Andhra Pradesh High Court - Amravati
Buddiga Tulasi Venkata Radhakrishna vs Kaligarieedi Durganand Died on 25 September, 2025
APHC010727502015
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI
THURSDAY,THE TWENTY FIFTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
SECOND APPEAL NO: 64 OF 2015
AND
SECOND APPEAL NO: 65 OF 2015
SECOND APPEAL NO: 64 OF 2015
Between:
1. Buddiga Srirama Rao, S/o Venkanna, Occ: Cultivation, 20th Ward,
Narsapur, W.G.Dist. (Died) per LRs
2. Buddiga Tulasi Venkata Radhakrishna
3. Buddiga Venkata Sudheer
4. Buddiga Jayalakshmi
(Appellants 2 to 4 are brought on record as LRs of the sole appellant, vide
I.A.No.4/2025 in S.A.No.64/2015, as per Court order dt.05-02-2025)
...Appellants/R.1/D.1
AND
1. Kaliganeedi Durganand (Died) per LRs, -
2. Kaliganeedi Saraswathi, W/o LAte Durganand, Landlady, R/o
Chinnamamidipalli Village, Narsapur, W.G.Dist.
3. Kaliganeedi Lakshminarasamma, W/o Lakshmi Narsamma, Landlady, R/o
Chinnamamidipalli Village, Narsapur, W.G.Dist.
...Respondents/Appellants/Plaintiffs
4. Buddiga Tulasi Venkta Radhakrishna, S/o Srirama Rao, Employee, 29th
Ward, Narsapur, W.G.Dist.
5. Buddiga Venkata Sudheer, S/o Srirama Rao, Occ: Employee, R/o 20th
Ward, Narsapur, W.G.Dist.
6. Buddiga Jayalakshmi, D/o Srirama Rao, Housewife, R/o 20th Ward,
Narsapur, W.G.Dist.
...Respondents/Respondents/Defendants
Appeal under Section 100 of against orders to set aside the judgment
and decree passed by the I Addl.District judge, West Godavari District, Eluru
in A.S.No.69 of 1998 dated 12/7/2013 which was passed by reversing the
judgment and decree dt. 30/4/1998 in O.S.No.80 of 1994 on the file of Senior
Civil Judge, Narsapur and allow the second appeal and pass
IA NO: 1 OF 2014(SAMP 1200 OF 2014
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
To condone the delay of 76 days in filing the above second appeal in the
interest of justice and pass
IA NO: 1 OF 2015(SAMP 189 OF 2015
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
stay all further proceedings in OS.No. 80 of 1994 on the file of the Senior
Civil Judge, Narsapur, West Godavari District, pending disposal of the SA
IA NO: 1 OF 2025
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
pleased condone delay of 709 days in filing to transpose the petitioner as 2
appellant in the interest of justice, otherwise the petitioner will be put to
serious and irreparable loss which may not compensate in terms of money
and pass
IA NO: 2 OF 2025
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
condone the delay in 91days in representation of the petition in the interest of
justice, otherwise I will be put to serious and irreparable loss which may not
compensate in terms of money pass
IA NO: 3 OF 2025
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
pleased to set aside the deemed abetment and permit the petitioner to
prosecute the appeal as 2nd appellant in the interest of justice, otherwise I
will be put to serious and irreparable loss which may not compensate in
terms of money pass
IA NO: 4 OF 2025
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
May be pleased to permit the petitioner/respondent No 4 and the respondents
5 and 6 to continue proceedings of SA NO 64 of 2015 by recognizing the
petitioner/respondent No 4 and respondent No 5 and 6 as legal
representatives of the deceased sole appellant B Srirama Rao in the interest
of justice and pass
IA NO: 5 OF 2025
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
May be pleased to permit the petitionerto transpose the petitioner as 2nd
appellant in the interest of justice, and pass
IA NO: 6 OF 2025
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
may be pleased to frame the ground No 13 as one of the substantial
questions of law in the above Second Appeal in the interest of justice and
pass
IA NO: 7 OF 2025
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
Pleased to reopen the above Second Appeal No 64 of 2015 and batch for
framing of ground No 13 as one of the substantial questions of law in the
interest of justice and pass
Counsel for the Appellants: RAMA MOHAN PALANKI
Counsel for the Respondents: K CHIDAMBARAM, SENIOR COUNSEL,
REPRESENTING TURAGA SAI SURYA
SECOND APPEAL NO: 65 OF 2015
Between:
1. Buddiga Tulasi Venkata Radhakrishna, S/o Srirama Rao, Hindu,
Employee, 29th Ward, Narsapur, West GodaVari District.
2. Buddiga Venkata Sudheer, S/o Srirarna Rao Hindu, Occ: Employee, R/o.
20th Wards, Narsapur, West Godavari District.
3. Buddiga Jayalakshmi, D/o Srirama Rao Occ:-House Wife, . R/o 20th
ward, Narsapurf West Godavari District. -
...Appellants/Respondents/D.2 to D.4
AND
1. Kaligarieedi Durganand (Died) per LRs.
2. Kaliganeedi Saraswathi, W/o Late Durganand, Landlady R/o
Chinnamamidipalli village, Narsapur, West Godavari District.,
3. Kaliganeedi Lakshminarasanuna, W/o Lakshmi Narasamma, Landlady R/o.
Chinnamamidipalli village, Narsapur, West Godavari District.
...Respondents/Appellants/Plaintiffs
4. Buddiga Srirama Rao, S/o Venkanna Occ: Cultivation 20th Ward, Narsapur,
West Godavari Dist.
...Respondent/Respondent/D.1
Appeal under Section 100 of CPC against orders to set aside the
Judgement and decree passed by the I Addl Dist Judge, W.G.Dist, Eluru in AS
No.69 of 1998 dt.12-07-2013 which was passed by reversing the Judgment
and decree dt.30-04-1998 in O.S No.80 of 1994 on the file of Senior Civil
Judge, Narsapur, and allow the SA.
IA NO: 1 OF 2014(SAMP 1069 OF 2014
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
condone the delay of 76 days in filing the above SA.
IA NO: 1 OF 2015(SAMP 190 OF 2015
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
stay all further proceedings in OS.no. 80 of 1994 on the file of the Senior Civil
Judge, Narsapur, West Godavari District, pending disposal of the SA
IA NO: 1 OF 2016(SAMP 1973 OF 2016
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
permit the petitioners / appellants to file the material papers as additional
material papers in SA No.65/2015 and received the same in the interest of
justice
IA NO: 1 OF 2025
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
pleased to frame the ground No 13 as one of the substantial questions of law
in the above Second Appeal in the interest of justice and pass such
IA NO: 2 OF 2025
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
may be pleased to reopen the above Second Appeal No 65 of 2015 and
batch for framing of ground No 13 as one of the substantial questions of law
in the interest of justice and pass
Counsel for the Petitioners: RAMA MOHAN PALANKI
Counsel for the Respondents: K CHIDAMBARAM, SENIOR COUNSEL,
REPRESENTING TURAGA SAI SURYA
The Court made the following:
Common Judgment:
Both the Second Appeal Nos.64 and 65 of 2015 are filed against the
judgment and decree, dated 12.07.2013, passed in A.S.No.69 of 1998 on the
file of learned I Additional District Judge, West Godavari at Eluru. The said
A.S.No.69 of 1998 was filed against the judgment and decree, dated
30.04.1998, passed in O.S.No.80 of 1994 on the file of learned Senior Civil
Judge, Narsapur.
2. In S.A.No.64 of 2015, the appellant herein is the 1st defendant,
1st respondent is the plaintiff and respondents 4 to 6 are the defendants 2 to 4
in O.S.No.80 of 1994. Respondents 2 and 3 herein were brought on record as
appellants 2 and 3, being legal representatives of deceased plaintiff/appellant
during the pendency of A.S.No.69 of 1998. Whereas, in S.A.No.65 of 2015,
the appellants herein are the defendants 2 to 4, respondents 1 to 3 are the
plaintiffs and the 4th respondent is the 1st defendant in O.S.No.80 of 1994.
