Telangana High Court
N. Muralidhar Rao, vs Nacharam Yadagiri, on 26 June, 2025
THE HONOURABLE SMT. JUSTICE K. SUJANA
APPEAL SUIT No.505 of 2012
JUDGMENT:
Challenging the judgment and decree dated 20.01.2012 passed in O.S.No.253 of 2008 by the learned III Additional District and Sessions Judge (FTC), Ranga Reddy District, the present Appeal Suit is filed.
2. The brief facts of the case are that the plaintiff filed a suit for specific performance and possession based on an agreement of sale dated 06.10.2005, allegedly executed by defendant No.1, for a consideration of Rs.13,56,750/-, of which Rs.4,00,000/- had been paid. The plaintiff relied on corroborative evidence, including oral depositions (P.Ws.1 and
2) and documentary evidence (Exs.A-1 to A-10), demonstrating both execution of the agreement and his continued readiness to perform. Defendant No.1 denied executing the agreement and contended the property was ancestral. Defendant Nos.2 and 3, impleaded as legal representatives and co-sharers, reaffirmed that the property was ancestral and had been allotted to them in a previous 2 SKS,J A.S.No.505 of 2012 partition suit vide O.S.No.118 of 2006, finalized through a Lok Adalat award. The trial Court held that while the execution of the agreement was proved, it was not enforceable against the full extent of the property as defendant No.1 lacked exclusive title. The trial Court observed that defendant No.1 could alienate only his 1/3rd undivided share, particularly since the agreement did not purport to be executed by defendant No.1 as kartha or on behalf of other co-parceners. As such, the suit was decreed in part: specific performance was granted for the share of defendant No.1 alone, subject to the plaintiff depositing the balance consideration of Rs.52,250/- with 12% interest. The prayer of the plaintiff for entire possession was declined; instead, he was granted liberty to pursue partition and allied remedies under Section 22 of the Specific Relief Act.
The trial Court thus balanced contractual obligations with coparcenary rights by limiting enforcement to individual share of defendant No.1. Aggrieved thereby, the present appeal suit is filed.
3. Heard Sri Vedula Srinivas, learned Senior Counsel representing Smt. Vedula Chithralekha, learned counsel appearing on behalf of the appellant as well as Sri Police 3 SKS,J A.S.No.505 of 2012 Venkat Reddy, learned counsel appearing on behalf of the respondents.
4. Learned counsel for the appellant submitted that the judgment and decree passed by the trial Court is contrary to settled legal principles, the weight of evidence, and the overall probabilities of the case and that the trial Court failed to take into consideration the amended pleadings brought on record through I.A.No.237 of 2008, specifically Paragraph Nos.5(a) and 5(b), and the additional relief sought therein, namely, the plea that the partition decree in O.S.No.118 of 2006 (Ex.B1) is a collusive one and not binding on the plaintiff. He further submitted that the trial Court, however, overlooked this crucial amendment and rendered findings without adjudicating that prayer, thereby vitiating the judgment.
5. Learned counsel for the appellant argues that the agreement of sale in Ex.A-1 unequivocally records that the first defendant was the absolute owner of the suit land at the time of execution, and the plaintiff acted upon this representation and that the defence now taken by the defendant No.1 that the property was ancestral and hence 4 SKS,J A.S.No.505 of 2012 jointly owned is not only an afterthought but also remains unsubstantiated, particularly since defendant No.1 chose not to enter the witness box. He further submitted that as per the law laid down by the Hon'ble Supreme Court in AIR 1999 SC 1441, such failure to testify mandates drawing an adverse inference against him.
6. Learned counsel for the appellant contended that the alleged partition decree (Ex.B1), passed subsequently in favour of his minor children through a compromise in the Lok Adalat, lacks probative value and that the minors were represented by their mother and were impleaded only later in the present suit. Their testimony after attaining majority cannot retrospectively validate the partition, especially when no documentary evidence has been filed to establish the joint family nature of the property. Therefore, he submitted that the trial Court had no basis to limit the relief of specific performance to only 1/3rd of the property, particularly when all findings otherwise support the case of the plaintiff.
