Andhra Pradesh High Court - Amravati
Vudagiri Venkata Rao, Vizianagaram ... vs Kedarisetty Venkataramana 2 Others, ... on 20 April, 2020
Author: M.Venkata Ramana
Bench: M.Venkata Ramana
HON'BLE SRI JUSTICE M.VENKATA RAMANA
A.S.No. 531 of 2008
JUDGMENT:
The plaintiff is the appellant. The 2nd respondent is the wife of the 1st respondent. They as well as the 3rd respondent were the defendants.
2. The 1st respondent admittedly is the owner, who had right, title and interest to the plaint schedule property. It is to an extent of Ac.0-35 cents described as a dry land in S.No.180/3 at Tummikapalli village, Kothavalasa Mandal, Vizianagaram District within the specific boundaries mentioned in the plaint schedule. It shall be referred to hereinafter as, 'the suit land', for convenience.
3. The appellant laid the suit for the relief of specific performance basing on an agreement for sale dated 09.10.2004, to direct the respondents to execute a regular sale deed and to register pursuant thereto of the suit land and in failing to do so to get the same registered through the process of the Court. Alternatively, he requested to direct refund of alleged advance sale consideration of Rs.3.50 lakhs by the respondents with future interest at 24% p.a. from the date of the agreement for sale till realization as well as compensation of such amount not exceeding the suit value for breach of contract as well as costs.
4. The appellant as well as the respondents 1 and 2 are inter- related. The wife of the appellant is one of the sisters of the 2nd respondent. Thus, the appellant and the 1st respondent are co-brothers. P.W.2 Sri Kandula Ramakrishna is one of the brothers of the 2nd respondent and wife of the appellant. P.W.3 Sri Kandula Venkata Surya MVR,J A.S.No. 531 of 2008 2 Rao is their cousin brother. P.W.4 Sri Kedarisetty Demullu is also related to these parties.
5. The claim of the appellant was rejected dismissing the suit by the decree and judgment dated 14.03.2008 by the Court of learned Senior Civil Judge, Vizianagaram. Against it, the appellant has preferred this appeal.
6. It is desirable to consider the claims of the parties set out in their respective pleadings before embarking upon evaluating and analyzing the evidence on record.
7. The case of the appellant in the plaint was that the 1st respondent suggested that he would sell him the suit land since he was in need of money, and that it would fetch good price in future. It was the further case of the appellant in the plaint that though the real market value was far below, he as well as the 1st respondent along with their relations had deliberations in this respect and the sale price was arrived at Rs.25,000/- per cent, in all Rs.8,75,000/- and out of which the appellant paid Rs.3,50,000/- to the 1st respondent as advance. The appellant further pleaded in the plaint that in terms thereof, the suit agreement for sale was reduced to writing upon payment of such advance on 09.10.2004, which the 1st respondent executed in presence of their relations, who acted as attestors as well as the scribe. It was further agreed in between these parties, as per the averments in the plaint that the balance sale consideration should be paid upon taking out measurements of the suit land at the time of registration without fixing any specific time for execution of the sale deed. Even though by January, 2006 the value of the suit land did not raise even half of the agreed rate, as per the averments MVR,J A.S.No. 531 of 2008 3 in the plaint, the appellant in order to keep up his promise, pooled up sufficient amount to pay the balance consideration and requested the 1st respondent at the end of February, 2006 and through his relations during 1st week of March, 2006 to execute a sale deed upon receiving balance sale consideration expressing his ready and willingness. When the attitude of the 1st respondent was found to dodge, according to the averments in the plaint, the appellant got issued a legal notice dated 27.03.2006 requesting the 1st respondent to perform his part of the contract specifically informing that he was ready and willing to perform his part thereof, to which he got issued a reply dated 08.04.2006 denying the execution of agreement for sale. Thereupon, the averments in the plaint are that he got issued a rejoinder dated 12.06.2006 renewing his request for performance of his part of the contract by the 1st respondent and to execute the sale deed.
8. According to his case in the plaint, when the appellant was getting ready to file the suit on account of the failure of the 1st respondent to perform his part of the contract under the agreement for sale, he observed a fence being erected around the suit land and on his enquiries, he came to know that the 1st respondent with dishonest intention to cause loss to him, executed a gift deed in favour of his wife viz., the 2nd respondent and made her to execute a sale deed in respect of the suit land in favour of the 3rd respondent nominally in order to avoid this contract. The case of the appellant further in the plaint was that the 3rd respondent and her husband have been the close associates of the respondents 1 and 2, who had known the suit agreement for sale and all of them together fraudulently brought into existence a sale deed dated 16.02.2006 in favour of the 3rd respondent as if she purchased this MVR,J A.S.No. 531 of 2008 4 property for Rs.70,000/-. Thus, in the above circumstances, according to the appellant, he was constrained to lay the suit for the reliefs sought.
9. The 1st respondent resisted the claim of the appellant in the plaint filing a written statement denying the execution of the agreement for sale dated 09.10.2004 in favour of the appellant, its terms and claimed this agreement as a rank forgery. He further averred in the written statement that the appellant was a financial wreck by the date of the alleged agreement for sale on account of the loss suffered in business and since his wife fell ill, for which he incurred heavy expenditure. He also averred that he and his wife used to scold the appellant and his son for carrying on speculative business and thus, serious disputes arose among them.
10. Thus, he also questioned the financial capacity of the appellant to enter into such contract as well as to pay the alleged advance sale consideration of Rs.3,50,000/- and that if there was any need of money, the agreement would have incorporated a recital that the time would be the essence of contract. He further averred that the 2nd respondent would not have sold the suit land for Rs.70,000/- to the 3rd respondent under the registered sale deed dated 16.02.2006, if the appellant had offered to purchase it for Rs.8,75,000/-.
11. While denying that there was any demand to execute a regular sale deed basing on alleged agreement for sale and pointing out that legal notice issued on behalf of the appellant on 27.03.2006 did not have any schedule, while an old stamp paper was used for preparing the alleged agreement for sale, the 1st respondent further contended that he had to execute a gift deed in favour of his wife on 28.07.2005 to make a MVR,J A.S.No. 531 of 2008 5 provision for her, under which he had delivered possession of the suit land to her and that the 2nd respondent had sold this land to the 3rd respondent under a regular sale deed dated 16.02.2006 for valuable consideration, to whom this property was delivered thereunder. Denying that the 3rd respondent and her husband have been their close associates and that the alleged sale dated 16.02.2006 was brought out in collusion in order to defeat the claim of the appellant, the claim of the appellant was opposed.
12. On behalf of the 3rd respondent, a separate written statement was filed denying the claim of the appellant mainly contending that she is a bona fide purchaser of the suit land for value under a registered sale deed from the 2nd respondent. It was also the case of the 3rd respondent in the written statement that the appellant was not aware of the suit land while denying that it was purchased by him from the 1st respondent under the suit agreement for sale. Thus denying that she was bound to join execution of the sale deed in favour of the appellant and questioning the nature of agreement for sale propounded by the appellant, she requested to dismiss the suit.
13. Basing on the above pleadings, the learned trial Judge settled the following issues for trial:
"1. Whether the agreement dt. 09.10.2004 is true, valid and supported by consideration?
