Andhra HC (Pre-Telangana)
Vanimisatti Anil Kumar And Others vs Jayavarapu Krishna Murty And Others on 28 April, 1994
Equivalent citations: AIR1995AP105, AIR 1995 ANDHRA PRADESH 105, (1994) 2 ANDHWR 286
JUDGMENT
1. Defendants 2 and 4 to 6 in Original Suit No. 65 of 1984, on the file of the Subordinate Judge's Court, Kovvur, West Godavari, are the appellants in this appeal. Respondents 1 and 2 herein are the plaintiffs in that suit. That suit was filed by the plaintiffs for (a) specific performance of the suit agreement of sale dated 31-8-1981, executed by the 1st defendant for himself and on behalf of the minor-2nd defendant in favour of plaintiffs 1 and 2 for Rs. l,02,900/- agreeing to sell the house property with site bearing Door No. 53, in the Temple Street, in 10th Ward of Jangareddigudem, Polavaram Taluk, West Godavari District; (b) for recovery of a sum of Rs. 10,000/- towards damages for the diala-tary tactics adopted by the defendant in completing the sale transaction in time; (c) alternatively for a decree for refund of Rs. 78,900/-; (d) for .a further sum of Rs. 1,00,000/- as damages for breach of con-
tract and also for a declaration that the 3rd defendant, who is a subsequent-purchaser of a part of the suit schedule property fro,m defendants 1 and 2 under a registered sate deed dated 10-12-1987, is not a bona fide purchaser for value and that the said sale deed in favour of the 3rd defendant is not at all supported by consideration.
2. Plaintiffs are brothers and members of a Joint Hindu Family. The 2nd defendant is the undivided son of the 1st defendant. They are members of a Joint Hindu Family, of which the 1st defendant is the manager. The plaint schedule property and the adjacent terraced building are the joint properties of defendants 1 and 2 and the same was mort- gaged to one Kola Ramarao of Eluru for Rs. 30,000 on 27-7-1979 by defendants 1 and2 in order to discharge the Antecedent debts of the joint family. In order to discharge the Antecedent debts, including the mortgage debt to Kola Ramarao and also in order to settle down permanently in the Tirunalveli Ashram, in Tamil Nadu State, defendants 1 and 2 wanted to dispose of their joint family property at Janagaraddigudem and at Tade-palligudem, they published a notice in the daily newspaper 'Andhra Prabhat', dated 14-10-1980, putting the suit property for sale. They also informed others in the surroundings about their intention, to sell the abo.ve property. Plaintiffs, coming to know about the intention of defendants 1 and 2, and after seeing the publication in the newspaper, approached defendants with a view to purchase the plaint schedule property. First defendant informed the plaintiffs that he is selling the property in order to discharge the antecedent debts of his family and also with a view to permanently shift to Tirunalveli in Tamil Nadu State. Plaintiffs, on enquiries, also came to know about the mortgage of the schedule propert in favour- of one Kola Ram-rao, and the other liabilities of the defendants to their creditors. The plaint schedule property was in a very neglected condition, which required heavy expenditure for repairs and renovation. Defendants are also related to the plaintiffs. Plaintiffs approached the defendants through one T.V.A. Narasimha Rao, one T. V. A. Jagannadha Rao (D.W.2) T. Baipiraju and M. Nageswara Sastry (P. W. 2). T. V. A.: Narasimharao and T. V. A. Jagannadha Rao, mentioned above, are the brothers of the wife of the 1st defendant, Bapiraju is the mother-in-law of the 1st defendant. T. V. A. Narasimha Rao is also the father-in-law of the second plaintiff. On 31-8-1981, a settlement was reached between the plaintiffs and defendants, in the presence of the mediators mentioned above, whereby the plaintiffs agreed, to purchase and the defendants agreed to sell the plaint schedule property for Rs. 1,02,900/-; defendants should discharge the mortgage debt due to Kola Ramarao. The said settlement was reduced to writing in Ex. A.1 as a sale agreement on that day, i.e. 31-8-1381, which was attested by T. Bapiraju, T.V.A. Narasimharao and T. V. A. Jagannadharao (D.W. 2). P.W. 2 is the scribe of the said agreement, which was executed at Jangareddigudem. It was scribed by Makkapati Nageswara Sastry. The terms of the said agreement, Ex. A.1, amongst others, are as under:--
a) The price shall be Rs. 1,02,900/-;
b) An advance of Rs.22,900/- should be paid at the time of agreement of sale;
c) Out of the balance of Rs. 80,000/-, the plaintiffs have to pay Rs. 10,000/- oh or before 1-10-1981 and the balance of Rs. 70,000/- by the end of December, 1981;
d) If the plaintiffs fail to pay the balance, by 31-12-1981, the same has to be paid with interest at Rs. 1/- per mensum;
e) The area of the site agreed to be sold is 566 square yards. On measurement, exclud ing the three terraced shops on the east, if the site is less, the price has to be proportionately reduced;
f) The site has to be measured before Registration and the area is to be arrived at, and the price has to be paid proportionately;
g) In taking measurements, the half share of the well in the south-western corner and the compound wall on the western side, have to be included;
h) If the defendants are absent from Jangareddigudeni to register the document, they agreed to come to Jangareddigudem to register the document, on prior written intimation of the date fixed for registration;
and
i) Possession of the schedule property shall be delivered at the time of registration;
j) The stair-case along the northern wall'of the northern godo'wn, out of the three godowns on the east retained by the defendants and intended to reach the terraced roof of the godowns, and the sun-shade extending to the north of the said northern wall, shall be removed by the plaintiffs at their cost, without causing any damage to the northern.wall, and the defendants shall not raise any objection for the removal of the above items;
k) The defendants shall not object if the plaintiffs close the window by fixing metal-sheets or wooden sheets to that wall, if in the opinion of the plaintiffs' the window causes nuisance to the right of privacy, and the defendants shall not object for that course; and
l) The defendants shall convey the property free from all encumbrances.