7. Learned counsel for the appellant further contended that the trial Court exceeded its scope by delving into the 5 SKS,J A.S.No.505 of 2012 question of partitionability of the suit land, which was not necessary for determining the enforceability of the agreement of sale. The suit being one for specific performance, the limited role of the Court was to examine the validity and enforceability of the sale agreement, which stood clearly proved through oral and documentary evidence. Therefore, he prayed the Court to set aside the judgment of the trial Court by allowing this Appeal Suit.
8. In support of his submissions, learned counsel for the appellant relied upon the judgments of the Hon'ble Supreme Court are as follows:
a. In the case of Vidhyadhar v. Manikrao 1, wherein in paragraph No.17, it is held as follows
17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar 1 (1999) 3 SCC 573 6 SKS,J A.S.No.505 of 2012 Gurbakhsh Singh v. Gurdial Singh [AIR 1927 PC 230 : 32 CWN 119] . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh [AIR 1930 Lah 1 : ILR 11 Lah 142] and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh [AIR 1931 Bom 97 : 32 Bom LR 924] . The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat [AIR 1970 MP 225 : 1970 MPLJ 586] also followed the Privy Council decision in Sardar Gurbakhsh Singh case [AIR 1927 PC 230 : 32 CWN 119] .
The Allahabad High Court in Arjun Singh v. Virendra Nath [AIR 1971 All 29] held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand [AIR 1974 P&H 7] drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box b. In the case of Arshnoor Singh v. Harpal Kaur 2 , wherein in paragraph No.7.3, it is held as follows:
7.3. Under Mitakshara law, whenever a male ancestor inherits any property from any of his paternal ancestors up to three degrees above him, then his male legal heirs up to three 2 (2020) 14 SCC 436 7 SKS,J A.S.No.505 of 2012 degrees below him, would get an equal right as coparceners in that property.
c. In the case of Bhoop Singh v. Ram Singh Major 3, wherein in paragraph No.13, it is held as follows:
13. In other words, the court must enquire whether a document has recorded unqualified and unconditional words of present demise of right, title and interest in the property and included the essential terms of the same; if the document, including a compromise memo, extinguishes the rights of one and seeks to confer right, title or interest in praesenti in favour of the other, relating to immovable property of the value of Rs 100 and upwards, the document or record or compromise memo shall be compulsorily registered.
d. In the case of Gram Panchayat of Village Naulakha v.
Ujagar Singh 4, wherein in paragraph Nos.7 and 8, it is held as follows:
7. The law in England also appears to be the same, that no independent suit is necessary. In Spencer-Bower and Turner on Res Judicata (2nd Edn., 1969) it is stated (para 359) that there are exceptions to the principle of res judicata. If the 3 (1995) 5 SCC 709 4 (2000) 7 SCC 543 8 SKS,J A.S.No.505 of 2012 party setting up res judicata as an estoppel has alleged all the elements of an estoppel (i.e. ingredients of res judicata), it is still open to the latter (the opposite party) to defeat the estoppel by setting up and establishing certain affirmative answers. Of these there are four main classes --
fraud, cross-estoppel, contract and public policy. The authors clearly say that no active proceedings for "rescission" of the earlier judgment are necessary. They state (para 370) as follows:
"The avoidance of a judicial act on the ground of fraud or collusion is effected not only by active proceedings for rescission ... but also by setting up the fraud as a defence to an action on the decision, or as an answer to any case which, whether by way of estoppel or otherwise, depends for its success on the decision being treated as incontrovertible."
Thus, the law is well settled that no independent suit as a condition precedent is necessary.
