SAMBAJI S/O SAKHARAM YADAV vs SHAKUNTALA SHIVAJI YADAV

- 1 -
RSA No. 100388 of 2014


IN THE HIGH COURT OF KARNATAKA AT DHARWAD

th
DATED THIS THE 6 DAY OF NOVEMBER, 2026


BEFORE

THE HON'BLE MRS JUSTICE RAJESHWARI N.HEGDE

REGULAR SECOND APPEAL NO. 100388 OF 2014 (SP)

BETWEEN:

SAMBAJI S/O SAKHARAM YADAV




AGED ABOUT 83 YEARS, OCC: BUSINESS,

R/O. MYADAR ONI,

KOPPIKAR ROAD, HUBLI-580001.

…APPELLANT
(BY SRI MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE.)

AND:

1. SHAKUNTALA SHIVAJI YADAV




AGED ABOUT 73 YEARS,

OCC: HOUSEHOLD WORK,

2. SMT. LAXMIBAI ASHOK YADAV


ROHAN
HADIMANI
T
AGED ABOUT 51 YEARS,
Digitally signed by ROHAN
HADIMANI T
Location: HIGH COURT OF
KARNATAKA DHARWAD
BENCH
Date: 2026.11.06 16:05:28
+0530

OCC: HOUSEHOLD WORK,

3. VINAYAK ASHOK YADAV
AGED ABOUT 51 YEARS,
OCC: HOUSEHOLD WORK,

4. JYOTHI ASHOK YADAV
AGED ABOUT 33 YEARS,
OCC: HOUSEHOLD WORK,

5. VEENA ASHOK YADAV

- 2 -
RSA No. 100388 of 2014


AGED ABOUT 30 YEARS,
OCC: HOUSEHOLD WORK,

ALL ARE R/O. H.NO.112,
SHREE RAM NILAYA,
PADMARAJ NAGAR (J.P. NAGAR),
NEAR BALAJI TEMPLE,
GOKUL ROAD, HUBLI-580001
PRESENTLY RESIDING NEAR
KSHATRI PHOTO STUDIO,
KOPPIKAR ROAD, HUBLI-580001.
…RESPONDENTS
(BY SRI GIRISH A. YADAWAD, ADVOCATE FOR R3 TO R5;
APPEAL AGAINST R1 AND R2 ABATED.)

THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CIVIL PROCEDURE CODE, 1908,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
11.03.2014 PASSED BY THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI, IN
R.A.NO.31/2011 AND CONSEQUENTLY DECREE THE SUIT IN
O.S.NO.363/2007, ON THE FILE OF I ADDITIONAL SENIOR
CIVIL JUDGE, HUBBALLI, IN ENTIRELY IN THE INTEREST OF
JUSTICE AND EQUITY.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.09.2026 AND COMING ON FOR
PRONOUNCEMENT THIS DAY, JUDGMENT WAS DELIVERED
THEREIN AS UNDER:

CORAM: HON'BLE MRS JUSTICE RAJESHWARI N.HEGDE

- 3 -
RSA No. 100388 of 2014



CAV JUDGMENT
The plaintiff being aggrieved by the impugned
judgment dated 11.03.2014, passed by the I Additional
District and Sessions Judge, Dharwad, sitting at Hubballi,
(‘First Appellate Court’ for short), in R.A.No.31/2011,
dismissing the appeal and confirming the impugned
judgment and decree dated 13.12.2010, passed by
I Additional Senior Civil Judge, Hubballi, (‘trial Court’ for
short), in O.S.No.363/2007 partly decreeing the suit of the
plaintiff directing the defendants to return earnest money
with interest in a suit filed for specific performance of
contract by rejecting the relief of specific performance, has
preferred this Regular Second Appeal.

2. For convenience reference, the parties are
referred to as ‘plaintiff’ and ‘defendants’ as referred in the
trial Court.