3. Originally, the suit was filed in District Munsif‟s Court, Narsapur, vide
O.S.No.142 of 1990 in the year 1990 itself and subsequently, it was
transferred to the Court of Senior Civil Judge, Narsapur and re-numbered as
O.S.No.80 of 1994. The plaintiff initiated action in O.S.No.80 of 1994 before
the trial Court with a prayer for specific performance of an agreement of sale
dated 14.08.1987 or in the alternative relief for refund of Rs.15,000/- with
subsequent interest at 6% per annum till the date of realization together with
an amount of Rs.8,000/- towards damages and to create charge over the
plaint schedule property and for costs.
4. The trial Court decreed the suit in O.S.No.80 of 1994 on the file of
learned Senior Civil Judge, Narsapur, by granting alternative relief of refund of
Rs.15,000/- with interest and costs. Felt aggrieved of the same, the plaintiff in
the above said suit filed A.S.No.69 of 1998 on the file of learned I Additional
District Judge, West Godavari at Eluru. During the pendency of the first
appeal, the plaintiff/appellant died and appellants 2 and 3 were brought on
record as his legal representatives. The learned I Additional District Judge,
West Godavari at Eluru, allowed the appeal with costs by granting the relief of
specific performance of contract in favour of the appellants/plaintiffs.
Aggrieved thereby, the 1st defendant as well as defendants 2 to 4 in the suit
approached this Court by way of these second appeals.
5. For the sake of convenience, both parties in the second appeal will
be referred to as they are arrayed in the original suit.
6. The case of the plaintiff, in brief, as set out in the plaint averments in
O.S.No.80 of 1994, is as follows:
The defendants are the owners of the plaint schedule property and they
agreed to sell the same for a consideration of Rs.23,000/- and took
an advance of Rs.15,000/- from the plaintiff and executed a registered
agreement of sale dated 14.08.1987, agreeing inter-alia, that the plaintiff
should pay the balance of Rs.8,000/- by 31.01.1988 and shall take possession
of the plaint schedule property. Though the plaintiff was ready with the
remaining sale consideration, the defendants postponed the execution of the
sale deed on one pretext or the other. Therefore, the plaintiff got issued
a registered notice for which, the defendants neither gave reply nor executed
the registered sale deed by taking balance of sale consideration. Hence, the
plaintiff was constrained to file the suit in the year 1990 i.e. 13-8-1990.
7. The 1st defendant filed written statement before the trial Court,
denying the material averments in the plaint and contended as follows:
The 1st defendant has borrowed a loan of Rs 50,000/- from one
Nippuleti Satyanarayana Murthy and in that connection, he executed
a demand promissory note for Rs 20,000/- and two nominal agreement of
sales each for Rs.49,000/- in respect of certain portions of immovable
property, in which advance payment of Rs.15,000/- was mentioned. It was
further agreed to repay the loan within one year. As the 1st defendant was in
need of money, he acceded to the terms dictated by the said NIppuleti
Satyanarayana Murthy, but the 1st defendant could not discharge the amount
due. Said Nippuleti Satyanarayane Murthy demanded the 1 st defendant to
execute fresh registered agreement of sales in the name of his nominees and
wherein, different advance amounts were nominally mentioned. In the above
said agreements, the 4th defendant also joined along with other defendants.
Though the 1st defendant personally and through mediators approached the
creditor and his name lenders, seeking extension of time for repayment of the
loan, they got filed four suits against him on the basis of the said agreement of
sales. In fact, there was no agreement between the plaintiff and the
defendants for sale of the plaint schedule property and sought for dismissal of
the suit.
8. The defendants 3 and 4 also filed their written statement, which was
adopted by the 2nd defendant. The case of the defendants 2 to 4 is as follows:
The defendants 2 to 4 are the children of the 1st defendant. Their
father has no necessity for contracting any debts and that the suit agreement
of sale is neither true nor valid and sought for dismissal of the suit. They
further pleaded that the agreement is not binding on them.
9. On the basis of above pleadings, the trial Court framed the following
issues for trial:
(1) Whether the plaintiff is entitled to the relief of specific performance as prayed
for?
(2) Whether the plaintiff is entitled to the alternative relief as prayed for?
(3) To what relief?
10. During the course of trial in the trial Court, on behalf of the plaintiff,
P.Ws.1 to 4 were examined and Exs.A.1 to A.3 were marked. On behalf of
the defendants, D.Ws.1 and 2 were examined and Exs.B.1 and Ex.B.2 were
marked.
11. The learned trial Judge, after conclusion of trial, on hearing the
arguments of both sides and on consideration of oral and documentary
evidence on record, decreed the suit by granting alternative relief of refund to
the plaintiff. Felt aggrieved thereby, the legal representatives of plaintiff filed
the appeal suit in A.S.No.69 of 1998 on the file of learned I Additional District
Judge, West Godavari at Eluru, wherein, the following points came up for
consideration:
1. Whether the appellants being legal heirs of the deceased / sole
plaintiff, are entitled to the main relief of specific performance of the
agreement marked as Ex.A.1?
2. Whether the Court below committed error in granting alternative relief
of money decree?
12. After hearing both parties and after re-appreciating the evidence,
the learned first appellate Judge, vide judgment dated 05.01.2002, allowed the
appeal and consequently decreed the suit for specific performance of Ex.A.1
agreement of sale. Aggrieved thereby, the 1st defendant preferred
S.A.No.871 of 2002 as well as defendants 2 to 4 preferred S.A.No.973 of
2002 before the composite High Court of Andhra Pradesh at Hyderabad. The
composite High Court of Andhra Pradesh at Hyderabad clubbed the second
appeals and delivered a common judgment dated 09.11.2012 setting aside
the judgments of first appellate Court in A.S.Nos.60, 70, 72 and 73 of 1998
and all the appeal suits were remanded to the first appellate Court for disposal
according to law after framing necessary points for consideration touching on
the real dispute between the parties.
13. After receipt of the files from the composite High Court of Andhra
Pradesh at Hyderabad, the learned first appellate Judge, heard the appeal
and framed the following points for consideration:
1. Whether the Ex.A.1 agreement of sale was executed by the 1st defendant as
a security for the loan transaction with the Nippuleti Satyanarayana Murthy, as
contended by the defendant?
2. Whether the Ex.A.1 agreement of sale executed by the 1st defendant is binding
on the defendants 2 to 4?
3. Whether the lower Court committed error in refusing equitable relief of specific
performance and granting relief of refund of sale consideration?
4. Whether the decree and judgment of the trial Court is liable to be set aside?
14. The learned I Additional District Judge, West Godavari at Eluru i.e.
the first appellate Court, after hearing the arguments, answered the points, as
above, on 12-7-2013 against the defendants and allowed the appeal filed by
the legal representatives of plaintiff. Felt aggrieved of the same, the
1st defendant as well as defendants 2 to 4 in O.S.No.80 of 1994 filed the
present second appeals before this Court.
15. On hearing both sides counsel at the time of admission of both the
appeals i.e., S.A.Nos.64 and 65 of 2015, on 23.10.2017, the composite High
Court of Andhra Pradesh at Hyderabad framed the following substantial
questions of law:
(1) Whether Ex.A1-agreement to sell is a sham and nominal document and
whether the appellate Court was factually and legally right in granting
decree basing on Ex.A1?
(2) Whether Ex.A1-agreement to sell is legally binding on defendants 2 to 4?
(3) Whether appreciation of oral and documentary evidence made by appellate
Court is in accordance with principles of Evidence Act?
(4) To what relief?
16. On 03.09.2025, as per the orders passed in I.A.No.6 of 2025 in
S.A.No.64 of 2015 and I.A.No.1 of 2025 in S.A.No.65 of 2015, this Court
framed the following additional substantial question of law in both the second
appeals:
"1. Whether the first appellate Court ought to have seen the stipulated
period for performance of the contract by both the parties, as recited in the
agreement of sale?"
