Andhra HC (Pre-Telangana)
Ravi Raghunath Reddy And Six Ors. vs Rekala Ramdas S/O. Hanumanthu And 12 ... on 4 October, 2007
Equivalent citations: 2008(2)ALD316
JUDGMENT P.S. Narayana, J.
1. The unsuccessful plaintiffs in O.S. No. 33 of 1981 on the file of the Principal District Munsif, Bhongir and A.S. No. 4 of 1992 on the file of the Senior Civil Judge, Bhongir had preferred the present second appeal.
2. The first appellant in the second appeal died and the legal representatives were brought on record.
3. The following substantial questions of law would arise for consideration in the second appeal.
1. Whether respondents 1 and 2 and particularly respondent No. 1 and respondents 9 to 13 are entitled to maintain their possession of the suit land legally while taking the shelter under Section 53-A of Transfer of Property Act when as per the findings of both the Courts below, the respondent No. 1 and 9 to 13 failed to pay the balance sale consideration, failed to demand for execution of sale deed and failed to file any suit for specific performance of alleged agreement of sale which has become a dead letter after the expiry of limitation period of three years?
2. Whether the courts below are entitled to follow the Judgment of Bombay High Court in respect of the law laid down under Section 53-A of Transfer of Property Act in preference to the law laid down on the same legal aspect by the Supreme Court in 1982?
3. Whether the agreement holders having come into possession of the land covered by the said agreement can resist the suit for possession by the owner whom the right of specific performance of the contract is taken away due to the expiry of limitation period for such relief?
4. The deceased first appellant-first plaintiff along with the other plaintiffs instituted the suit O.S. No. 33 of 1981 on the file of the Principal District Munsif, Bhongir praying the relief of recovery of possession of agricultural dry land admeasuring Ac.10-00 guntas out of Survey No. 608 and 609 situated at Bollepalli village of Bhongir Mandal. Defendants 1 and 2 filed common written statement denying the plaint allegations. When the suit was pending, defendant No. 3 died and his legal representatives were brought on record. Defendant No. 2 also died and his legal representatives were brought on record, who had no doubt adopted the written statement of defendants 1 and 2.
On behalf of the present appellants-plaintiffs, P.Ws. 1 to 3 were examined, Exs.A1 to A9 were marked. On behalf of the contesting defendants, D.Ws.1 to 4 were examined, Exs.B1 to B7 were marked. Exs.X1 and X2 were also marked by the Court through P.W.3. The court of first instance recorded the reasons in detail by relying on Ex.B1 sale agreement dated 11-07-1972 and after recording findings in elaboration, came to a conclusion that the plaintiffs are not entitled for the reliefs prayed for and dismissed the suit with costs. Aggrieved by the same, the matter was carried by way of appeal A.S. No. 4 of 1992 on the file of the Senior Civil Judge, Bhongir and the appellate court also dismissed the appeal with costs as far as the contesting respondents-defendants are concerned. Aggrieved by the same, the present second appeal is preferred.
5. Sri Sriramakrishna Murthy, the counsel representing Sri A. Anantha Reddy, counsel for the appellants had pointed out the relevant points recorded by the appellate Court and would maintain that though the findings are concurrent findings, the judgment made by the appellate Court is not in accordance with law. The point framed for consideration is cryptic. The learned Counsel also pointed out that both the courts below had not considered the documentary evidence placed before the court on the aspect of family necessity.
The learned Counsel also would point out that the contesting defendants had not made any counter claim while further elaborating his submissions. The learned Counsel also would point out that it is doubtful whether Ex.B1 can be styled as an agreement of sale or as an out sale. These parties were in possession of the property as tenants. Unless clear intention and the subsequent acts in pursuance of Ex.B1 are established to show that they had asserted possession as owners, the question of invoking of the Transfer of Property Act, 1882 would not arise. The finding recorded that there is no cause of action is a perverse finding. The learned Counsel also would explain that the finding that the third defendant got the suit filed or in relation to the unsoundness of the said third defendant, there is no proper evidence at all placed before the Court. The learned Counsel while making elaborate submissions would maintain that in the light of the facts and circumstances of the case, dismissing the suit would amount to approving the stand of the contesting defendants, who had never been ready and willing to perform their part of the contract. When that being so the question of invoking the benefits under Section 53-A of the Transfer of Property Act, 1882 would not arise. The counsel also placed strong reliance on certain decisions.
