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Judgments of Supreme Court of India and High Courts

Smt Lakshmi Venkatesh W/O Late M … vs Mrs Samiatha Victor W/O S Victor on 29 October, 2018

1

IN THE HIGH COURT OF KARNATAKA AT
BENGALURU

DATED THIS THE 29TH DAY OF OCTOBER 2018

BEFORE

THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD

REGULAR FIRST APPEAL NO. 2397/2007 C/W

HRRP No.401/2006 C/W HRRP No.402/2006

IN RFA No. 2397/2007:

BETWEEN:

1. SMT. LAKSHMI VENKATESH
W/O LATE M. VENKATESH
AGED 39 YEARS
RESIDING AT NO. 30/1
AGA ABDULLAH STREET
RICHMOND TOWN
BENGALURU-560 025.

2. M.A. SAMAD, DEAD BY LRS:

M.A. MAJEED
AGED 88 YEARS
S/O LATE ABDUL SAMAD.

3. M. ISMAIL SHERIFF
AGED 56 YEARS
S/O M.A. MAJEED.

4. MOHAMMED SIDDIQUE SHERIFF
AGED 51 YEARS
2

S/O M.A. MAJEED.
APPELLANTS 3 TO 5 ARE RESIDING AT
NO. 11, WELLINGTON STREET
RICHMOND TOWN, BENGALURU 560 025.

5. MOHAMMED ILYAS SHARIFF
AGED 53 YEARS
S/O M.A. MAJEED
NO.21, “A CROSS ROAD
AUSTIN JTOWN, BENGALURU 47.

6. M. ANJUM SHARIFF
AGED 48 YEARS
S/O M.A. MAJEED
RESIDING AT NO. 5/8, 3 GF
BENSON TOWN, BENGALURU-46.

(SMT. ZAHINDUNNISA BEGUM
W/O M.A. MAJEED LR NO. 4 (B)
DIED DURING THE 2 TO 6 ARE
THE LRs OF DECESED
ZAHINDUNNISA BEGUM)
… APPELLANTS

(BY SRI. S.S. NAGANAND, SENIOR COUNSEL FOR
SRI. NANDISH PATIL, ADVOCATE)

AND:

1. MRS. SAMIATHA VICTOR
W/O S. VICTOR
AGED 56 YEARS
RESIDING AT OLD NO. 16/A
NEW NO.30, SERPENTINE
STREET, RICHMOND TOWN
BENGALURU 560 025
REPRESENTED BY P.A.
HOLDER S. VICTOR.
3

2. CHANDANA V.
AGED 21 YEARS
D/O LATE VENKATESH
RESIDING AT NO. 30/1
AGA ABDULLAH STREET
RICHMOND TOWN
BENGALURU-560 025.

3. V. CHETAN
AGED 19 YEARS
S/O LATE M. VENKATESH
ASHOK NAGAR
BENGALURU 560 025.
… RESPONDENTS

(BY SRI. M. ARUN PONAPPA, ADV., FOR C/R-1;
R-2 SERVED; SRI. S. GANGADHAR AITHAL, ADV., FOR R-3)

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:
26.09.2007 PASSED IN O.S. NO. 1119 OF 1995 ON THE FILE OF
THE XI ADDITIONAL CITY CIVIL JUDGE, BANGALORE,
DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.

IN HRRP 401/2006:

BETWEEN:

1. MR. M.A. MAJEED
AGED ABOUT 90 YEARS.

2. MRS. ZAHIDUNNISA
W/O MR. M.A. MAJEED
AGED ABOUT 75 YEARS.

BOTH R/AT # 12/2, ALEXANDRA STREET
RICHMOND TOWN, BENGALURU.
(SINCE DEAD BY LR’S 3 TO 5)
4

3. MR. M. ISMAIL SHERIFF
S/O MR. M.A. MAJEED
AGED ABOUT 53 YEARS.

4. MR. MOHAMMED ILYAS SHERIFF
S/O MR. M.A. MAJEED
AGED ABOUT 51 YEARS.

5. MR. MOHAMMED SIDDIQUE SHERIFF
S/O MR. M.A. MAJEED
AGED ABOUT 48 YEARS.

# 3 TO 5 R/AT # 11
WELLINGTON STREET
RICHMOND TOWN, BENGALURU.

6. MR. MOHAMMED YOUSUFF SHERIFF
@ ANJUM
S/O MR. M.A. MAJEED
AGED ABOUT 45 YEARS
R/AT # 12/2, ALEXANDRA STREET
RICHMOND TOWN
BENGALURU.
…PETITIONERS
(BY SRI. M.L. DAYANANDA KUMAR,
SRI. M.D. RAGHUNATH, SRI. HITESH KUMAR JAIN
SRI. P.S. SHAMEEL, ADVOCATES)

AND:

MR. ALTAF HUSSAIN
S/O LATE MR. ABBAS ALI BAIG
MAJOR
# 30, IST FLOOR
SURPENTINE STREET
RICHMOND TOWN, BANGALORE.
… RESPONDENT

(BY SRI. M. ARUN PONAPPA, ADVOCATE)
5

THIS HRRP IS FILED UNDER SECTION 46(1) OF KR ACT
AGAINST THE ORDER DATED:05.06.2006 PASSED ON IN
HRC.NO.147 OF 2000 ON THE FILE OF THE II ADDITIONAL
SMALL CAUSES JUDGE, BENGALURU, DISMISSING I.A.NO. II
FILED UNDER SECTION 45(1) (4) OF KR ACT OF 1999
(SECTION 29 (1) (4) OF KRC ACT) AND CONSEQUENTLY
DISMISSING THE INSTANT PETITION.