3. In accordance with the above terms of the agreements, plaintiffs paid a total amount of Rs.78,900/-, by 2-6-1992, to the first defendant as per the endorsements, Exs. A.3 to A.9, made on Ex. A. 1, by the 1st defendant in his own hand and duly signed by him. The plaintiff's are always ready and willing to perform their part of the contract, but the defendants have been postponing the same on some pretext or the other. First defendant also promised to discharge the mortgage debt due to Kola Ramarao and obtain return of the mortgage deed and execute the sale deed in respect of the suit schedule property before leaving to Tirunalveli. Plaintiffs could not secure the presence of the defendants as they are staying at Tirunalveli, in order to measure the site for arriving at the exact amount of balance of consideration to be paid for obtaining the sale deed. After the 1st defendant returned from Tirunalveli, in the presence of mediators, plaintiffs demanded execution of the sale deed by discharging the mortgage debt due to Kola Ramarao and after measuring the site. First defendant failed to comply with the same. Kola Ramarao gave a notice Ex. A. 10 to the first defendant as well as plaintiffs demanding payment of the amount due to him under the mortgage. After receipt of notice, plaintiffs again demanded the first defendant to discharge the mortgage debt and obtain return of the mortgage bond, receive the balance of sale consideration as per the terms of the agreement and execute the sale deed in their favour. Defendants failed to discharge the mortgage debt and also did not comply with, the terms o Ex. A.1 agreement by executing the sale deed in favour of the plaintiffs. Plaintiff, therefore, issued a registered notice on 21-11-1983 under Ex. A.12 to the defendants, demanding discharge of the mortgage debt and for complying with the other terms of the sale agreement, Ex. A. 1. This notice was received by the defendants on 30-11-1983, and the defendants gave a reply under Ex. A. 13, dated 9-12-1983, admitting the execution of the agreement of sale, Ex. A. 1 and also the receipt of part of sale consideration. In their notice, the p'lain-tiffs denied the other averments in the reply notice of the defendants, viz., that they (plaintiffs) threatened the 1st defendant for execution of the sale deed in their favour. Plaintiffs also denied (hat they approached the 1st defendant through one K. Vidyadhara Rao, in the last week of September, 1983 in the presence of Sarvasri A. Venkataratnam, T. V, A. jagannadha Rap, and T, V. A. Nara-simha Rao to settle the dispute. They denied all thpse allegations made by the defendants and also stated that they are all false and concocted. Plaintiffs categorically stated that there was no such settlement as claimed by the defendants, and the claim of the defendants that the sale agreement along with the alleged letter of settlement was kept with T. V. A. Jagannadharao is false. Plaintiffs claimed that as there is a steep rise in the prices of properties the defendants are evading execution of sale deed in terms of Ex. A.1, agreement. Plaintiffs are always ready and willing to deposit the balance of sale consideration as and when required to do so by the Court. Plaintiffs claim that mere decree for specific performance of the contract of sale, Ex. A. 1 will not meet the ends of justice, as the defendants postponed execution of the sale deed by setting up a false case of cancellation of the agreement by a subsequent settlement, and successfully deprived the plaintiffs of the possession of the suit schedule property for more than three years. Plaintiffs, therefore, claimed a sum of Rs. 10,000/- by way of compensation from the defendants, in addition to the specific performance of the contract, on account of the loss sustained by them.
