The High Court
Case Details
- 1 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL, 2025 PRESENT THE HON'BLE MR JUSTICE K.SOMASHEKAR AND THE HON'BLE MR JUSTICE VENKATESH NAIK T REGULAR FIRST APPEAL NO.2314 OF 2023 (SP) BETWEEN: SMT. SANNAMMA W/O. RANGEGOWDA AGED ABOUT 64 YEARS RESIDENT OF CHIKKAKONDAGOLA VILLAGE KASABA HOBLI HASSAN - 573 201. …APPELLANT (BY SRI MOHAN P. S., ADVOCATE) AND: SMT. SHOBHA W/O. K. R. NANJESHA AGED ABOUT 46 YEARS RESIDENT OF DASARAKOPPALU NEAR SAMUDHAYABHAVANA HASSAN - 573 202. Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: High Court of Karnataka …RESPONDENT (BY SRI P. P. HEGDE, SR. COUNSEL ALONG WITH, SRI AKSHAY KUMAR JAIN, ADVOCATE) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 30.08.2023 PASSED IN O.S. NO.29 OF 2018 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND C.J.M., HASSAN., DECREEING THE SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT. THIS REGULAR FIRST APPEAL IS COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 2 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR and HON'BLE MR JUSTICE VENKATESH NAIK T ORAL JUDGMENT (PER: HON'BLE MR JUSTICE VENKATESH NAIK T) This appeal is filed by the appellant challenging the judgment and decree dated 30.08.2023 passed by the learned Principal Senior Civil Judge and CJM, Hassan in Original Suit No.29 of 2018. 2. For the sake of convenience, the parties are referred to as per their rankings before the trial Court. The appellant is the defendant and the respondent is the plaintiff. 3. The brief facts leading rise to filing of this appeal are as under: The plaintiff filed a suit for specific performance of the contract based on the Agreement of sale dated 19.01.2017 entered between the plaintiff and the defendant, wherein, the defendant agreed to sell the suit schedule property in favour of the plaintiff for a total consideration of Rs.25,00,000/- and on the same day, the defendant received the sale consideration of Rs.10,00,000/- and agreed to execute the registered sale deed - 3 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 by receiving the balance consideration in favour of the plaintiff. As per the Agreement of sale, the defendant had undertaken to hand over all the relevant documents which are necessary for the registration of sale deed within a period of 11 months from
Legal Reasoning
the date of agreement. After the agreement, the defendant had taken further sum of Rs.20,000/- from the plaintiff for the purpose of paying the amount to Sthree Shakthi Swasahaya Sanga and the defendant had made an endorsement on the original Agreement itself. On 07.06.2017, the defendant's son by name Venkatesh had taken a sum of Rs.5,00,000/- from the plaintiff by way of cash and the same had also been endorsed on the original agreement. The aforesaid amount of Rs.5,00,000/- was taken for the treatment of said Venkatesh who was suffering from Liver Jaundice. Despite the treatment, said Venkatesh who is none other than the son of defendant, died in the month of September 2017. On 01.07.2017, the defendant had taken further amount of Rs.75,000/- from the plaintiff for the purpose of securing documents from the concerned Office. Later, the defendant also executed a General Power of Attorney in favour of the plaintiff to file a suit for declaration in respect of the road which runs from East-West - 4 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 direction on the southern side of Javaramma's property, who is none other than the younger sister of the defendant and accordingly, the suit has been filed against her. Defendant and her son Venkatesh had received a total sale consideration of Rs.15,95,000/- and the plaintiff was liable to pay remaining amount of Rs.9,05,000/- and though the plaintiff has always been ready and willing to perform her part of the contract, but, the defendant postponed to execute the registered sale deed in favour of the plaintiff. Therefore, the plaintiff caused legal notice on 06.12.2017 calling upon the defendant to execute the registered sale deed, but, the same went in vain. Hence, the plaintiff filed a suit in O.S.No.29/2018 for specific performance of the contract against the defendant. 4. After the institution of the suit before the trial Court, the defendant appeared through her counsel and filed her detailed written statement, wherein, the defendant denied the averments of the plaint and contended that she being an uneducated went to the concerned Office along with her eldest son by name Venkatesh and got effected khatha in respect of the suit schedule property in her name. Further, during the month of January 2017, her son advised the defendant to effect - 5 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 durasth by measuring the property and accordingly, the defendant went to the concerned Office and affixed her signature at the instance of her son and she does not know as to what transactions were made by her son and the plaintiff. The defendant has further contended that she never executed any agreement in favour of the plaintiff, she never intended to alienate the suit schedule property and it is her son and the plaintiff got created the alleged Agreement and if at all, there were any financial transactions, it was between her son and the plaintiff and the defendant is in no way liable to