17. Heard Sri Rama Mohan Palanki, learned counsel for the appellants/
defendants and heard Sri K.Chidambaram, learned Senior Counsel,
representing Sri Turaga Sai Surya, learned counsel for the respondents/
plaintiffs.
18. Law is well settled that under Section 100 of CPC the High Court
cannot interfere with the findings of fact arrived at by the First Appellate Court
which is the final Court of facts except in such cases where such findings were
erroneous being contrary to the mandatory provisions of law, or its settled
position on the basis of the pronouncement made by the Apex Court or based
upon inadmissible evidence or without evidence.
In a case of Bhagwan Sharma v. Bani Ghosh1, the Apex Court held
as follows:
"The High Court was certainly entitled to go into the question as to
whether the findings of fact recorded by the First Appellate Court which
1
AIR 1993 SC 398
was the final Court of fact were vitiated in the eye of law on account of
non-consideration of admissible evidence of vital nature."
In a case of Kondira Dagadu Kadam vs. Savitribai Sopan Gujar2, the
Apex Court held as follows:
"The High Court cannot substitute its opinion for the opinion of the First
Appellate Court unless it is found that the conclusions drawn by the
lower appellate Court were erroneous being contrary to the mandatory
provisions of law applicable or its settled position on the basis of
pronouncements made by the Apex Court, or was based upon
inadmissible evidence or arrived at without evidence."
19. Sri Palanki Rama Mohan, learned counsel for appellants, would
contend that Ex.A-1 agreement to sell is a sham and nominal document, and
no consideration was passed under Ex.A-1 agreement of sale and he would
further contend that Ex.A-1 registered agreement of sale is legally not binding
on the defendants 2 to 4.
The suit is based on Ex.A-1 registered agreement of sale, dated
14-8-1987, said to have been executed by the 1st defendant on his behalf and
on behalf of his minor children i.e. the defendants 2 to 4 in favour of the
plaintiff. The trial Court came to the conclusion that though the agreement of
sale is true, it is not a contract of sale, but for the debt contracted by the
1st defendant on earlier occasion and alternative relief of refund of advance
amount was awarded against all the defendants including the defendants 2 to
4 and the trial Court rejected the main relief of specific performance of
agreement of sale. The plaintiff challenged the said finding and the learned
first appellate Judge set aside the finding arrived by the learned trial Judge for
rejecting the main relief of specific performance of agreement of sale and the
learned first appellate Judge awarded the main relief of specific performance
of agreement of sale. The defendants have not filed any cross appeal/cross
2
AIR 1999 SC 471
objections to challenge the findings in judgment of the trial Court in the first
appellate Court.
20. The case of the plaintiff is that the 1st defendant on his behalf and
on behalf of his minor children i.e., the defendants 2 to 4, i.e., all the
defendants executed the registered agreement of sale, dated 14-8-1987.
In the agreement of sale, it was recited that the schedule property under the
agreement of sale was acquired by way of partition among the 1st defendant
and his brothers and the schedule property under Ex.A-1 agreement of sale
fell to the share of 1st defendant in a family partition along with his brothers.
The recitals in the registered agreement of sale Ex.A-1 go to show that the
purpose of alienation of the schedule property under the Ex.A-1 agreement of
sale is that "since there is no reasonable income from out of the schedule
property and for the purpose of maintenance of minor children and also for the
purpose of family development", all the defendants i.e., the 1st defendant and
defendants 2 to 4 minors, represented by the 1st defendant, intended to
alienate the schedule property for Rs.23,000/- and an advance amount of
Rs.15,000/- was paid on the date of agreement i.e. on 14-8-1987 and the
remaining unpaid sale consideration is a paltry amount of Rs.8,000/- only and
the possession is with the vendors till so far. The contention of the learned
counsel for appellants is that the agreement of sale is a sham and nominal
document and no consideration was passed under the said document. It was
contended by the learned counsel for appellants that though the date of suit
agreement is 14-8-1987 and legal notice was issued by the plaintiff prior to
filing of suit, the plaintiff was remained silent and kept quiet from the date of
agreement till the date of issuance of legal notice for a period of two years and
that the plaintiff is not entitled to the main relief of specific performance and
the trial Court rightly awarded the alternative relief of refund of advance
amount. The learned counsel for appellants also fairly conceded that no cross
appeal or cross objections were filed against the judgment of the learned trial
Judge.
21. The legal position in this regard is no more res integra, the same
has been well settled by the Apex Court that the grant of relief of specific
performance of agreement of sale is not an automatic and it is discretionary
relief, the same is required to be exercised judiciously, sound and reasonable.
In the case of Saradamani Kandappan v. S. Rajalakshmi3, the Apex
Court held as follows:
"43. Till the issue is considered in an appropriate case, we can only reiterate
what has been suggested in K.S. Vidyanadam [(1997) 3 SCC 1] :
(i) The courts, while exercising discretion in suits for specific performance,
should bear in mind that when the parties prescribe a time/period, for taking
certain steps or for completion of the transaction, that must have some
significance and therefore time/period prescribed cannot be ignored.
(ii) The courts will apply greater scrutiny and strictness when considering
whether the purchaser was "ready and willing" to perform his part of the
contract.
(iii) Every suit for specific performance need not be decreed merely
because it is filed within the period of limitation by ignoring the time-limits
stipulated in the agreement. The courts will also "frown" upon suits which are
not filed immediately after the breach/refusal. The fact that limitation is three
years does not mean that a purchaser can wait for 1 or 2 years to file a suit
and obtain specific performance. The three-year period is intended to assist
the purchasers in special cases, as for example, where the major part of the
consideration has been paid to the vendor and possession has been
delivered in part-performance, where equity shifts in favour of the purchaser."
In the case at hand, all the defendants agreed to alienate the schedule
property under the registered agreement of sale for total consideration of
Rs.23,000/- and an amount of Rs.15,000/- was paid on the date of agreement
i.e. more than half of substantial considerable amount to the vendors way
back in the year 1987 and the possession is with the vendors and the vendors
are enjoying the property since more than 35 years, they have received
considerable amount of Rs.15,000/- from out of Rs.23,000/- from the plaintiff.
3
(2011) 12 SCC 18
The recitals in the plaint clearly go to show that the plaintiff got the balance of
sale consideration ready long prior to the stipulated date 31-01-1988 and
demanded the defendants to execute a sale deed after receiving the balance
of sale consideration and register the sale deed, but the defendants
postponed the same and that the plaintiff was constrained to issue legal notice
under Ex.A-2, which was received by the defendants under Ex.A-3, the same
is undisputed by the defendants and they kept quiet and remained silent.
Thereupon, the plaintiff was constrained to file the suit on 13-8-1990 itself.
The aforesaid pleadings of the plaintiff are not at all specifically denied by the
defendants in the written statement. It is not the case of the defendants that
they are ready to perform their part of the contract, but there are laches on the
part of the plaintiff in obtaining a registered sale deed. Their contention is that
Ex.A-1 agreement of sale is a nominal and sham document and no
consideration was passed under the said document. The fact remains that
even after the receipt of legal notice, the appellants remained silent and did
not choose to issue any reply notice to deny the contents in the legal notice.
22. To discharge the burden, the plaintiff relied on the evidence
of P.Ws.1 to 4. The plaintiff was examined as P.W.1. P.Ws.2 and 3, who are
the attestors and P.W.4 is the scribe of Ex.A-1, also supported the plaintiff.
Moreover, the execution of registered agreement of sale is undisputed by the
defendants and they are not disputing their signatures on it. The contention of
the defendants is that no consideration was passed under the said document
and Ex.A-1 agreement is a nominal and sham document. The learned
counsel for appellants pointed out some of the statements made by P.Ws.2 to
4 in the cross-examination in their evidence. In my view, those statements are
not material to decide the subject matter of the suit. In order to come to
conclusion whether the evidence of witnesses is reliable or not, their entire
evidence including chief-examination and cross-examination has to be looked
into, to arrive the genuineness of the evidence of witnesses.