IN HRRP 402/2006:

BETWEEN:

1. MR. M.A. MAJEED
AGED ABOUT 90 YEARS.

2. MRS. ZAHIDUNNISA
W/O MR. M.A. MAJEED
AGED ABOUT 75 YEARS.

BOTH R/AT # 12/2, ALEXANDRA STREET
RICHMOND TOWN, BENGALURU.
(SINCE DEAD BY LR’S 3 TO 5)

3. MR. M. ISMAIL SHERIFF
S/O MR. M.A. MAJEED
AGED ABOUT 53 YEARS.

4. MR. MOHAMMED ILYAS SHERIFF
S/O MR. M.A. MAJEED
AGED ABOUT 51 YEARS.

5. MR. MOHAMMED SIDDIQUE SHERIFF
S/O MR. M.A. MAJEED
AGED ABOUT 48 YEARS.

# 3 TO 5 R/AT # 11
WELLINGTON STREET
RICHMOND TOWN, BENGALURU.
6

6. MR. MOHAMMED YOUSUFF SHERIFF
@ ANJUM
S/O MR. M.A. MAJEED
AGED ABOUT 45 YEARS
R/AT # 12/2, ALEXANDRA STREET
RICHMOND TOWN
BENGALURU.
…PETITIONERS
(BY SRI. M.L. DAYANANDA KUMAR,
SRI. M.D. RAGHUNATH, SRI. HITESH KUMAR JAIN
SRI. P.S. SHAMEEL, ADVOCATES)

AND:

MR. S. VICTOR,
S/O LATE MR. M. SUSAINATHAN,
MAJOR,
# 30, GROUND FLOOR,
SERPENTINE STREET,
RICHMOND TOWN,
BENGALURU.
… RESPONDENT
(BY SRI. M. ARUN PONAPPA, ADVOCATE)

THIS HRRP IS FILED UNDER SECTION 46(1) OF KR ACT
AGAINST THE ORDER DATED:05.06.2006 PASSED IN
HRC.NO.148 OF 2000 ON THE FILE OF THE II ADDITIONAL
SMALL CAUSES JUDGE, BANGALURU, DISMISSING I.A.NO.III
FILED UNDER SECTION 45(1) (4) OF KR ACT OF 1999
(SECTION 29 (1) (4) OF KRC ACT) AND CONSEQUENTLY
DISMISSING THE INSTANT PETITION.

THESE REGULAR FIRST APPEAL AND HRRPs HAVING
BEEN HEARD AND RESERVED ON 29.05.2018 AND COMING ON
FOR PRONOUNCEMENT OF JUDGMENT/ORDERS THIS DAY,
B.M. SHYAM PRASAD J., DELIVERED THE FOLLOWING:
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JUDGMENT

The appeal in RFA No.2397/2007 is filed under

Section 96 of the Code of Civil Procedure and revision

petitions in HRRP No. 401/2006 and HRRP

No.402/2006 are filed under Section 46(1) of the

Karnataka Rent Act, 1999. This appeal and revision

petitions relate to the same immovable property viz.,

immovable property bearing No. 30 (old No. 16/A)

Serpentine Street, Richmond Town, Bangalore

comprising of Ground and First floors (hereinafter

referred to as the ‘Subject Property’), and they have their

genesis in the same set of facts and circumstances. The

appeal and the revisions petitions are ordered to be

heard together by special orders on 4.8.2008. As such,

the appeal and revision petitions have been heard

together.

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2. The appeal in RFA No. 2397/2007 is filed by

the defendants in OS No. 1119/1995 on the file of the

XI Additional City Civil and Sessions Judge at

Bangalore (for short, the ‘Trial Court’). The appellants

are aggrieved by the Trial Court’s judgment and decree

dated 26.09.2007 decreeing in to-to the suit, which is

instituted by the first respondent for:

i. Specific performance of the sale agreement dated

12.3.1992 (executed by the first appellant for herself

and on behalf of her children, the second and third

respondents – who were minors at the relevant point of

time) agreeing to convey the subject property in favour

of the first respondent.

ii. For declaration that the Sale Deed dated

24.12.1994 (which was presented for registration on

26.12.1994 and registered on 5.1.1995) executed by the

first appellant (for herself and on behalf of the second

and third respondents) for the subject property in
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favour of late M.A. Samad, who is now represented by

second to sixth respondents, as null and void.

iii. For permanent injunction restraining the

appellants and second and third respondents from

interfering with the peaceful possession and enjoyment

of the subject property by the first respondent or her

family members.

3. The Trial Court, while decreeing the suit in

O.S.No.1119/1995, has declared the Sale Deed dated

24.12.1994 executed by the first appellant in favour of

late M.A. Samad conveying the subject property as null

and void and has directed the first appellant and the

second and third respondents to execute the sale deed

and to register the same in favour of the first

respondent absolutely conveying the Subject Property.

Further, the Trial Court has also held that the first

respondent will be entitled to move the Court for

execution, and registration, of such sale deed if the first

appellant and the second and third respondents fail to
10

execute the necessary sale deed as required under the

decree. Furthermore, the Trial Court has granted

permanent injunction restraining the appellants and

second and third respondents from interfering with the

first respondent’s peaceful possession and enjoyment of

the subject property.

4. The revision petitions in HRRP No.401/2006

and HRRP No.402/2006 are filed by the second to sixth

appellants in RFA No. 2397/2007 impugning the

separate but similar orders dated 5.6.2006 in HRC

No.147/2000 and HRC No. 148/2000 on the file of the

II Additional Small Causes Judge, Bangalore,

respectively. The petitioners in these revision petitions,

since they are the second to sixth appellants in RFA No.

2397/2007, are referred to as the ‘second to sixth

appellants’ for convenience. The respondent in the

revision petition, HRRP No. 402/2006 is the husband of

the first respondent in appeal in RFA No. 2397/2007.

He is herein referred to by his name, Mr. S. Victor. The
11

respondent in the revision petition in HRRP No. 401 of

2006 is Mr. Altaf Hussain, and he is also referred to by

his name.

5. The second to sixth appellants filed petitions

in HRC No. 147/2000 and 148/2000 under Section

29(1) and (4) of the erstwhile Karnataka Rent Control

Act, 1961, asserting that Mr. S Victor and Mr.Altaf

Hussain were tenants of the respective portions in the

Subject Property under them consequent to the sale

deed dated 24.12.1994 in their favour and the letter of

attornment addressed to them by the first appellant.

But, neither Mr. S. Victor nor Mr. Altaf Hussain paid

rents; as such, they were defaulters. Mr. S. Victor and

Mr. Altaf Hussain, after completion of evidence, filed

applications in the respective petitions before the Small

Causes Court seeking directions to the second to sixth

appellants to approach the competent Civil Court for

declaration of their respective rights. The Small Causes

Court, while allowing such application filed by Mr.
12

S.Victor and Mr. Altaf Hussain by its separate order[s]

dated 5.6.2006, dismissed the petitions because of the

dispute pending adjudication in OS No. 1119/1995.

6. Thus, the appellants are before this Court in

the present appeal and the revision petitions calling in

question the judgment and decree dated 26.9.2007 in

OS No. 1119/1995 and the separate order[s] dated

5.6.2006 in HRC Nos.147/2000 and 148/2000,

respectively.