the plaintiff and thus, she prayed for dismissal of the suit. 5. The trial Court based on the pleadings of the parties, framed the following issues: 1. Whether the plaintiff proves that the defendant agree to sale the suit schedule property in her favour for Rs.25,00,000/- and executed agreement of sale on 19.01.2017 by receiving advance amount of Rs.10,00,000/- agreeing to execute the sale deed within 11 months from the date of agreement of sale? 2. Whether the plaintiff proves that she was/he is ever ready and willing to perform her part of - 6 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 contract but the Defendant is not ready to execute the sale deed? 3. Whether the plaintiff prove that she is entitle for the relief of specific performance of contract as prayed for? 4. Whether the plaintiff proves that she is entitle for the relief as sought for? 5. What order or decree? 6. In order to prove the case of the plaintiff, she examined herself on oath as PW.1 and got marked in all nine documents vide Exs.P1 to P9 and examined one witness by name H.T. Komala as PW.2. The defendant did not adduce any evidence on her behalf. The trial Court after hearing learned counsel for the parties and considering the oral and documentary evidence, answered issue Nos.1 to 4 in the affirmative and consequently, decreed the suit of the plaintiff and directed the defendant to execute Registered sale deed in favour of the plaintiff by receiving the balance sale consideration amount. - 7 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 7. Being aggrieved by the judgment and decree passed by the trial Court, the defendant has filed this appeal.
Legal Reasoning
8. Heard learned Counsel Sri Mohan P.S. for the appellant/defendant and learned Senior Counsel Sri. P.P. Hegde alongwith Sri. Akshay Kumar Jain, learned Counsel for the respondent/plaintiff. 9. Learned counsel for the appellant/defendant submits that the suit filed by the plaintiff for specific performance of the Contract is not maintainable, the trial Court has not at all perused the cross-examination of the plaintiff and the witness. Further, the trial Court has completely failed to take note of the material contradictions in the plaint and the evidence of the plaintiff, which goes to show that the case of the plaintiff was completely false and unbelievable. The trial Court with a view to find out as to whether the plaintiff has discharged her burden or not has not at all examined the plaintiff on that aspect and this has vitiated the entire judgment of the trial Court. Further, the finding of the trial Court that the plaintiff has proved the execution of the Agreement of sale, relying mainly on the sale consideration, is wholly perverse and - 8 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 erroneous. The trial Court has committed an error in placing too much importance on payment of sale consideration by the plaintiff and on that basis alone it has come to the conclusion that the Agreement of sale and payment of consideration have been proved. Learned counsel submits that the issue to be considered is "whether the plaintiff had proved that the Agreement of sale had been executed and that the sale consideration had been paid?", as alleged and the burden of proving the same lies entirely on the plaintiff. Therefore, the trial Court committed a serious error by viewing the issue from the perspective as to "whether the defence of the defendant could be believed?". 10. It is contended that, it is well settled position that the plaintiff has to fall or stand on the strength of its own case and not on the weakness of the defendant's case. The plaintiff's case does not stand proved by the weakness of the defendant's case. Therefore, the entire judgment of the trial Court is vitiated on account of this erroneous approach. It is further contended that the trial Court committed an error in ignoring the glaring lack of any evidence whatsoever to show passing of any advance amount apart from mere receipts which - 9 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 themselves were disputed as being forged and fabricated. It is specific case of the plaintiff that she had paid the entire advance sum of Rs.15,95,000/- in cash to the defendant and her son Venkatesh. The defendant had seriously disputed the payment made by the plaintiff, but, the trial Court failed to note that not a single document had been produced by the plaintiff to show that the payment was not made to the defendant and the alleged payment was made in favour of her son Venkatesh, which goes to show that no payments were made and the alleged agreement has been created by the plaintiff in collusion with the appellant's/defendant's son. The plaintiff had deposed that she had made payments to the appellant's son and she had not made any payments to the defendant. Further, the trial Court completely ignored the cross examination of the plaintiff, which goes to show that she was not even Income Tax Assessee and she had no source whatsoever of funds to pay the alleged sale transaction. 