2. Whether the 3rd defendant is a bona fide purchaser for consideration without notice of agreement dt. 09.10.2004?
3. Whether specific performance of agreement of sale dt.09.10.2004 can be ordered?
4. To what relief?"
MVR,J A.S.No. 531 of 2008 6
14. At the trial, the appellant examined himself as P.W.1. P.W.2 and P.W.3 being the attestors of the suit agreement for sale, while P.W.4 being its scribe apart from P.W.5 to support his claim. He relied on Ex.A1 to Ex.A6. The 1st respondent examined himself as D.W.1, D.W.2 being the 3rd respondent, D.W.3 being her husband, while relying on the testimony of D.W.4 to D.W.6 in support of their contention. They relied on Ex.B1 to Ex.B7 in that process.
15. On the material, the learned trial Judge, considering the evidence adduced by the parties, held that the material on record did not make out that the appellant had financial capacity to enter into the suit agreement for sale and thus suspected the very transaction under the alleged suit agreement for sale dated 09.10.2004. Thus, issue No.1 was held in favour of the respondents and against the appellant. The learned trial Judge also held that the 3rd respondent is a bona fide purchaser for value without notice of the suit agreement for sale on issue No.2 and thereupon on issue No.3 it was held that the appellant was not entitled for specific performance of contract as sought. In view of the findings so recorded on issues 1 to 3, the suit was dismissed with costs.
16. Sri M.R.K.Chakravarthy, learned counsel for the appellant, seriously assailed the findings so recorded by the learned trial judge basing on the material and made elaborate submissions to support the claim of the appellant, requesting to set aside the judgment and decree under appeal.
17. Sri S.Madhava Rao, learned counsel for the 1st respondent referring to the material as well as the evidence on record supported the judgment and decree under appeal. Smt. T.V.Sridevi, learned counsel for MVR,J A.S.No. 531 of 2008 7 the 3rd respondent similarly supported the decree and judgment under appeal referring to the material on record contending that there is material to hold that the 3rd respondent is a bona fide purchaser for value of the suit land without notice of the suit agreement for sale. Thus, the learned counsel for the respondents requested not to interfere with the decree and judgment under appeal.
18. Now the following points arise for determination:
1. Whether the suit agreement for sale is true, valid and binding on the respondents?
2. Whether the material on record establishes that the appellant was always ready and willing to perform his part of the contract under the suit agreement for sale and against the respondent No.1?
3. Whether the respondent No.3 is a bona fide purchaser for value without notice of the suit agreement for sale of the suit property?
4. Whether the decree and judgment under appeal in the circumstances, having regard to the material and evidence on record, stand justified?
5. To what relief?
Point No.1:-
19. The burden is on the appellant to establish that Ex.A1 suit agreement for sale is true, valid and binding on the 1st respondent. Particularly having regard to the nature of the defence set up by the 1st respondent denying the execution of Ex.A1 suit agreement for sale, it is well incumbent upon the appellant to prove such fact. Rightly in this context on behalf of the appellant, reliance is placed on Gian Chand and brothers and another vs. Rattan Lal Alias Rattan Singh1. In para-18 of this ruling in this context it is observed:
1
. (2013) 2 SCC 606 MVR,J A.S.No. 531 of 2008 8 "18. It is well-settled principle of law that a person who asserts a particular fact is required to affirmatively establish it. In Anil Rishi v. Gurbaksh singh ((2006)5 SCC 558) (SCC p.561, para 9), it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues and not the party who denies it. ...."
20. When a defence of the nature set up by the 1st respondent in this case is considered, the effect of the same is held in Rao Saheb vs. Rangnath Gopalrao Kawathekar (dead) by L.Rs. and others2 relied on for the appellant in para 5 as under:
"5. ..... If the only plea taken is that the executant has not signed the document and that the document is a forgery, the party seeking to prove the execution of a document need not adduce evidence to show that the party who signed the document knew the contents of the document. Ordinarily, no one is expected to sign a document without knowing its contents but if it is pleaded that the party who signed the document did not know the contents of the document then it may in certain circumstances be necessary for the party seeking to prove the document to place material before the court to satisfy it that the party who signed the document has the knowledge of its contents."
21. Reliance is also placed in Vanga Surya Rao and vs. Guttula Gopalakrishna3 for the appellant in this context where a plea of forgery was raised in a simple money suit based on promissory note, contending that in the event of proof of due execution of the document, the burden shifts on to the defendant, who is expected to bring cogent evidence to rebut the claim of the plaintiff. It is further observed in this ruling that evidence of the attesting witnesses as well as scribe is sufficient in proof of execution of the promissory notes as well as passing of consideration.
22. Question relating to burden of proof in the circumstances, as propounded on behalf of the appellant is not disputed on behalf of any of the respondents.
2
. (1972) 4 SCC 181 3 . 1999(6) ALD 611 MVR,J A.S.No. 531 of 2008 9
23. The nature of transaction covered by Ex.A1 is presenting a scenario where the suit land was agreed to be sold by the 1st respondent to the appellant for Rs.8,50,000/-, which was far excess than the prevailing market rate and when the claim of the appellant is that he had paid an advance of Rs.3,50,000/- thereunder. Thus, specific contention of the appellant in offering such high value either as per the averments in the plaint or from his testimony as P.W.1 including that of P.W.2 was to help the 1st respondent to tide over his financial difficulties, who made him to believe that the suit land commanded a great potential for huge price rise in the near future of 3 to 4 years. Thus, the contention of the appellant is that on account of the promise so held out by the 1st respondent and in order to help him financially, being close relations, he had agreed to purchase the suit land for such price at Rs.25,000/- per cent.
24. The 1st respondent claimed that this version of the appellant is quite ludicrous, in as much as on his own showing, even by January, 2006 the suit land did not command half the value stated under the suit agreement for sale. Reliance is also placed in this respect on behalf of the 1st respondent, the statements of the appellant as P.W.1 to the effect that he did not make any enquiries about market value of the suit land from the office of Sub Registrar concerned. It was suggested to him that the worth of this land was only Rs.70,000/- in the year 2006 an he denied it. Reliance is also placed in this context on the statements of P.W.2, who deposed that by the date of Ex.A1 this land was not even worth Rs.2,00,000/- and that the value of this land was about Rs.15,000/- per cent.
MVR,J A.S.No. 531 of 2008 10
25. The 1st respondent deposed that the market value of the suit land in the year 2004 was Rs.3,000/- to Rs.4,000/- per cent and that it would have increased from the year 2004 to the year 2006.
26. One of the witnesses examined on behalf of the respondents viz., D.W.4 who according to the defence version was the mediator, who arranged the transaction under Ex.B4 between the respondents 2 and 3, deposed that the suit land is a valuable land contrary to the contention of the first respondent. He further deposed about location of the suit land, which is in the peripheries of Kothavalasa by the side of Uma Juite factory where residential houses have already come up. According to D.W.4 the lands at Kothavalasa were fetching Rs.17,000/- to Rs.20,000/- per cent in the year 2006. He further deposed that the prices of the lands were increasing from the year 2001 and to the year 2006 and that there was a steep increase in the year 2005.
27. These statements of D.W.4 elicited in the cross-examination on behalf of the appellant offer sufficient support to his version explaining the circumstances under which he had agreed to purchase the suit land under Ex.A1 at such price. Subject to proving nature of Ex.A1, this circumstance of offering a rate or price in expectation of future escalation, by the appellant, cannot altogether be rejected.