7. A brief statement of the respective cases as

pleaded: Late M. Venkatesh acquired ownership right

to the subject property under the registered Will dated

06.07.1982. In the year 1988, Late M.Venkatesh

inducted Mr. S Victor as a tenant into one of the

tenements in the subject property. Late M.Venkatesh

died on 25.07.1989 leaving behind his wife and children

– the first appellant and the second and third

respondents. The first appellant executed the sale

agreement dated 12.3.1992 agreeing to transfer the
13

entire subject property in favour of the first respondent,

who was residing in one of the tenements in the subject

property along with her husband, Mr. S. Victor. The

dichotomous assertions and evidence between the first

appellant/the second and third respondents and the

first respondent commences at this point.

8. The first respondent has pleaded that the

first appellant executed the sale agreement dated

12.3.1992 because the first appellant was in need of

funds to meet her children’s educational expenses,

family maintenance expenses and to purchase

immovable property in Kolar. However, the first

appellant asserts that she had in the month of January

1992 executed a sale agreement agreeing to sell the

subject property in favour of late M.A. Samad (as stated

in her evidence) but she wanted to retain the subject

property, and was therefore in need of money to

discharge the loans incurred by her and to repay the
14

advance of Rs.20,000/- received from late M.A. Samad.

The first appellant further asserts that Mr. S. Victor

lured her into signing certain papers with the false

assurance that he would be able to secure for her a loan

of Rs. 1,00,000/-, and it is therefore that she signed

certain papers in complete trust. The first appellant

also asserts that she learnt she had been lured into

executing the sale agreement dated 12.3.1992 and

parting with the original documents on false assurance

when the neighbours started speaking about she having

agreed to sell the subject property in favour of the first

appellant.

9. The first respondent asserts that the first

appellant agreed to transfer the subject property upon

the terms and conditions contained in the sale

agreement dated 12.3.1992. The material terms of the

agreement are as stated hereinafter. The agreed sale

consideration is Rs. 6,00,000/- and a sum of

Rs.50,000/- is paid at the time of execution of the sale
15

agreement and receipt of this amount is also

acknowledged. The first appellant shall obtain, at her

risk, permission from the Court for conveyance of the

minors’ interest in the subject property. The time for

completion of the sale transaction shall be four months

subject to the assurance to obtain Court’s permission as

aforesaid. The first appellant has handed over the

original documents to the first respondent with the

assurance of continuity of possession until the date of

registration of the conveyance deed, but the first

respondent shall continue to pay rent for the premises

in her possession.

10. The first respondent has further asserted

that, while she paid different amounts between

24.8.1990 to 30.4.1994 in performance of her part of

the sale agreement dated 12.3.1992, the first appellant,

acting in performance of her assurance to obtain

Court’s permission for transfer of the minors’ rights in

the subject property, commenced appropriate
16

proceedings under the provisions of the Guardians and

Wards Act, 1890 in Miscellaneous Petition

No.10073/1992 on the file of the Additional City Civil

Judge, Bangalore.

11. The first appellant has denied payment of

different amounts as asserted by the first respondent,

but she has not denied the commencement of the

proceedings in Miscellaneous No.10073/1992. The first

appellant has asserted that, upon coming to know

about the alleged fraud played on her, she revoked the

sale agreement dated 12.3.1992 by causing a legal

notice. She has also asserted that a settlement meeting

was held in the chambers of her advocate, Mr.

Shahabuddin Akbar, and in this meeting it was agreed

that the first appellant shall give up her rights in the

subject property under the sale agreement dated

12.3.1992. The first appellant has explained that the

first respondent agreed to make the entire payment due
17

before 15.04.1994 and if she is unable to make such

payment, the first appellant could transfer the property

to any other person. The first appellant has also

asserted that it was during this meeting the first

respondent returned the original documents of the

subject property to her.

12. The first respondent has denied this

settlement meeting or any such agreement. On the

other hand, the first respondent pleads that she

continued to make different payments as requested by

the first appellant and pursue with the first appellant,

as well as the advocate, Mr. Shahabuddin Akbar, for

expeditious disposal of the miscellaneous proceedings

initiated for securing permission to sell minors’ rights in

the Subject Property. In fact, it is the first respondent’s

case that when she approached Mr. Shahabuddin Akbar

to ascertain about the status of the proceedings in

Miscellaneous No.10073/1992, she was informed by
18

Mr. Shahabuddin Akbar that the original documents

relating to the subject property was required to be

produced in the Court in such proceedings, and

therefore she handed over the original documents. The

first respondent pleads that when she repeatedly

enquired with the advocate, Mr. Shahabuddin Akbar, he

informed her that necessary orders as regards

permission was expected during the second week of

January 1995.

13. Further, the first respondent has also

pleaded that because she was suspicious, she

ascertained from the Court that the miscellaneous

proceeding was pending and the original documents

were indeed not produced. Therefore, the first

respondent again approached Mr Shahabuddin Akbar,

the advocate, who got furious. However, when the first

respondent and Mr. S Victor insisted upon return of the

original documents, Mr Shahabuddin Akbar issued an

acknowledgement stating that the original documents
19

relating to the subject property were filed with the Court

and such documents were returned by the Court after

verification, but the first appellant had taken back the

original documents.

14. The first respondent has further pleaded

that, in the meanwhile, she, her husband – Mr. S Victor

– and a certain Dr. Reddy [PW-3] called upon the first

appellant in person requesting her to complete the sale

deed. At the first instance, the first appellant spoke to

them and assured that the sale transaction could be

completed in the second week of January 1995. ,But,

when the first respondent called on the first appellant

again after a few days, the first appellant did not even

speak to her. Therefore, the first respondent contacted

another advocate, who advised them to issue a legal

notice and also secure Encumbrance Certificate for the

subject property. Accordingly, a legal notice was issued

and the Encumbrance Certificate was obtained. The
20

first respondent was shocked to learn that though the

first respondent and her husband – Mr. S Victor – were

repeatedly pursuing with the first appellant for

expediting the grant of permission to transfer minors’

rights and execution of the sale deed, the first appellant,

conniving with Late M.A Samad and Advocate,

Mr.Shahabuddin Akbar, had executed the sale deed

conveying the subject property in favour of Late

M.A.Samad on 24.12.1994. Therefore, the first

respondent initiated suit for specific performance in OS

No. 1119/1995 and commenced disciplinary

proceedings against the advocate, Mr. Shahabuddin

Akbar before the Bar Council.