11. It is contended that the trial Court ignored the material evidence in the cross examination of the plaintiff's witness, which showed the improbability of such Agreement of sale coming into existence as alleged by the plaintiff. The trial - 10 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 Court has ignored the material contradictions in their deposition ignoring the circumstances under which the Agreement allegedly came about, the reasons as to why it could not be fulfilled, which showed that her claim were not worthy of being believed. The defendant has neither examined herself nor any witnesses on her behalf, no opportunity was given to the defendant to disprove the execution of the alleged Agreement of Sale and the alleged payment of advance sale consideration. 12. It is contended that, the evidence of PW.1 and PW.2 are totally contrary to each other. PW.2 in her cross examination has deposed that the plaintiff transferred a sum of Rs.10,00,000/- to the defendant's son Sri Venkatesh through RTGS, whereas the plaintiff has deposed that the advance sale consideration of Rs.10,00,000/- was paid to the defendant through cash and non-examination of any other witnesses to the alleged sale agreement are all sufficient to disprove the case of the plaintiff. The trial Court has committed an error in disbelieving the case of the defendant as to the circumstances under which the alleged Agreement of Sale is said to have been entered between the parties. The trial Court ought to have held - 11 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 that in the light of the evidence on record, the explanation of the defendant was probable and was to be believed. 13. It is contended that the trial Court committed an error in holding that the evidence of PW.2 proved the case of the plaintiff, she was obviously not interested and her evidence could not be treated as that of other normal witness. The evidence of PW.2 clearly shows that no payment was made in her presence and as per her testimony, the advance sale consideration of Rs.10,00,000/- has been transferred to the appellant through RTGS and this evidence itself shows the alleged sale agreement has been created by the plaintiff in collusion with appellant's son. Further, the trial Court committed an error in relying upon the alleged Agreement to hold that sale consideration had been paid, when the fact that the said document had been seriously disputed by the defendant. Further, the trial Court in a single sentence, without analysis, without setting out any basis or detailed reasoning, has observed that it has seen the thumb impression in the Agreement and it is satisfied that it was defendant's thumb impression. It is not known as to how or by what process of reasoning, the trial Court came to such conclusion. On the - 12 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 other hand, the trial Court has ignored the material aspect that on which occasion, the thumb impression of the defendant was taken, the appellant being an illiterate aged woman, admittedly, does not know to read and write, and in such circumstances, it is important to note that whether contents of the sale agreement was explained to the defendant or whether it was taken on a blank paper or whether it was taken on suppression of its contents. 14. It is contended that, the trial Court committed an error in holding that the Agreement stands proved since the payment was transferred by the plaintiff's husband to the defendant son's account, the evidence on record which showed regarding payment of consideration, could not be believed, in as much as, huge amount was supposedly paid entirely in cash though alleged to have been paid over a period of 8 months. There was not a single third party witness for this payment. There was not a single bank entry produced to show the availability of funds with the plaintiff and drawing up of such funds at the time of alleged payments. Not a single Income Tax return copy was produced to show that the plaintiff had sufficient income to pay the sale consideration. Therefore, an - 13 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 adverse inference ought to have been drawn for non production of such evidence by the plaintiff. The trial Court committed an error in decreeing the suit for specific performance when the evidence on record clearly showed that no payment has been made in favour of the appellant and there was no pleading or proof on the part of the plaintiff that the agreement had been entered into for a legal necessity or benefit or bonafide benefit to the estate. Thus, the Agreement was not at all binding on the appellant/defendant. The trial Court committed an error in holding that the evidence on record showed that the appellant had many transactions. Further, it has committed an error in giving undue importance to certain payments said to have been made by the plaintiff's husband in favour of one Sri Venkatesh, who is not at all party to the sale agreement. The defendant throughout her pleadings denied the very execution of alleged sale Agreement and the receipt of any alleged sale consideration. While at one place, the plaintiff states that all the terms were already agreed upon in January, 2017, in another place, she says that negotiations were made with Venkatesh, who is the son of the defendant. The plaintiff was unable to say as to in how many instalments, the consideration - 14 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 was agreed to be paid. She is unable to state as to what were the documents that were