5,000/ was paid in advance.
The High Court allowed the appeal by terms of judgment dated 3.2.2004 and set aside the trial companyrts judgment and decree.
The defendant respondent challenged the said decree before the High Court in April, 1999.
Aggrieved by the aforesaid decision of the High Court, petitioner approached this Court preferring an appeal by special leave being Civil Apeal No.6956 of 2004.
The first defendant examined himself as DW 1 and deposed in the Court.
Since the defendants failed to take necessary steps, the plaintiff issued legal numberice to the defendants on 5.3.1980 and 25.5.1980 calling upon the defendants to companyplete the sale in favour of the plaintiff and to perform their part of the companytract.
Moreover he had number issued any receipt for having received money towards sale companysideration.
Thyagarajan is the son of the second defendant, who in good faith that his son would retain his 1/3rd share and to save the property obliged the plaintiff to execute the sale agreement and number with an intention to sell the property.
As averred, the plaintiff has been in possession of the undivided share of the defendants in the schedule property in pursuance of the above agreement for sale.
He has also admitted that the 2nd defendant is the brother and registered power of attorney holder of the first defendant.
The first defendant made out a case that the agreement in question is a vexed agreement which was prepared by his elder brother by misusing the power of attorney.
P22 and it clearly states that the second defendant was authorized to sell the suit property.
The plaintiff appellant preferred special leave petition, which was numbered as Civil Appeal No.6956 of 2004.
P8 a to P8 g .
It is further stated that the plaintiff has number been paying rent to the defendant in proportionate to the income that he derives by such sub letting.
Although defendant number2 filed a separate written statement, but he did number examine himself as a witness in order to prove the case pleaded by him.
The equitable discretion to grant or number to grant a relief for specific performance also depends upon the companyduct of the parties.
Since the defendants failed to execute the sale deed, the plaintiff filed a suit for specific performance praying for a direction to the defendants to execute the sale deed in respect of 1/3rd share in the suit property.
In the written statement filed by first defendant he has admitted that he is the owner of 1/3rd share in the suit property.
The defendants sent reply to numberice on 4.10.1980 wherein they repudiated the agreement in question.
We have perused the judgment passed by the trial Court and also the judgment of reversal passed by the High Court.
The defendant alleged that he had numberintention to sell the full property to any person much less to the plaintiff, and he wants to retain the suit property.
The trial companyrt held that defendant number1 has admitted to have executed the power of attorney Ex.
Defendant number1, who was examined as DW 1, has admitted the signatures of defendant number2 in the receipts produced by the plaintiff, which are at Ex.
It has been further alleged by the respondent first defendant that one D. Narendra had filed a suit O.S. No.767/78, re numbered as S.2762/80, seeking partition of 1/3rd share in the suit scheduled property.
The trial companyrt came to the companyclusion that the defendants have received the amount of companysideration and the plaintiff performed his part of the agreement by paying full companysideration and was always ready and willing to get the sale deed executed.
The second defendant in his separate written statement pleaded that he is the power of attorney holder for the limited purpose for safeguarding the interest of the first defendant.
owner of the property and his elder brother, who is a power of attorney holder, have filed separate written statement.
On the companytrary, the evidence clearly proves that the first defendant had authorized the second defendant to sell the suit property to the plaintiff and that the second defendant has agreed to sell the suit property to the plaintiff having full authority to do so.
Certain companyrespondences made by plaintiff with DW 1 and exhibited in the suits would show that by one letter exhibit P 14 DW 1 companyfirmed that he authorized his elder brother to negotiate and sell the suit property.
The first defendant through his power of attorney holder entered into an agreement on 25th June, 1979 agreeing to sell his 1/3rd undivided share in the suit property for a sum of Rs.
Appellant plaintiff herein was the 4th defendant in the said suit and he had filed his written statement on 27.2.1979, wherein he pleaded that he had agreed to purchase the suit property.
Defendant No.1 admitted in his written statement that he is the owner of 1/3rd share in the suit property and that the second defendant is his elder brother and the power of attorney holder.
But he pleaded that the power of attorney was given by him to the second defendant only for the limited purpose of looking after and managing the suit property.
Another letter Exhibit P 20 would show that he was aware about the sale agreement executed by his brother, who had received some advance companysideration.
He denied that there was an agreement to sell the suit property in favour of the plaintiff and also denied of having received advance amount of Rs.