6. Per contra, Sri A. Pulla Reddy, learned Counsel representing the contesting respondents would submit that it is a suit filed for possession on the strength of title and even otherwise the defendant No. 3 also would be a co- owner though subsequently, the third defendant died, the third defendant had not instituted the suit. The counsel also would maintain that it is not clear whether these properties are self-acquired properties or ancestral properties.
The very fact that subsequent to the entering of Ex.B1, defendants 1 and 2 stopped the payment of lease amount would clearly go to show that Ex.B1 was acted upon and hence such parties are entitled to the benefits of Section 53-A of the Transfer of Property Act, 1882. The counsel also would maintain that even otherwise the Court can always award appropriate relief and if any amount is due and payable under Ex.B1, always on the ground of equity, the Court can make appropriate directions. The learned Counsel also relied upon certain decisions to substantiate his contentions.
7. Heard the counsel on record. Perused the oral and documentary evidence available on record and the findings recorded by the Court of first instance and also the findings recorded by the appellate Court.
8. For the purpose of convenience, the parties hereinafter would be referred to as plaintiffs and defendants as shown in O.S. No. 33 of 1981. The death of the parties and bringing the legal representatives on record had been already stated supra. It was pleaded in the plaint that the plaintiffs are the natural sons of defendant No. 3 and they constitute a Hindu Joint family and coparcenary governed by Mithakshara School of law. The joint family is still undivided and owing movable properties at their village Bollepally, Tq. Bhongir. The defendant No. 1 is the son of Defendant No. 2 and they are living together. It is further alleged that the defendant No. 3 and one Ravi Narayana Reddy are the original joint pattedars of the lands bearing Sy.Nos.608 and 609 situated at Bollepally village. The plaintiffs' family is still the owner, title holder and pattedar of Ac.5-18 guntas of land in Sy. No. 608 and Ac.6-30 guntas in Sy. No. 609 and they are in actual physical possession and enjoyment of Ac.2-07 guntas in Sy. No. 608 out of the said land. Since a long time the defendant No. 3 was not feeling well and his physical as well as mental health was deteriorating consequently, the plaintiff No. 1 had taken charge of the joint family affairs and looking after them. During the course of said management by the plaintiff No. 1 it was found that the defendant No. 2 some how exercised undue influence over defendant No. 3 and got executed some document of transfer in or about 1972 in respect of Ac.10- 00 land out of Sy.Nos.608 and 609. As such they illegally entered into possession of Ac.3-10 guntas in Sy.Nos.608 and Ac.6-30 guntas in Sy. No. 609 totally admeasuring 10 acres of land. It is further alleged that the defendant No. 3 in fact did not validly transfer the suit land to defendants 1 and 2, the said deed of transfer is illegal, bonus, sham, without consideration and obtained from a person who is mentally unsound as such it does not confer any right or title to defendants No. 1 and 2. It is further alleged that there was no legal necessity or any liability to discharge antecedent debt warranting the disposal of the suit land by the defendant No. 3. And the defendant No. 3 had no right or power to transfer coparcenary property. Hence the possession of defendants No. 1 and 2 over the suit land is not legal and liable to be evicted.
The plaintiffs are already in possession of Ac.2-07 guntas of land and this suit is filed for recovery of possession of Ac.10-00 land out of Sy. No. 608 and 609 and for future mesne profits of Rs. 1,000/- per year and costs of suit.