15. The first appellant has denied these

assertions by the first respondent. The first appellant

has asserted that because the first respondent did not

pay the amount as accepted in the settlement meeting

in the chambers of Mr. Shahabuddin Akbar, the sale

transaction in favour of late M.A. Samad was completed.
21

The first respondent has executed sale agreement dated

10.11.1994 in continuation of the earlier agreement

entered into in the month of January 1992, and later

Court’s permission was obtained on the basis of such

agreements. Late M.A. Samad has deposited the

minors’ share in the total agreed consideration in

compliance with the directions issued by the Court in

Miscellaneous No. 10073/1992. The first appellant,

because she was acting bona fide, has caused letter of

attornment to the tenants in the subject property,

including Mr. S Victor. The first appellant has also

approached Mr. S Victor to repay the amount received,

but Mr. S Victor got furious and refused to receive the

amount demanding repayment of amount with high rate

of interest. The suit in OS No.1119/1995 is

commenced because the first appellant did not yield to

the demand for payment of high rate of interest.

Further, the first appellant has also contended that the

sale transaction vide the sale agreement dated
22

12.3.1992 is not completed because the first

respondent, even after the settlement meeting in the

chambers of Mr. Shahabuddin Akbar, was not ready

and willing to pay the balance sale consideration.ssss

16. Late M. A. Samad filed separate written

statement adopting the defence taken by the first

appellant. However, insofar as the transaction between

the first appellant and the first respondent, late M A

Samad specifically contended that he was not aware of

any transaction between them, and in fact, the first

appellant had only informed him that she had availed

loan from the first respondent and she was paying

interest. He also contended that the first appellant had

informed him that the rent was being adjusted towards

payment of interest and that the first appellant executed

the sale deed in his favour because the first appellant

wanted to discharge the loan availed by her from the

first respondent.

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17. The first appellant was defending the suit in

OS No.1119/1995 on behalf of the second and third

respondents as their next friend. But, the first appellant

was discharged as their next friend after they attained

majority, and these respondents filed a separate written

statement. However, they reiterated the first appellant’s

defence contending that Mr. S Victor fraudulently

obtained the sale agreement dated 12.3.1992 taking

undue advantage of the financial constraints faced by

their mother upon the demise of their father.

18. The Trial Court framed multiple Issues,

including Issues as to whether the first respondent

proved the sale agreement dated 12.3.1992 and whether

the first respondent proved different payments and her

readiness and willingness to complete the sale

transaction. The Trial Court also framed separate

Issues as regards the fraud alleged by the first appellant

and first respondent, respectively. The Trial Court,
24

further, framed Issues as to whether the first appellant

and late M.A.Samad were able to prove a prior

agreement allegedly executed by the first appellant in

favour of late M A Samad. The Trial Court framed

Additional Issues which require the second and third

respondents to prove that the sale agreement dated

12.3.1992 was a nominal sale agreement, and the

second to sixth appellants (who were brought on record

as legal representatives of late M.A. Samad after his

demise) to prove revocation of the sale agreement dated

12.3.1992 was a nominal agreement.

19. The first respondent examined three

witnesses in support of the suit, and marked exhibits

P1 to P15. Mr. S. Victor was examined as PW1 and Dr.

B.T. Reddy – who according to the first respondent

accompanied her and her husband to Kolar in the

month of December 1994 to request the first appellant

for completion of the sale transaction – was examined as

PW2. Mr. Altaf Hussain and Mr. Ashfaq Hussain –
25

tenants in the subject property were examined as PWs3

and 4. The documents marked on behalf of the first

respondent include the sale agreement dated 12.3.1992

[Ex. P2], legal notice dated 28.1.1995 issued on behalf

of the first appellant [Ex. P3], Encumbrance Certificate

for the period between 14.12.1994 and 31.01.1995 [Ex.

P7], the sale deed dated 24.12.1994 but registered on

05.01.1995 [Ex. P6], sale deed dated 10.12.1993

executed by the first respondent transferring her site at

Jakkasandra village, Koramangala (Ex. P8), Mr.

Shahabuddin Akbar’s Letter dated 5.12.1994 with the

Endorsement dated 11.5.1995 [Ex. P14], a copy of the

petition in Miscellaneous No. 10073/1992 [Ex. P11], a

copy of the order sheet in Miscellaneous

No.10073/1992 [Ex. P12], a copy of the order dated

23.12.1994 in Miscellaneous No. 10073/1992 [Ex.

P13], the first appellant’s deposition in the proceedings

against Mr. Shahabuddin Akbar before the Bar Council

[Ex. P15] and a copy of the Bar Council’s order
26

reprimanding Mr. Shahabuddin Akbar and imposing a

fine of Rs.500/- [Ex. P10]. The first respondent also

produced Ex. P9, a Certificate issued by the

Administrative Officer, National Institute of Mental

Health and Neurosciences(NIMHANS), Bangalore. This

Certificate was marked to prove that the first

respondent, working as a Ward Supervisor with

NIMHANS, was entitled for a House Building Advance

for her and the admissible House Building Advance

during the financial year 1998-99 was 50 times the

Basic Pay and Stagnation Increment or Rs.7.5 lakhs

whichever is less, and therefore, the first respondent

was ready and willing to complete the transaction.

20. The appellants examined two witnesses and

they have marked Exhibits D1 to D11. The first

appellant was examined as DW.1. The fourth appellant,

one of the legal heirs of late M.A. Samad, was examined

as DW.2. The documents marked on their behalf

included copies of the petition and order/judgment in
27

HRC No.146/2000, 147/2000 and 148/2000 [Exs. D7 –

11] in addition to the sale agreement dated 10.11.1994

[Ex. D5] executed by the first appellant in favour of late

M.A. Samad. Further, the appellants have also marked

Dr B. Reddy’s Business Card [Ex. D2]- to show that he

is engaged in real estate and therefore an interested

witness, and Public Notice [Ex. D1] issued by Mr. S.

Victor’s employer – to demonstrate that Mr. S. Victor

was not gainfully employed and therefore the first

respondent did not have the ability to pay the balance

sale consideration.

21. The Trial Court after elaborately referring to

the evidence of each of the witnesses and the

documents on record has concluded that the first

respondent is able to establish the sale agreement dated

12.3.1992, payment of advances between 24.8.1992

and 30.4.1994 in part performance and fraud by the

first appellant and late M.A. Samad in suppressing the

sale agreement dated 12.3.1992 and securing Court’s
28

permission to transfer the subject property for a total

sale consideration of Rs.5 lakhs, including the minors

rights, in favour of late M.A. Samad. The Trial Court,

taking note of the first appellant’s evidence before the

Bar Council in the disciplinary proceedings against Mr.

Shahabuddin Akbar and other evidence, has concluded

that the first appellant has admitted the execution of

the sale agreement dated 12.3.1992 contrary to the

defense taken in the suit.