8. Collusion, say Spencer-Bower and Turner (para 378), is essentially play-acting by two or more persons for one common purpose -- a concerted performance of a fabula disguised as a judicium -- an unreal and fictitious pretence of a contest by confederates whose game is the same. As stated by Lord Selborne, L.C. in Boswell v. Coaks [(1894) 6 Rep 167 : 86 LT 365n (HL)] :
9SKS,J A.S.No.505 of 2012 There is no Judge; but a person invested with the ensigns of a judicial office, is misemployed in listening to a fictitious cause proposed to him, there is no party litigating ... no real interest brought into question and to use the words of a very sensible civilian on this point, fabula non judicium, hoc est; in scena, non in foro, res agitur.
That, in our view, is the true meaning of the word "collusion" as applied to a judicial proceeding.
e. In the case of Angadi Chandranna Versus Shankar and Others 5 , wherein in paragraph No.17, it is held as follows:
17. It cannot be disputed that the properties divided among Defendant No. 1 and his brothers through partition deed dated 09.05.1986, are joint family properties. However, as per Hindu law, after partition, each party gets a separate and distinct share and this share becomes their self-acquired property and they have absolute rights over it and they can sell, transfer, or bequeath it as they wish. Accordingly, the properties bequeathed through partition, become the self-acquired properties of the respective sharers 5 2025 SCC OnLine SC 877 10 SKS,J A.S.No.505 of 2012
9. On the other hand, learned counsel for the respondents submitted that there is no illegality in the judgment and decree passed by the trial Court from any legal infirmity and is in accordance with settled principles of law and that the suit property is a joint family property, and therefore, defendant No.1 alone did not have the authority to unilaterally enter into an agreement of sale in respect of the entire property. He further submitted that in his written statement, defendant No.1 had categorically denied the execution of the agreement of sale as alleged and had also clearly contested the legal notices issued by the appellant and that the trial Court rightly appreciated the evidence on record, and instead of dismissing the suit in its entirety, as was warranted, extended equitable relief by granting specific performance only to the extent of 1/3rd undivided share of defendant No.1. He contended that there is no credible evidence from the appellant to rebut the joint family character of the suit property, and the execution of the agreement by defendant No.1 cannot bind the shares of the other co-parceners. Therefore, as there are no merits in the appeal, he prayed the Court to dismiss the appeal suit.
11SKS,J A.S.No.505 of 2012
10. In support of his submissions, learned counsel for the respondents relied upon the Judgments of the Hon'ble Supreme Court and this Court are as follows:
a. In the case of Rohit Chauhan v. Surinder Singh, wherein in paragraph No.7 to 14, it is held as follows:
7. The relevant portion of the judgment of the lower appellate court reads as follows:
"13. In the light of abovesaid precedents it can be readily concluded that only when the property which is received by a person from his ancestors by survivorship can be held to be ancestral/coparcenary property and any other property which although, might have been received from the ancestors by means of will or consent decree or a father partitioned the property, will lose its character as that of coparcenary property and will become self-
acquired property in the hands of the person receiving it. Applying these precedents to the facts of the present case, this Court will conclude that approximately 96 kanals of land was received by Gulab Singh from his father Budhu on the basis of consent decree or on the basis of will and not by survivorship and this property lost the character of coparcenary property and was self-acquired property of Gulab Singh. The version of the plaintiff-Respondent 1 in the present case is that rest of the property 12 SKS,J A.S.No.505 of 2012 was acquired by Gulab Singh with the funds originated from joint Hindu family property and the said property also assumed the character of joint Hindu family property, also cannot be sustained because the major chunk of land in the hands of Gulab Singh has been held to be non-ancestral property and rather self-acquired property of Gulab Singh.
14. Once the property involved in the suit has been held to be self-acquired property of Gulab Singh then Gulab Singh was having every right to deal with the same in any manner he liked and no embargo can be put on the rights of Gulab Singh as well as his rights to alienate the suit property are concerned and thus neither release deed nor sale deeds executed by Gulab Singh can be questioned by anyone much less by son of Gulab Singh...."
Accordingly, the lower appellate court allowed the appeal and set aside the judgment and decree of the trial court and dismissed the suit.