28. Added to it, as projected by the appellant, the close relationship in between the parties, could be a factor that prevailed upon to enter into Ex.A1 at Rs.8,50,000/-. Offering Rs.25,000/- per cent in the year 2004, in the light of the statements of D.W.4 that the suit land commanded potential, due to foreseeable increase in prices, has to be treated as a proper and acceptable reason assigned by the appellant.
MVR,J A.S.No. 531 of 2008 11
29. The learned trial Judge was mostly influenced by the factor relating to financial capacity or otherwise of the appellant to determine the nature of Ex.A1, if true valid and if it was entered into in between these parties. The learned trial Judge did not specifically discuss the nature of evidence let in through P.W.1 to P.W.4 or the evidence of D.W.1 with reference to execution of Ex.A1 as such. When execution of Ex.A1 as a true document and to bind the 1st respondent is the crucial question involved, the nature of discussion undertaken by the learned trial judge with reference to their testimony and attaching significance to the alleged financial incapacity of the appellant in that process, is not proper.
30. Even otherwise the material on record is clearly making out that by the date of Ex.A1 suit agreement for sale, the appellant was in a position to raise necessary funds and thereafter also.
31. As seen from the testimony of P.W.1, it appears that he was a trader in groceries with a turnover of about Rs.20,000/- per month, with a net profit of Rs.200/- per day. He further deposed that he did not deposit the amounts so realised by means of profits in any bank and in lakhs of rupees at a time. But he asserted that he deposited in thousands. He further deposed that he is not an assessee for income tax or commercial tax. According to him, he owned Ac.1-80 cents of wet land. Statements elicited from this witness in cross-examination further make out that he was a money lender and was lending money accepting pledge of movables.
32. In his examination-in-chief, the appellant as P.W.1 clearly stated that he raised necessary funds in order to perform his part of contract by January, 2006 when he made oral demands of the 1st MVR,J A.S.No. 531 of 2008 12 respondent or when demands for performance of his obligation under Ex.A1 was made on the 1st respondent through his relations in February, 2006. He could raise funds borrowing from his relations including P.W.2 and another viz., P.W.5 as could be seen from Ex.A5 to Ex.A8 promissory notes. He further claimed that he discharged the amounts due thereunder. Endorsements on the reverse of these promissory notes also reflect that they were discharged proving this fact. Production of these promissory notes by P.W.1 itself is a factor to prove that they were discharged, when considered with the endorsements made on their reverse.
33. P.W.2 also deposed supporting the version of the appellant in this context that the appellant had borrowed Rs.1,00,000/- from him under Ex.A5 promissory note. He also supported that the appellant had repaid the amount due thereunder of Rs.1,04,000/-. According to the appellant, he could repay these amounts in a short period from the dates of these promissory notes viz., within 3 or 4 months.
34. P.W.5 one of the creditors under Ex.A7 promissory note of the appellant supported the transaction thereunder. It was elicited from this witness that the appellant had borrowed Rs.50,000/- from him under Ex.A7 in order to purchase a land. Cross-examination of this witness did not bring out any material to discredit his testimony. P.W.5 denied suggestions that Ex.A7 was fabricated to support the appellant nor there was any transaction thereunder of the respondents.
35. Another circumstance relied on for the 1st and 2nd respondents to question the financial capacity of the appellant was the loss suffered by his son Sri Vasu in his business and the sickness of his wife during such period. According to the appellant, he spent about Rs.35,000/- to MVR,J A.S.No. 531 of 2008 13 Rs.40,000/- for treatment of his wife, when she was admitted in the hospital in December, 2005.
36. Sri Vasu, son of the appellant was running a Bajaj Motorcycle showroom at Kothavasala in between the years 2001 and 2005. It was closed during the year 2005. They are not in dispute. For the purpose of running this business, the version of the respondents 1 and 2 is that Sri Vasu had contracted huge debts and that he suffered loss in it. Thus, it is the version of the respondents 1 and 2 that the appellant was a financial wreck due to these factors by the date of Ex.A1 and that this fact alone is sufficient to reject his claim.
37. The appellant admitted that his son Sri Vasu suffered loss in his business and his testimony further makes out that Sri Vasu had also contracted debts in that process. P.W.1 also deposed in this context that one of the creditors of his son demanded him the money payable by his son and that he refused stating that he is not concerned to the debts of his son. This statement and the circumstances whereby P.W.1 refused to settle the debts of his son had greatly influenced the learned trial Judge to question his conduct and to disbelieve the claim of the appellant that he offered to purchase the suit land under Ex.A1 for such an exorbitant price in order to help his co son-in-law to tide over his financial difficulties.
38. However, D.W.6, one of the alleged creditors of Sri Vasu, son of the appellant, stated in his examination-in-chief itself that the appellant had discharged some of the debts payable by his son to others. Statement by him in cross-examination that the appellant had discharged some of the debts of his son after he had lent money to Sri Vasu i.e. during October and December, 2005 did indicate that the appellant made efforts MVR,J A.S.No. 531 of 2008 14 to satisfy some of the claims against his son by repaying the debts. This version of D.W.6 was not considered by the learned trial Judge .
39. The statements so brought out from D.W.5 has significant bearing in this case for more than one reason. They point out that the appellant did make efforts to satisfy some of the debts of his son and thus reflecting his conduct. It militates against the view taken by the learned trial Judge, more so, in respect of the conduct of the appellant. Another significant factor that can be culled out from these statements is that by then i.e. by the year 2005, the appellant had sufficient financial capacity to meet such contingencies.
40. When these circumstances are taken into consideration, particularly when offered from the witness examined on behalf of the respondents at the trial, they did support the version of the appellant that he had sufficient financial capacity, to enter into sale transaction under Ex.A1 to purchase the suit land from the 1st respondent. It further cuts at the defence of the respondents 1 and 2 that the appellant was a financial wreck by then.
41. Thus, a cumulative consideration of the evidence and material discussed above did make out that the appellant had sufficient financial strength by the date of Ex.A1 to enter into such transaction. None of the circumstances sought to be pointed out on behalf of the respondents to question the financial capacity of the appellants in the backdrop of the material valuable on record get relegated to the background. Obviously a false projection was made by the respondents 1 and 2 making such imputations against the conduct of the appellant. Thus, the main plank on MVR,J A.S.No. 531 of 2008 15 which the learned trial Judge rejected the claim of the appellant in this case, cannot stand.
42. The appellant relied on Ex.A9, which is a passbook issued to him of his Savings Bank Account maintained in State Bank of India, Kothavalasa branch. There are three consecutive entries against the dates 05.06.2006, 09.06.2003 of Rs.1,50,000/-, Rs.1,00,000/- and Rs.3,00,000/- respectively. The respondents have not disputed or questioned of maintaining savings bank account by the appellant. Their only contention is that these three entries are outcome of a make believe affair.
