOWERS, ALVARES ROAD, KADRI, MANGALORE - 575 002. 1(d) REMAL PINTO, D/O ROBERT PINTO, AGED ABOUT 37 YEARS, R/A FLAT NO.201, KADRI TOWERS, - 2 - NC: 2025:KHC:13040 RSA No. 1051 of 2014 ALVARES ROAD, KADRI, MANGALORE - 575 002. …APPELLANTS
Legal Reasoning
[BY SRI SHIVAKUMAR R., ADVOCATE FOR SRI T MOHANDAS SHETTY, ADVOCATE FOR LRs OF DECEASED A1 (a-d) (PH)] AND: MRS AGNES CHRISTIAN PINTO (SINCE DEAD) W/O LATE PETER PAUL PINTO, R/A LIC/C6, FLAT NO.1, GROUND FLOOR, VYASA NAGAR, MANGALORE-575 004 BY HER LEGAL REPRESENTATIVES (2 TO 7) MRS.SOPHIE D SOUZA D/O LATE P.P.PINTO R/O SHETTY COMPOUND, NAGORI, KANKANADY, (SINCE DEAD) 1. 2. MR.VALERIN D MELLO W/O MRS.DOLLY D MELLO, MR.SURAJ D MELLO S/O MRS.DOLLY D MELLO, 3. MRS.DAISY D SOUZA W/O MR.JERAL D SOUZA ALL ARE R/O DOOR NO.S-29-5, SHEDSBAGH ALAPE KEMBAR, POST PADIL, MANGALORE-575 007. 4. MRS.VERONICA PINTO W/O LATE MR.JOSEPH PINTO, JOSWIN VILLA, NIDDEL GOKARNA, MAROLI, KULSHEKAR POST, MANGALORE-575005 5. MRS.CELINE PINTO D/O LATE P.P.PINTO C/O ZEENA D'SOUZA 102, 1ST FLOOR, LALITH KUNJ APARTMENTS, KATHRAB ROAD, BADLAPUR (EAST) MAHARASHTRA. - 3 - NC: 2025:KHC:13040 RSA No. 1051 of 2014 6. MRS.WILMA PINTO D/O LATE MRS.IVY PINTO, C/O CECILIA LASRADO, B301, SULOCHANA APARTMENTS, YESHWANTH NAGAR, VAKOLA, SANTA CRUZ (EAST) MUMBAI-400 055. 7. MR.VINOD PINTO S/O LATE MRS.IVY PINTO, C/O CECILIA LASRADO, B301, SULOCHANA APARTMENTS, YESHWANTH NAGAR, VOKALA, SANTA CRUZ (EAST) MUMBAI-400 055. 8. MRS.RITA SALDANHA, D/O LATE P.P.PINTO R/O PINTO COMPOUND, 3RD CROSS ROAD, SHIVABAGH, MANGALORE-575003. 9. MR.GOPALAKRISHNA BHAT S/O K.NARAYAN BHAT, AGED ABOUT 51 YAERS, R/O PINTO LANE, BEJAI, MANGALORE-575 004. …RESPONDENTS [BY SRI VIJAYA KRISHNA BHAT M, ADVOCATE FOR R9; V/O DATED 05.12.2024 NOTICE TO R1 TO R3 & R5 IS H/S; NOTICE TO R4, R6 - R8 - SERVED & UNREPRESENTED] THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 11.03.2014 PASSED IN R.A.NO.88/2011 ON THE FILE OF THE IV ADDL. DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 30.05.2011 PASSED IN O.S.NO.34/1995 ON THE FILE OF III ADDL. SENIOR CIVIL JUDGE, MANGALORE, D.K. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI - 4 - NC: 2025:KHC:13040 RSA No. 1051 of 2014 ORAL JUDGMENT Challenging judgment and decree dated 11.03.2014 passed by IV Additional District and Sessions Court, D.K., Mangalore, in R.A.no.88/2011 and judgment and decree dated 30.05.2011 passed by III Additional Senior Civil Judge, Mangalore, D.K., in O.S.no.34/1995, this appeal is filed. 2. Sri Shivakumar R., learned counsel appearing for Sri T. Mohandas Shetty, learned counsel for appellants submitted that this appeal was by plaintiff challenging concurrent erroneous findings by trial and first appellate Court dismissing suit for specific performance in respect of Ex.P8 – agreement of sale dated 07.08.1985, agreeing to sell suit schedule property for total sale consideration of Rs.1,00,000/- by receiving Rs.95,000/- as advance and agreeing to execute registered sale deed by receiving balance amount of Rs.5,000/- immediately after removal of legal hurdles for execution of sale deed. It was submitted, property agreed to be sold was granted land and period of non-alienation was to expire on 14.02.1995. It was submitted, plaintiff had issued legal notice calling upon defendant no.1 to come forward to execute sale deed by receiving balance sale consideration, on 07.02.1995. Despite - 5 - NC: 2025:KHC:13040 RSA No. 1051 of 2014 service, when there was failure to execute sale deed, suit was filed on 15.02.1995. It was submitted after appearance, defendant no.1 had filed written statement denying and disputing plaint averments. It was submitted, since there was alienation of suit property by defendant no.1 in favour of defendant no.2 on 16.02.1995, by which date, plaintiff had obtained an order of temporary injunction, same was informed to purchaser and he was impleaded as defendant no.2. Even defendant no.2 opposed suit. 3. Based on pleadings, trial Court framed following issues. 