required to complete the transactions, she alleged that the vendor kept on promising her that she would furnish more documents even though the plaintiff did not want them, which itself shows that the case is not natural and unbelievable. In fact, PW.2 says that defendant did not give any instructions for drafting the agreement and she did not even ask to look at her before signing, which shows that the entire case is highly suspicious and unbelievable. All the material contradictions shows that the case of the plaintiff was highly suspicious and unworthy of belief. It is very unfortunate that none of these aspects have been looked into or considered by the trial Court. The trial Court has completely ignored the evidence, which showed that the value of the property, even as per the Sub-Registrar guidelines, was much higher than the amount mentioned in the Agreement. There was no explanation given as to why the appellant had agreed to sell the properties for lesser price than the market value. The market value itself would be several times higher than the Sub-Registrar guideline value. This important piece of evidence showed that there could not have been any Agreement at all to sell the valuable - 15 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 property at ridiculously lower price and that therefore the agreement was concocted. The trial Court has not considered the vital aspects that the alleged agreement recited about several documents being required, the plaintiff was unable to say as to why those documents were required. She was not able to say what those documents were and further stated that those documents were not subsequently furnished. On all these grounds, learned counsel for the appellant prayed for allowing the appeal. 15. Per contra, learned Senior Counsel, Sri P. P. Hegde, for respondent vehemently submitted that the appellant/defendant has entered into Sale Agreement with the respondent/plaintiff, wherein the appellant agreed to sell the suit schedule property for a total sale consideration of Rs.25,00,000/- and thus executed Agreement of Sale on 19.01.2017 by receiving advance amount of Rs.10,00,000/-, agreed to execute the Sale Deed within eleven months from the date of Agreement of sale and later the appellant failed to execute the Sale Deed. Infact the plaintiff was/is ever ready and willing to perform her part of the contract, but the defendant was not ready to execute the Sale Deed. Therefore, - 16 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 the trial Court considering the material on record and considering the fact that the plaintiff was ready and willing to perform the contract satisfied the decree in Execution Petition No.404/2023, wherein the officer of the Court has executed registered Sale Deed dated 02.03.2024 in favour of the respondent/plaintiff and therefore, now the appeal become infructuous. Hence, he prayed for dismissal of the appeal. 16. Having heard learned counsel for the parties and perusing the records, the points that would arise for our consideration in this appeal are as under: 1. Where the plaintiff proved that the defendant has executed an Agreement of sale in favour of the plaintiff on 19.01.2017 for consideration of Rs.25,00,000/- and received advance sale consideration of Rs.10,00,000/- agreeing to execute the Sale Deed within eleven months from the date of Agreement of sale? 2. Whether the plaintiff proved that she was/is ready and willing to perform her part of the - 17 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 contract, but the defendant failed to perform the contract ? 3. Whether the trial Court was justified in passing the judgment and decree? 4. What order or decree? Reg: Point Nos.1 and 2 As point Nos.1 and 2 are interlinked, they are taken up together for common discussion in order to avoid repetition of facts and law. 17. It is the case of the plaintiff that the defendant being the owner of the suit schedule property agreed to sell the suit schedule property in her favour for a total sale consideration of Rs.25,00,000/- and accordingly, the plaintiff paid a sum of Rs.10,00,000/- towards advance sale consideration and the defendant executed Agreement of sale in favour of the plaintiff. Further, it was agreed that the plaintiff should pay the remaining balance sale consideration amount within eleven months to get the Sale Deed executed in her favour. - 18 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 18. In order to prove her case, the plaintiff examined herself as PW.1 and relied upon as many as nine documents vide Exs.P1 to P9. In her examination-in-chief, the plaintiff has reiterated the averments made in her plaint. In support of her oral evidence, she relied upon Ex.P1 legal notice dated 06.12.2017, wherein the plaintiff called upon the defendant to the receive balance consideration amount and to execute the Sale Deed in her favour, Ex.P2 is the postal receipt for having served the legal notice to the defendant, Ex.P3 is the Mutation Registration Extract No.T8/2016-17, Ex.P4 is the Death Certificate of One Venkatesh, who is none other than son of the defendant, Ex.P5 is the Statement of Account pertaining to the husband of the plaintiff, Ex.P6 is the Agreement of Sale dated 19.01.2017 executed by the defendant in favour of the plaintiff pertaining