43. However, having regard to their nature, which are last entries in this passbook, had the parties produced an authenticated extract of statement of this S.B.Account duly certified by the bank authorities, it would have been appropriate. Nonetheless, having regard to the nature of the defence suggesting that they were only make believe entries, in the absence of any effort by the respondents to support and substantiate their contention in this respect, the effect of Ex.A9-entries cannot altogether be brushed aside. These entries made in this passbook, by the bank authorities in the course of regular business, bear a touch of authenticity. This is the inference to be drawn in this case in the absence of any categorical challenge offered by the respondents as to nature of these entries. As already stated, in the absence of the circumstances established in this case from the evidence on record that the appellant did make out that he had sufficient means and capacity to raise funds to perform his part of the contract under Ex.A1, the entries in Ex.A9 passbook add strength to his contention.
MVR,J A.S.No. 531 of 2008 16
44. In the backdrop of these inferences drawn on the material and the evidence surrounding the execution of Ex.A1-agreement for sale, now its nature has to be considered. In evaluating the evidence of the parties in this case particularly having regard to the peculiar circumstances as observed, of close relationship among the appellant as well as the respondents 1 and 2 including the attestors and scribe of Ex.A1- agreement for sale, interestedness or polarization sought to be attributed to P.W.2 to PW.4, takes a back seat and it loses its significance or effect.
45. The recitals in Ex.A1 are that on 09.10.2004, it was executed by the 1st respondent in favour of the appellant agreeing to sell the suit land for Rs.8,75,000/- in all, at the rate of Rs.25,000/- per cent, and an advance of Rs.3,50,000/- was paid thereunder by the appellant to the 1st respondent. Thus, it refers to the rate at which the suit land of Ac.0-35 cents was agreed to be purchased by the appellant from the 1st respondent. Its recitals are further that the balance sale consideration was agreed to be paid, upon taking out measurements of the suit land and at the time of registration. It also refers to the title of the 1st respondent, who had purchased it under Ex.B1 sale deed from the original owners dated 05.11.1985 and who was in possession and enjoyment of this land by then. There are signatures in the name of Kedarisetty Venkata Ramana in both the sheets of Ex.A1, which according to the appellant and P.W.2 to P.W.4 are that of the 1st respondent. It also bears the signatures of P.W.2 and P.W.3 and P.W.4 endorsed therein as the scribe of this document.
46. The appellant as P.W.1 had deposed in respect of Ex.A1 transaction and also the circumstances under which the suit land was agreed to be purchased thereunder. His version in examination-in-chief is in terms of the contents of Ex.A1 as well as the pleadings set out in the MVR,J A.S.No. 531 of 2008 17 plaint. In cross-examination the relationship of the attestors and scribe of these parties was elicited from him. Similar version was also elicited from P.W.2 in cross-examination and also the places to which they belonged to. Thus, it is proved that P.W.2 is the brother-in-law of the appellant as well as the 1st respondent. P.W.3-Sri Kandula Venkata Surya Rao is the cousin of P.W.2. He belonged to Pendurthy village near Visakhapatnam. The third attestor to Ex.A1 Sri Kedarisetty Narasinga Rao is a cousin of the 1st respondent. He belonged to Ganisetty palem. P.W.4, who is the scribe of Ex.A1, is related to the 1st respondent in nearer terms than the appellant. He belonged to S.R.Puram, Pendurthy Mandal.
47. While there is evidence of P.W.2 to P.W.4 affirming their presence when Ex.A1 was executed by the 1st respondent, the 1st respondent himself as D.W.1 in cross-examination admitted the signature of Sri Kedarisetty Narasinga Rao in Ex.A1 and also admitted his relationship with him. Thus, the signatures of Sri Kedarisetty Narasinga Rao, the third attestor on Ex.A1 is proved and established from the 1st respondent himself. He further admitted the relationship of these attestors and the scribe in cross-examination in categorical terms, though his version in examination-in-chief in this respect is somewhat uncertain and wavering.
48. This admission of D.W.1 of the signature of third attestor to Ex.A1 has significant bearing, in assessing and evaluating the truth surrounding this transaction covered by Ex.A1 and its execution. Possibly, this is the best evidence on record available for the appellant to rely on to prove due execution of Ex.A1. It should further be noted that when the 1st respondent admitted the signature of his cousin Sri Kedarisetty Narasinga Rao on Ex.A1, if this signature was made in such circumstances otherwise MVR,J A.S.No. 531 of 2008 18 than in execution of Ex.A1 and in course of such transaction, it was for the 1st respondent to establish at the trial and explain such circumstances that made Sri Kedarisetty Narasinga Rao to subscribe his signature to Ex.A1.
49. The reason for all these relations of the appellant and the 1st respondent to associate themselves with this transaction and in execution of Ex.A1 attributed to the 1st respondent is explained in the evidence of P.W.2. It is further to be noted that the testimony of P.W.2 to P.W.4 is that the terms of this transaction were settled between the appellant and the 1st respondent about a week prior to the date of Ex.A1. Their version further reflects that the appellant had informed them of the same. Since it was in between the close relations, according to P.W.2, he had advised the appellant to call their relations to have their presence at the time of execution of the agreement. This version supports the claim of the appellant that their close relations took part in this transaction.
50. The evidence of this witness further makes out that P.W.4 scribed Ex.A1, upon receiving advance sale consideration of Rs.3,50,000/- thereunder and the terms of the agreement were also informed to them by these parties. P.W.2 to P.W.4 are clear and categorical in stating that in their presence Ex.A1 was executed by the 1st respondent in favour of the appellant. Their testimony is also that upon the 1st respondent subscribing his signature on both the pages of Ex.A1, the attestors subscribed their signatures along with Sri M.V. Appa Rao @ Nani Babu, who is their caste elder.
51. Their evidence further reflects that this entire transaction covered under Ex.A1 took place in the tiles factory of Sri M.V.Appa Rao @ Nani Babu. His signature also appears as that of an attestor in Ex.A1 as is MVR,J A.S.No. 531 of 2008 19 deposed by P.W.2 to P.W.4. The status of Sri M.V. Appa Rao as an elder in their caste or community, finds support from the 1st respondent as D.W.1. He clearly stated in cross-examination that he knew Sri Nani Babu and that he is their caste elder. He further admitted that he has a tiles factory.
52. When Ex.A1 transaction took place in the tiles factory of Sri M.V.Apparao @ Nani Babu, as per the evidence on record, it cannot be a circumstance to suspect this transaction. Obviously, the parties approached Sri M.V.Apparao being their caste elder and in his tiles factory this transaction took place.
53. Proof of signature by different modes including handwriting is referred to in Habeeb Sultana vz., Mohd. Sharfuddin khan4 relied on for the appellant. In para-9 of this ruling, it is stated as under:-
"9. .... The modes of proving the handwriting are thus: (1) By direct evidence. (2) by familiar evidence. (3) By the opinion of an expert. (4) By means of admissions made by the parties. (5) By circumstantial evidence, and (6) By comparison by Court.
Referring to effect of Section 47 of the Evidence Act,in this context it is also stated as under:-
"Section 47 of the Indian Evidence Act reads as follows:- Opinion as to handwriting, when relevant:- When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. Explanation:- a person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.