22. The Trial Court has considered that after the

sale agreement dated 12.3.1992, the first appellant

initiated proceedings in Miscellaneous No.10073/1992

specifically adverting to the sale agreement dated

12.3.1992 and contending that she had been compelled

by her circumstances to enter into agreement of sale with

the tenant’. If indeed there was no agreement between

the first appellant and the first respondent, there was

no occasion for the first appellant to initiate proceedings
29

under the provisions of Guardian and Wards Act, 1890

in Miscellaneous No. 10073/1992 referring to the

agreement with the tenant. As such, even this

circumstance established the agreement.

23. The Trial Court has also held that the first

appellant and late M.A.Samad are unable to establish a

prior agreement that was purportedly executed between

them in the month of January 1992. The Trial Court

has also held that the first appellant and late

M.A.Samad played fraud on the first respondent

inasmuch as they produced agreement dated

10.11.1994 (which was signed between the first

appellant and Late M.A.Samad during the pendency of

the proceedings in Miscellaneous No.10073/1992)

instead of the sale agreement dated 12.3.1992 referred

to in the Miscellaneous No.10073/1992. Accordingly,

the Trial Court has rejected the first respondent’s

defense that the sale agreement dated 12.3.1992 was
30

fraudulently obtained by Mr. S Victor and that the first

appellant affixed her signatures to certain papers only

because Mr. S Victor promised to secure a loan.

24. Insofar as the first respondent’s readiness

and willingness to complete the sale transaction

contemplated under the sale agreement dated

12.3.1992, the Trial Court, while considering a bunch of

other Issues, has recorded that it was argued on behalf

of the first respondent that the first respondent had

transferred a site in Koramangala, Bangalore to pay the

advances as evidenced by the different

acknowledgements signed by the first appellant; the

first appellant had executed, at the instance of the first

respondent/Mr. S Victor, two agreements – one

agreement for a sum of Rs.4 lakhs and another

agreement for a sum of Rs.5 lakhs; the first respondent

had submitted the agreement executed for Rs.4 lakhs

with LIC for a home loan; the first respondent, who had

received custody of the original documents
31

simultaneously with the sale agreement dated

12.3.1992, had handed over the original documents to

be filed in Miscellaneous No.10073/1992 and the first

respondent had also initiated disciplinary proceedings

against Mr. Shahabuddin Akbar; that these

circumstances established the first respondent’s

readiness and willingness. The Trial Court has

considered these circumstances and answered the Issue

No. 3, and the other Issues, in favour of the first

respondent without specific reasoning as regards the

first respondent’s readiness and willingness.

25. Mr. S S Naganand, the learned Senior

Advocate arguing for the appellants submitted that

Section 16 of the Specific Relief Act, 1963 contains

personal bars against granting specific performance

under certain circumstances, including where the

plaintiff fails to prove ready and willingness because of

Sub-section 16 (c). As such, the Courts cannot grant

specific performance in favour of a plaintiff unless it is
32

concluded, on the basis of cogent evidence, that such

person has proved that he/she has performed, or has

always been ready and willing to perform, the essential

terms of the contract in view of the provisions of Section

16(c) of the Specific Relief Act, 1963. Therefore, a

plaintiff in a suit for specific performance will have to

perforce establish readiness and willingness, and

specific performance cannot be granted merely because

the vendor-defendant is in breach of some terms of the

agreement1. The learned Senior Advocate also

emphasised that it is a requirement in law that a

plaintiff in a suit for specific performance will not only

have to establish Readiness by demonstrating the

capabilities to pay the agreed consideration but also the

Willingness, the mental preparedness, to pay the agreed

consideration by his/her conduct2. However, in the

1
Man Kaur vs. Hartar Singh Sanghia -(2010) SCC page 512
2
KH Shamrao Sons, Bangalore and others vs. M R Jaishankar and others –
2016 (3) KL J page 471
33

present case, the first respondent is able to establish

neither Readiness nor Willingness.

26. The learned Senior Advocate elaborating on

these propositions canvassed that the evidence on

record does not establish that the first respondent was

ready and willing to perform her part of the contract

viz., pay the agreed consideration within the stipulated

period, but the Trial Court has granted specific

performance being swayed by its own findings that the

first appellant had acted in breach of the terms of the

agreement. The Trial Court did not consider that even

according to the first respondent, she had to pay

consideration in excess of Rs.3,72,000/- and therefore

she had to demonstrate her capability to pay this

amount. But, no evidence is placed on record to

establish that the first respondent had the capacity to

pay Rs. 3,72,000/-. The only evidence in this regard is

Exhibit P9, a Certificate issued by the Administrative

Officer of NIHMANS, Bangalore. But, this Certificate
34

does not establish the first respondent’s readiness (that

is, capacity) to pay the balance consideration of

Rs.3,72,000/-for the following reasons:

i. Firstly, the Certificate is dated 14.8.1998, that

is much after the institution of the suit.

ii. Secondly, the Certificate states that the House

Building Advance admissible for the first respondent

during the financial year 1998-1999 was 50 times the

Basic Pay and Stagnation Increment or Rs.7.5 lakhs

whichever is less. But, there is no reference to what

was the eligibility as of the relevant period of time.

iii. Thirdly, there is no evidence as to what was the

Basic Pay of the first respondent.

27. The learned Senior Advocate further argued

that the other circumstances as borne out by the

material on record also militate against the first

respondent’s capacity to raise the required amount of

Rs. 3,72,000/-. The learned Senior Advocate canvassed
35

that it was admitted that the first respondent’s

husband, Mr. S Victor, faced disciplinary proceedings

and was removed from employment resulting in

protracted proceedings between Mr. S Victor and his

employer, that though Mr. S Victor had deposed that he

was even otherwise gainfully engaged and was earning

over Rs.1 lakh per annum, no evidence was placed in

this regard and that the first respondent, who was

working only as a nurse at the relevant time, had to

deal with mounting expenses because her children were

pursuing education. Therefore, it could not have been

possible for the first respondent to meet such mounting

expenses and also repay loan. The learned Senior

Advocate argued that because of these circumstances,

it cannot be concluded that the first respondent was

ready to pay the agreed consideration, and her conduct

from the date of the sale agreement viz. 12.3.1992 also

failed to belie the first respondent’s willingness to pay.
36

28. Thus, the learned Senior Advocate pivoted the

appellant’s case only on the question of the first

respondent’s readiness and willingness. In fact, the

learned Senior Advocate did not join issues with the

finding of the Trial Court on other questions/ Issues.