8. The plaintiff, aggrieved by the same, preferred second appeal and the High Court dismissed [Rohit Chauhan v. Surinder Singh, RSA No. 1992 of 2011, order dated 4-5-2011 (P&H)] the second appeal in limine and, while doing so, observed as follows:
"... Finding of the lower appellate court that the suit land is not proved to be ancestral or 13 SKS,J A.S.No.505 of 2012 coparcenary property is fully justified by the documentary evidence and admitted facts...."
This is how the plaintiff is before us. Leave granted.
9. Mr L. Nageswara Rao, learned Senior Counsel appearing on behalf of the appellant-plaintiff submits that at the time when the plaintiff's father Gulab Singh got the property in partition, it was his separate property vis-à-vis his relations but after the birth of the plaintiff on 25-3-1982, the plaintiff acquired interest in the property as a coparcener. Mr Satinder S. Gulati, learned counsel appearing on behalf of the respondent-defendants, however, submits that once the property fell into the share of the plaintiff's father Gulab Singh, it lost the character of a coparcenary property and the said status will not change on the birth of the plaintiff. He points out that even if plaintiff Rohit Chauhan was born at the time of partition between Defendant 2, his father and brothers, the plaintiff would not have got any share under Section 8 of the Hindu Succession Act.
10. In support of the submission Mr Rao has placed reliance on a judgment of this Court in Bhanwar Singh v. Puran [(2008) 3 SCC 87 :
(2008) 1 SCC (Civ) 779] , and our attention has been drawn to the following passage from the said judgment: (SCC pp. 90-91, para 13) 14 SKS,J A.S.No.505 of 2012 "13. Section 6 of the Act, as it stood at the relevant time, provided for devolution of interest in the coparcenary property. Section 8 lays down the general rules of succession that the property of a male dying intestate devolves according to the provisions of the Chapter as specified in Clause (1) of the Schedule. In the Schedule appended to the Act, natural sons and daughters are placed as Class I heirs but a grandson, so long as father is alive, has not been included. Section 19 of the Act provides that in the event of succession by two or more heirs, they will take the property per capita and not per stripes, as also tenants-in-common and not as joint tenants."
11. We have bestowed our consideration to the rival submissions and we find substance in the submission of Mr Rao. In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, 15 SKS,J A.S.No.505 of 2012 on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener.
12. The view which we have taken finds support from a judgment of this Court in M. Yogendra v. Leelamma N. [(2009) 15 SCC 184 : (2009) 5 SCC (Civ) 602] in which it has been held as follows:
(SCC p. 192, para 29) "29. It is now well settled in view of several decisions of this Court that the property in the hands of a sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid."
13. Now referring to the decision of this Court in Bhanwar Singh [(2008) 3 SCC 87 : (2008) 1 SCC 16 SKS,J A.S.No.505 of 2012 (Civ) 779] relied on by the respondents, the same is clearly distinguishable. In the said case the issue was in relation to succession whereas in the present case we are concerned with the status of the plaintiff vis-à-vis his father who got property on partition of the ancestral property.
14. A person, who for the time being is the sole surviving coparcener as in the present case Gulab Singh was, before the birth of the plaintiff, was entitled to dispose of the coparcenary property as if it were his separate property. Gulab Singh, till the birth of plaintiff Rohit Chauhan, was competent to sell, mortgage and deal with the property as his property in the manner he liked. Had he done so before the birth of plaintiff, Rohit Chauhan, he was not competent to object to the alienation made by his father before he was born or begotten. But, in the present case, it is an admitted position that the property which Defendant 2 got on partition was an ancestral property and till the birth of the plaintiff he was the sole surviving coparcener but the moment plaintiff was born, he got a share in the father's property and became a coparcener. As observed earlier, in view of the settled legal position, the property in the hands of Defendant 2 allotted to him in partition was a separate property till the birth of the plaintiff and, therefore, after his birth Defendant 2 could have alienated the property only as karta for legal necessity. It is nobody's case that Defendant 2 executed the sale deeds and release deed as karta for any legal necessity.
