IMPORTANT POINT
The omission of Section 79B of the Karnataka Land Reforms Act retroactively validated the agreement for sale, but plaintiffs failed to establish readiness to perform the contract.

JUDGMENT :

(Anant Ramanath Hegde, J.) :

This Regular First Appeal is by defendants No.1 and 2, challenging the decree for specific performance of the contract dated 05.02.2010.

2. The Trial Court has held that the agreement to sell the suit property for Rs.64,75,000/- executed by defendants No.1 and 2 is proved. Defendants No.1 and 2 were directed to execute the registered sale deed by receiving the balance consideration of Rs.59,75,000/-, deducting Rs.5,00,000/- paid as advance consideration amount. The Trial Court has rejected the defendants’ defence of denial of execution of the agreement for sale.

3. The contention of defendants No.3 to 13, who are the family members of defendants No.1 and 2 that they too have right and interest in the suit schedule property, is not accepted by the Trial Court.

4. Defendants No.1 and 2, referring to Section 79B of the Karnataka Land Reforms Act, 1961 (‘the Act of 1961’ for short) had also taken a stand that plaintiffs No.1 to 3 not being the members of the ‘same family’ could not enter into an agreement to purchase agricultural land, which is the subject matter of the suit. The Trial Court has rejected the said contention as well.

5. The Trial Court has given a specific finding that, the plaintiffs were ready and willing to perform their part of the contract.

6. Learned counsel appearing for the appellants Sri Ajaykumar A.K. initially urged that the alleged agreement for sale is unstamped and the document ought to have been impounded, and without paying the requisite stamp duty and penalty, the agreement for sale could not have been relied upon by the Trial Court. However, later, he did not press the contention in view of the law laid down by the Co-ordinate Bench of this Court in Digambar Warty v/s District Registrar, 2013(4) KLJ 267.

7. Learned counsel for the appellants has urged that readiness and willingness on the part of the plaintiffs to perform their part of the contract is not established. He also urged that the plaintiffs were incapable of paying huge balance consideration amount of Rs.59,75,000/-.

8. Sri D. P. Ambekar, learned counsel appearing for respondents No.4 to 14 would contend that respondents No.4 to 14 have filed a suit for partition and separate possession of the suit property and in that suit, the present plaintiff No.3 had filed written statement and admitted that the transaction referred to in the present suit was a loan transaction. The copy of the written statement in the said suit is produced before this Court to substantiate this contention.

9. It is also urged that the property being the joint family property of the defendants, there cannot be a decree for specific performance, as defendants No.7 to 14 are not signatories to the agreement for sale.

10. Sri Krupa Sagar Patil, learned counsel appearing for respondent No.3/plaintiff No.3 submits that the transaction was a loan transaction and defendants No.1 and 2, during the pendency of the appeal have paid Rs.5,00,000/- to plaintiff No.3 towards repayment of loan amount of Rs.5,00,000/-.

11. Learned Senior Counsel Sri Ameet Kumar Deshpande appearing for the contesting respondents No.1 and 2/plaintiffs No.1 and 2 urged that the plaintiffs have proved the execution of agreement for sale. Readiness and willingness to perform their part of contract is also established. The agreement for sale is marked in evidence without any objection relating to the insufficiency of the stamp. The contention relating to the insufficiency of stamp on the document cannot be raised for the first time in appeal in view of the bar contained in Section 35 of the Karnataka Stamp Act.

12. It is urged that Section 79B of the Act of 1961 is omitted with retrospective effect, as such, it is to be presumed that Section 79B was never in the statute and there was no bar for the plaintiffs to enter into an agreement to purchase agricultural land.

13. The readiness and willingness on the part of the plaintiffs to perform their part of the contract was never