to the suit schedule property, Exs.P7 and P8 are the letters addressed by the defendant's son by name Venkatesh in favour of his employer and Ex.P9 is the letter dated 30.01.2018, wherein the defendant called upon the plaintiff to furnish certain documents. In the instant case, the defendant denied to have executed any Agreement of Sale. Thus the burden shifts on the plaintiff to prove the said preponderance of - 19 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 probability. In this case, the defendant is the absolute owner of the suit schedule property. As per Agreement of sale Ex.P6, the defendant being the owner of the schedule property entered into an Agreement to sell in favour of the plaintiff agreeing to sell the suit schedule property for a total consideration of Rs.25,00,000/- and the advance sale consideration of Rs.10,00,000/- was paid on the same day. In this case, the defendant has denied that the payment was made by the plaintiff in respect of the Agreement of sale. From perusal of the plaint at para 4, the plaintiff has specifically averred that the plaintiff paid a sum of Rs.5,00,000/- by way of RTGS and another sum of Rs.2,50,000/- by way of cheque and a sum of Rs.2,00,000/- by way of cash. Further, the plaintiff also pleaded that defendant had taken another sum of Rs.20,000/- from the plaintiff on 09.04.2017 by way of cash and the son of the defendant by name Venkatesh had taken a sum of Rs.5,00,000/- on 07.06.2017 by way of cash for the purpose of treatment as he was suffering from Liver Jaundice. Further, on 01.07.2017, the defendant had taken another sum of Rs.75,000/- from the plaintiff. Therefore, from the contents of plaint itself and from the oral evidence of the plaintiff, it goes - 20 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 to show that the defendant and her son by name Venkatesh have received a total sum of Rs.15,95,000/- from the plaintiff and as per Ex.P6-Agreement of sale, the defendant had received advance sale consideration of Rs.10,00,000/- from the plaintiff. From the perusal of Ex.P6-Agreement of Sale, the endorsement made therein clearly establishes that the defendant had received a sum of Rs.20,000/- and her son had received a sum of Rs.5,00,000/-. Therefore, from the contents of Ex.P6 Agreement of sale, the defendant had received a sum of Rs.15,20,000/- and there is a clear shara in the Agreement of sale to that affect. PW.1 has undergone intense cross examination by the counsel for the defendant before the trial Court. In the cross examination, a suggestion was put to PW.1 that cheque amount of Rs.2,50,000/- was given to defendant's son by name Venkatesh and PW.1 has admitted the same, however PW.1 has offered the explanation that a sum of Rs.2,50,000/- by way of cheque was given to the son of defendant, at the instance of defendant only. Though PW.1 was cross examined at length, but nothing worthwhile is elicited, so as to discard her testimony, as regards to Execution - 21 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 of Agreement of sale and receipt of amount mentioned in Ex.P6. 19. In order to support the case of the plaintiff, she examined PW.2-the Notary Public, who has stated that Ex.P6 was executed before her and she has attested the document. PW.2 has admitted that the payment made through RTGS has not been shown in the Agreement. She has also stated that no payment was made in her presence, but she has stated that Ex.P6 Agreement of sale was executed in her presence. Therefore, the material on record clearly establishes that the defendant had executed Agreement of sale in favour of the plaintiff. 20. The learned counsel for the appellant/defendant vehemently argued that the Agreement of sale Ex.P6 is an out come of fraud and undue influence and Ex.P6 Agreement of sale is a void Agreement, as such, it is not enforceable in the eye of law. Admittedly, the defendant has not tendered herself for evidence. From the perusal of contents of written statement submitted by the defendant, she has taken up the contention that her son by name Venkatesh took her to the - 22 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 concerned office and she affixed her signature on certain papers at the instance of her son and she does not know the transaction between her son and the plaintiff. But there is no specific pleading about fraud being committed by the plaintiff. Even the defendant has not produced any evidence to substantiate the contention taken in the written statement. The manner of fraud or undue influence as alleged by the defendant against the plaintiff is not pleaded in the manner as required under Order VI Rule 4 of C.P.C. It is settled position of law that mere plea without proof does not hold any substance. It is also settled law that whenever plea of fraud or undue influence, mistake and coercion is pleaded, heavy burden lies upon the party not only to plead specifically, but must also establish the same. However, the defendant has neither specifically pleaded nor proved the alleged fraud or undue influence by the plaintiff. Hence, there is no merit in the contention of the appellant with regard to alleged fraud or undue influence made by the plaintiff. 