9. It is needless to say that the defendant No. 3 is none other than the father of the plaintiffs. Defendant No. 3 was set exparte as he had not filed any written statement inspite of having appeared before the Court for several times. Defendants 1 and 2 filed common written statement denying the age of plaintiff No. 1 on the date of filing of the suit. It is also pleaded that the suit by plaintiffs 2 and 3 had not been instituted by the next friend. The parents of plaintiffs 2 and 3 are alive and they are minors under the guardianship of their parents. It is also further pleaded that the defendant No. 2 lawfully acquired the possession of the suit lands under an instrument of transfer executed on 11-07-1972 by the third defendant as kartha of the joint family and the defendant No. 2 had taken the possession of the suit lands in part performance thereof is protected by law from being enforced any right in respect of the suit lands. As such the suit is not maintainable. The plaintiff filed a false suit by misrepresenting and suppressing the real facts at the instance of defendant No. 3 with a malafide and dishonest intention of usurpting the suit lands. It is also denied that the defendant No. 3 was not feeling well since a long time and his physical and mental health was deteriorating. The averments that the plaintiff No. 1 had taken charge of the joint family affairs and defendant No. 2 has some how executed undue influence over the defendant No. 3 and the defendants have illegally entered into the possession of suit land are absolutely false. The real facts of the case are that the defendant No. 3 in the capacity of kartha of the Hindu Joint Family had sold away the suit land to the defendant No. 2 for a valid consideration to meet his family necessities by way of execution of an instrument of transfer on 11-07-1972, and the defendant No. 2 was inducted into possession of the suit lands. Even after receipt of sale consideration the defendant No. 3 stalled on the matter of executing and registering a regular sale deed on one pretext or the other and finally got filed this false suit. The defendant No. 3 is manager of the joint family consisting of his wife and plaintiffs then minors has lawfully disposed off the suit lands in favour of the defendant No. 2 to meet his family necessities and the defendant No. 3 is still the kartha and manager of the plaintiffs' family and looking after all the affairs. It is also alleged that the market value of the suit land is more than Rs. 20,000/-, and this Court has no pecuniary jurisdiction and the court fee paid is also insufficient. It is further alleged according to the plaint averments the defendant No. 3 is of unsound mind and the plaintiffs and defendant No. 3 are still undivided family living under one roof. The defendant No. 3 did not prefer to file a petition for appointment of next friend for him as required by law. As such the suit is not maintainable and liable to be rejected. And the plaintiff No. 1 though a minor was in complete knowledge of the transaction between defendants No. 2 and 3. As such it is denied that they came to know about the suit transaction only during the so-called management of his family affairs. The defendant No. 3 has also received a part of the sale consideration through his wife and plaintiff No. 1. The defendant No. 2 is however filing a suit for specific performance of contract in respect of suit lands and he is willing to perform his part in execution and registration of a regular sale deed and prayed to dismiss the suit with costs.
10. While the suit was pending, defendant No. 3 died and his legal representatives-defendants 4 to 8 were brought on record and they filed their written statement pleading that the plaintiffs' family continues to be the joint family and defendants 1 and 2 had illegally occupied the suit land and virtually they have taken the same stand as pleaded in the plaint. Defendant No. 2 also died and his legal representatives-defendants 9 to 13 were brought on record, who had adopted the written statement of defendants 1 and 2. Before the Court of first instance, the following issues were settled.
1. Whether the plaintiffs are entitl.ed for recovery of possession of the suit lands Sy.Nos.608 and 609 total admeasuring Ac.10-00, dry situated in village Bollepally Tq. Bhongir as prayed for?
2. Whether defendant No. 1 and 2 exercised undue influence over defendant No. 3 and got executed a transfer deed in or about 1972 in respect of Ac.10-00 out of suit Sy. No. 608 and 609 situated in Bollepally village and whether defendants No. 1 and 2 had illegally entered into possession of Ac.3-10 guntas in Sy. No. 608 and Ac.6-30 guntas in Sy. No. 609 as alleged in the plaint?
3. Whether the plaintiffs are entitled for mesne profits of Rs. 1,000/- per year as prayed for?
4. Whether the defendant No. 3 in the capacity of Kartha of Hindu Joint family had sold away the suit land to defendant No. 2 for a valid consideration to meet his family necessities by executing transfer deed, dated 11-07-1972 and said sale of suit lands by defendant No. 3 is valid and binding on plaintiff and defendants 4 to 8?
5. Whether the plaintiffs have any cause of action to file the suit?
6. Whether the suit valuation is correct and whether the court fee paid is sufficient?
7. Whether this Court has no pecuniary jurisdiction to try the suit?
8. Whether the suit is not maintainable for want of next friend for defendant No. 3 who is alleged to be an unsound mind person?
9. To what relief?
11. The evidence of P.Ws.1 to 3, Exs.A1 to A9, D.Ws. 1 to 4, Exs.B1 to B7 and Exs.X1 and X2 were marked. The court of first instance recorded reasons in detail and dismissed the suit as already specified above. The matter was carried by way of appeal in A.S. No. 4/1992 on the file of the Senior Civil Judge, Bhongir. The appellate Court at Para 12 framed the following point for consideration.