4. Defendants 4 to 6, being the unmarried daughters of the 1st defendant, became the coparceners, by virtue of the amendment to the Hindu Succession Act; \vhich came into force on 6-9-1985. Therefore, they are added as defendants in the suit; and Ex. A.1 agree ment is equally binding oh them also. Plain tiffs, therefore, claimed that defendants 4 to 6 should also join the execution of the sale deed pursuant to the agreement, Ex. A.1. Alterna tively, plaintiffs claimed refund of Rupees 78,900/- paid by them towards consideration to the defendants and also for a decree for a sum of Rs. 1,00,000/- as damages for breach of contract. It is also stated, that the 3rd defendant, being the subsequent purchaser of a part of the plaint schedule property under the registered sale deed dated 10-12-1987 executed by the 1st defendant, is not a bona fide purchaser for value. The said sale deed is brought into existence collusively by the 1st defendant to defeat the rights of the plaintiffs.
Plaintiffs, therefore, claimed that the third defendant should also join the execution of the sale deed along with other defendants, in respect of the suit schedule property, in their favour.
5. First defendant filed a written statement for himself and on behalf of his minor son, the 2nd defendant, on 29-10-1984, admitting the execution of the mortgage deed dated 17-7-1979 in favour of one Kola Ramarao, but stated that the mortgage deed was executed only as a guarantor to secure payment by one V. Laxmanarao who obtained running a loan for Rs. 30,000/- from the said Ramarao a wholesale dealer in cycles towards his cycle spare parts business. He, however, denied that the excecution of the said mortgage deed is for discharging the antecedent debts of the defendants. First defendant also admitted publication of notice dated 14-10-1980 in the 'Andhra Prabha' daily newspaper for disposing of his pro-[ perties but, however denied that the said notification was published in order to shift his residence permanently be Tirunalveli and for the purpose of discharging the antecedent debts of the family. First defendant also admits that he informed his intention to sell the property to others also, with a view to find purchasers. He denied that the suit schedule, property is in a dilapidated condition, requiring immediate repairs. Defendants also admitted that the negotiations with the plaintiff took place through T. V. A. Narasimharao and T. V, A. Jagannadharao, who are closely related to the plaintiffs; they were negotiating throughout with the first defendant and the plaintiff did not have a direct dealing in this connection with the first defendant before or after execution of the agreement. Plaintiffs, taking advantage of the close relationship, of these two individuals, have filed this frivolous suit, giving a go-bye to the subsequent events that transpired between the plaintiffs and the defendants. Defendants' admit the execution of Ex. A.1 agreement on 31-8-1981, but denied the claim of the plaintiffs that they should discharge the mortgage debt and other amounts payable by the defendants to third parties. There is no such recital in the agreement, Ex. A.1. It is also contended that T. Bapiraju and Nageswarasastry were not at all present at the time of execution of the sale agreement, Ex. A.1, but attestation was obtained from T. Bapiraju subsequently. Defendants also admit all the conditions enumerated in the agreement, except condition (1). Defendants denied receipt of certain payments claimed to have been made by plaintiffs, stating that the amounts were paid to T. V. A. Narasimha Rao and T. V: A. Jagannadharao, but were not made over to the 1st defendant by those persons. According to the defendants, they received only Rs.51,900/- from the plaintiffs towards sale consideration. Defendants denied that the plaintiffs were ready and willing to perform their part of the contract. Defendants also denied the claim of the plaintiffs that they could not contact the 1st defendant as the 1st defendant is permanently residing in Tirunalveli. Defendants alleged that there were no negotiations by plaintiff through elders for execution of the sale deed in terms of Ex. A.1 agreement. On receipt of the registered notice dated 12-9-1983 from Kola Ramarao, the 1st defendant accosted him and questioned him why the notice was issued when the mortgage deed is excecuted only as a security, for which Ramarao replied that he issued notice at the instance of the plaintiffs. Defendant No. 1 also stated in the reply notice, dated 9-12-1983, that he had set Out in detail the events that occurred after the execution of the agreement and also about the settlement between them, whereby the agreement of sale Ex. A.1 was mutually cancelled. It is also stated by the 1st defendant that it is not a condition precedent in the agreement, Ex. A.1 that the defendants should first discharge the mortgage debt due to Kola Ramarao and then only they can receive the balance of sale consideration. Since the plaintiffs themselves committed breach of contract, plaintiffs are not entitled for any relief in this suit, muchless for damages of Rs. 10,000/- or refund of Rs. 78,900/- or for payment of damages of Rs. 1,00,000/- for breach of contract. It is also stated by the defendants that in the letter of settlement executed in the month of September 1983, that a sum of Rs. 51,400/ - was to be returned by the defendants to the plaintiffs with interest at 12 per cent per annum, but the same cannot be enforced as the letter of settlement is denied by the plaintiffs.