3. Facts of the case in brief are that:
The plaintiff filed a suit seeking the relief of specific
performance of contract against defendants No.1 to 5. It is

- 4 -
RSA No. 100388 of 2014


contended by the plaintiff that one Ashok was the owner of
the land to the extent of half share in entire CTS
Nos.3297/1 and 3298/1 measuring 29 sq.yards and 32
sq.yards, respectively situated at Medar Oni, Hubballi. For
his family and legal necessity, he offered to sell his share
in the suit properties in favour of the plaintiff. The plaintiff
was residing in the first floor of the suit properties since
more than 50 years by paying municipal tax of entire
building.

4. Further, the plaintiff agreed to purchase the suit
property from said Ashok for total consideration of
₹3,00,000/-. In part performance of such contract, the
plaintiff has paid earnest money of ₹75,000/- to the said
Ashok. The plaintiff was ever ready and willing to pay
remaining balance amount of ₹2,25,000/-. The said Ashok
postponed execution of registered sale deed in favour of
the plaintiff on one or the other ground.

5. Meanwhile, on 22.01.2007 the said Ashok died
leaving behind these defendants as his legal
representatives. After the death of said Ashok, the plaintiff

- 5 -
RSA No. 100388 of 2014


requested the defendants to perform their part of contract
executing the registered sale deed in favour of the
plaintiff. These defendants also went on postponing to
perform their part of contract on one or the other pretext.
Therefore, the plaintiff issued notice to the defendants on
09.07.2007 to execute the sale deed by sending remaining
balance amount of ₹2,25,000/- through cheque bearing
No.051902, which has been received by the defendants
and they gave false reply and thereby refused to execute
the sale deed. Hence the plaintiff constrained to file the
suit.

6. In response to the summons, the defendants
appeared through their counsel and defendant No.2 being
the wife of said late Ashok has filed the written statement.
She has denied the agreement of sale dated 07.10.2005
and also denied payment of ₹75,000/- to said Ashok. It is
also denied that the plaintiff is residing in the suit schedule
property. It is admitted that said Ashok died on
22.01.2007.

- 6 -
RSA No. 100388 of 2014



7. She further contended that defendants No.2 to
4 were the co-parceners of the family along with Ashok
and thereby they were having share in the suit properties
and said Ashok was not the absolute owner. During the
lifetime of Ashok, he has executed the power of attorney
in her favour to look after the suit properties and thereby
she completely denied execution of the sale agreement.

8. Further she contended that, this plaintiff was a
party to the suit in O.S.No.436/1997, which was disposed
of against him and he challenged such decree in
R.A.No.196/2003, which was pending as on the date of
filing of the written statement. To overcome such decree
passed against the plaintiff, the plaintiff has filed the
present false suit against these defendants by forging the
signature of said Ashok on the agreement of sale.

9. It is further contended that, after receipt of
legal notice by the plaintiff, she has replied to such notice
and even returned the cheque. Even the plaintiff was not
having amount in his account of which the cheque has
been sent to the defendants. When said Ashok has not

- 7 -
RSA No. 100388 of 2014


executed agreement of sale, there is no question of
execution of sale deed by the defendants and hence
sought for dismissal of the suit.

10. On the above pleadings, the trial Court has
framed the following:
ISSUES
i) Whether the plaintiff proves agreement
of sale dated 7.10.2005 and payment of
earnest money of Rs.75,000/- to Ashok?
ii) Whether the plaintiff proves his
readiness and willingness to perform his
part of contract?
iii) What order or decree?


11. In order to prove his case, the plaintiff got
examined himself as PW1 and one witness was examined
as PW2 and got marked the documents as Ex.P1 to P8. On
behalf of the defendants, defendant No.2 was examined as
DW1 and got marked the documents as Ex.D1 and D2.

12. The trial Court after appreciation of the
evidence on record proceeded to pass the impugned
judgment dated 13.12.2010, whereby the suit of the
plaintiff is decreed in part with costs directing the

- 8 -
RSA No. 100388 of 2014


defendants to pay ₹75,000/- along with interest at the
rate of 6% per annum from 07.10.2005 within 03 months.
In default, the plaintiff is at liberty to recover the decreetal
amount from the defendants. The relief of specific
performance of contract was rejected.