Whether the findings of the lower court on all the issues are correct and not based on facts and records and against law records and against law and so the decree and judgment of the lower court passed in O.S.33/81 on the file of the Principal District Munsif Court, Bhongir, is liable to be set aside?
12. The appellate Court recorded reasons commencing from paras.13 to 24 and ultimately confirmed the findings recorded by the Court of first instance. Hence the present second appeal.
13. P.W. 1, Ravi Raghunath Reddy, who is first plaintiff who is no doubt no more died during the pendency of the second appeal and legal representatives were brought on record. P.W. 2 is Bingi Istari and P.W. 3 is one P.Raghunath Reddy. On behalf of the contesting defendants, D.W. 1, R. Ramdas, the first defendant in the suit, D.W. 2 Gudur Ram Reddy, D.W. 3 S. Veeraiah, D.W. 4 M. Narayana Reddy were examined. Ex.A1 is the certified copy of pahani for the year 1972-73, 1979-80 and 1969-70. Likewise, Ex.A2 is the certified copy of pahani for the year 1980-81, Exs.A3 to A9 are the receipts issued by the Co- operative Bank, Bhongir. Against this documentary evidence, Ex.B1 is the original agreement of sale dated 11-07-1972 executed by defendant No. 3 in favour of defendant No. 2. Ex.B1(a) is the signature of G. Ram Reddy, Ex.B1(b) is the signature of Veeraiah, Ex.B1(c) is the signature of M. Narayana Reddy. Ex.B2 is the receipt for Rs. 3,000/- by defendant No. 3 in favour of defendant No. 2 dated 11-07-1972. Exs.B2(a) and B2(b) are the signatures of G. Ram Reddy and Veeraiah respectively. Exs.X1 and X2 were marked through P.W. 3. The stand taken by the plaintiffs is that the plaintiffs and the deceased-defendant No. 3 constituted a joint Hindu family and the suit lands are the joint family properties and defendant No. 3 was not mentally sound, as such, plaintiff No. 1 was looking after the affairs of the joint family as kartha. It is also the case of the plaintiffs that during that time, the first plaintiff found that the defendant No. 2 influenced defendant No. 3 and got executed a document of transfer in the year 1972 in respect of suit land under undue influence. As such, defendants 1 and 2 entered into possession of the suit land illegally. It is also the case of the plaintiffs that defendant No. 3 has no right to sell the joint family properties as there is no necessity for the joint family purpose and thus the sale made by defendant No. 3 is not valid and binding as the said sale was made by an incompetent person and an insane person as well. The stand taken by defendants 1 and 2 is that defendant No. 3 was hale and healthy and as a healthy person and as a kartha of the Hindu joint family, he disposed of the suit land under instrument of document dated 11-07-1972 for valid consideration and delivered possession of the same in part performance of the said document. It is also the case of the contesting defendants that though the plaintiff No. 1 was minor at that time, he had knowledge about the said transaction and his mother received some part payment towards sale consideration. Plaintiff No. 1 as P.W. 1 deposed that the extent of suit land is Ac.10.00 and it is their ancestral property and he is acting as kartha of the family since 18 years though his father was alive at that time, he was looking after the affairs of the family as the mental condition of his father was effected since 1970. P.W. 1 also deposed that he got treated his father at private hospitals and also in government hospital, Yerragadda, Hyderabad. He also deposed that D.Ws.1 and 2 occupied the land in 1972. At first they have given the possession of the suit lands to the defendants on lease for one year later they left Hyderabad. Thereafter, they returned in the year 1980 and demanded the defendants to deliver the possession of the lands in question. But they were informed that the defendants purchased the land from their father and refused to handover the possession. The matter was referred to the elders and they advised the defendants to handover the possession, but the defendants had not entered into any sale transaction with their father and they had not received any sale consideration from the defendants. P.W. 1 further deposed that even otherwise the transaction is not supported by any joint family necessity whatsoever. The Superintendent of mental hospital, P.W. 3 produced the medical reports and those were marked as Exs.X1 and X2. P.W. 3 deposed that he is working from 1978 September in the mental Hospital as Superintendent and according to record, Ravi Sathi Reddy, deceased defendant No. 3 was brought to hospital on 15-12-1983 and this witness also deposed in detail about Exs.X1 and X2. Certain suggestions were put to this witness relating to the interestedness. It is pertinent to note that even if Ex.X1 the admission record pertaining to defendant No. 3 taken into consideration, he was admitted on 5-12-1983 subsequent to the filing of the suit.