10. What the Section says is that the evidence of a person who is acquainted with the handwriting of the person by whom the disputed document was purported to be written or signed is a relevant fact. In the 4 . (1999) 6 ALD 232 MVR,J A.S.No. 531 of 2008 20 explanation appended to the Section the word 'acquaintance' has been sought to be elucidated. A person is said to be acquainted with the handwriting of another person when he has seen that person writing, or when he has received documents purporting to be written by that person. It is obvious that this explanation speaks of three modes namely, (1) Seeing the person writing the disputed document or (2) knowledge by receiving the correspondence from the person who is said to have written the disputed document, and (3) Habitual submission of documents purporting to be written by a person in the ordinary course of business. ...."
54. Since D.W.1 identified the signature of his cousin in Ex.A1 as an attestor and in as much as P.W.2 to P.W.4 apart from P.W.1 also vouched the signatures attributed to the 1st respondent on Ex.A1 in both the sheets as well as the transaction of sale of the suit land thereunder, it is clear that appropriate proof of due execution of Ex.A1 was offered at the trial by the appellant including in terms of Section 47 of the Evidence Act.
55. The contention of the respondents that the appellant as well as the attestors and scribe colluded together and brought out Ex.A1 against him in the back drop of these circumstances, needs to be considered.
56. The 1st respondent has attributed that the appellant entertained grudge against him and his wife, since both of them chastized for running Bajaj showroom, since this business was speculative in nature. No evidence has been brought out at the trial on behalf of the 1st respondent to support this version. Thus there is only the interested version of the 1st respondent in this respect.
57. The 1st respondent attributed that P.W.2 had a grouse against him since he wanted the daughter of respondents 1 and 2 viz., Sarvalakshmi to be given in marriage to one of his brothers viz., Prakasam, which they did not agree. It is also his version that P.W.1 and P.W.2 are not on speaking terms with him and his wife for more than 10 years. He further stated that P.W.2 did not visit their family. However, in MVR,J A.S.No. 531 of 2008 21 cross-examination the 1st respondent clearly admitted that P.W.2 attended the marriage of his 2nd daughter celebrated on 31.08.2007. He further stated that P.W.1 and P.W.2 visited them when their eldest son Sri Kantha Rao died in the year 2004. He further stated that all his four brothers-in- law attended the marriage of his 2nd daughter.
58. These statements elicited in cross-examination from the 1st respondent clearly prove that the motive attributed to P.W.1 and P.W.2 to depose against him, is improbable and to hold that such version of the 1st respondent is not correct.
59. The 1st respondent further stated in cross-examination another reason for the appellant to entertain grudge against him that he did not agree to allow Sri Vasu, son of the appellant to set up a showroom in the suit land. The 1st respondent further stated that he declined such request since he wanted to sell it away to perform his daughter's marriage. His version further makes out that he spent Rs.25,000/- to perform the marriage of his 2nd daughter. Further, he stated in cross-examination that the appellant did not challenge him that he would grab the suit land and to deprive him from enjoying the same.
60. These statements of the 1st respondent themselves make out that the foundation of the defence set up by him is not firm and it is slippery. Many facets of these attributes of discordance propounded at the trial are not part of the pleadings in the written statement of the 1st respondent. Therefore, the statements of the 1st respondent themselves offer that the motive, he sought to attribute to P.W.1 to P.W.4 to depose against him, is not proper nor it was established at the trial.
MVR,J A.S.No. 531 of 2008 22
61. The contention of the 1st respondent in this context is that an old stamp paper was made use of, to fabricate Ex.A1. This stamp paper on which Ex.A1 was written is dated 24.12.2002 and it was made use of on 09.10.2004. He deposed explaining how he had this stamp paper. There is no statutory prohibition in making use of an old stamp paper for such purpose. The evidence on record from P.W.1, P.W.2 and P.W.4 is clear that this stamp paper was brought by the appellant himself in the course of such transaction. It is further pointing out that no fresh stamp paper was purchased. Securing scribe and attestors from different places is not a circumstance by itself to question or reject this transaction in as much as they are closely related and reasons are explained supra, particularly through the testimony of P.W.2 why these close relations were requested to be present during this transaction. Their presence, in fact, lends credence to the transaction and also place where it was executed as per the version of the appellant in the tiles factory of Sri M.V.Apparao @ Nani Babu, who is their caste elder.
62. Another contention of the 1st respondent is that the terms of Ex.A1 are uncertain and failure to mention a particular time frame within which the parties had agreed to perform their respective parts under this contract seriously dents its nature.
63. Time cannot be deemed or presumed essence of contract in case of immovable properties. It is settled proposition of law. The manner by which this transaction went on, clearly indicated, as deposed by the appellant as P.W.1 that they agreed to have regular sale deed and to get it registered at their leisure. It was also the version of P.W.2 at the trial.
MVR,J A.S.No. 531 of 2008 23
64. From the material on record, it is evident and obvious that the 1st respondent intended to sell away the suit land for his necessities. The very reason ascribed by him in cross-examination attributing motives to the appellant to bring out Ex.A1 agreement being his refusal to give away this suit land for the appellant's son to set up Bajaj Showroom, on the premise to sell it away, is a clear indication. Added to it, the necessity impelled the 1st respondent to agree to sell this land to the appellant is also explained from the evidence of P.W.1 to P.W.3. It was also the version of the appellant in his legal notice under Ex.A2. Ex.A3 is the reply notice issued by the 1st respondent to Ex.A2 denying execution of Ex.A1, as has been his stand in this case while also pointing out that Ex.A2 did not have description of the suit land since no schedule was mentioned in it. Such omission though denied on behalf of the appellant, description of the suit land was furnished by means of a schedule in Ex.A4 rejoinder. In cross- examination, the 1st respondent as D.W.1 had clearly admitted that he received this Ex.A4 rejoinder.
65. When all these circumstances are cumulatively considered, the contention of the 1st respondent that Ex.A1 lacks essential terms and conditions to enter into such contract, cannot stand.
66. Added to it, the 1st respondent did not make any effort to get the signatures in Ex.A1 attributed to him subjected to any examination by a hand writing expert. In cross-examination, he offered to get his signatures subjected to examination by handwriting expert. But no steps were taken in this direction in the course of trial, at the instance of the 1st respondent.
MVR,J A.S.No. 531 of 2008 24
67. Thus, the defence of the 1st respondent that Ex.A1 was fabricated falls to ground. The evidence adduced by the appellant is consistent, cogent and acceptable. It is proving this transaction and establishing that the 1st respondent had agreed to sell the suit land thereunder for Rs.8,75,000/- to the appellant, received an advance of Rs.3,50,000/- on the date when it was executed, from the appellant and agreed to perform his part of the contract upon receiving balance sale consideration, by registering, upon executing a regular sale deed after taking out measurements of the land.
68. Thus, a careful consideration of the entire material on record makes out that Ex.A1 was executed by the 1st respondent in favour of the appellant agreeing to sell away the suit land in his favour in terms thereof. The 1st respondent in these circumstances should have let in acceptable and satisfactory evidence to rebut the evidence so placed by the appellant. When the burden, in these circumstances, shifted to the 1st respondent, he should have let in appropriate evidence and should have placed such circumstances to negate and reject the claim of the appellant. But, he miserably failed in his attempt. When once execution of Ex.A1 is proved against the 1st respondent and in favour of the appellant making out its true and valid nature, it binds the 1st respondent. Obviously, the 1st respondent has set up a false defence in this case, denying execution of Ex.A1.