23. The learned counsel for appellants placed reliance on Saradamani
Kandappan‟s case (3 supra), wherein the Apex Court held as follows:
"28. The intention to make time stipulated for payment of balance
consideration will be considered to be essence of the contract where such
intention is evident from the express terms or the circumstances necessitating
the sale, set out in the agreement. If, for example, the vendor discloses in the
agreement of sale, the reason for the sale and the reason for stipulating that
time prescribed for payment to be the essence of the contract, that is, say,
need to repay a particular loan before a particular date, or to meet an urgent
time-bound need (say medical or educational expenses of a family member)
time stipulated for payment will be considered to be the essence. Even if the
urgent need for the money within the specified time is not set out, if the words
used clearly show an intention of the parties to make time the essence of the
contract, with reference to payment, time will be held to be the essence of the
contract."
24. The learned counsel for appellants placed another reliance on
Padmakumari v. Dasayyan4 wherein the Apex Court held as follows:
"20. ... ... ... the notice was issued by the plaintiff only after one year,
therefore, the plaintiff has not adhered to the time which is stipulated to pay
the balance consideration amount to Defendants 1 to 11 which is a very
important legal aspect which was required to be considered by the courts
below at the time of determining the rights of the parties and passing the
impugned judgment. The courts below have ignored this important aspect of
the matter while answering the contentious Issues (i) and (ii) in favour of the
plaintiff and granted decree of specific performance in respect of the suit
scheduled property. ... ... ..."
25. The learned counsel for appellants placed another reliance on
Pydi Ramana v. Davarasety Manmadha Rao5, wherein the Apex Court held
as follows:
"17. ... ... ..., the respondent-plaintiff has not produced any satisfactory
evidence to prove his readiness and willingness. As regards "willingness" of
the plaintiff to perform his part of the contract, the conduct of the plaintiff
4
2015 Supreme (SC) 381
5
(2024) 7 SCC 515 = AIR 2024 SC 3242
warranting the performance has to be looked into. The following conduct of
the plaintiff warrants consideration:
(a) Plaintiff got issued legal notice nearly after two years after the expiry of
one year period as prescribed in the agreement.
(b) Plaintiff has not brought anything on record to prove that he contacted
the defendant after the expiry of one year period and was interested in
finalising the deed.
(c) There was total inaction of the plaintiff from 6-6-1994 (expiry of one
year period) to 30-5-1996 (date of issuance of legal notice)
(d) Suit was filed on 9-6-1997 i.e. after a period of more than one year
from the date of issuing of legal notice. Said delay has not been sufficiently
explained by the plaintiff.
18. The continuous readiness and willingness is a condition precedent
to grant the relief of specific performance. [Vijay Kumar v. Om Parkash,
(2019) 17 SCC 429 : (2020) 3 SCC (Civ) 480] The trial court has rightly held
that the plaintiff has not sufficiently explained and proved that he was always
ready and willing to perform his part of the contract. As such the High Court
and the first appellate court had erred in holding that the plaintiff had proved
his readiness and willingness."
In the case at hand, the recitals in the agreement of sale made it clear
that the 1st defendant on his behalf and on behalf of his minor children i.e., the
defendants 2 to 4 agreed to alienate the schedule property and the purpose of
alienation of the schedule property is viz., since there is no reasonable income
from out of the schedule property and for the purpose of maintenance of
minors and for the purpose of family development only, they executed the
registered agreement of sale. Furthermore, from out of Rs.23,000/-, more
than half of substantial considerable amount of Rs.15,000/- was paid to the
defendants and the remaining unpaid balance of sale consideration is an
amount of Rs.8,000/- which is a paltry amount. Moreover, the contention of
the plaintiff is that the plaintiff got the balance of sale consideration ready long
prior to the stipulated date 31-01-1988 and demanded the defendants to
execute a regular registered sale deed to receive the balance of sale
consideration, but the defendants postponed the same, which leads to
issuance of legal notice under Ex.A-2, though the defendants have received
the said legal notice under Ex.A-3 but kept quiet and remained silent and did
not issue any reply notice. The defendants have not even explained reasons
for not responding to the said legal notice.
26. The learned counsel for appellants placed a case law of this Court
in Annabattuni Sekhar v. Challapalli Venkata Swamy6. The facts in the
aforesaid case are that no consideration was passed under the agreement
from the vendee to vendors, therefore, the facts and circumstances of the said
case are different to the instant case.
27. The learned counsel for appellants placed another reliance on
P. Bhaskara Peddi Raju v. K. Venkata Narasayamma (died) Lr. 7. The facts
in the aforesaid case are that from out of Rs.4,30,500/-, a paltry amount of
Rs.20,500/- was paid as advance on the date of agreement and subsequently
amounts of Rs.40,000/- and Rs.20,000/- respectively were paid on different
occasions i.e., in total less than 1/4th amount of total sale consideration and
the plaintiff had not at all issued any legal notice in the aforesaid case law and
the defendants issued a legal notice to the plaintiff after lapse of more than
2½ years from the date of agreement, whereas in the case at hand, the facts
in the present case are that more than half of substantial considerable amount
was paid by the vendee to the vendors and the possession is with the vendors
and the unpaid balance of sale consideration is a paltry amount of Rs.8,000/-
i.e. less than 1/3rd amount of total sale consideration. Therefore, the facts and
circumstances in that case are different to the instant case.
28. The learned counsel for appellants placed another reliance on
Ganuga Ranganath v. Hotel Garudadri (Private) Limited, rep. by its
Managing Director, Hindupur, Anantapur District 8 , wherein a Division
6
AIR 2025 Andhra Pradesh 73
7
2022(4) ALT 87 (AP)
8
2018 (2) ALT 473 (D.B.)
Bench of the composite High Court of Andhra Pradesh at Hyderabad held as
follows:
"53. ... ... ... the plaintiffs have not established that they were always ready
and willing, the plaintiffs are not entitled to the grant of relief of specific
performance. Section 16 is very clear to this effect. ... ... ..."
29. The learned counsel for appellants placed another reliance on
U.N. Krishnamurthy (Since Deceased) Thr. LRs. v. A.M. Krishnamurthy 9,
wherein the Apex Court held as follows:
"46. It is settled law that for relief of specific performance, the Plaintiff has to
prove that all along and till the final decision of the suit, he was ready and
willing to perform his part of the contract. It is the bounden duty of the
Plaintiff to prove his readiness and willingness by adducing evidence. This
crucial facet has to be determined by considering all circumstances including
availability of funds and mere statement or averment in plaint of readiness
and willingness, would not suffice."
30. The learned counsel for appellants placed another reliance on
K.S. Vidyanadam v. Vairavan10.
The learned counsel for appellants also placed another reliance on
Bal Krishna v. Bhagwan Das (Dead) by LRs.11, wherein the Apex Court held
as follows:
"8. ... ... ... It is also settled by various decisions of this Court that by virtue
of Section 20 of the Act, the relief for specific performance lies in the
discretion of the court and the court is not bound to grant such relief merely
because it is lawful to do so. The exercise of the discretion to order specific
performance would require the court to satisfy itself that the circumstances
are such that it is equitable to grant decree for specific performance of the
contract. While exercising the discretion, the court would take into
consideration the circumstances of the case, the conduct of parties, and their
respective interests under the contract. No specific performance of a contract,
though it is not vitiated by fraud or misrepresentation, can be granted if it
would give an unfair advantage to the plaintiff and where the performance of
9
2022(4) ALT (SC) 77 (D.B.)
10
(1997) 3 SCC 1
11
AIR 2008 SC 1786
the contract would involve some hardship on the defendant, which he did not
foresee. In other words, the court's discretion to grant specific performance is
not exercised if the contract is not equal and fair, although the contract is not
void."