14. In the light of the voluminous evidence available on record, though there is some material to show that the mental condition of defendant No. 3 was not so well, findings had been recorded by both the courts below, he was not a chronic mental patient since a long time and this stand was thought of only for the purpose of present litigation. Defendant No. 1 as D.W. 1 deposed that originally they had taken the suit lands on lease from defendant No. 3 and subsequently, the defendant No. 3 requested them to purchase the land as he was in financial troubles. This witness also deposed that though there were also in financial troubles, they sold the gold ornaments and purchased the suit land from defendant No. 3 and he executed a document in the house of K. Nagender Rao, the then surpanch on 11-07-1972 and the sale transaction was settled for Rs. 550/- per acre totaling to Rs. 5,500/- for 10 acres and they paid Rs. 3,000/- on the same day and defendant No. 3 also executed a receipt Ex.B2 and agreement on the same day which are scribed by said Nagender Rao. This witness also deposed that as per the agreement, it is agreed that the balance amount of Rs. 2,000/- is to be paid on Ugadi and remaining amount of Rs. 500/- to be paid on 'Kathera crop'. This witness also deposed that at the time of execution of the agreement Ex.B1, one Mandada Narayana Reddy, Gudur Ram Reddy, Chegari Veerayya and Defendant No. 3 and his wife and P.W. 1 were present. After execution, defendant No. 3 signed as executant and Narayana Reddy, Ram Reddy and Veerayya signed as attesting witnesses. On the next day, Defendant No. 3 came and measured the land of Ac.10.00 in two survey numbers and at the time of sale, P.W. 1 was aged about 14 or 15 years and he has knowledge about the transaction. This witness also deposed that he paid the balance sale consideration of Rs. 2000/- before Ugadi at the request of defendant No. 3 and also paid another Rs. 500/-. Apart from sale consideration, they paid excess amount. This witness also deposed that he paid to P.W. 1 a sum of Rs. 200/- out of sale consideration and got a receipt. Ex.B3 and the said receipt were scribed by one Bikshapathi. The crucial document is Ex.B1 dated 11-07-1972. Ex.B2 is the receipt executed on the same day by the deceased defendant No. 3. Ex.B3 is another receipt. The payment made by defendant No. 2 and the execution of the receipt these aspects are amply established by the evidence available on record.
15. On appreciation of the evidence, both the court of first instance and also the appellate court recorded concurrent findings negativing the stand taken by the plaintiffs that Defendant No. 3 was unsound mind and also relied upon Exs.B1, B2, B3 and recorded positive findings relating to the execution of Ex.B1 and the delivery of possession made there under and further specifically recorded that the contention that the contesting defendants somehow got the document from the Defendant No. 3 by undue influence and coercion had been negatived. It was recorded that relating to the payment of the rest of the consideration, there is no acceptable material before the Court and at the best the plaintiffs may be entitled to recover the balance of consideration if any from the contesting defendants, if they are entitled to such relief subject to limitation. The other oral and documentary evidence also had been appreciated at length and concurrent findings had been recorded. It is needless to say that Exs.A1 to A9 need not be seriously considered since the original ownership of the property being with defendant No. 3 and his family, is not in serious controversy, since the case of the contesting defendants is that by virtue of Ex.B1, they are entitled to protect their possession by virtue of doctrine of part performance.