13. Being aggrieved by the rejection of the relief of
specific performance of contract, the plaintiff has preferred
appeal in R.A.No.31/2011 before the First Appellate Court.
The First Appellate Court after re-appreciation of the
evidence on record, proceeded to pass the impugned
judgment dated 11.03.2014, whereby the appeal is
dismissed confirming the impugned judgment passed by
the trial Court.

14. Being aggrieved by the impugned judgments
passed by both the Courts, the plaintiff has preferred the
present second appeal on the following:
GROUNDS

i. Both the Courts have committed serious error
in refusing to grant the relief of specific
performance when the plaintiff has proved the

- 9 -
RSA No. 100388 of 2014


agreement as also his readiness and
willingness.


ii. Both the Courts committed serious error in
considering the hardship when no foundation
was laid by the respondents in their written
statement nor was any evidence led in by
them.


iii. The reasoning assigned by both the Courts for
refusal of relief of specific performance on the
ground of agreement in respect of undivided
share is well settled by the Supreme Court in
catena of decisions.


iv. Whenever a share in a property is sold, the
vendee has a right to apply for partition of the
property and get the share demarcated.
Merely because the relief of specific
performance is an equitable relief, the Courts
below should not have refused to grant it on
the ground that the plaintiff will have to file a
suit for partition if specific performance is
granted.


v. The First Appellate Court though has come to
the conclusion that the specific performance
can be granted but proceeds to decline the
same on the ground of hardship being
pleaded by the respondents though there is
no iota of evidence by the respondents with
regard to the hardship.

- 10 -
RSA No. 100388 of 2014



15. On these grounds, the plaintiff contended that
both the Courts have committed an error in rejecting the
relief of specific performance. Hence prayed for allowing
this appeal by setting aside the impugned judgment
passed by both the Courts and to decree the suit for
specific performance.

16. After filing the appeal, notice was served on the
respondents/defendants. They appeared and resisted the
appeal.

17. Trial Court records have been secured.

18. Heard the arguments of Sri Mallikarjunswamy
B. Hiremath, learned counsel for appellant and the
arguments of Sri Girish A. Yadawad, learned counsel for
respondents No.3 to 5. Appeal against respondents No.1
and 2 is abated by order dated 12.08.2024.

19. Learned counsel for appellant has relied upon
the following judgments in support of his arguments.
i) Judgment of Hon’ble Supreme Court
reported in 2026 SCC Online SC 1332,
in the case of Jaspal Singh vs.
Ashwani Kumar ;

- 11 -
RSA No. 100388 of 2014


ii) Judgment of Hon’ble Supreme Court
reported in (2019) 6 Supreme Court
Cases 233, in the case of Beemaneni
Maha Lakshmi vs. Gangumalla Appa
Rao (since dead) by legal
representatives ;
iii) Judgment of a co-ordinate Bench of this
Court in RSA CROB No.53/2009 C/w.
RSA No.3198/2006, in the case of
Vishnu S/o.Ramchandra Palankar vs.
Abdulgani S/o.Abdulsaheb Koppal,
decided on 03.08.2012 ;
iv) Judgment of Hon’ble Supreme Court
reported in (1990)3 Supreme Court
Cases 517, in the case of Kartar Singh
vs. Harjinder Singh and others .


20. Perused the records.

21. At the time of admitting the appeal, the
following substantial questions of law have been framed by
this Court.
i) Whether the findings of the Courts below
that if the relief of specific performance of
contract is granted, the same would cause
hardship to respondents-defendants is
perverse, palpably erroneous and in
absence of pleadings to that effect in the
written statement?
ii) Whether the Court below were justified in
refusing to grant larger relief i.e., the
relief of specific performance of contract

- 12 -
RSA No. 100388 of 2014


on the ground that what is agreed to be
sold is an ancestral property and therefore
specific performance of contract cannot be
executed, is perverse and palpably
erroneous and contrary to Section 22 of
the Specific Performance of Contract?