69. Therefore, differing from the reasons assigned by the learned trial Judge in this respect, this point has to be answered in favour of the appellant and against the 1st respondent holding that Ex.A1 is true, valid and binding on the 1st respondent.
MVR,J A.S.No. 531 of 2008 25 POINT No.2:-
70. The evidence of the appellant as P.W.1 is that he was ready and willing to perform his part of the contract in terms of Ex.A1. Reasons are assigned while discussing point No.1 that the appellant had established that he was in a position to raise necessary funds to perform his part of the contract under Ex.A1. In Ex.A2 notice, he clearly stated that he was ready and willing to perform his part of the contract thereunder and called upon the 1st respondent to perform his part of the contract upon receiving balance sale consideration and to execute a regular sale deed as well as to get it registered. References to these circumstances are also made in the plaint, though specific averments to the effect that the appellant was always ready and willing to perform his part of the contract are not brought out in the plaint. Nonetheless the manner in which the appellant expressed his readiness and willingness in so many words in the plaint as well as in Ex.A2 notice clarify the situation and making out this omission insignificant.
71. The nature of defence of denial of execution of Ex.A1 set up by the 1st respondent, without referring or denying that the appellant was always ready and willing to perform his part of the contract is a factor to be considered in this respect.
72. The learned counsel for the appellant placed reliance in Narinderjit Singh vs. North Star Estate Promoters Limited5 in this respect. In given facts and circumstances, referring to denial of agreement of sale set up as defence in a suit for specific performance, it is observed in this ruling that objection that the plaintiff is not ready and 5 . (2012) 5 SCC 712 MVR,J A.S.No. 531 of 2008 26 willing to perform his part of the contract under agreement for sale, cannot stand. It was thus observed that the defendant could not have raised a plea relating to want of readiness and willingness on the part of the plaintiff to perform his part of the contract.
73. Further reliance is placed by the learned counsel for the appellant in this context in Silvey and others vs. Arun Varghese and another6, apart from a judgment of Punjab & Haryana High Court in Santa Singh v. Binder Singh and others7
74. Contentions are also advanced on behalf of the appellant, referring to the defence of 3rd respondent, who is subsequent purchaser of the suit property under Ex.B4 that she cannot raise such objection. Reliance is placed in this context in M.M.S.Investments, Madurai and others vs. V. Veerappan and others8. In para-6 of this ruling, it is observed as under:
"6. Questioning the plea of readiness and willingness is a concept relatable to an agreement. After conveyance the question of readiness and willingness is really not relevant. Therefore, the provision of the specific Relief Act, 1963 (in short "the Act") is not applicable."
75. In Jugraj Singh and another vs. Labh Singh and others9 in this respect it is observed in para 5 referring to the celebrated judgment in Gomathinayagam Pillai v. Palaniswami Nadar10 as under:
"5. This Court in Gomathinayagam Pillai v. Palaniswami Nadar quoting with approval Ardeshir case (AIR 1928 PC 208) had held as follows:6
. (2008) 11 SCC 45 7 . 2006 SCC OnLine P&H 442 8 . (2007) 9 SCC 660 9 . (1995) 2 SCC 31 10 . AIR 1967 SC 868 MVR,J A.S.No. 531 of 2008 27 "But the respondent has claimed a decree for specific performance and it is for him to establish that he was , since the date of the contract, continuously ready and willing to perform his part of the contract. If he failed to do so, his claim for specific performance must fail."
That plea is specifically available to the vendor/ defendant. It is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration. Though they are necessary parties to the suit, since any decree obtained by the plaintiff would be binding on the subsequent purchasers, the plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal representatives, but not to the subsequent purchasers...."
76. Therefore, in the light of the above legal position, it is not open for the 3rd respondent to raise this plea. Thus, on the material it has to be held that the appellant did succeed in making out that he was ready and willing to perform his part of the contract under Ex.A1 at all material times against the 1st respondent. Thus, this point is answered.
POINT No.3:-
77. The version of the 1st respondent is that he executed Ex.B2 gift deed on 28.07.2005 in favour of his wife on account of his old age, out of love and affection and in order to provide for her including towards maintenance. Thereafter, as seen from the contentions of the respondents 1 and 3, the suit land was sold on 16.02.2006 to the 3rd respondent under Ex.B4 sale deed (Ex.B5 is its rectification deed) and possession of this land was also delivered to her thereunder.
78. The appellant is questioning these transactions on the premise that Ex.B4 is only a nominal transaction brought out by the respondents 1 and 2 with the help of friends and associates viz., the MVR,J A.S.No. 531 of 2008 28 3rd respondent and her husband, to retain the property for themselves in order to defeat his claim under Ex.A1-agreement for sale. Thus the appellant contended that the 3rd respondent did have notice of Ex.A1 agreement for sale in his favour by the date of Ex.B4 sale deed. However, the 3rd respondent contended that she is a bona fide purchaser for value with notice of Ex.A1-agreement for sale.
79. According to the appellant, when there was no favourable response from the 1st respondent to his demands to perform his part of the contract in terms of Ex.A1 including upon exchange of notices under Ex.A2 to Ex.A4, he was preparing to file a suit, at which time he observed a fence being laid to the suit land. Thus, according to the version of the appellant, he came to know that the suit land was conveyed by means of an ostensible sale by the 1st respondent in favour of the 3rd respondent. In cross-examination for the 3rd respondent, the appellant as P.W.1 stated that he came to know of Ex.B2-gift deed 7 or 8 days after issuing Ex.A4- rejoinder(notice) and also in respect of Ex.B4-sale deed in favour of 3rd respondent.
80. The appellant sought to rely on the testimony of P.W.2 in this respect. He stated that he had seen the 3rd respondent at the house of the 2nd respondent during 1st week of January, 2006, when he visited her to invite for Sankranthi festival. According to him, the 3rd respondent had come to the house of the 2nd respondent to purchase rice. His evidence further reflects that the 3rd respondent also enquired about Ex.A1 transaction between the appellant and the respondents 1 and 2 and also appreciated the gesture of the appellant and P.W.2 in assisting the 1st respondent in this manner. He also deposed that in April, 2006, when he came to know that Ex.B4 MVR,J A.S.No. 531 of 2008 29 sale deed was executed in favour of the 3rd respondent, he questioned the respondents 1 and 2 and that he came to know from them that they intended to retain the property for themselves, for which purpose they obtained a nominal sale deed in favour of the 3rd respondent while promising to repay the advance already received from the 1st respondent under Ex.A1.
81. In cross-examination for the 3rd respondent, P.W.2 stated confirming what he deposed in his examination-in-chief that he had seen the 3rd respondent at the house of the 2nd respondent. However, he claimed that the 3rd respondent did not inform him that she purchased the suit land and that while they were discussing about the suit land, the third respondent did enquire of the same. He also claimed that he informed the appellant that the 2nd respondent told him that a document was nominally executed in favour of the 3rd respondent offering to refund the advance sale consideration to the appellant.
82. The learned trial Judge choose to reject this part of testimony of P.W.2. Reasons are assigned holding that P.W.1 and P.W.2 did visit the respondents 1 and 2 on different occasions in the years 2004 and 2006. Therefore, possibility of visiting the house of the respondents 1 and 2 by P.W.2 in January 2006 is very much seen. Referring to the presence of the 3rd respondent during such visit at the house of the 2nd respondent, in the absence of any material to discredit such version of P.W.2, it is not necessary that it should be disbelieved.