In the case at hand, the case of the plaintiff as per the plaint averments
is that the defendants 2 and 3 are the sons and the 4th defendant is the
daughter of the 1st defendant and all of them are members of the joint family
and owners of the schedule property and the schedule property fell to the
share of the 1st defendant in a family partition among his brothers. It is also
evident that the 1st defendant has executed a registered agreement of sale on
14-8-1987 on his behalf and on behalf of his minor children by receiving
Rs.15,000/- from out of Rs.23,000/- and that the plaintiff has to pay the
remaining unpaid sale consideration of Rs.8,000/- by 31-01-1988 to get the
schedule property registered and the defendants have to deliver the schedule
property. As stated supra, more than half of substantial considerable amount
was paid to the vendors by the vendee and possession of the schedule
property is with the vendors. The plaintiff further pleaded that though he was
ready and willing with balance of sale consideration and demanded the
defendants to execute a registered sale deed, but the defendants postponed
the same. The fact remains that the plaintiff got issued a legal notice and the
defendants having received the said notice kept quiet and they have not
explained the reason for not responding to the said legal notice. This
circumstance goes a long way in saying that the registered agreement of sale
is true and the defendants had chosen to come up with a belated and false
theory that the agreement of sale is a nominal and sham document and no
consideration was passed under the said document. In fact, the defendants
having admitted the execution and registration of the agreement of sale, they
have not issued any reply notice to the plaintiff that the plaintiff obtained their
signatures on blank papers and also on the registered document without
paying any balance of sale consideration.
31. In the case of Gaddipati Divija v. Pathuri Samrajyam12, the Apex
Court held as follows:
"33. Before parting with the judgment, we would like to clarify another aspect,
i.e., with regard to whether time is of the essence in the sale agreement in the
present case or not. In Siddamsetty Infra Projects (P) Ltd. (supra), this Court
was dealing with a similar question with respect to a sale agreement for
an immovable property, while referring to an earlier judgment in Chand
Rani v. Kamal Rani [(1993) 1 SCC 519], it was reiterated that in sale of
immovable property there is no presumption that time is the essence of the
contract, however, the court may infer performance in a reasonable time if the
conditions are evident from the express terms of the contract, from the nature
of the property, and from the surrounding circumstances."
32. In the case of Shenbagam v. KK Rathinavel13, the Apex Court held
as follows:
"41. True enough, generally speaking, time is not of the essence in
an agreement for the sale of immoveable property. In deciding whether to
grant the remedy of specific performance, specifically in suits relating to sale
of immovable property, the courts must be cognizant of the conduct of the
parties, the escalation of the price of the suit property, and whether one party
will unfairly benefit from the decree. The remedy provided must not cause
injustice to a party, specifically when they are not at fault. ... ... ... ."
In the case at hand, as stated supra, the total agreed sale consideration
is Rs.23,000/- and advance amount of Rs.15,000/- i.e., more than half of
substantial considerable amount was paid by the vendee to the vendors and
it is the specific contention of the plaintiff that though he was ready with
balance of sale consideration before the stipulated date and demanded the
defendants to execute a registered sale deed, they did not come forward and
having waited considerable time, as a last resort, the plaintiff issued a legal
notice under Ex.A-2 which was received by the defendants under Ex.A-3 and
they kept quiet.
12
2023 SCC Online SC 442
13
2022 SCC Online SC 71
33. The learned counsel for appellants would contend that Ex.A-1
registered agreement of sale is not legally binding on the defendants 2 to 4.
He would further contend that the transaction under the agreement of sale is
not for the benefit of joint family and the agreement of sale is not binding on
defendants 2 to 4 in respect of their shares. The 2nd defendant was examined
as D.W.2. As per the admissions of D.W.2, they did not issue any notice to
their father stating that he has no right to sell the schedule property and the
amount mentioned in the agreement of sale was not spent for their benefit.
No material has been placed by the defendants to show that the defendants
2 to 4 issued notice to the purchasers that the sale transaction does not bind
upon them. The defendants having been received the legal notice, remained
silent for a period of 30 years and now they came up with a different plea that
the agreement of sale is not binding on the defendants 2 to 4 since the
amount of consideration received by their father in the agreement of sale was
not spent for their benefit. The material on record goes to show that the
defendants 2 to 4 attained majority about 30 years ago. They did not even
move their little finger to challenge the registered agreement of sale. In fact,
the plaintiff has approached the trial Court for the relief of specific
performance of agreement of sale.
As stated supra, the recitals in the registered agreement of sale itself
show that the schedule property in the agreement of sale was acquired by the
1st defendant in a family partition among the 1st defendant and his brothers
and from out of family partition, the schedule property under the agreement of
sale Ex.A-1 fell to his share. There were specific recitals in the agreement of
sale viz., the purpose of alienation of the schedule property under Ex.A-1
agreement of sale is that since there is no reasonable income from out of the
schedule property and for the purpose of maintenance of minors and also for
the purpose of family development of the defendants i.e. 1st defendant on his
behalf and on behalf of the defendants 2 to 4 minors, represented by the
1st defendant, intended to alienate the schedule property for a total sale
consideration of Rs.23,000/- and advance amount of Rs.15,000/- was
received on the date of agreement of sale. In the case at hand, the
possession of the schedule property is with the defendants, the defendants
2 to 4 the minors have not filed any suit within three years of attaining majority
to challenge Ex.A-1 transaction, and they have not issued any notice to the
vendee and their father. There is no recital in the written statement that their
father did not spend the amount received under the agreement of sale for their
benefit, they have taken a bald plea in the written statement that even though
Ex.A-1 agreement of sale was executed by their father, it does not bind on the
minor defendants and the plaintiff has to strict proof of the same.
34. Section 8 of the Hindu Minority and Guardianship Act, 1956,
prevents natural guardian of a Hindu minor to mortgage or charge, or transfer
by sale, gift, exchange or otherwise, any part of the immovable property of the
minor without the previous permission of the Court. This restriction on the
natural guardian in relation to the property of minor applies only to the
separate or absolute property of the minors. It does not include the minor‟s
undivided share in the joint family property, as under Section 6 of the Act,
1956, there cannot be a natural guardian in respect of such property which is
specifically excluded. The restriction contained in Section 8 of the Act,
1956, does not apply in respect of the undivided interest of a minor in
joint family property and consequently Section 8 of the Act, 1956, does
not debar the manager or kartha of a joint Hindu family from alienating
joint family property, including the interest of minor without obtaining
the previous permission of the Court. Section 8 does not require that
any previous permission of the Court should be obtained before
effecting such alienation. Therefore, Ex.A-1 agreement transaction
entered by the 1st defendant in the capacity of kartha is not bad either
under the provisions of Section 29 of the Guardians and Wards Act, 1890
or under the Hindu Minority and Guardianship Act, 1956. In the case at
hand, the minor defendants 2 to 4 are having undivided interest in the joint
family property. The 1st defendant, who is none other than the father of the
defendants 2 to 4, intended to alienate the schedule property on his behalf
and on behalf of the minor defendants 2 to 4 as kartha of a Hindu joint family
and entered Ex.A-1 agreement with the plaintiff. Therefore, the sale
transaction entered by the father/1st defendant in the capacity of kartha of
a Hindu joint family is not bad either under Section 29 of the Guardians and
Wards Act, 1890 or under the provisions of the Hindu Minority and
Guardianship Act, 1956. Under Hindu law, a manager or kartha of a Hindu
joint family can alienate the joint family property so as to bind the interest of
a minor co-parcener in such property, provided the alienation is either for the
legal necessity or for the purpose of minor. The composite High Court of
Andhra Pradesh at Hyderabad in the case of Koutarapu Venkata
Chenchayya v. Koutarapu Ramalingam14 observed that:
"The kartha of a joint Hindu family is entitled to alienate for value, joint
Hindu family, so as to bind the interest of both adult and minor
coparcener in the property, provided the alienation is made for the legal
necessity or the benefit of the estate."