16. Strong reliance was placed on the decision of the Division Bench of the Orissa High Court in Nilamani Behera and Ors. v. Pyarilal Saha 2002 (2) CCC 143 (Orissa) wherein the Division Bench observed that-
On the pleadings in the case, the facts admitted and in the light of the plea by the defendant that he was entitled to the protection of Section 53-A of the Transfer of Property Act, the only issue that really arose was whether the defendant was entitled to that protection. Obviously, the burden to establish that he was entitled to the protection of Section 53-A of the Transfer of Property Act, was on the defendant. As held by the Supreme Court in Nathulal v. Phoolchand , the defendant had to establish that the transferor had contracted to transfer for consideration an item of immovable property by writing signed by her from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty: that the transferee had, in part performance of the contract, taken possession of the property; that the transferee had done some act in furtherance of the contract; and that the transferee had performed or is willing to perform his part of the contract. We find that the trial Court completely misdirected itself in the line of enquiry it made. It asked itself the wrong question. It did not consider whether the defendant had established that he was and he had always been ready and willing to perform his part of the contract as it was, though it found that the defendant had not paid the additional sum of Rs. 500/- as claimed by him. The learned Single Judge in appeal, in our view, fell into the same error and did not consider the question whether the defendant had established that he was and had always been ready and willing to perform his part of contract from the inception of the contract at least till the date of the suit, if not till the date of the decree. The learned Single Judge also went into an enquiry whether the plaintiff had proved that the defendant had refused to perform his part of the contract.
Thus, the question that arose for decision in the case was whether the defendant had established the elements that would enable him to claim protection of Section 53-A of the Transfer of Property Act. The title was admittedly with the plaintiff. The plaintiff had agreed to convey the property to the defendant. The contract was in writing and signed by the parties. Advance had been paid by the defendant, being part of the purchase price agreed upon, and the plaintiff had put the defendant in possession of the property on 13-09-1965. Thus, all other ingredients to get the protection of Section 53-A of the T.P. Act had been satisfied in this case. The only other element that had to be established by the defendant was whether he was and had always been ready and willing to perform his part of the contract. The defendant had established that he had purchased stamp papers on 15-09-1965, i.e. two days after entering into the agreement for sale, thus doing something in furtherance of the contract. It is in this context that the only question that fell to be decided on the materials was whether the defendant was and had always been ready and willing to perform his part of the contract on its terms.
Once it is found that the defendant had failed to prove that he was entitled to the protection of Section 53-A of the Transfer of Property Act, the plaintiff has necessarily to be given the decree for recovery of possession of the suit property on the strength of her title. There is no case of any adverse possession possible or pleaded in the case. Thus, the trial Court and the learned Single Judge were in error in refusing a decree for recovery of possession to the plaintiff by making an erroneous approach to the question falling for decision. We are, therefore, constrained to interfere with the judgment and decree of the learned Single Judge.
The plaintiff had received a sum of Rs. 8,000/-towards the sale consideration. The defendant had enjoyed the possession of the property all these years. In this situation, while granting the plaintiff a decree for recovery of possession, we think that it would be just and proper to impose a condition on the plaintiff to deposit of sum of Rs. 8,000/- in Court before seeking delivery of the property in execution of the decree. Since the defendant had been in enjoyment of the property all these years, we do not think it necessary and proper to award any interest to the defendant on the sum of Rs. 8,000/-.
17. Further, strong reliance was placed on the decision of apex Court Sardar Govindrao Mahadik v. Devi Sahai wherein the apex Court observed:
To qualify for the protection of the doctrine of part-performance it must be shown that there is a contract to transfer for consideration immovable property and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. These are pre-requisites to invoke the equitable doctrine of part-performance. After establishing the aforementioned circumstances it must be further shown that a transferee had in part performance of the contract either taken possession of the property or any part thereof or the transferee being already in possession continues in possession in part-performance of the contract and had done some act in furtherance of the contract. There must be a real nexus between the contract and the acts done in pursuance of the contract or in furtherance of the contract and must be unequivocally referable to the contract.
Anything done in furtherance of the contract postulates the pre-existing contract and the acts done in furtherance thereof. Therefore, the acts anterior to the contract or merely incidental to the contract would hardly provide any evidence of part performance.
Mere oral agreement to discharge a mortgage can hardly be said to be an act of part performance unless in fact such an act is done by a discharged mortgage deed being returned to the mortgagor.
This mere recital in the unregistered sale deed is hardly indicative of the change in the nature of possession, when there is no evidence to show that he moved the authorities that he would be liable to pay taxes as owner.
18. Reliance also was placed on the decision in Tribhuban Parkash Nayyar v. The Union of India , Assa Nand v. Harish Kumar . Further reliance was placed on the decisions in Jahangir Begum v. Gulam Ali Ahmed AIR 1955 Hyderabad 101, and in Jam Manufacturing Co. LTD., Bombay v. Sadashiv Sitaram .