MVR,J A.S.No. 531 of 2008 30
83. The fact that the 3rd respondent belonged to NAD Road, Visakhapatnam is not, as such disputed. There is also reference in the testimony of P.W.1 that the 3rd respondent is a resident of Gopalpatnam, Visakhapatnam. It is the contention of the 3rd respondent that she belonged to a different place than of the respondents 1 and 2 or that of P.W.2 and that never there was any occasion for her to visit the 2nd respondent.
84. When the 3rd respondent is a resident of Gopalpatnam/NAD Road, Visakhapatnam the reason for purchasing the suit land at Tummikapalli is not explained. Tummikapalli is a part of Vizianagaram District. This circumstance alone discredits the version of the respondents that P.W.2 is a stranger to the 3rd respondent nor had seen her at any time nor she had any acquaintance with the respondents 1 and 2 prior to the sale under Ex.B4.
85. The 3rd respondent further contended that the sale under Ex.B4 was arranged by D.W.4- Sri Gude Sannibabu, a resident of Kothavalasa of Vizianagaram District. He also attested Ex.B4 and deposed that he had arranged the sale thereunder, since husband of the 3rd respondent is known to him, who was a friend of his deceased brother. There is no reference that the transaction under Ex.B4 was settled by D.W.4 in the written statement of the 3rd respondent nor is there any reference to this fact in the written statement of the 1st respondent. Thus, for the first time, in the course of trial, it was so introduced.
MVR,J A.S.No. 531 of 2008 31
86. As seen from the testimony of D.W.2 viz., the 3rd respondent, she did not enquire about the suit property personally and in fact, it was her husband viz., D.W.3, who looked after all these affairs. The evidence of her husband viz., D.W.3 is in consonance with the transaction covered by Ex.B4 supporting her claim and also to the effect that the suit land was delivered to her whereupon they improved the same getting it fenced as well as plainting casuarina as well as teak saplings. He deposed that he came to know about Ex.A1 agreement upon receiving summons in the suit and further claimed that the appellant was aware that Ex.B2 settlement deed was executed by the 1st respondent in favour of the 2nd respondent and that under Ex.B4-sale deed the suit land was sold to his wife by the 2nd respondent. He also claimed that no legal notice was issued to them about Ex.A1 agreement for sale and thus sought to assert that his wife is a bona fide purchaser for value without notice of Ex.A1- agreement for sale.
87. It is in the evidence of D.W.2 and D.W.3 that the sale consideration under Ex.B4, paid was Rs.3,80,000/- and not Rs.70,000/- as stated in it. D.W.2 claimed that it was her money, which she invested to purchase this property and it was withdrawn from a bank. D.W.3 was an employee by then in Naval Dock Yard at Visakhapatnam.
88. The price at which both these witnesses claimed to have had purchased the suit land, supports the version of the appellant that this land commanded such potential to fetch huge price in future, if it is considered for the purpose of arguments, which was MVR,J A.S.No. 531 of 2008 32 the reason that propelled the appellant to enter into Ex.A1 agreement with the 1st respondent.
89. Nevertheless, they did not explain why Ex.B4 sale deed mentioned sale consideration at Rs.70,000/- and not Rs.3,80,000/- The respondents had set up their defence that the sale under Ex.B4 was only for Rs.70,000/-. It was only in cross-examination of these witnesses viz., D.W.2 and D.W.3 it was so elicited. Further, there is no proof supporting their version of payment of Rs.3,80,000/- to the 2nd respondent. It is a strong circumstance to support its nature on account of inconsistent nature of evidence of the respondents.
90. As seen from the testimony of D.W.3, before entering into Ex.B4 transaction, he did not cause any enquiries with reference to right and interest of the 1st respondent to the suit land and if it was in any manner affected. According to D.W.2, her husband enquired about this property and whereas, the testimony of D.W.3 is silent in this respect. On the other hand, the statement elicited from D.W.3 in cross-examination makes out that he did not make any such enquiries and even did not ask or find out the necessity of executing Ex.B2-Gift settlement deed in favour of the 2nd respondent by the 1st respondent. However, he denied the suggestion on behalf of the appellant that Ex.B4 is a nominal sale deed executed by the 2nd respondent, since he and his wife being their associates and who continued to hold possession of the suit land. But this witness denied these suggestions.
91. It is the contention of the appellant that a purchaser of the property is expected to enquire into its nature and the evidence MVR,J A.S.No. 531 of 2008 33 of D.W.2 and D.W.3 is establishing that they never enquired about it. Thus, it is contended that their conduct exhibited gross negligence in causing such enquiries and hence, on account of such wilful abstention from making an enquiry, their version cannot be accepted.
92. In this context on behalf the appellant reliance is placed upon Full Bench decision of Madras High Court in B. Suresh Chand vs. State of Tamil Nadu rep. by the Secretary Revenue Department, Fort St. George11.
93. It is thus contended that Section 3 of the Transfer of Property Act permits to hold that D.W.2 and D.W.3 did have notice of subsisting agreement for sale under Ex.A1 in favour of the appellant executed by the 1st respondent and basing on the material, the contention of the 3rd respondent that she did not have notice of Ex.A1 agreement for sale, cannot be accepted.
94. It is true that the purchaser of immovable property should make reasonable enquiries before entering into any transaction in respect thereof. Omission to make such enquiries, when there was such an obligation in his own interest, amounts to wilful abstention and gross negligence. Section 3 of the Transfer of Property Act, in such situation considers that a purchaser/person, who did not cause such reasonable enquiry has notice of this prior sale transaction. In B. Suresh Chand referred to supra, the Madras High Court held in Para 25 in this context, as under:-
"25. A reading of Section 3 of the Transfer of Property Act, 1882 leads to the conclusion that, not only a wilful abstention from an enquiry 11 . 2006-4-L.W.409 MVR,J A.S.No. 531 of 2008 34 which a person ought to have made, but the gross negligence to make enquiry also would amount to notice of a fact to him. When the prudence of a person requires him to make an enquiry, but due to his own negligence he failed to make enquiry, he falls in the category of a person, with notice. A purchaser of the property who claims the transaction to be bona fide without notice, the yardstick to be applied for the "notice" is given in Section 3 of the Transfer of Property Act, 1882 and only by the application of this provision, a purchaser who seeks protection is to be identified, whether he is a purchaser for value without notice. The necessity of the purchase, the intention of the transfer, the relationship between the vendee and vendor are all vital factors to find out the reasonableness of the person in purchasing the property. Sometimes unexplained secrecy or the haste in the transactions may also throw some light on the bona fides or mala fides. To decide whether a transaction was genuine or bona fide or mala fide, all facts relating to the conduct of the parties to the transaction have to be weighed as a whole."
95. The burden being on the 3rd respondent in these circumstances, in the above ruling of the Madras High Court, effect of Section 101 of the Evidence Act is also considered and relevant observations in Para-27 of this ruling are as under:
"27. Under Section 101 of the Evidence Act, 1872 whoever desires any court to give judgment as to any legal right or liability depending on the existence of facts which he asserts, must prove, that those facts existed. Therefore, it is for him to establish that there was no wilful abstention of enquiry or search of the facts, on his part about the vendor before the sale transaction was completed."