In the case of Kehar Singh (D) thr. L.Rs. and Ors. Vs. Nachittar
Kaur15, the Apex Court held as follows:
"23. What is legal necessity was also succinctly said by Mulla in Article 241,
which reads as under: Article 241. What is legal necessity-The following have
been held to be family necessities within the meaning of Article 240:
(a) payment of government revenue and of debts which are payable out of
the family property; (b) Maintenance of coparceners and of the members of
their families; (c) Marriage expenses of male coparceners, and of the
daughters of coparceners; (d) Performance of the necessary funeral or family
ceremonies; (e) Costs of necessary litigation in recovering or preserving the
estate;
(f) Costs of defending the head of the joint family or any other member
against a serious criminal charge; (g) Payment of debts incurred for family
business or other necessary purpose. In the case of a manager other than
a father, it is not enough to show merely that the debt is a pre existing debt;
The above are not the only indices for concluding as to whether the alienation
14
AIR 1957 AP 744
15
MANU/SC/0874/2018
was indeed for legal necessity, nor can the enumeration of criterion for
establishing legal necessity be copious or even predictable. It must therefore
depend on the facts of each case. When, therefore, property is sold in order
to fulfil tax obligations incurred by a family business, such alienation can be
classified as constituting legal necessity. (see Hindu Law by Mulla "22nd
Edition")
24. The High Court, after taking note of the aforementioned legal
principles of Hindu law, dealt with this question on facts in para 12, which
reads as under: 12. In the light of the aforesaid legal position, now it has to be
examined as to whether the Defendants have discharged their onus to prove
the existence of the legal necessity at the time of the impugned sale deed.
Defendant Tara Singh, while appearing as DW 13 has stated that amount of
Rs. 5,500/- was paid by him as earnest money, Rs. 500/- was spent for
payment of Taccavi loan and registration of sale deed and Rs. 934/- was paid
to the vendor, about 3-4 days prior to the registration of the sale deed, for
payment of Taccavi loan an amount of 17-09-2025 (Page 4 of 5)
www.manupatra.com Hon‟ble Sri Justice Venuthurumalli Gopala Krishna Rao
Rs. 12,566/- was paid at the time of registration of the sale deed. DW 1
Shri Gopal, who was an Assistant in the DC office, Ludhiana has stated that
Pritam Singh vendor was granted loan of Rs. 3,000/- in the year 1995 and he
did not pay a penny from the said loan till 20.11.1964. DW 2 Ram Dass,
a tubewell mechanic has proved that Pritam Singh had spent Rs. 4,000/- for
installing a tubewell in the year 1963. DW 9 Sat Pal, Additional Wasil Baqa
Nawis, Ludhiana has proved that the vendor Pritam Singh had taken various
loans from the department for purchase of seeds bag. Rs. 500/- for repair of
house and Rs. 2,500/- for purchasing pumping set. This witness further stated
that Pritam Singh had purchased a Rehri for Rs. 1,025/- from him in the year
1961. DW 11 Dalip Singh has proved that Pritam Singh had borrowed a sum
of Rs. 3,000/- from him in the year 1959 by executing a pronote. This witness
has also stated that Pritam Singh had performed marriage of his 5 children.
25. In our considered opinion, the approach, reasoning and the
conclusion arrived at by the High Court on the question of legal necessity as
to whether it existed in this case while selling the suit land by Pritam Singh or
not does not call for any interference as the same was rightly dealt with by the
High Court while appreciating the evidence on record."
In the case at hand, in the registered agreement of sale itself, it was
mentioned that the purpose of alienation of the schedule property under
Ex.A-1 agreement of sale is that since there is no reasonable income from out
of the schedule property and also for the purpose of maintenance of minors
and also for the purpose of family development of the defendants i.e.
1st defendant on his behalf and on behalf of his minor children intend to
alienate the schedule property under Ex.A-1 registered agreement of sale.
Therefore, it is evident that a case of legal necessity for sale of ancestral
property by kartha was therefore made out on facts in the case at hand, but
the defendants 2 to 4 failed to prove that there was no legal necessity for
entering into the registered agreement of sale by their father i.e. the
1st defendant.
35. The learned counsel for appellants would contend that though the
plaintiff denied the earlier agreements and pronotes, the defendants filed
Exs.B-1 and B-2 certified copies of documents, those clearly show that they
were executed by same defendants in favour of Nippuleti Satyanarayana
Murthy, son of Rama Murthy, in both the documents, Rama Murthy filed
Ex.B-2 in all the four suits. No evidence was produced by the defendants to
prove that to discharge the earlier debt only, Ex.A-1 agreement was executed
by the defendants. The fact remains that the plaintiff proved Ex.A-1 registered
agreement of sale.
36. In the case at hand, the suit was filed based on Ex.A-1 registered
agreement of sale said to have been executed by the 1st defendant on his
behalf and on behalf of the defendants 2 to 4 minors, represented by
guardian. As stated supra, the case of the plaintiff is that though the plaintiff
got the balance of sale consideration ready long prior to the stipulated date i.e.
31-01-1988 and demanded the defendants to execute a registered sale deed
after receiving balance of sale consideration, but the defendants postponed
the same. Having waited considerable time, the plaintiff got issued registered
notice under Ex.A-2 to the defendants and the defendants also received the
said notice but kept quiet, though the plaintiff is always ready and willing to
perform his part of the contract, which leads to filing of the suit by the plaintiff
for seeking the relief of specific performance of agreement of sale. The suit
was filed in the year 1990, within the period of limitation. As stated supra,
Ex.A-1 agreement of sale was executed by the 1st defendant on his behalf and
the 1st defendant as kartha of family on behalf of his minor children i.e.
defendants 2 to 4. The recitals in Ex.A-1 agreement of sale made it clear that
the schedule property was acquired by the 1st defendant by way of partition
among him and his brothers and in the said partition, the schedule property
under the agreement of sale fell to his share. In the agreement of sale, it was
specifically recited that "the purpose of alienation of the property is since there
is no reasonable income from out of the property and also for the purpose of
maintenance of minors and also for the purpose of family development" and
all the defendants i.e., the 1st defendant on his behalf and defendants 2 to 4
minors, represented by the 1st defendant as kartha of the joint Hindu family
intended to alienate the schedule property for Rs.23,000/- under the
registered agreement of sale and more than half of substantial considerable
amount i.e. an amount of Rs.15,000/- was paid to the vendors to the vendee.
Therefore, it is evident that a case of legal necessity for entering into
agreement of sale of ancestral property by kartha was therefore made out on
facts in the case at hand. The fact remains that the defendants 2 to 4 failed to
prove that there was no legal necessity for entering into the registered
agreement of sale by the father i.e. the 1st defendant. Therefore, Ex.A-1
registered agreement of sale is binding on the defendants 2 to 4, though
Ex.A-1 agreement of sale is dated more than 35 years ago and the
defendants 2 to 4 attained majority at about 30 years ago, they have not
challenged Ex.A-1 agreement of sale and they have also not issued any
notice to their father or the plaintiff herein by saying that Ex.A-1 agreement of
sale is not binding on them and there is no legal necessity on behalf of minors
in entering into the registered agreement of sale with the plaintiff by their
father.
37. The learned counsel for appellants relied on Natrajan v.
Tmt. Marudhakkal16.
The learned counsel for appellants also relied on a Constitution Bench
judgment of the Apex Court in the case of Chand Rani v. Kamal Rani 17,
wherein the Apex Court held as follows:
"21. In Govind Prasad Chaturvedi v. Hari Dutt Shastri [(1977) 2 SCC 539]
following the above ruling it was held at pages 543-544: (SCC para 5)
"... It is settled law that the fixation of the period within which the contract
has to be performed does not make the stipulation as to time the essence of
the contract. When a contract relates to sale of immovable property it will
normally be presumed that the time is not the essence of the contract.
[Vide Gomathinayagam Pillai v. Pallaniswami Nadar [(1967) 1 SCR 227 : AIR
1967 SC 868] (at p. 233).] It may also be mentioned that the language used
in the agreement is not such as to indicate in unmistakable terms that the
time is of the essence of the contract. The intention to treat time as the
essence of the contract may be evidenced by circumstances which are
sufficiently strong to displace the normal presumption that in a contract of
sale of land stipulation as to time is not the essence of the contract."