19. In the light of the concurrent findings recorded by both the courts below and also in the light of the oral and documentary evidence available on record, some of the essential facts are as here under.
20. In the light of the clear evidence of D.W. 1 coupled with the other oral evidence and also Exs.B1, B2, B3 and execution of Ex.B1 by the defendant No. 3 cannot be put into serious controversy. Even as per the admission of P.W. 1, initially the lands were leased out and subsequent thereto Ex.B1 was entered into, it is not the case of the plaintiffs that till the date of the institution of the suit, there were any further payments towards lease amounts, as such it has to be taken that Ex.B1 was acted upon and the status of tenancy had extinguished by virtue of Ex.B1 and in that view of the matter, the findings recorded by both the courts below that the contesting defendants are entitled for the benefits of Section 53-A of the Transfer of Property Act, 1882 cannot be found fault. It is pertinent to note that even if an agreement of sale made by the kartha of the family, or an alienation made by the kartha of the family, is to be challenged by undivided coparceners, the sons, they may have to specifically plead several of the essentials and for reasons best known, the plaintiffs had not taken care to plead the same in the plaint. Apart from this aspect to the matter, if it is the case of the plaintiffs that an element of coercion or undue influence had been exercised to obtain Ex.B1, in the light of Order 6 Rule 4 of CPC several details and particulars in relation thereto to be pleaded. Even otherwise, the question whether the Defendant No. 3 was of unsound mind or not is predominantly a question of fact. When both, the court of first instance and the appellate Court recorded findings in relation thereto, this Court in a second appeal cannot re-appreciate the oral and documentary evidence to disturb such factual finding. It may be that to avoid the agreement of sale in question as not binding on the other coparceners in the light of the principles of Hindu Law, the plaintiffs could have pleaded and could have instituted the suit for partition at the best. But for reasons best known, they had not chosen to do so. It is true that several other questions inclusive of the question of limitation may have to be gone into in the event of such suit being filed in the light of the provisions of the Limitation Act, 1963. This Court need not further dwell upon this question, since the relief of partition is not being prayed for, the relief of possession alone is being prayed for and at any rate in the light of Ex.B1 executed by the father-kartha of the family, the binding nature or otherwise of Ex.B1 on the other coparceners would be within the settled principles of Hindu law. However, as far as the payment of the rest of the amount is concerned, there is no acceptable evidence and concurrent findings had been recorded by both the court of first instance and also the appellate Court. It is also not in controversy that the third defendant is no more and the legal representatives were brought on record. The first plaintiff is also no more. It is needless to say that plaintiffs 2 and 3 and the legal representatives of the first plaintiff and the legal representatives of the third defendant would be entitled to the rest of the amount. This Court is conscious of the fact that this is not the relief prayed for by the plaintiffs, but however, in the light of the defence taken by the contesting defendants to avoid multiplicity of litigation, in view of the fact that this Court is entitled to mould the relief, the contesting defendants who are claiming the benefit under Ex.B1 to deposit the rest of the amount due under Ex.B1 with interest at 24% per annum from the date of Ex.B1 till the date of deposit and a charge is being created on the property in question for the said amount in the event of the contesting defendants not paying or depositing the amount within the period of eight(8) weeks from today and the legal representatives of the first plaintiff, plaintiffs 2 and 3 and the legal representatives of the defendant No. 3 are entitled to withdraw such amount to be deposited, without furnishing any security and in default, the said parties are at liberty to put the decree in execution for realization of the said amount with interest thereon as specified above by bringing the property in question to sale since the charge is being created as against the said property, which is the subject matter of the suit.
21. Accordingly, the appeal is partly allowed to the extent indicated above, but, however confirming the concurrent findings recorded by both the courts below in relation to Ex.B1 and also the applicability of doctrine of part performance in the light of Section 53-A of the Transfer of Property Act, 1882.
22. Accordingly, the second appeal is partly allowed to the extent indicated above relating to the recovery of amount with interest as specified above and in default creating charge over the property permitting the parties to realize the same by bringing the property, the subject matter of the suit to sale. Parties are directed to bear their own costs.