22. Learned counsel for the appellant contended
that, although both the Courts below have held that the
plaintiff had proved the execution of the Agreement of
Sale as per Ex.P8, they have nevertheless denied the relief
of specific performance by refusing to direct the
defendants to execute the registered Sale Deed.

23. Learned counsel for the appellant further
contended that both the Courts below have committed an
error in granting the alternative relief of refund of the
earnest money along with interest on the ground that
granting the relief of specific performance would cause
hardship to the defendants.

24. It was argued that, in the absence of any
specific pleading in the written statement filed by the
defendants regarding the hardship that would be caused to
them in the event of granting the relief of specific

- 13 -
RSA No. 100388 of 2014


performance, the Courts below ought not to have taken
such hardship into consideration. Therefore, both the
Courts below have committed an error in rejecting the
plaintiff's prayer for specific performance of the Agreement
of Sale dated Ex.P8 and for a direction to the defendants
to execute the registered Sale Deed.

25. Per contra, learned counsel for the
respondents/defendants contended that, though there
were no specific averments in the written statement
stating that the defendants would suffer hardship if a
decree for specific performance were granted in favour of
the plaintiff, a reading of the written statement as a whole
would reveal that granting such relief would cause
hardship to the defendants.

26. Further, learned counsel for the
respondents/defendants drew the attention of this Court to
the evidence of PW1, wherein, during the course of cross-
examination, the following admission was elicited:
“The defendants are not having any other
properties; the children of late Ashok are unmarried and
the second defendant is residing in the suit property at the

- 14 -
RSA No. 100388 of 2014


ground floor along with her children; and further it is true
that, since 2003 defendant No.2 is managing her family”.

27. Therefore, learned counsel for the
respondents/defendants contended that the second
defendant, being the wife of the executant of the
Agreement of Sale, late Ashok, and having three children,
has no other property except the suit schedule property.

28. It was further contended that the Trial Court,
taking into consideration the evidence of PW1, who is the
plaintiff himself, rightly arrived at the conclusion that
granting the relief of specific performance would cause
hardship to the defendants. Therefore, learned counsel for
the respondents/defendants supported the impugned
judgment and prayed for dismissal of the appeal.

29. The substantial questions of law that arise for
consideration before this Court are as follows:
(i) Whether the Courts below were justified in
holding that granting the relief of specific performance
of the contract would cause hardship to the defendants,
in the absence of specific pleadings to that effect in the
written statement?

- 15 -
RSA No. 100388 of 2014


(ii) Whether the Courts below were justified in
refusing to grant the relief of specific performance on
the ground that the property agreed to be sold is
ancestral property and, therefore, the decree for specific
performance ought not to be granted?

30. In the present case, though the defendants, in
their written statement, contended that the Agreement of
Sale marked as Ex.P8 was not executed by late Ashok,
husband of defendant No.2, and that the plaintiff had
obtained Ex.P8 by forging the signature of the said Ashok,
the defendants have failed to establish that the Agreement
of Sale, Ex.P8, was obtained by the plaintiff from late
Ashok by way of misrepresentation or fraud.

31. Both the Courts below have answered the issue
as to whether the plaintiff had proved the execution of the
Agreement of Sale dated 07.10.2005 and payment of
earnest money of ₹75,000/- to Ashok in the affirmative.
Further, both the Courts below have also answered the
issue as to whether the plaintiff had proved his readiness
and willingness to perform his part of the contract in the
affirmative.

- 16 -
RSA No. 100388 of 2014



32. When the findings of both the Courts below on
the aforesaid issues have not been challenged by the
defendants, particularly with regard to the execution of the
Agreement of Sale and the plaintiff's readiness and
willingness to perform his part of the contract, the
respondents/defendants cannot now contend in the
present appeal that late Ashok had never executed the
Agreement of Sale as per Ex.P8.