(emphasis supplied)
22. .....................
23. In Indira Kaur (Smt) v. Sheo Lal Kapoor [(1988) 2 SCC 488 : AIR 1988
SC 1074] in paragraph 6 it was held as under:
"... The law is well-settled that in transactions of sale of immovable
properties, time is not the essence of the contract."
38. The learned counsel for appellants placed another reliance on
Pydi Ramana‟s case (5 supra), wherein the Apex Court held as follows:
"15. ... ... ... The agreement of sale (Ext. A-1) was executed on 7-6-1993
and the date fixed for execution of the sale deed was one year from the date
of measurement of the suit scheduled property. Undisputedly no such
16
AIR 2017 Madras 118 = (2017) 3 CURCC 277
17
(1993) 1 SCC 519
measurement was carried out and the plaintiff has not raised his little finger in
this regard from the date of execution of agreement till he got issued legal
notice dated 30-5-1996 that is almost for a period of 3 years and the suit
came to be filed only on 9-6-1997 at the fag end of the expiration of the
limitation. The long unexplained delay in not taking any reasonable steps as
is expected from a reasonable person is itself sufficient to disentitle the
plaintiff to an equitable relief. [U.N. Krishnamurthy v. A.M. Krishnamurthy,
(2023) 11 SCC 775] It is no doubt true that suit for specific performance can
be filed even on the last date of the limitation as prescribed under Article 54
of the Limitation Act. However, the steps taken by the plaintiff during this
period, namely, from the date of agreement till date of filing of suit will have to
be explained in the plaint and proved in the evidence which is lacking in the
instant case. The long unexplained delay and silence on the part of the
plaintiff in this regard while in the witness box would not entitle the plaintiff to
a decree of specific performance and it is for this precise reason, the trial
court as noticed supra has refused to grant the equitable relief which has
been reversed by the appellate court without assigning proper and cogent
reason and the one assigned are at tangent or in other words contrary to the
facts. The resultant effect of filing the suit for specific performance on the
verge of limitation coming to an end came to be examined by this Court
in Rajesh Kumar v. Anand Kumar [Rajesh Kumar v. Anand Kumar, 2024 SCC
OnLine SC 981] and held that the plaintiff would not be entitled to the
equitable relief. ... ... ..."
In the case of A.R. Madana Gopal v. Ramnath Publications Pvt.
Ltd.18, wherein the Apex Court held as follows:
"14. A suit for specific performance cannot be dismissed on the sole ground
of delay or laches. However, an exception to this Rule is where an
immovable property is to be sold within a certain period, time being of the
essence, and it is not found that owing to some default on the part of the
plaintiff, the sale could not take place within the stipulated time. Once a suit
for specific performance has been filed, any delay as a result of the Court
process cannot be put against the Plaintiff as a matter of law in decreeing
specific performance. However, it is within the discretion of the Court, regard
being had to the facts of each case, as to whether some additional amount
18
MANU/SC/0256/2021
ought or ought not to be paid by the Plaintiff once a decree of specific
performance is passed in its favour even at the appellate stage."
In the case at hand, the material on record clearly goes to show that on
the date of agreement of sale, the defendants received more than half of
substantial considerable amount from out of the agreement of sale and the
balance unpaid sale consideration is a paltry amount and though the plaintiff
got ready with the paltry amount of balance of sale consideration long prior to
the stipulated date and demanded the defendants to execute a registered sale
deed, the defendants postponed the same, which leads to issuing of a legal
notice under Ex.A-2 by the plaintiff. In the written statement, the defendants
did not specifically denied the aforesaid contention taken by the plaintiff and
the defendants did not even plead in the written statement that though they
are ready to execute a regular registered sale deed, the plaintiff failed to pay
the remaining balance of sale consideration before the stipulated time.
The defendants pleaded in the written statement itself that Ex.A-1 agreement
of sale is a nominal and sham document. The fact remains that having waited
reasonable time, the plaintiff issued the legal notice to the defendants and
they received the same, but there is no response from the defendants and
furthermore, the defendants enjoyed more than half of substantial
considerable amount under Ex.A-1 agreement of sale and the possession is
with the defendants till so far for more than 35 years and they enjoyed the
schedule property.
39. In the case of Deepak Tandon v. Rajesh Kumar Gupta19, the Apex
Court held as follows:
"15. In our considered opinion, the High Court committed jurisdictional error in
setting aside the concurrent findings of the two courts below and thereby
erred in allowing the respondent's writ appeal and dismissing the appellants'
application under Section 21(1)(a) of the 1972 Act as not maintainable. This
we say for the following reasons:
15.1. ........................
19
(2019) 5 SCC 537
15.2. .........................
15.3. .........................
15.4. .........., it is a settled law that if the plea is not taken in the
pleadings by the parties and no issue on such plea was, therefore, framed
and no finding was recorded either way by the trial court or the first appellate
court, such plea cannot be allowed to be raised by the party for the first time
in third court whether in appeal, revision or writ, as the case may be, for want
of any factual foundation and finding.
15.5. ............................
15.6. ............................
15.7. ............................
15.8. ............................"
In the present case, the defendants did not specifically denied the
contention of the plaintiff that he was ready with balance of sale consideration
and not issued any legal notice to the plaintiff by saying that they are ready to
execute a registered sale deed in favour of the plaintiff. The defendants have
taken the aforesaid plea before the 2nd appellate Court that the plaintiff was
remained silent from the date of contract till the date of issuance of legal
notice. Therefore, the appellants are not permitted to raise such defence
before the 2nd appellate Court.
40. The learned counsel for appellants placed reliance on Jamila
Begum v. Shami Mohd.20, wherein the Apex Court held as follows:
"38. The first appellate court being the final court of fact has jurisdiction to
reverse or affirm the findings of the trial court. Considering the nature and
scope of the first appellate court in Vinod Kumar v. Gangadhar [Vinod
Kumar v. Gangadhar, (2015) 1 SCC 391 : (2015) 1 SCC (Civ) 521] , it was
held as under: (SCC p. 395, para 15)
"15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy [B.V.
Nagesh v. H.V. Sreenivasa Murthy, (2010) 13 SCC 530 : (2010) 4 SCC (Civ)
808] , this Court taking note of all the earlier judgments of this Court reiterated
the aforementioned principle with these words: (SCC pp. 530-31, paras 3-4)
20
(2019) 2 SCC 727
„3. How the regular first appeal is to be disposed of by the appellate
court/High Court has been considered by this Court in various decisions.
Order 41CPC deals with appeals from original decrees. Among the various
rules, Rule 31 mandates that the judgment of the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to
which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm the findings of
the trial court. The first appeal is a valuable right of the parties and unless
restricted by law, the whole case is therein open for rehearing both on
questions of fact and law. The judgment of the appellate court must,
therefore, reflect its conscious application of mind and record findings
supported by reasons, on all the issues arising along with the contentions put
forth, and pressed by the parties for decision of the appellate court. ... ... ..."
In the case at hand, the learned first appellate Judge after perusing the
material on record, framed the points arose for consideration and by
discussing the evidence of all the witnesses, answered the points and allowed
the appeal by granting the main relief of specific performance of agreement of
sale.
41. The learned counsel for appellants pleaded that prices of the
schedule property are abnormally increased, therefore, the plaintiff is not
entitled to the primary relief of specific performance of agreement of sale.
In the case at hand, both the parties mutually agreed to sell and purchase the
schedule property for Rs.23,000/- on 14-8-1987 under the registered
agreement of sale and the plaintiff paid substantial amount of Rs.15,000/- out
of Rs.23,000/- way back at about 35 years ago and the defendants have been
enjoying the said amount and property since more than 35 years, now they
pleaded that prices of properties are abnormally increased. The plaintiff
proved Ex.A-1 registered agreement of sale and the plaintiff also proved
readiness and willingness to perform his part of the contract, but the
appellants failed to prove that Ex.A-1 registered agreement of sale is
a nominal and sham document and no consideration was passed under the
said document.