1) Whether the plaintiff proves that there is genuine and valid agreement of sale dated 07.08.1985 executed by the 1st defendant in favour of the plaintiff for the sale and purchase of the plaint schedule property? 2) Whether the plaintiff proves that he has been ready and willing to perform his part of agreement? 3) Whether the plaintiff proves that he is entitled relief of specific the performance for sale of the schedule property in his favour? to 4) Whether the 2nd defendant proves that the agreement put forward by the plaintiff is concocted document? - 6 - NC: 2025:KHC:13040 RSA No. 1051 of 2014 5) Whether the 2nd defendant proves that he is a bonafide transferee in respect of the plaint schedule property? 6) Whether the 2nd defendant proves that order specific performance will cause irreparable injury and hardship to him? 7) What decree or order? 4. To establish his case, plaintiff examined himself as PW-1 and Bailiff as PW-2 and got marked Exs.P1 to P10 and Exs.C1 and C2. On other hand, defendant no.2 examined himself as DW-1, legal heir of defendant no.1 - his daughter was examined as DW-3 and an independent witness was examined as DW-2 and got marked Exs.D1 to D6. 5. On consideration, trial Court answered issues no.1 to 3 in negative; issues no.4 to 6 in affirmative and issue no.7 by dismissing suit. Aggrieved plaintiff filed RA.no.88/2011 on various grounds. Based on same, first appellate Court framed following points. 1) Whether defendant no.2 (respondent no.8) made out sufficient grounds to grant permission to produce the Xerox sale deed dated copy of 16.02.1995 u/O 41 Rule 27 CPC? the 2) Whether the appellant/plaintiff proves that the finding recorded by the trial Court on execution, validity and effect of the suit agreement of sale and bonafidness of defendant no.2 are contrary to the evidence and law? - 7 - NC: 2025:KHC:13040 RSA No. 1051 of 2014 3) Whether the appellant/plaintiff made out sufficient grounds to interfere with the impugned judgment and decree? 4) What order? 6. On consideration, it answered points no.1 to 3 in negative and point no.4 by dismissing appeal leading to this second appeal. 7. It was submitted, purchase by defendant no.2 was after grant of order of temporary injunction, therefore, same was not bonafide. It was further submitted, plaintiff had clearly asserted about execution of agreement of sale by defendant no.1 for total sale consideration of Rs.1,00,000/-, out of which, advance payment of Rs.95,000/- was made and plaintiff being employed in Kuwait was always ready and willing to pay balance amount of Rs.5,000/- and to get sale deed executed. It was submitted, Ex.P9 - legal notice was issued on 07.02.1995 calling upon defendant no.1 to come forward to execute sale deed on 15.02.1995. Since there was failure, suit was filed. 8. It was submitted, as plaintiff was always ready and willing to perform his part of contract, rejection of plaintiff’s suit for specific performance by both Courts were unjustified. He therefore submitted following substantial questions of law - 8 - NC: 2025:KHC:13040 RSA No. 1051 of 2014 would arise for consideration and sought for allowing appeal by answering same in favour of appellants/plaintiff. 1) Whether both Courts erred in dismissing suit when sale deed executed by defendant no.1 in favour of defendant no.2 was hit by lis pendense and doctrine of Section 19 of Specific Relief Act, 1963? 2) Whether both Courts erred in holding that plaintiff was not ready and willing to perform his part of contract? 