33. Further, learned counsel for the
respondents/defendants contended that the plaintiff had
earlier instituted a suit in O.S.No.436/1997 seeking
partition, which came to be dismissed. Aggrieved by the
dismissal of the said suit, the plaintiff preferred an appeal
in R.A.No.196/2003. It was further contended that, after
the dismissal of the suit in O.S.No.436/1997, wherein the
plaintiff had claimed a share in the present suit schedule
properties, he created the Agreement of Sale marked as
Ex.P8 with an intention to somehow or other knock off the
suit schedule property. On the basis of the said alleged
agreement, the plaintiff instituted the present suit seeking

- 17 -
RSA No. 100388 of 2014


the relief of specific performance, though he was not
entitled to such relief.

34. However, the execution of the Agreement of
Sale, Ex.P8, has already been established by the plaintiff,
as concurrently held by both the Courts below. Therefore,
the only question that arises for consideration in the
present appeal is whether, when the plaintiff has proved
the execution of the Agreement of Sale and his readiness
and willingness to perform his part of the contract, the
Courts below were justified in refusing the relief of specific
performance on the ground of hardship, particularly in the
absence of specific pleadings in the written statement
regarding such hardship.

35. In this regard, learned counsel for the appellant
has relied upon the judgments referred to supra. This
Court has carefully gone through the judgments relied
upon by learned counsel. In Jaspal Singh v. Ashwani
Kumar (supra), it has been observed as follows:
The agreement of sale validly executed by the
defendant, the plaintiff was ready and willing to perform his
part of contract, the defence of fraud set up by the

- 18 -
RSA No. 100388 of 2014


defendant was not established, then refund of earnest
money, on its true construction, operates as a bar to a
decree for specific performance, nor does it furnish a ground
on which such a relief can be declined.

36. Further, insofar as the absence of specific
pleadings in the written statement regarding the hardship
that would be caused to the defendants is concerned,
learned counsel for the appellant/plaintiff has placed
reliance upon the judgment in Beemaneni Maha Lakshmi
(supra).
In the said decision it is observed that, if there is no
plea as to hardship in a case of relief for specific
performance raised by the defendant in the written
statement nor any issue was framed, when the plaintiff was
ready and willing to perform his part of the contract, the
plea raised on behalf of the defendant that there will be
hardship which cannot be permitted.

37. Further, learned counsel for the
appellant/plaintiff contended that, in the judgment
rendered by a Co-ordinate Bench of this Court in R.S.A.
Crob. No.53/2009 c/w R.S.A. No.3198/2006, dated
03.08.2012 (supra), this Court has considered the

- 19 -
RSA No. 100388 of 2014


question of hardship as a ground for refusing the relief of
specific performance.
It is held that when two Courts have exercised their
power to deny specific performance, which is based on
legal evidence and on good grounds in second appeal could
not interfere with the discretionary order. If both the
Courts had declined to grant a decree for specific
performance on the ground stipulated in Section 20 of the
Act, the defence is not open to a person who denies the
agreement, receipt of consideration and goes to the extent
of denying the signatures. When such a stand is taken and
once it is proved, agreement is executed, consideration
paid, it bears signature of the defendant, the defendant
loses the sympathy of the Court and no Court can invoke
Section 20 of the Act in aid of granting relief to such a
defendant. Therefore, Section 20 has no application in the
facts and circumstances. Therefore in the said judgment
this Court has granted specific performance observing that
both the Courts have committed an error in declining to
grant a decree for specific performance and granted the
relief of specific performance directing the defendant to
execute the sale deed.

38. Further, learned counsel for the
appellant/plaintiff contended that, while rejecting the relief
of specific performance, the Trial Court made the following
observations, which are extracted hereunder:

- 20 -
RSA No. 100388 of 2014


In the event of specific performance is granted to
the plaintiff as the executant of the agreement agreed to
sell his undivided share, then the plaintiff has to file suit
seeking partition. The trial Court in the judgment at
paragraph No.18 in page No.15 has made observation
that, “in Ex.P8 undivided half share is agreed to be sold in
favour of the plaintiff and even if the decree for specific
performance of contract is granted, the plaintiff has to file
suit for partition and possession”.