17SKS,J A.S.No.505 of 2012 Hence, the sale deeds and the release deed executed by Gulab Singh to the extent of entire coparcenary property are illegal, null and void. However, in respect of the property which would have fallen in the share of Gulab Singh at the time of execution of sale deeds and release deed, the parties can work out their remedies in appropriate proceeding.
b. In the case of S. Kondaiah v. C. Sreenivasa Rao, wherein in paragraph No.9, it is held as follows:
9. The appellant tried to overcome the situation by pleading that the 3rd respondent figured as a witness, and since the whereabouts of the 2nd respondent were not known, as on the date of the agreement, his wife too joined as a witness.
It does not need any effort to maintain the distinction between an executant on the one hand, and the witness, on the other hand. The terms of the agreement are binding on the executant, and none else. The role played by the witness is nothing, but the one, connoting his or her presence at the time of the transaction. At the most, one can attribute knowledge of the transaction, to the witness. The terms of a contract are not binding on every one who knows the transaction. By no stretch of imagination, a witness can be treated, or become a party to the transaction, nor would he be bound by the terms of the contract.
18SKS,J A.S.No.505 of 2012
10. It is only when the executant of an agreement pleads that he has the consent of the persons, who figured as witnesses, that a situation may emerge, where the witnesses need to explain their stand. In the instant case, the specific plea of the 1st respondent was that he intended to sell his share of the property, and not the entire property, covered by Ex. B2. There did not exist any necessity for the respondents 2 and 3, to extricate themselves from the transaction, because they were never party to it.
c. In the case of Kammana Sambamurthy v. Kalipatnapu Atchutamma, wherein in paragraph No.23, it is held as follows:
23. In Kartar Singh v. Harjinder Singh [(1990) 3 SCC 517] this Court was concerned with a case where vendor brother and a sister had each half-
share in the suit properties. The agreement for the sale was executed by the brother concerning the suit properties in which the sister had half- share. The sister was not executant to the agreement; rather she refused to accept the agreement. The question for consideration before this Court was whether the agreement could be enforced against the vendor brother to the extent of his half-share. This Court considered Section 12 and held as under: (SCC pp. 520-21, paras 5-
6) 19 SKS,J A.S.No.505 of 2012 "5. We are, therefore, of the view that this is not a case which is covered by Section 12 of the Act. It is clear from Section 12 that it relates to the specific performance of a part of a contract. The present is not a case of the performance of a part of the contract but of the whole of the contract so far as the contracting party, namely, the respondent is concerned. Under the agreement, he had contracted to sell whole of his property. The two contracts viz. for the sale of his share and of his sister's share were separate and were severable from each other although they were incorporated in one agreement. In fact, there was no contract between the appellant and the respondent's sister and the only valid contract was with the respondent in respect of his share in the property.
6. As regards the difficulty pointed out by the High Court, namely, that the decree of specific performance cannot be granted since the property will have to be partitioned, we are of the view that this is not a legal difficulty. Whenever a share in the property is sold the vendee has a right to apply for the partition of the property and get the share demarcated. We also do not see any difficulty in granting specific performance merely because the properties are scattered at different places. There is no law that the properties to be sold must be situated at one place. As regards the apportionment of consideration, since admittedly the appellant and the respondent's sister each have half-share in the properties, the consideration can easily be 20 SKS,J A.S.No.505 of 2012 reduced by 50 per cent which is what the first appellate court has rightly done."
11. The points that arise for consideration in this appeal are:
i. Whether the trial Court erred in granting specific performance only to the extent of one-third share of defendant No.1, despite allegations that the subsequent partition decree in O.S.No.118 of 2006 was collusive and not binding on the appellant? ii. Whether the execution of the agreement of sale by defendant No.1, who represented himself as the absolute owner and accepted a part of the sale consideration, could be enforced in full against the entire property, or only against his individual share.