6. Third defendant filed his written statement, on 27-2-1989, claiming that he is a bona fide purchaser for value without notice of the agreement of sale, Ex. A.1 and he is not bound by the same.
7. Defendants 4 to 6 filed a separate written statement on 20-11-1990, stating that they are members of Joint Hindu Family along with defendants 1 and 2 under the provisions of the Hindu Succession Act, as amended on 6-9-1985; that the 1st defendant, manager of the coparcenary, became addicted to several vices like drinking, gambling and began to sell away the coparcenary property for his vices; these defendants along with their mother were residing in the suit property and living on the rents received from the properties of the joint family, the 4th defendant was born on 25-12-1961; fifth defendant was born for on 3-1-1965 and the 6th defendant was bom on 27-2-1969; the suit agreement Ex: A. 1 is not supported by consideration; the several payments relied upon by the plaintiffs are not. true; even if the said payments are true, they are not binding on the shares of D. 4 to D.6 in the plaint schedule property; the suit agreement is not for the legalnecessity or for the benefit of defendants 4 to 6; the present suit is barred by time so far as D. 4 to D. 6 are concerned.
8. The 2nd defendant, after he became a major, filed a separate written statement, on 17-12-1990. He claims that the suit agreement Ex. A.1, dated 31-8-1981 is not supported by consideration; the same is not true; the alleged payments said to have been made by the plaintiffs as per the endorsements Exs. A.3 to A. 9 on Ex. A.1 are also not true; plaintiffs were never ready and willing to perform their part of the contract; there was a subsequent settlement between the 1st defendant and the plaintiff to the effect that the plaintiffs shall give up their rights under the agreement Ex. A.1 on payment of Rs. 51,400/- by the 1st defendant with interest at 12% per annum from September, 1983 up to the date of the payment; the present suit is filed giving a go-bye to the subsequent settlement, even if Ex. A.1 agreement is true, jt is not supported by any legal necessity and the same is not for the benefit of the estate or for the discharge of any antecedent debts of the 1st defendants; migrating to a different and distant place by selling the joint family properties can never be legal necessity or for the benefit of the estate; the alleged mortgage to Kola Ramarao is not supported by consideration, as the same was executed as surety, for discharge of the running loan obtained by one V. Laxmana-rao from the mortgagee-Kola Ramarao; the mortgage debt is an avyavaharika debt; in any event, the suit agreement Ex. A. 1 is not enforceable against his 1/ 5th undivided share in the property sought to be sold under Ex. A.1, agreement.
9. On behalf of the plaintiffs, one of the plaintiffs was examined as P. W. 1; the scribe of Ex. A. I suit agreement of sale as P.W. 2;
another witness as P.W. 3; and not marked Exs. A.1 to A. 29, documents: First defendant examined himself as D.W. 1; one of the attestors as D.W. 2 and three other witnesses as D.Ws. 3 to 5; and got marked Exs. B.1 to B. 27, documents.
10. The lower Court framed appropriate issues and after due trial, and on considera tion of the entire material on record, decreed the suit for specific performance as prayed for by the plaintiffs. However, the claim for damages made by the plaintiffs as rejected.
Aggrieved by the decree and judgment of the lower Court, defendants 2 and 4 to 6 have filed this appeal.
11. Sri T. Veerabhadraiah, learned counsel for the defendants/appellants contended that the lower Court erred in holding that the second defendant has no right to file a written statement after he became a major by taking pleas which are inconsistent with and contrary to what has been alleged in the earlier written statement filed on this behalf and on behalf of the 1 st defendant; there was no legal necessity at all for selling the suit schedule joint family property; the reason given by the 1st defendant that he wanted to permanently migrate and settle down in Tirunalveli in Tamil Nadu State is not a legal necessity for selling the property; defendants 4 to 6, daughters of the 1st defendant are also entitled to have their shares in the suit schedule properties on par with the son (the 2nd defendant), and the view taken by the lower Court that defendants 4 to 6 will not be entitled to any share as the amendment to the Hindu-Succession Act came into force only subsequent to the agreement of sale Ex. A. 1, is not correct. The learned counsel lastly contended that when the plaintiffs valued the main relief in the suit at Rs. 1,02,900/- and claimed! damage on a higher amount by paying the necessary Court-fee, the lower Court erroneously awarded a sum of . Rs. 15,181-60ps towards costs, when the . relief given is only for specific performance and not damages.
12. Sri N. V. Suryanarayana Murty, learned counsel for the plaintiffs/respon dents, however, contended that the findings recorded by the lower Court on all aspects are unassailable and the judgment and decree of the lower Court do not call for interference in this appeal.
13. In view of the above rival contentions, the point that falls for determination in this appeal is -- whether the lower Court is right in decreeing the suit for specific performance against the defendants?