21. Learned counsel for the appellant contended that from perusal of Ex-P6 Agreement, it appears that there was no consideration amount passed from the plaintiff to the defendant - 23 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 and therefore the Agreement of sale Ex.P6 is without consideration and it is void. Hence, it is just and necessary to analyse Section 25 of the Indian Contract Act, 1872, which reads as under: Section 25. Agreement without consideration, void, unless it is in writing and registered, or is a promise to compensate for something done, or is a promise to pay a debt barred by limitation law.-An agreement made without consideration is void, unless- (1) it is expressed in writing and registered under the law for the time being in force for the registration of 1[documents], and is made on account of natural love and affection between parties standing in a near relation to each other ; or unless (2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do; or unless. (3) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits. 22. Section 25 of Indian Contact Act contemplates that agreement without consideration is void, unless it is in writing and registered or is a promise to compensate for something done or is a promise to pay a debt barred by limitation law. Where as in the instant case, the plaintiff has transferred the amount from the account of the plaintiff's husband by name - 24 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 K. R. Nanjesha under Ex.P5 to the account of defendant's son by name Venkatesh at the instance of defendant only and there is a reference in Ex.P6 Agreement of sale to that effect. Thus, the consideration has been passed regardless of whose account it is. It is not the case of the defendant that consideration amount was not at all passed. If that was the case, then the matter would have been different. However, part consideration amount has been transferred from the account of plaintiff's husband by name K. N. Nanjesha to the account of one Venkatesh, who is none other than son of the defendant. The very fact that defendant's son by name Venkatesh was suffering from Liver Jaundice and for the purpose of his treatment, amount was given to him, is not in dispute. In order to substantiate the contention with regard to non receipt of consideration under Ex.P6 Agreement of Sale is concerned, the defendant has not adduced any evidence on her behalf. Therefore, the defendant has utterly failed to establish her case that Ex.P6 is an outcome of fraud played by her son in collusion with the plaintiff. On the contrary, the very contention taken in para 17 of the written statement clearly establishes that the defendant has admitted about the Agreement indirectly, - 25 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 however, she has set up a plea that fraud is being played by the plaintiff, but to establish such contention, she has not placed any cogent evidence before the trial Court. Therefore, the plaintiff has proved that the defendant had executed an Agreement of Sale vide Ex.P6, wherein she agreed to sell the suit schedule property for total consideration of Rs.25,00,000/- and received advance sale consideration of Rs.10,00,000/- from the plaintiff and the plaintiff further proved that the defendant had agreed to execute a Sale Deed within eleven months from the date of sale agreement. Further, the plaintiff also proved the fact that, the plaintiff has paid substantial amount to the defendant and the entire material on record coupled with evidence clearly establishes that the plaintiff has been always ready and willing to perform her part of the contract, but it is the defendant, who postponed to execute the Sale Deed in favour of the plaintiff. 23. From the perusal of the records, the trial Court has recorded a finding that the plaintiff has proved that the defendant has executed an Agreement of Sale in favour of the plaintiff. Hence, the trial Court has decreed the suit in favour of the plaintiff and directed the defendant to receive the balance - 26 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 sale consideration of Rs.9,80,000/- within two months from the date of decree and to execute the registered sale deed through the due process of law. Learned counsel for the plaintiff/respondent contended that in Execution petition filed by the respondent/plaintiff in E.P.No.404/2023, the Officer of the trial Court have executed registered Sale Deed in favour of the plaintiff/respondent on 02.03.2024, wherein the respondent also deposited remaining balance sale consideration and on which ground also, the appeal becomes infructuous. Since the plaintiff/respondent proved her case that the defendant executed Agreement of Sale in her favour agreeing to sell the schedule property in her favour and received advance sale consideration of Rs.15,20,000/- which is substantial in nature and since the decree has already been executed, there is no merit in the contention of the appellant and the appeal is liable to be dismissed. Accordingly, we proceed to pass the following:
Decision
ORDER 1. The appeal is dismissed. - 27 - NC: 2025:KHC:13761-DB RFA No. 2314 of 2023 2. The judgement and decree dated 30.08.2023 passed in O.S.No.29/2018 by learned Principal Senior Civil Judge and CJM, Hassan is confirmed. 3. No order as to costs. Sd/- (K.SOMASHEKAR) JUDGE Sd/- (VENKATESH NAIK T) JUDGE MN/- List No.: 1 Sl No.: 17