29. Mr. Arun Ponnappa, the learned advocate for

the first respondent, argued in support of the impugned

judgment, as well the finding as regards readiness and

willingness, placing reliance upon the following: the

first respondent, acting in performance of her part of the

contract, had paid different amounts as and when

requested by the first appellant which is acknowledged

by the first appellant in writing as endorsements in the

sale agreement, the first respondent mobilized these

amounts by sale of a site at Koramangala, Bangalore

and her personal jewellery, the first respondent (acting

in earnest) submitted an application for Home Loan

with M/s LIC on the basis of another agreement

executed by the first appellant for a consideration of
37

Rs.4 lakhs, the first respondent handed over (on the

request of the advocate, Mr. Shahabuddin Akbar) the

original documents that were made over to her

simultaneously with the execution of the sale agreement

12.3.1992 to felicitate expedited closure of the

proceedings initiated by the first appellant for

permission to transfer minors’ undivided rights, the first

respondent/her husband – Mr. S Victor (and another

witness, Dr. B T Reddy) had travelled to Kolar to

pursuade the first respondent to complete the

transaction, the first respondent/her husband – Mr.

S.Victor had diligently pursued with the advocate, Mr.

Shahabuddin Akbar; the first respondent initiated suit

for specific performance at the first instance without

any delay on coming to know that the first respondent

had been duplicitous and the first respondent had also

initiated disciplinary proceedings against the advocate,

Mr Shahabuddin Akbar. The learned counsel

contended that these circumstances were indubitably
38

established by the material on record, and that these

circumstances established the first respondent’s

readiness and willingness to complete the sale

transaction.

30. Insofar as Exhibit P9, a Certificate issued by

the Administrator Officer of NIMHANS, Bangalore and

the submissions by the learned Senior Advocate as

against such Certificate, the learned advocate submitted

that the Certificate will have to be examined in the

context of the undisputed facts that the first respondent

was indeed employed with the NIMHANS, Bangalore and

that she had put in considerable length of service. The

learned counsel also emphasised that the first appellant

and late M A Samad had by their conduct misled the

first respondent into believing that the proceedings

under the Guardians and Wards Act, 1890 was being

pursued for the benefit of completing the transaction as

per sale agreement dated 12.3.1992, and it was only

because the first respondent secured Encumbrance
39

Certificate, she realised that the Sale deed dated

24.12.1994 was clandestinely executed in favour of late

M.A. Samad and presented for registration on

26.12.1994 i.e., three days after the Court’s order

granting permission to execute sale deed, and therefore,

no Home Building Loan application, though entitled,

was made by the first respondent earlier. The first

respondent was entitled to 4 months from the date of

grant of permission to complete the sale transaction

and that she would have obtained the necessary loan

from her emloyer during this period.

31. The learned counsel also relied upon a string

of decisions in support of the proposition that readiness

and willingness cannot be a straitjacket formula and

will have to be discerned from the facts and

circumstances in every given case3, that to establish the

capacity to pay the consideration as part of the

3 Satya Jain (Dead) through LRS and others vs. Anis Ahmed
Rusdie (Dead) through LRS and others – (2013) 8 SCC Page 131
40

performance of the sale agreement, a plaintiff need not

deposit such consideration in the Court4, that ready and

willingness will also have to be gathered from the

plaintiff’s blemishless conduct5 and that the defendant’s

conduct cannot be ignored while exercising the

discretion to grant or refuse specific performance6. The

learned advocate has also cited a few other decisions in

support of these very propositions.

32. However, both the learned Senior Advocate

and the counsel for the first respondent have submitted

that the outcome of the review petitions in HRRP Nos.

401/2006 and 402/2006 would be subject to the

decision in appeal in RFA No. 2397 of 2007. If the

appeal is dismissed, consequentially the revision

petitions will have to be dismissed: on the other hand, if

4 Azhar Sultana vs. B. Rajamani and others – AIR 2009 Supreme
Court Page 2157
5 Mst. Sugani Vs. Rameshwar Das and another – AIR 2006
Supreme Court Page 2171
6 Silvey and others vs. Arun Veghese – AIR 2008 Supreme Court
Page 1568
41

the appeal is allowed, the review petitions will also have

to be allowed and the petitions in HRC No. 147/2000

and in HRC No. 148/2000 remanded back for final

adjudication in the light of the decision of the appeal.

33. Though different grounds are urged in the

appeal memorandum, it is obvious from the arguments

canvassed before this Court by the learned Senior

Advocate for the appellant that the appellants’ challenge

to the impugned judgment and decree in OS

No.1119/1995 is consciously and entirely pivoted on

the ground that the personal bar to relief under Section

16(c) of the Specific Relief Act, 1963 should be invoked

against the first respondent as she has failed to prove

that she was ready and willing to pay the balance sale

consideration of Rs.3,72,000/-. As such, the following

points arise for cosidration:

i. Whether the first respondent’s suit for specific

performance, and other consequential relief/s,

will have to be dismissed invoking the personal
42

bar to relief under Section 16 of the Specific

Relief Act, 1963 if the first respondent has not

been able to establish her readiness and

willingness to perform the essential part of the

contract which had to be performed by her.

ii. Whether the first respondent has been able to

establish that she was always ‘Ready’ to

perform the essential part of the contract which

had to be performed by her.

iii. Whether the first respondent has been able to

establish that she was always ‘Willing’ that is

mentally prepared to perform the essential part

of the contract which had to be performed by

her, and

iv. Whether any interference is called for in the

similar but separate orders dated 5.1.2006 in

the review petitions in HRRP 401/2006 and

402/2006.

43

34. The provisions of Section 16(c) of the Specific

Relief Act, 1963 operate as a personal bar to relief of

specific performance of contract in favour of a person

who, inter alia, fails to prove (also, aver) that he/she has

performed – or has always been ready and willing to

perform – the essential terms of the contract which are

to be performed by him/her unless such term/s are

prevented or waived by the defendant. This personal

bar operates, in other words, as a threshold bar. A

plaintiff, in a suit for specific performance, perforce will

have to discharge the obligation to prove (and also aver)

that he/she has performed or has always been ready

and willingness to perform the essential part of the

contract that he/she must perform (unless the essential

terms are prevented or waived by the defendant). If the

plaintiff fails to discharge this burden, the threshold bar

should be applied and specific performance must

necessarily be refused. In other words, the relief of

specific performance cannot be pitch-forked in favour of
44

the plaintiff over the plaintiff’s failure to establish

performance, or ready and willingness to perform, the

essential terms of the contract because it could be that

the defendant has committed default of the terms of the

agreement.

35. Therefore, the Courts, in a suit for specific

performance, will have to scrutinize the evidence on

record to ascertain whether the plaintiff has discharged

the threshold obligation of establishing either

performance, or ready and willingness to perform, the

essential terms of the contract, unless the performance

of such essential terms are either prevented or waived

by the defendant. This exercise will have to be

undertaken before examining any case of breach by the

defendant of his part of the performance of the contract.