14. In thesuit agreement, Ex. A.1, dated 31-8-1981, the 1st defendant, for himself and on behalf of the minor second defendant, categorically stated that they are selling the suit schedule property for the reason that their entire family is contemplating to move to Tirunalveli in Tamil Nadu State permanently. Except this, there is no other reason or family necessity mentioned in Ex. A.1 agreement, for selling the suit schedule property. It was also mentioned in Ex. A. 1 agreement by the defendants that the property in question has not been encumbered in any manner; On 12-9-1983, one Kola Ramarao gave a registered notice, Ex. A. 10, to the defendants marking a copy thereof to the plaintiffs, claiming that the 1st defendant had mortgaged the suit schedule property in his favour and demanding redemption of the mortgage immediately without any delay. Plaintiffs, consequently gave a notice Ex. A.12 on 2-11-1983 to defendants 1 and 2, demanding them to discharge the said mortgage debt due to the said Kola Ramarao. First defendant gave a. reply notice, Ex. A.13, on 9-12-1983 to the plaintiffs, stating that; the mortgage Ex. B.21, dated 17-7-1979 (Ex. A.11 is the registration extract of the same) executed by him in favour of Kola Ramarao, was only as a security for the running loan obtained by one V. Laxmanarao. Plaintiffs filed the present suit on 18-4-1984, stating that the suit schedule property was agreed to be , sold by defendants 1 and 2 in their favour, for discharging the antecedent debts of the family of the defendants, and also to shift the entire family of the 1st defendant permanently to Tirunalveli in Tamil Nadu State.
15. Sri T. Veerabhadraiah, learned counsel for the defendants/appellants contended that there is improvement in the plaint regarding the necessity for selling the suit property, as compared to the recitals in the suit agreement, Ex. A. 1. The defendants, having suppressed the existence of the mortgage Ex. A.21, cannot legitimately take advantage of that suppression and plead that the plaintiffs are not bona fide purchasers for value, as they did not enquire about the existence of the debts of the defendants. Having stated that the mortgage. Ex. B.21, is only a nominal one, the 1st defendant, in fact, discharged the said mortgage debt on 12-4-1985, as per the endorsement, Ex. B.22. The plaintiffs obtained the encumbrance certificate from the Sub-Registrar's Office. Jangareddigudem, with respect to the suit properly. That certificate did not disclose the existence of Ex.B.21, mortgage, dated 17-7-1979. Therefore, plaintiffs have taken all the necessary and due precautions before obtaining the suit agreement Ex. A.1, from the defendants I and:2.
16. The 1st defendant in the written statement filed on 29-10-1984 for himself and on behalf of his minor sop, the 2nd defendant, admitted the execution of the suit agreement, Ex. A.1. He, however, pleaded a subsequent settlement, in the first week of September, 1983, between him and the plaintiffs, where-under the plaintiffs agreed to cancel the suit agreement on payment of Rs. 51,400/- with interest at the rate of 12% per annum on or before 30th April, 1984 by the defendants to the plaintiffs. It was also pleaded in the sajd written statement that the subsequent settlement deed along with the suit agreement Ex. A. 1 were kept in the custody of D.W. 2 but, both those documents were surreptitiously obtained by the plaintiffs from D.W. 2. However, the 1st defendant, in his evidence as D.W. 1, admitted receipt of the total amount of Rs. 78,900/- from the plaintiffs towards consideration under Ex. A.1, as per the endorsements, Exs. A.2 to A. 9.
Therefore, if can safely be concluded that the total amount paid by the plaintiffs to the defendants towards sale consideration under Ex. A.1 is Rs.78,900/-.
17. The lower Court, on an appreciation of the entire material evidence on record, found that the alleged subsequent settlement pleaded by the first defendant during the first week of September, 1983, is not true. Significantly, the correctness of this finding recorded by the lower Court has not been canvassed by the defendants/appellants in this appeal. The 2nd defendant, after attaining majority, filed a separate written statement, duly obtaining the permission of the Court, on 17-12-1990, stating that the suit agreement, Ex. A.1 is not true and not sup ported by consideration. He also pleaded that he reliably learnt that there is a subsequent settlement between the first defendant and the plaintiffs, whereunder the plaintiffs had given up their rights to enforce the suit agreement Ex. A.1; even if Ex. A. 1 agreement is true, it is not supported by any legal necessity and the same is not for the benefit of the estate, and also not for discharging any antecedent debt of the 1st defendant. He specifically pleaded that selling away joint family property, in order to migrate to a different and distant place, can never be regarded as legal necessity.