42. In the case of K. Prakash v. B.R. Sampath Kumar21, the Apex
Court held as follows:
"17. The principles which can be enunciated is that where the plaintiff brings
a suit for specific performance of contract for sale, the law insists a condition
precedent to the grant of decree for specific performance that the plaintiff
must show his continued readiness and willingness to perform his part of the
contract in accordance with its terms from the date of contract to the date of
hearing. Normally, when the trial court exercises its discretion in one way or
other after appreciation of entire evidence and materials on record, the
appellate court should not interfere unless it is established that the discretion
has been exercised perversely, arbitrarily or against judicial principles.
The appellate court should also not exercise its discretion against the grant of
specific performance on extraneous considerations or sympathetic
considerations. It is true, as contemplated under Section 20 of the Specific
Relief Act, that a party is not entitled to get a decree for specific performance
merely because it is lawful to do so. Nevertheless once an agreement to sell
is legal and validly proved and further requirements for getting such a decree
are established then the Court has to exercise its discretion in favour of
granting relief for specific performance.
18. ...............................
19. Subsequent rise in price will not be treated as a hardship entailing
refusal of the decree for specific performance. Rise in price is a normal
change of circumstances and, therefore, on that ground a decree for specific
performance cannot be reversed.
20. However, the court may take notice of the fact that there has been
an increase in the price of the property and considering the other facts and
circumstances of the case, this Court while granting decree for specific
performance can impose such condition which may to some extent
compensate the defendant-owner of the property. This aspect of the matter is
21
AIR 2015 SC 9
considered by a three Judge Bench of this Court in Nirmala Anand vs. Advent
Corporation (P) Ltd. and Others, [(2002) 8 SCC 146]."
In the case of Satya Jain v. Anis Ahmed Rushdie22, the Apex Court
held as follows:
"40. The discretion to direct specific performance of an agreement and that
too after elapse of a long period of time, undoubtedly, has to be exercised on
sound, reasonable, rational and acceptable principles. The parameters for the
exercise of discretion vested by Section 20 of the Specific Relief Act, 1963
cannot be entrapped within any precise expression of language and the
contours thereof will always depend on the facts and circumstances of each
case. The ultimate guiding test would be the principles of fairness and
reasonableness as may be dictated by the peculiar facts of any given case,
which features the experienced judicial mind can perceive without any real
difficulty. It must however be emphasised that efflux of time and escalation of
price of property, by itself, cannot be a valid ground to deny the relief of
specific performance. Such a view has been consistently adopted by this
Court. By way of illustration opinions rendered in P.S. Ranakrishna
Reddy v. M.K. Bhagyalakshmi [(2007) 10 SCC 231] and more recently
in Narinderjit Singh v. North Star Estate Promoters Ltd. [(2012) 5 SCC 712 :
(2012) 3 SCC (Civ) 379] may be usefully recapitulated."
In the case at hand, both the Courts below concurrently held that Ex.A-1
agreement of sale is true and valid, but the trial Court having accepted that the
agreement of sale is true but refused to grant the relief of specific performance
of agreement of sale by observing that the same is not intended to act upon
and the same was executed by the 1st defendant for the debt contracted by
him on earlier occasion. In the case at hand, by registered document, the
defendants agreed to sell the schedule property after receiving
substantial advance sale consideration, but they denied the existence of
registered agreement in their pleading, such conduct of the defendants,
in my opinion, disentitle them to ask the Court for exercising discretion
in their favour by refusing to grant a decree for specific performance.
Further, if a party to a lis does not disclose all material facts truly and
22
MANU/SC/1063/2012 : (2013) 8 SCC 131
fairly, but states them in distorted manner and misled the Court, the
Court has inherent power to exercise its discretionary jurisdiction in
order to prevent abuse of process of law. It is also relevant to say that
efflux of time and escalation of prices of the schedule property by itself cannot
be a valid ground to deny the relief of specific performance. The fact remains
that from out of the total consideration under Ex.A-1 registered agreement of
sale for Rs.23,000/-, a substantial amount of Rs.15,000/- was paid by the
plaintiff to the defendants and the defendants enjoyed the said money for
more than 35 years and the possession of the schedule property is with the
defendants. Therefore, there is no justification in the plea taken by the
appellants before this Court that prices of schedule property are abnormally
increased and alternative relief of refund of advance amount may be granted.
In my considered view, the trial Court failed to appreciate the evidence on
record in a proper manner and instead of granting the main relief of specific
performance of agreement of sale, granted the alternative relief of refund of
advance amount. Therefore, the plaintiff in the present case is entitled to the
main relief of specific performance of agreement of sale and the learned first
appellate Judge rightly granted the main relief of specific performance of
agreement of sale.
43. The general rule is that High Court will not interfere with findings of
the first appellate Judge. But it is not an absolute rule. Some of the well
recognized exceptions are where (i) the court has ignored material evidence
or acted on no evidence; (ii) the court has drawn wrong inferences from
proved facts by applying the law erroneously; or (iii) the court has wrongly cast
the burden of proof. The present case does not come within the ambit of
aforesaid exceptions as held by this Court.
44. In the light of the material on record and upon earnest consideration
now, it is manifest that the substantial questions of law including the additional
substantial question of law arose in the course of hearing in the second
appeal on behalf of the appellants did not arise or remain for consideration.
This Court is satisfied that this case did not involve any substantial question of
law for determination. For the aforesaid reasons, the second appeal is liable
to be dismissed.
45. In the result, both the second appeals are dismissed, confirming the
impugned judgment and decree passed by the learned first appellate Judge.
Pending applications, if any, shall stand closed. There shall be no order as to
costs in the second appeals.
REGISTRAR
//TRUE COPY//
SECTION OFFICER
To,
1. Kaliganeedi Durganand Died LRs, -
2. Kaliganeedi Saraswathi, W/o LAte Durganand, Landlady, R/o
Chinnamamidipalli Village, Narsapur, W.G.Dist.
3. Kaliganeedi Lakshminarasamma, W/o Lakshmi Narsamma, Landlady, R/o
Chinnamamidipalli Village, Narsapur, W.G.Dist.
4. Buddiga Tulasi Venkta Radhakrishna, S/o Srirama Rao, Employee, 29th
Ward, Narsapur, W.G.Dist.
5. Buddiga Venkata Sudheer, S/o Srirama Rao, Occ: Employee, R/o 20th
Ward, Narsapur, W.G.Dist.
6. Buddiga Jayalakshmi, D/o Srirama Rao, Housewife, R/o 20th Ward,
Narsapur, W.G.Dist.
7. One CC to SRI. P N MURTHY Advocate [OPUC]
8. One CC to SRI. RAMA MOHAN PALANKI Advocate [OPUC]
9. One CC to SRI. TURAGA SAI SURYA Advocate [OPUC]
10. Two CD Copies
1. Kaligarieedi Durganand Died, LRs.
2. Kaliganeedi Saraswathi, W/o Late Durganand, Landlady R/o
Chinnamamidipalli village, Narsapur, West Godavari District.,
3. Kaliganeedi Lakshminarasanuna, W/o Lakshmi Narasamma, Landlady R/o.
Chinnamamidipalli village, Narsapur, West Godavari District.
4. Buddiga Srirama Rao, S/o Venkanna Occ: Cultivation 20th Ward, Narsapur,
West Godavari Dist.
5. One CC to SRI. RAMA MOHAN PALANKI Advocate [OPUC]
6. One CC to SRI. P N MURTHY Advocate [OPUC]
7. One CC to SRI. TURAGA SAI SURYA Advocate [OPUC]
8. Two CD Copies
HIGH COURT
VGKRJ
DATED:25/09/2025
COMMON JUDGMENT
SA NO. 64 OF 2015 AND SA NO. 65 OF 2015