Decided on August 18,2006



Arijit Pasayat, J. - (1.)Challenge in this appeal is to the judgment of a learned Single Judge of the Karnataka High Court allowing the Second Appeal filed by the respondent.
(2.)By the impugned judgment, the High Court held that the respondent was competent to file the suit and that the Courts below were not justified in holding that Exhibit P-I was not proved though execution of the same was admitted by the defendant.
(3.)The factual position in a nutshell is as follows: The plaintiff is the respondent herein. The suit is for specific performance of contract of sale of a house property situated in Gabbut Oni, Hubli, bearing CTS No. 3119/B in Ward No. III. According to plaintiff, the above property was agreed to be sold to the brother of the plaintiff under an agreement of sale dated 26.11.1974. The brother of the plaintiff Keshavarao Mahadevappa died on 10.1.1976 leaving behind him three sisters including the plaintiff-respondent and his second wife Shantabai @ Ansuyabai as his legal heirs. The plaintiff-sister of Keshavarao filed a suit for specific performance. Though the defendant admitted the execution of the document but contended that it is a nominal sale agreement. The trial Court found the agreement as valid and granted the decree for specific performance. The appellate Court differed from the findings and proceeded to examine whether the plaintiff is competent to bring the suit for specific performance as a legal heir of Keshavarao. This issue was held vital as legal heir of the original agreement holder is entitled to purchase the property. Accordingly, the appeal was allowed. Second Appeal was filed before the High Court. Primary stand was that so long as the plaintiff is represented, the court is not concerned with who the legal heir is or are and it is for them to settle the issue between them. On the question of agreement of sale the appellate Court has come to a different conclusion without justifiable reasons. It was submitted that the appellate Court had embarked upon unnecessary investigations and has come to a wrong conclusion. The second appeal was admitted on the following questions of law:
1. Whether the Court below was right in holding that the plaintiff is not competent to file a suit as she is not a legal heir of deceased Keshavarao Sadare

2. Whether the Court below was justified in holding that Ex.P.1 is not proved though the execution of the same is admitted by the defendant

So far as the first question is concerned the High Court held that the view of the first Appellate Court was not justified. The wife of the deceased had re-married thereby losing her right over the property. Further, two of the three sisters had relinquished their shares in favour of the plaintiff. So far as the second question is concerned the High Court held that since execution of the document was admitted by the defendant, the first Appellate Court could not have given a different conclusion from that of the trial Court. Both the questions were therefore answered in favour of the plaintiff by setting aside the judgment and decree of the First Appellate Court and restoring those of the trial Court.

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