The Honourable Supreme Court in Man Kaur (Dead) vs.

Hartar Singh Sanghia7 has also declared as follows:

7

(2010) SCC page 512
45

“There are two distinct issues. The first issue is
the breach by the defendant vendor which gives a
cause of action to the plaintiff the file a suit for
specific performance. The second issue relates to
the personal bar to enforcement of specific
performance by persons enumerated in Section
16 of the Act. A person who fails to aver and
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 the terms of performance of which has
been prevented or waived by the defendant) is
barred from claiming specific performance.
Therefore, even assuming that the defendant had
committed breach, if the plaintiff fails to aver in
the plaint or prove that he was always ready and
willing to perform the essential terms of the
contract which are required to be performed by
him (other than the terms the performance of
which has been prevented or waived by the
plaintiff), there is a bar to specific performance in
his favour. Therefore, the assumption of the
respondent that readiness and willingness on the
part of the plaintiff is something which need not
be proved, if the plaintiff is able to establish that
the defendant refused to execute the sale deed
and thereby committed breach, is not correct’.”
46

36. Therefore, if the first respondent has not been

able to establish both her readiness and willingness to

perform that part of the contract (viz. sale agreement

dated 12.3.1992, the first respondent’s claim for specific

performance would have to be dismissed applying the

personal bar to relief under Section 16(c) of the Specific

Relief Act, 1963.

37. It is settled law that ‘Readiness’ connotes

capacity to perform essential terms of the contract, and

‘Willingness’, which is to be assessed by the conduct of

the plaintiff, connotes mental preparedness to perform

essential terms of the contract. A useful reference in

this regard could be made to the decision of the Hon’ble

Supreme Court in His Highness Acharya Swami Ganesh

Dassji vs. Sita Ram Thappar8. Further, the Hon’ble

Supreme Court in its decision in Sathya Jain (Dead)

through Lrs., and others vs. Anis Ahmed Rushdie9 has

8
(1996) 4 Supreme Court Cases Page 526
9
(2013) 8 Supreme Court Cases page 131
47

summed up that no straitjacket formula can be laid

down for assessing plaintiff’s readiness or willingness

and the test would be the plaintiff’s overall conduct i.e

conduct prior (and subsequent) to the filing of the suit

which will have to be viewed in the light of the

defendant’s conduct. The relevance of the defendant’s

conduct while examining the plaintiff’s readiness and

willingness would be that it could assist the Court in

deciding whether the defendants’ conduct could have in

any manner obstructed the plaintiff’s final preparedness

to perform the essential terms of the contract.

38. Thus, the first respondent’s readiness to

perform her part of the contract i.e., the capacity to pay

the balance sale consideration of Rs.3,72,000/- will

have to be assessed with reference to the material on

record as regards her financial capacity. The first

respondent’s willingness (viz. her mental preparedness)

to pay Rs.3,72,000/-, will have to be discerned from her
48

conduct as established by the material on record.

Further, it is also to be seen whether the conduct of the

first appellant could be relevant as regards it being a

spur or a cue for the first respondent to initiate, at her

end, certain process to complete the transaction.

39. The terms of the sale agreement dated

12.3.1992 are categorical in that the transaction in

favour of the first respondent could be completed only

after permission from the Court in that regard is

obtained as the second and third respondents, who

succeeded to the subject property along with the first

appellant, were minors at that relevant period of time.

Further, the first appellant is required to obtain such

permission at her own risk. As regards the time limit

for completion of the sale transaction, the sale

agreement dated 12.3.1992 stipulates that the sale

transaction shall be completed within four [4] months

from the date of the agreement, however subject to the

first respondent’s obligation to secure permission from
49

the Court as referred to supra. It is also accepted that

until the Court’s permission is obtained the agreement

shall subsist and the time contemplated for completion

of the transaction could be extended by mutual consent.

The only plausible conclusion from these terms is that

both the first appellant and the first respondent believed

that the first appellant could obtain Court’s permission

within a period of four [4] months from the date of the

agreement, and they provided for a contingency if the

first appellant was unable to obtain such permission

within four [4] months by acceding that the agreement

shall subsist until the first respondent could obtain

Court’s permission to complete the sale transaction.

Mr.S. Victor has also deposed accordingly.

40. The first appellant presented the petition

under the provisions of the Guardians and Wards Act,

1961 on 15.7.1992 in Miscellaneous No. 10073/19,

which is after four [4] months from the date of the sale

agreement dated 12.3.1992, specifically stating that she
50

proposed to sell the subject property to a tenant

adverting to the sale agreement dated 12.3.1992. The

petition in Miscellaneous No. 10073/1992 is allowed by

the Court on 23.12.1994. Therefore, the first

respondent’s conduct during this period between

12.3.1992 and 23.12.1994 would be significant insofar

as her readiness and willingness to complete the

transaction under the sale agreement.

41. The first respondent’s case is that during this

period she handed over the original documents of the

subject property to be filed in Miscellaneous

No.10073/1992, she paid different amounts, in all, a

sum of Rs.2,28,000/- out of the total consideration of

Rs. 6,00,000/ as and when requested by the first

appellant, she followed up with the advocate, Mr.

Shahabuddin Akbar and the first appellant;

importantly, she initiated suit for specific performance

at the earliest. And, that these circumstances establish

the first respondent’s ready and willingness.
51

42. First, as regards the handing over of the

original documents of the subject property. Though

there was some controversy about the circumstances

under which the first respondent handed back the

original documents of the subject property with the first

appellant contending that the first respondent returned

the documents after the issuance of legal notice dated

25.01.1993 (Exhibit D3) on behalf of the first appellant

in a purported meeting in the chambers of advocate, Mr.

Shahabuddin Akbar, the finding by the Trial Court in

favour of the first respondent this regard has remained

unchallenged. Nevertheless, the material on record in

this regard is examined.

43. The evidence on behalf of the first respondent

is that the documents were returned to the advocate,

Mr. Shahabuddin Akbar, on his request, to enable him

to file such documents with the Court in Miscellaneous

No. 10073/1992 to expedite a decision and the first

respondent willingly handed over the documents
52

because she was ready as well as willing to complete the

transaction. Apart from the ocular evidence in this

regard, there is the Letter dated 11.5.1994 (EX. P. 14)

issued by the advocate, Mr. Shahabuddin Akbar (with

the Endorsement dated 5.12.1994). This letter, which is

addressed to the first respondent, is categorical in that

it acknowledges that the original documents are

received “to obtain permission from Court and also as a

settlement for the sale of the above property”. This letter

is not disputed and this should suffice to conclude that

the first respondent handed back the document because

she was prepared to complete the transaction.