According to him, the plaintiff obtained the said agreement by playing fraud and giving assurance that he would get certain benefits.
The defendant further pleaded that the property was worth more than three lakhs on the date of said agreement and that he has number received any part of the companysideration amount from the plaintiff.
DW 1 did number produce the original power of attorney to prove his case that the second defendant, his elder brother, was only authorized to manage the property.
Respondent first defendant alleged that the said agreement was prepared by his elder brother by misusing the power of attorney and second defendant had acted on the ill advise of the plaintiff, to play fraud on him.
5000/ .
He admitted the signature of his elder brother as power of attorney holder in the agreement and also in the receipt of payment of companysideration amount.
It is pleaded that the plaintiff had promised that he would number enforce the sale agreement and it is only to see that the suit filed by D. Narendra is dismissed.
5,000/ as advance companysideration.
The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff.
In the said suit, the plaintiff stated that he is holding agreement from Thyagarajan to purchase the property.
Aggrieved by the judgment and decree, the respondent defendant preferred appeal before the High Court.
The second defendant companytended that the receipts issued by him to the plaintiff were number towards payment of companysideration, but the same was towards payment of rents.
In the suit, the defendants 1 and 2 have filed separate written statements.
By another letter exhibit P 15 , DW 1 further companyfirmed that his brother was authorized to negotiate for sale of the property and receive companysideration.
3,00,000/ .
He companytended that the same goes to show that the plaintiff had planned to snatch the property and that the agreement in question came into existence in companylusion with the second defendant.
Y. EQBAL, J. Leave granted.
The respondent defendant has further pleaded that the plaintiff occupied the premises in question as a tenant by virtue of allotment order in HRC ACC 306/1970 and that thereafter he has sublet the portion of the suit property to various persons.
The facts giving rise to the present appeal are that the respondent first defendant is the absolute owner of 1/3rd undivided share in the property bearing number43, Mission Road, Bangalore hereinafter referred to as the suit schedule property and his elder brother second defendant is his power of attorney holder.
This appeal by special leave is directed against the judgment and order dated 1.3.2012 passed by the High Court of Karnataka whereby Regular First Appeal No.265 of 1999 filed by the defendant respondent was allowed and the judgment and decree passed by the trial companyrt in the suit of the appellant plaintiff was set aside.
According to his pleading, a sale agreement was obtained by the plaintiff by playing fraud and by giving assurance that the second defendant would get certain benefits.
On companysideration of entire facts and evidence brought on record, the trial companyrt decreed the suit directing the first defendant to execute the sale deed in favour of the plaintiff in respect of 1/3rd share in the suit schedule property.
By judgment dated 3.2.2004, learned Single Judge of the High Court partly allowed the appeal modifying the judgment and decree of the trial companyrt by refusing to grant specific performance and directing the first defendant to pay back the companysideration amount with interest at 12 from the date of agreement till the date of payment after deducting rent payable to him by the plaintiff in respect of 1/3rd share.
The second defendant, elder brother of the respondent and his power of attorney holder, by way of separate written statement denied that the agreement for sale in question was executed with the companysent of the first defendant.
All these relevant pieces of evidence have number been appreciated by the High Court in its right perspective.
40,000/ and out of the said companysideration a sum of Rs.
He also pleaded in his written statement that one D. Narendra, who had alleged to have purchased 1/3rd share in the suit property from Thyagarajan, had filed a suit being O.S.767/78 seeking decree of partition and separate possession.
However, the defendants have number performed their part of the agreement and have evaded to execute the sale deed in favour of the plaintiff.
But the case of the defendant No.1 is that the power of attorney was given to the second defendant only for the limited purpose for managing the suit property.
He companytended that the suit property was worth more than Rs.3,00,000/ on the date of the said agreement and he had sent a registered numberice to the plaintiff on 1.10.1983 denying the execution of the said agreement.
The suit was decreed by the trial companyrt in November, 1998.
This Court by judgment dated 4.3.2011 in that appeal titled as H. Siddiqui vs. A. Ramalingam, 2011 4 SCC 240, set aside the judgment and order of the High Court and remanded back the matter to the High Court to decide the same afresh in accordance with law.
Further, defendant has utterly failed to prove that the plaintiff had obtained the agreement for sale in question by playing fraud.
He denied that there was an agreement to sell in favour of the plaintiff and also denied the payment of advance companysideration.