18. Defendants 4 to 6, who are the daughters of the 1st defendant, were brought on record, as per orders, dated 7-11-1990 in I.A. No. 1267 of 1990, in the suit. They were brought on record subsequent to the coming into force of the Amendment to the Hindu Succession Act, as they will become coparceners along with the son (D. 2) of the 1st defendant. They filed a separate written statement, on 20-11-1990, claiming that they are unmarried, and under the Amending Act to the Hindu Succession Act, they are also entitled to a share in the property, and the suit agreement Ex. A.1 is not binding on them. They have pleaded that the 1st defendant, as manager of the coparcenary, became addicted to several vices like drinking and gambling and started selling away the joint family property for that reason, and not for any legal necessity of the family; the suit agreement is not true and the alleged payments pleaded by the plaintiffs as per the endorsements on the suit agreement Ex. A.1 are also not true. Finally, they stated that the plaintiffs are not entitled to specific performance of the suit agreement with respect to their shares in the joint family plaint schedule property.
19. Sri N. V. Suryanarayanamurty, learned counsel for the respondents/plaintiffs, contended that filing of a separate written statement by the 2nd defendant upon his attaining majority, contrary to the averments already made in the written statement filed by the 1st defendant for himself and on behalf of his minor son -- the 2nd defendant, is not proper and that the 2nd defendant is bound by what has already been stated in the earlier written statement.
20. It is settled law that, a minor, after he becomes major, is always entitled to question the transactions, done on his behaif during his minority, by his guardian, by filing a separate suit. In the instant case, the 2nd defendant attained majority during the pendency of the suit itself. Therefore, there is no illegality or irregularity in filing a separate written statement by the 2nd defendant, contrary'to the averments already made by the 1st defendant in the written statement filed by him for himself and on behalf of his minorson -- the 2nd defendant. The learned counsel for the plaintiffs/respondents, relying upon the provisions of Order VI, Rule 17, Civil Procedure Code, viz., -- "no pleading shall, except by way of amendment raise any new ground to claim or contend any allegation of fact inconsistent with the previous pleadings of the party pleading the same"--, contended that the contrary pleas taken by the 2nd defendant in his subsequent written statement filed, have to be ignored. Order VI, Rule 17, C.P.C. will apply to a case where a separate written statement is sought to be filed by the same defendant contrary to the averments already made by him in the earlier or previous written statement. The provisions of O. VI, R. 17, C.P.C. will not apply to the case of a minor filing a separate written statement, on attaining majority. As stated already, the minor can, after his attaining majority, within the time prescribed, question the transactions done by his guardian on his behalf, during his minority. Therefore, I hold that there is no illegality or irregularity in filing a separate written statement by the 2nd defendant on his attaining majority, contrary to the averments already made on his behalf, by his guardian --the 1st defendant, in the earlier written statement.
21. Sri N. V. Suryanarayanamurty, learned counsel for the plaintiffs/respondents, contended that defendants 4 to 6 had no right in the suit property, when Ex.A.1 came into existence; the amendment to the Hindu Succession Act, being subsequent to the suit agreement, Ex. A. 1, defendants 4 to 6 shall not be entitled to contest the suit by filing a separate written statement, taking new pleas; the amendment to the Hindu Succession Act is only prospective in operation and has no retrospective effect.
22. It is no doubt true that, defendants 4 to 6, in their written stalement, pleaded for the first time, contrary to what has been already stated earlier in the written statement filed by D.1 and D.2, that the first defendant was addicted to all vices, like drinking an'd gambling and that he is frittering away the property to meet the expenditure for his vices and, therefore, those transactions, being not for the legal necessity of the family are not binding on them.
23. As per the settled law, unless and until a regular sale deed is executed pursuant to a decree obtained for specific performance, the title to the property will not pass to the purchaser of the property (vide S. Narayana Reddy v. Sai Reddy,(1990) 1 APLJ(HC) 252 and Govinda v. Provabati, AIR 1956 Cal 147.
24. As on the date of coming into force of the Amendment to the Hindu Succession Act, the present suit transaction was not completed, by executing a regular sale deed in favour of plaintiffs by the defendants. Therefore, the entire estate was intact. The rights of the defendants 4 to 6, if any, as per the amended provisions of the Hindu Succession Act, are subject to the suit agreement, Ex. A. 1. The suit, which is filed on the basis of the agreement Ex.A.1, was pending when the amendment to the Hindu Succession Act came into force. Therefore, the question of the defendants 4 to 6 getting any shares in the suit schedule property will depend upon the result of the suit, as their rights in the suit property are subject to the suit agreement, Ex.A.1.