44. Further, the advocate, Mr. Shahabuddin

Akbar, on 5.12.1994, has endorsed on this Letter, Ex.

P14, that the documents were produced before the

Court and the first appellant received back the

documents after these documents were verified and

returned by the Court. The first appellant has failed to
53

establish that these documents were indeed produced

before the Court, and in fact, the Court’s order dated

23.12.1994 does not refer to the original documents

when it lists the documents produced in such

proceedings. The first respondent has executed a sale

deed in favour of Late M. A. Samad a day after the Court

granted permission on 23.12.1994 without any lapse of

time.

45. Furthermore, the appellants have failed to

explain why they did not place on record before the

Court in Miscellaneous No.10073/1992 that though the

petition was initiated with reference to sale agreement

dated 12.3.1992, permission was being sought with

reference to another agreement with late M.A. Samad.

The fact that the first appellant has not stated before

the Court in Miscellaneous No.10073/1992 that the

sale agreement dated 12.3.1992 in favour of the first

respondent was cancelled/revoked is undisputed.
54

Thus, the issuance of this Endorsement dated

5.12.1994 has all the hues of a subterfuge to mislead

the first respondent.

46. Moreover, the very alleged settlement during

which these documents were returned by the first

respondent is not established. The first appellant (RW –

1) in her evidence has not furnished the details as

regards the purported meeting in the chambers of Mr.

Shahabuddin Akbar, and in fact, she has not at all

spoken about return of the documents. The first

respondent’s evidence in this regard before the Bar

Council in the proceedings against Mr. Shahabuddin

Akbar is completely incredulous. In these

circumstances, it is held that the first respondent

returned the documents to Mr.Shahabuddin Akbar to

file with the Court in Miscellaneous No. 10073/1992 to

expedite Court’s permission to complete the sale
55

transaction because the first respondent was willing to

complete the transaction.

47. The first respondent’s capacity to pay the

balance sale consideration of `3,72,000/- is under a

very serious challenge. The first respondent’s case as

regards payment of the total consideration of Rs.

6,00,000/- agreed under the sale agreement dated

12.3.1992 is two-fold. The first respondent contends

that out of the total consideration of Rs. 6,00,000/-, a

sum of Rs 2,28,000/- is paid as acknowledged by the

first appellant; a sum of Rs.50,000/- is paid at the time

of execution of the sale agreement dated 12.3.1992 and

the remaining amount is paid on different dates as

endorsed by the first appellant in writing in the sale

agreement dated 12.3.1992. The first respondent

further contends that these amounts include the

amounts that were paid by the first respondent from out

of the sale proceeds received by her on selling a plot in

Koramangala, Bangalore. The first appellant disputed
56

the endorsements as regards the different payments

made after the date of the execution of the sale

agreement dated 12.3.1992. The first appellant disputed

her signature and contended that the first respondent

has not placed on record any material to establish that

she had access to the money which she utilised to pay

as alleged. The denial of the signatures on the

agreement is rather incredulous given the evidence on

record. Further, Mr. S Victor has deposed that the first

respondent paid the different amounts as acknowledged

in the sale agreement by sale of a site in the year 1993

and also by sale of her personal jewellery. To

substantiate this, the sale deed dated 10.12.1993

executed by the first respondent in favour of a certain

Mrs. Saphievarga transferring a site for a total

consideration of Rs.1,30,000/- is marked as Ex. P8.

There are no contra conditions to disbelieve this

evidence. As such, the payment of Rs. 2,28,000/- as

contended by the first respondent is also established.
57

48. The first respondent, insofar as the payment of

the remaining balance sale consideration of

Rs.3,72,000/- relies upon the fact that she was

employed with NIMHANS and as such was entitled for

House Building Loan. She has relied upon Exhibit P9, a

Certificate issued by the Administrative Officer,

NIMHANS. This Certificate mentions that the first

respondent, who – as of the 1998 – was working as Ward

Instructor, was entitled for a loan facility of 50 times the

Basic Pay and Stagnation Increment or Rs.7,50,000/-,

whichever is less.

49. It is true that this Certificate does not speak

about the Basic Pay of the first respondent as of the

relevant date, and does not even specify whether these

were the norms for sanction of loan as of the date

relevant for the purposes of the case. But, what is more

significant is the undisputed fact that the first

respondent was indeed an employee with NIMHANS.

Further, it is indubitable that the first respondent would
58

indeed be entitled for a loan facility from her employer,

NIMHANS. In these circumstances, and the fact that

the first respondent has proved that she has paid

Rs.228,000/-, it would be rather strenuous to conclude

that the first respondent did not possess the capacity to

pay the balance sale consideration of Rs.3,72,000/-.

50. Significantly, the agreeent between the first

appellant and the first respondent is that the first

appellant shall secure permission from the Court to

transfer the subject property including the rights of the

second and third respondents, who were minors at the

relevant time, and that until such permission is granted

by the Court, the agreement shall subsist. It is also

agreed that the first respondent would be entitled for a

period of 4 [four] months to complete the transaction,

and the period of four months could be mutually

extended. If this be so, and if the first respondent

followed up for securing court’s permission and did not

make an application for a loan facility, which she was
59

undoubtedly entitled to as a permanent employee with

NIMHANS, the first respondent’s failure to apply for

such loan cannot be seen as a contra – condition

against the first respondent’s capacity to pay the

remaining amount. There is nothing on record to

indicate that the first respondent was disqualified or

disentitled for the home loan facility.

51. It is argued on behalf of the appellants that

the first respondent’s husband, Mr. S Victor, had

difficulties in his employment and was involved in

protracted proceedings against his employer and that no

material is placed on record to establish that he indeed

was gainfully employed though he has deposed that he

was earning Rs.1,00,000/– per annum. However, these

circumstances would be totally extraneous if the first

respondent herself was on her own able to mobilise

Rs.3,72,000/-. Thus, answering the points for

consideration in favour of the first respondent it is held

that the first respondent has established her readiness
60

and willingness to culminate the sale transaction as

contemplated under the sale agreement dated

12.3.1992, and as such, no interference is called for

with the Trial Court’s impugned judgment even on this

score.

52. In the light of the discussions herein above,

the impugned judgment and decree in OS No.

1119/1995 on the file of the XI Additional City Civil

Judge at Bangalore is sustained, and consequentially

the appeal in RFA No. 2397/2007 and the revision

petitions in HRRP No. 401/2006 and HRRP

No.402/2006 are dismissed.

No costs.

SD/-

JUDGE

nv*

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