JUDGEMENT

This Appeal by the Defendants calls in question a Judgement & Decree dated 22.10.2016 whereby respondents’ specific performance suit in O.S.No.2688/2010 having been decreed, the appellants are directed to obtain an absolute sale deed comprising of subject property from the Bangalore Development Authority, and thereafter to execute & register a sale deed in their favour within thirty days and further deliver possession, failing which they can get the same done through the process of court. There is also a direction restraining the appellants “from alienating, mortgaging or in any way dealing with the suit property ….”. After service of notice, the respondent-defendants having entered appearance through their counsel resist the appeal.

II. FOUNDATIONAL FACTS:

(1) The subject house site admeasuring 40X60 sq.ft.

was originally allotted to one Mr.K.H.Venkatareddy way back in 1965 by CITB, a statutory body which is the predecessor the BDA, constituted under the provisions of the Bangalore Development Authority Act, 1976. The allottee having died, a formal allotment came to be made in favour of his widow Smt.Chowdamma who happens to be the first Appellant herein vide Allotment Letter dated 11.11.1993. She has put up residential structure comprising of ground & first floors. There is some marginal land adjoining the suit property, and that too happens to have been allotted to her.

(2) Despite there being no registered sale deed pursuant to Allotment Letters, the first Appellant transferred the subject property in favour of second Appellant vide registered Gift Deed dated 26.04.2004 and accordingly entries have been updated in the Municipal Records. The second Appellant is none other than the daughter-in-law of first Appellant.

(3) There was an Agreement to Sell the subject property between the second Appellant and the Respondents herein. That was concluded on 21.05.2009 for a consideration of Rs.35,00,000/- which has been admittedly paid by the Respondent – Plaintiffs. It is registered also. It was stipulated between the parties that the vendors should obtain a regular sale deed at the hands of BDA within a period of thirty days. The sale deed was required to be executed within ninety days after the obtainment of sale deed. At this stage, it is relevant to mention that the Appellants got extended the time for compliance by drawing an Endorsement on the original Agreement itself.

(4) Since no efforts were made from the side of Appellants to secure the sale deed and thereafter to execute the conveyance, the Respondent – Plaintiffs got issued a legal notice dated 22.09.2009 calling upon them to accomplish the deal. This was followed by a Rejoinder Notice dated 23.11.2009. Therefore, the Respondents filed the Suit for Specific Performance. The same was resisted by the Appellants by filing the Written Statement. The Court below framed six principal issues which read as under:

“(1) Whether the plaintiffs prove that the defendants entered in to an agreement to sell the suit schedule property in their favour for consideration of Rs.35 Lakhs and received entire sale consideration and execute registered agreement of sale dtd. 21.05.2009?

(2) Whether the defendants prove that the alleged agreement of sale dtd. 21.5.2009 is a fabricated document and they never agreed to sell the suit schedule property in favour of plaintiffs?

(3) Whether the defendants prove that the plaintiffs played frau in obtaining the alleged agreement of sale by falsely representing that the said document was only a mortgage deed?

(4) Whether the plaintiffs prove that they have always been ready and wiling to perform their part of contract?”

(5) On behalf of the Plaintiffs, one Mr. Amit R Jain i.e., their Attorney was examined as PW1. He is none other than the husband of second Plaintiff. In his deposition, as many as 20 documents came to be marked as Exhibits P1 to P20 which inter alia included the Power of Attorney, Site Allotment Letter, Gift Deed, Agreement of Sale, L