12. Having regard to the submissions advanced by both the learned counsel and upon a careful perusal of the material placed on record, it appears that the appeal challenges the partial decree passed in O.S.No.253 of 2008, wherein the trial Court acknowledged the execution of the agreement of sale dated 06.10.2005 by defendant No.1 and receipt of Rs.4,00,000/- towards sale consideration, and also upheld the issuance of legal notice by the plaintiff.
21SKS,J A.S.No.505 of 2012
13. However, the trial Court declined to enforce the agreement beyond the 1/3rd undivided share of defendant No.1 on the ground that the suit schedule property was ancestral in nature, forming part of a partition decree in O.S.No.118 of 2006, finalized through a compromise in a Lok Adalat. The trial Court reasoned that the terms of the contract were binding only on the executants, defendant No.1, and not on defendant Nos.2 and 3, who were not parties to the agreement.
14. The appellant rightly contends that the amendment sought through I.A.No.237 of 2008, particularly the plea that the partition decree is collusive, was not adjudicated by the trial Court. In the case of Gram Panchayat of Village Naulakha (cited supra), the Hon'ble Supreme Court observed that collusion in judicial proceedings can be raised as a defense without requiring a separate suit. The failure of defendant No.1 to disclose the pre-existing agreement of sale in the partition suit significantly taints the decree, thereby lending weight to the appellant's claim of collusion. Therefore, decree in partition suit is nothing but a collusive suit to cause loss to the appellant herein, said decree cannot be a ground to 22 SKS,J A.S.No.505 of 2012 refuse the relief in the present suit. The trial Court erred in not considering this aspect.
15. Further, reliance placed by the appellant on Vidhyadhar (cited supra) supports the contention that the trial Court ought to have drawn an adverse inference against defendant No.1 for failing to enter the witness box and submit to cross-examination. The silence of defendants, especially after accepting consideration and executing the agreement, undermines the credibility of the defence raised in the written statement.
16. Furthermore, the contention that the suit property is ancestral also stands on fragile ground. The reliance of the respondents on Rohit Chauhan and S. Kondaiah (cited supra) is well-noted, but in the present case, no credible documentary evidence has been produced to establish that the property remained joint family property at the time of execution of the agreement. On the contrary, it is clear that defendant No.1 represented himself as the absolute owner, received consideration, and never disclosed the transaction in 23 SKS,J A.S.No.505 of 2012 the subsequent partition proceedings, thereby creating an equitable estoppel.
17. However, in view of the settled position in Kartar Singh (cited supra), a contract by one co-sharer can be specifically enforced at least to the extent of his share, even if other sharers are not parties. Therefore, this Court is of the holds that there is no illegality in the decision of the trial Court to confine the relief to one-third share of defendant No.1. Yet, given the admitted execution of the agreement and receipt of consideration, defendant No.1 cannot now escape performance of his obligation.
18. In view of the above discussion, the judgment of the trial Court is modified to the extent that defendant No.1 is directed to execute a registered sale deed in favour of the plaintiff for the suit property as follows:
i. The appellant/plaintiff shall deposit the balance sale consideration of Rs.52,250/- in the trial Court within a period of one month from the date of receipt of a copy of the order.24
SKS,J A.S.No.505 of 2012 ii. Upon such deposit, defendant No.1 shall execute and register the sale deed within a period of one month, with defendants Nos.2 and 3 joining for effective conveyance.
iii. If defendant No.1 fails to execute the sale deed, the plaintiff is permitted to have it executed through the Court process.
19. In view thereof, this Appeal Suit is allowed in part.
There shall be no order as to costs.
Miscellaneous applications, if any pending, shall stand closed.
_______________ K. SUJANA, J Date: 26.06.2025 SAI 25 SKS,J A.S.No.505 of 2012 THE HONOURABLE SMT JUSTICE K. SUJANA P.D. JUDGMENT IN APPEAL SUIT No.505 of 2012 Date: 26.06.2025 SAI