9. On other hand, Sri M. Vijaya Krishna Bhat, learned counsel for defendant no.2 opposed appeal. At outset it was submitted, admittedly, suit property was granted land, grantee was plaintiff’s mother, agreement of sale was executed during period of non-alienation consequent to grant of suit property to defendant no.1. Even as per plaintiff, period of non-alienation was to expire on 14.02.1995. Therefore, agreement of sale was contrary to statutory provisions was held to be illegal and unenforceable on ground of being opposed to public policy by three Judges Bench of Hon’ble Supreme Court in Narayanamma and Anr. v. Govindappa and Ors., reported in 2019 (19) SCC 42. It was submitted, this Court had - 9 - NC: 2025:KHC:13040 RSA No. 1051 of 2014 followed ratio in RSA.no.1597/2013, reported in 2024:KHC:13771. 10. It was further submitted, there was concurrent finding of both Courts about failure of plaintiff to prove valid agreement of sale. It was submitted, in suit, plaintiff had also sought to set-up claim under a Will, but abandoned same. It was submitted, for nearly 10 years, plaintiff did not lead evidence. Only when defendant was on her death bed, he led evidence and filed application for cross-examining her through Commission. It was submitted, defendant no.1 had filed written statement during her lifetime denying agreement of sale, alleging it was concocted and fraudulent. After death of defendant no.1, her daughter was brought on record as legal representative. She sought to file written statement siding with plaintiff, which was impermissible. Said conduct on part of plaintiff would disentitle him from relief. 11. It was submitted, payment of consideration under agreement of sale was doubtful. In agreement of sale, it was stated that total sale consideration agreed was Rs.1,00,000/-, out of which Rs.70,000/- was paid earlier and amount of Rs.25,000/- paid by cheque and agreeing to pay balance - 10 - NC: 2025:KHC:13040 RSA No. 1051 of 2014 amount of Rs.5,000/- at time of registration. It was submitted, absolutely no material was placed on record to establish passing of consideration. In fact, plaintiff examined as PW-1 had deposed that Rs.60,000/- was paid to his sister for renovation of house in suit property. Thus, there was no basis for plaintiff’s claim of having paid sale consideration. It was submitted, since finding of both Courts on these aspects were finding of fact, appeal was liable to be dismissed. 12. Heard learned counsel, perused impugned judgment and decree and certified copies of Exs.P8 and P9 made available by learned counsel for defendant no.2. 13. This second appeal is by unsuccessful plaintiff in suit for specific performance. Even as per plaintiff, agreement of sale dated 07.08.1985 was in respect of suit schedule property - a granted land under provisions of Land Reforms Act with condition of non-alienation for a period of 15 years, which was to end on 15.02.1995. Though, there was a condition in agreement of sale that sale deed was to be executed after statutory impediments for execution were got removed, fact of matter would be that agreement of sale was executed during period of non-alienation. Hon’ble Supreme Court in - 11 - NC: 2025:KHC:13040 RSA No. 1051 of 2014 Narayanamma’s case (supra), held such agreement as opposed to public policy, disentitling parties claiming under same. In RSA.no.1597/2013, specific case before this Court was enforceability of an agreement of sale of granted land after expiry of period of non-alienation. This Court on due consideration of provisions under Section 61 of Land Reforms Act, as well as ratio laid down in Narayanamma’s case, held same to be invalid and unenforceable. 14. In view of above, agreement of sale in question would be barred by law and unenforceable. Therefore, without any more, holding that no substantial questions of law would arise for consideration, appeal is dismissed. Sd/- (RAVI V HOSMANI) JUDGE GRD List No.: 1 Sl No.: 41