96. Omission to plead this material fact of causing enquiries and purchasing this property utilizing the services of D.W.4, also attracted application of Order 6 Rule 2 CPC according to the contention of the appellant. Observations in this context in B. Suresh Chand referred to above are in paras 29 and 30 are as under:
"29. A reading of the above provisions show that the party must plead all material facts on which he means to rely at the trial. If any one of the material fact is omitted, the statement of claim is bad and it would mean no pleading and no cause of action for the suit. If material facts are not pleaded, a court cannot permit evidence to be led. In 1977 (1) S.C.C.511 (Udhav Singh vs. Madhav Rao Scindia) the Supreme Court has defined the expression "material facts" in the following words:-
"All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are material facts".
MVR,J A.S.No. 531 of 2008 35
30. The distinction between "material facts" and "particulars" cannot be overlooked. Material facts are primary and basic facts which must be pleaded by the party in support of the case set up by him, either to establish his cause of action or defence. Since the object and purpose is to enable the opposite party to know the case he has to meet, in absence of pleading a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit. Particulars, on the other hand, are the details of the case. The amplify, refine and embellish material facts. They give the finishing touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative.
97. Reliance is also placed for the appellant in this context pointing out the necessity of proof being in accordance with the pleadings on Bachhaj Nahar vs. Nilima Mandal and another12. In para 12 in this ruling, in this context it is observed as under:-
"12. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take."
98. The contention on behalf of the appellant in this respect needs acceptance. It is not in the evidence of D.W.1 to D.W.4 that there was any enquiry prior to purchase of the suit land by the 3rd respondent or by her husband (D.W.3) including D.W.4-Sri Sannibabu from the 1st respondent viz., D.W.1, either together or independently. Version of D.W.3, as already stated that he did not enquire why the 1st respondent had chosen to give away the suit land under Ex.B2 settlement deed in favour of his wife viz., D2, is a conspicuous and significant circumstance in this respect.
12 . (2008) 17 SCC 491.
MVR,J A.S.No. 531 of 2008 36
99. When the purchaser, who went to the extent of investing Rs.3,80,000/- to purchase this land according to their version, is expected to cause such enquiries regarding title and interest then subsisting of their vendors. When once there was a transaction inter se between the wife and the husband in the nature of Ex.B2, natural and normal course of conduct of any person of ordinary prudence is to enquire into such fact. This factor alone with stoic silence demonstrated through the testimony of D.W.1 to D.W.4 if there were any enquiries on the part of the 3rd respondent and her husband either in respect of sale of the suit land by the 2nd respondent, when it was gifted to her by the 1st respondent for her maintenance or the purpose for which it was being sold or the impelling necessity for such purpose for her to sell away within 7 or 8 months of such gift under Ex.B2, clearly establish that there was gross negligence on their part.
100. Thus, this wilful omission, when considered in the light of testimony of P.W.2 discussed supra clearly gives an indication that the 3rd respondent was not an innocent purchaser for value without notice of Ex.A1, who entered into Ex.B4 sale transaction bona fide to purchase the suit property from the 2nd respondent.
101. Thus, as rightly contended for the appellant, the conduct of the 3rd respondent and her husband as could be culled out from the material on record did make out that they had notice of the transaction under Ex.A1 agreement for sale between the appellant and the 1st respondent. Thus the material on record makes out that Ex.B4 is only an ostensible sale brought out by the respondents giving a show or touch of regularity including by an intervening MVR,J A.S.No. 531 of 2008 37 circumstance in the nature of Ex.B2- gift settlement deed in favour of the 2nd respondent by the 1st respondent. Possession of the suit land claimed by the 3rd respondent is not proved and evidence of D.W.1 to D.W.3 is highly interested. Ex.A5 and Ex.B6 bills did not offere any strength to accept their contention. The appellant has disputed the claim of the respondents.
102. These circumstances clearly lead to hold that Ex.B4 is a tainted transaction and is not a real sale.
103. Strenuous contentions advanced on behalf of the 3rd respondent inviting attention of this Court to Section 19(b) of the Specific Relief Act that the 3rd respondent, who is the transferee for value, who paid money in good faith and without notice of the original contract is protected and hence, she cannot be subjected to any course of enforcement of Ex.A1 contract, cannot stand, for the above reasons
104. The observations of the learned trial Judge in this respect in the judgment under appeal on issue No.2, in the light of the material on record and circumstances available, cannot be supported. Thus, this point is answered holding that the 3rd respondent is not established being a bona fide purchaser for value under Ex.B4 without notice of Ex.A1 agreement for sale and that this contract bind the 3rd respondent also.
POINT No.4:-
105. In view of the findings on all the above points, the claim of the appellant for specific performance of the contract under Ex.A1 MVR,J A.S.No. 531 of 2008 38 has to be upheld setting aside the decree and judgment of the trial Court.
106. As seen from the plaint, relief sought did not include specifically delivery of possession of the suit land pursuant to execution of sale deed, basing on Ex.A1 contract. However, having regard to the nature of the relief sought for specific performance, once it is granted leading to execution of a regular sale deed and upon its registration, the court has power to order delivery of possession, even though there is no specific prayer for such purpose (vide Babu Lal vs. Hazari Lal Kishori Lal13).
Point No.5:
107. Upon reappraisal and evaluation oif evidence on record, in view of the findings on all the above points, the appeal has to be allowed setting aside the decree and judgment of the trial Court. Hence, the suit of the appellant has to be decreed as prayed granting relief of specific performance in terms of Ex.A1 directing him to deposit the balance sale consideration within a specified period, calling upon the respondents to execute a regular sale deed in his favour as well as to register and on their failure to do so, the trial court be directed to execute a sale deed in terms thereof.
108. In the result, this appeal is allowed setting aside the decree and judgment of the Court of learned Senior Civil Judge, Vizianagaram in O.S.No.209 of 2006 dated 14.03.2008. Consequently, the suit is decreed in favour of the appellant (plaintiff) and against 13 .AIR 1982 SC 818.
MVR,J A.S.No. 531 of 2008 39 the respondents (defendants) directing them to execute a regular sale deed and register it in terms of agreement for sale dated 09.10.2004 in respect of the suit land, upon the first respondent receiving the balance sale consideration within three (03) months from this day. On their failure to do so, the appellant (plaintiff) is at liberty to approach the court of the learned Senior Civil Judge, Vizianagaram to get the sale deed executed and registered in his favour in respect of the suit land. The appellant (plaintiff) is directed to deposit the balance sale consideration within two (02) months from this day. The appellant is entitled for costs in the suit as well as in this appeal throughout payable by the respondents and the respondents shall bear their own costs throughout.
As sequel thereto, all miscellaneous petitions, if any, shall stand closed. Interim Orders, if any, shall stand vacated.
_________________________ JUSTICE M.VENKATA RAMANA Dt: 20.04.2020 Note: Judgment pronounced through Zoom (virtual) mode, since this mode is adopted on account of the prevalence of Covid-19 pandemic, from the 15th Court.
RR MVR,J A.S.No. 531 of 2008 40 HON'BLE SRI JUSTICE M.VENKATA RAMANA APPEAL SUIT No. 531 of 2008 Dt: 20.04.2020 RR