25. The need to consider, whether the sale transaction under Ex.A.l suit agreement is for the legal necessity of the family or not had arisen in view of averments made by the 2nd defendant in the separate written statement filed by him, on his attaining majority, and also consequent upon filing of separate written statement by defendants 4 to 6, wherein they have categorically stated that the suit transaction is not for the legal necessity of the family. As already stated, the suit agreement Ex.A.l itself recited that the sale of the suit schedule property is for the purpose of shifting the entire family of the defendants permanently to Tirunelveli; in Tamil Nadu State. In the written statement filed by the 2nd defendant - on attaining majority, it is categorically mentioned that the sale of joint family property under Ex. A. 1 agreement is not for discharging any antecedent debt. Defendaats 4 to 6 have gone one step further and stated that the first defendant is addicted to all vices like drinking and gambling, and hence selling of joint family property for that reason is illegal and unwarranted.
26. No doubt, in the suit agreement Ex.A.1, the only reason given for selling the joint family property is to shift the family of the 1st defendant permanently to Tirunelveli. Sri T. Veerabhadraiah, learned counsel for the defendants/ appellants, contended that under any stretch of imagination, this cannot be a valid ground, of 'legal necessity of the joint family', for selling the joint family properties.
27. The recitals in Ex. A. 1, suit agreement cannot be taken as 'be all and end all'. It turned out that, the 1st defendant had already mortgaged the property under Ex.B.21, dated 17-7-1979 to one Kola Ramarao for Rs. 30,000/-. It is in the evidence that the 1st defendant has no particular avocation. In his evidence as D.W.1, the 1st defendant clearly and categorically admitted that he cannot perform the marriages of his daughters except by selling the family properties. The mortgage debt under Ex.B.21 was subsisting as on the date of execution of Ex. A.1, suit agreement, as well as on the date when the suit was filed in the lower court. In fact, the said mortgage debt was discharged only on 12-4-1985, under the endorsement, Ex.B.22 made on the mortgage deed, Ex.B.21.
28. P.W.3 stated that the 1st defendant and his family used to reside in Tirunelveli six to eight months in a year and that the 1st defendant had informed him that he intends to sell away the suit property as he is unable to meet his both ends meet and wanted to migrate to Tirunelveli, where he can get lands at cheaper rate with more income and also for better education for his children. In fact, the first defendant had executed a General Power of Attorney in favour of P. W.2 for executing the regular sale deed in favour of D-3 on his behalf and on behalf of his minor son, the 2nd defendant. Nothing was elicited in the cross-examination of this witness, to doubt his testimony. The letters, Exs.B.26 to B.27, will also establish that the 1st defendant was residing in Tirunelveli for quite a long time after execution of the suit agreement, Ex.A.1. In D. J. Prasad v. D. V. Subbaiah, AIR 1973 Andh Pra 214, a Division Bench of this Court held that, selling property for the purpose of migrating to a different place for better living has to be considered, as for 'legal necessity'. Apart from the said reason, as already stated, the first defendant, as manager of the joint family, had already mortgaged the suit schedule property under Ex.B.1 to Kola Ramarao and that debt was in subsistence as on the date of Ex. A. 1, suit agreement, as well as on the date of filing of the present suit. The 1st defendant was totally depending upon the meagre rents received by him from the mulgis (shops) as he had no other particular avocation to earn money. That mortgage debt under Ex.B.21, was discharged only after the filing of the present suit. Therefore, on a consideration of the material evidence on record, I hold that the plaintiffs have successfully discharged their burden by establishing that the sale transaction under Ex.A.1, suit agreement, is for the legal necessity and also for discharging the antecedent debts, binding on the estate of the defendants.
29. Defendants 4 to 6, though pleaded that their father, the 1st defendant, was addicted to all vices, they did not adduce any evidence to prove the same. There is absolutely no acceptable evidence on record to conclude that the 1st defendant was addicted to any vice. It is pertinent to note, at this stage, that the 2nd defendant also did not make any such allegation in the written statement filed by him, on his attaining majority. Therefore, I hold that the suit transaction under The agreement Ex.A.l, is not at all vitiated in any manner, and the suit transaction is meant only for the legal necessity of the defendants.
30. As already mentioned, the specific plea of the 1st defendant in the written statement was that there was a subsequent settlement between him and the plaintiffs and a settlement deed was also executed, where-under plaintiffs have given up their right to enforce Ex.A.1, suit agreement, and the 1st defendant agreed to pay Rs. 51,400/- to the plaintiffs with interest at 12% per annum by April 1984, and the balance of sale consideration amount paid by the plaintiffs should be returned by D.W.2 and his brother, to the plaintiffs.
31. It is to be noted that the alleged settlement deed has not been filed into court. That settlement deed, according to the 1st defendant, was written by one Vidyadhar Rao in the presence of one Akkuri Venkataratnam and T. V. A. Narasimharao, who attested the said deed. These facts are stated by the 1st defendant as D.W.1, but the same have not been established either by producing the document itself or by examining any one of the attestors or the scribe of the same. According to the 1st defendant, who deposed as D.W.1, this settlement deed, along with the suit agreement Ex.A.1, was given to D.W.2. D.W.2 claims that this document was taken away by his brother T. V. A. Narasimha Rao and the same was not returned to him later.