39. Learned counsel for the appellant contended
that the observation made by the Trial Court in this regard
is wholly unwarranted. It was argued that the mere fact
that the plaintiff may have to institute a separate suit for
partition in the event of a decree for specific performance
being granted cannot, by itself, constitute a valid ground
for refusing the relief of specific performance. In this
regard, learned counsel for the appellant placed reliance
upon the judgment in Kartar Singh v. Harjinder Singh
(supra).

40. In the said judgment relied upon by learned
counsel for the appellant, it has been observed as follows:
In the agreement itself the executant had stated
that he was responsible to get the sale deed executed in

- 21 -
RSA No. 100388 of 2014


respect of his undivided share. This being the case, the
properties agreed to be sold were clearly distinguishable
by the sharers, for some reason or other, the vendor
refused to accept the agreement, there is no reason why
the agreement should not be enforced against the vendor
who had signed it and whose property is identifiable by
his specific share.

41. On going through the observations made in the
aforesaid decisions and applying the principles laid down
therein to the facts of the present case, it is evident that
the plaintiff has proved the execution of the Agreement of
Sale, his readiness and willingness to perform his part of
the contract, and his payment of the balance sale
consideration by way of cheque to the defendants at the
time of issuing the legal notice. Further, both the Courts
below have answered the issues relating to the execution
of the Agreement of Sale and the plaintiff's readiness and
willingness to perform his part of the contract in the
affirmative.

42. It is also relevant to note that no specific issue
regarding the hardship alleged to be caused to the
defendants was framed or adjudicated by the Trial Court.

- 22 -
RSA No. 100388 of 2014


In the absence of specific pleadings and an issue regarding
hardship, the Courts below were not justified in refusing
the relief of specific performance on that ground. In view
of the principles laid down in the aforesaid judgments and
the facts and circumstances of the present case, this Court
is of the considered opinion that the plaintiff is entitled to
the relief of specific performance of the contract.

43. Therefore, both the Courts below, without
properly appreciating the contentions raised by the
plaintiff and without there being any specific issue
regarding hardship, have erroneously refused to grant the
relief of specific performance.

44. In view of the aforesaid discussion and for the
reasons stated hereinabove, this Court is of the opinion
that both the Courts below have committed an error in
refusing to grant the relief of specific performance in
favour of the plaintiff. Accordingly, the plaintiff is entitled
to a decree directing the defendants to execute the
registered Sale Deed in terms of the Agreement of Sale
marked as Ex.P8, to the extent of the share of the

- 23 -
RSA No. 100388 of 2014


executant of the Agreement of Sale. Accordingly, both the
substantial questions of law framed by this Court are
answered in favour of the appellant/plaintiff.

45. In view of the aforesaid discussion, this Court
proceeds to pass the following:
ORDER
The appeal is allowed .
The impugned judgments dated
11.03.2014, passed by the I Additional District
and Sessions Judge, Dharwad, sitting at
Hubballi, in R.A.No.31/2011, and the impugned
judgment and decree dated 13.12.2010,
passed by I Additional Senior Civil Judge,
Hubballi, in O.S.No.363/2007 are hereby set
aside granting the relief of refund of earnest
money.
Consequently, the suit of the plaintiff is
decreed for specific performance of contract.
The defendants who are the legal heirs of
the executant of the agreement of sale late
Ashok are directed to execute the registered
sale deed in favour of the plaintiff within 03
months from the date of this judgment.

- 24 -
RSA No. 100388 of 2014


On their failure to execute the sale deed,
then the plaintiff is entitled to get the sale deed
executed through the Court.
The plaintiff is directed to deposit the
remaining balance sale consideration, within
one month from this day before trial Court, if
already not deposited.
Under the circumstances of the case, the
parties to bear their own costs.


Sd/-
(RAJESHWARI N.HEGDE)
JUDGE


MRK
CT-CMU