D.W.5, who claims to be an attestor of this settlement deed, is a resident of Janga-reddigudem and he claims that he went to Buttayyagudem, in response to a phone message from Jayavarapu Krishnamurty, one of the plaintiffs. D.W.5, however, admitted that he did not know Krishnamurty prior to that date when he received the phone message. He also claims that he does not know any of the other plaintiffs also. Therefore, the evidence of D.W.5 cannot be accepted. This is all the evidence available with respect to the settlement deed. Therefore, I have no hesitation to hold that the alleged settlement pleaded by the first defendant has not been established by him.
32. The third defendant claims that he is a bona fide purchaser for value of apart of the suit schedule property, without notice of the suit agreement Ex. A. 1, and that he purchased the said property under the registered sale deed, dated 10-12-1987, by which date the present suit was already pending in the lower court. The 1 st defendant admits the execution of the sale deed in favour of the 3rd defendant. One of the plaintiffs, who was examined as P.W.1 deposed that immediately after coming to know that the 3rd defendant is purchasing a part of the suit schedule property, he (PW 1) approached the 3rd defendant and apprised him of the existence of the suit agreement, Ex.A.1 and that thereupon the 3rd defendant assured him that he will not purchase the said part of the suit schedule property. Having said so, the 3rd defendant obtained the sale deed in respect of a part of the suit schedule property on 10-12-1987. In cross-examination of P. W.1, nothing was elicited to discredit his testimony on this aspect. The first defendant, as D.W.1, did not depose that the 3rd defendant had no knowledge of the existence of the suit agreement, Ex.A.l. The 3rd defendant has not chosen to come to the box to depose that he has no knowledge of the suit agreement, Ex.A. 1; The claim of the plaintiffs, as spoken to by P.W. 1, that the 3rd defendant had knowledge of the existence o Ex.A.l, suit agreement, has not been rebutted by the defendants, by letting in any other evidence. It, therefore, necessarily follows that the 3rd defendant is not a bona fide purchaser for value of a part of the suit schedule property, as he had the knowledge of the existence of Ex.A. 1, suit agreement.
33. Plaintiffs, in fact, have paid a sum of Rs. 78,900/-, as per the endorsements, Exs. A.2 to A.9, made on Ex.A.l. They pleaded that they are always ready and willing to perform their part of the contract. P.W.2, the scribe of Ex.A.1 suit agreement, deposed that a sum of Rs. 22,900/- was paid on the date of execution of Ex.A.1, suit agreement. Plaintiffs filed Exs.A. 14 to A.29, their accounts to establish that they have enough funds to pay the balance of sale consideration to the defendants, as and when required. Plaintiffs also issued a legal notice, Ex.A. 10, demanding the defendants to execute the sale deed in terms of Ex.A.l, wherein they have categorically stated that they are always ready and willing to perform their part of the contract. This assertion of the plaintiffs has not been controverted by the defendants in the notice issued by them to the plaintiffs. Accepting the evidence of the plaintiffs, I hold that the plaintiffs are always ready and willing to perform their part of the contract.
34. In view of the above findings, I hold that the decree and judgment of the lower court, directing the defendants to execute the sale deed, as per the terms of Ex.A.l, in favour of the plaintiffs and to put the plaintiffs in possession of the plaint schedule property, and on failure to do so by the defendants, directing the plaintiffs to obtain the sale deed and possession of the suit schedule property through the process of Court are correct. They are accordingly confirmed. The plaintiffs shall deposit the balance of sale consideration in the lower Court, within two months from today, and the defendants shall execute the sale deed in respect of the suit schedule property and deliver possession of the same to the plaintiffs. If the defendants fail to execute the sale deed, the plaintiffs may obtain the same through Court.
35. Regarding costs, the lower Court, while granting the relief of specific performance, awarded costs calculated on the basis of the other relief for damages in a sum of Rs. 1,00,000/-, sought for, in the plaint.
36. It is true that, the costs should follow the event, the plaintiffs have valued the main relief of specific performance of the suit agreement, Ex.A.1 at Rs. 1,02,900/-. They also claimed damages of Rs. 1,00,000/- by paying the necessary court-fee, which relief was not granted by the lower Court. Therefore, plaintiffs are entitled to costs only to the extent of the decree granted for the main relief of specific performance, which is valued at Rs. 1,02,900/-. The decree of the lower Court, regarding costs is modified as indicated above.
37. In the result the appeal is dismissed, subject to the modification of the judgment and decree of the lower Court, with regard to costs, as mentioned above. Parties will bear their own costs in this appeal.
38. Appeal dismissed.