Andhra Pradesh High Court - Amravati
M. Nageswara Rao, vs R. Rajasekhar, on 2 January, 2024
THE HON'BLE SRI JUSTICE V.SRINIVAS
APPEAL SUIT No.939 of 1999
JUDGMENT:
This regular appeal under Section 96 Code of Civil Procedure (hereinafter referred to as 'CPC') is directed against the decree and judgment in O.S.No.49 of 1989 dated 27.10.1998 on the file of the Court of learned Senior Civil Judge, Ramachandrapuram.
2. The plaintiff, before the trial Court, is the appellant. The respondent herein is the defendant.
3. The appellant instituted the suit for specific performance of contract directing the respondent to execute a proper sale deed in his favour and get it register for the schedule property after receiving the balance of sale consideration and further to deliver the possession of the schedule property together with improvements thereon or in the alternatively to grant a decree to refund of advance money together with interest @ 18% per annum.
4. Before adverting to the material and evidence on record and nature of findings in the judgment of the trial Court, it is necessary to scan through the case pleaded by the parties in their respective pleadings.
2 A.S.No.939 of 1999
5. The case of the appellant/plaintiff in brief in the plaint was as follows:
(i) The respondent is the owner of the property which is a vacant site in Vegayampeta. For the purpose of business expenses, respondent agreed to sell the said schedule property to the appellant for a sum of Rs.30,000/- on 12.06.1986 and having received a sum of Rs.9,000/- as advance executed an agreement of sale dated 12.06.1986. As per the said agreement of sale, the balance of Rs.21,000/- was agreed to be paid before the Registrar by the appellant to the respondent at the time of registration of sale deed.
(ii) Inspite of repeated demands, respondent failed to execute the sale deed. The appellant is always ready and willing to get the sale deed with balance sale consideration and expenses. But the respondent postponed the same. Hence, the suit.3 A.S.No.939 of 1999
6. The respondent denying all the allegations in the plaint and contending in the written statement and additional written statement as follows:
(i) He did not obtain any amount from the appellant under an agreement of sale dated 12.06.1986. His date of birth is 20.06.1970 and his age at the time of alleged execution of agreement of sale is 16 years 8 days and he is a minor. To prove the same, he filed photostat copy of secondary school certificate. As such, the appellant is not entitled to claim the relief.
(ii) Moreover, he has no salable interest over the plaint schedule property and the same is always in possession and enjoyment of his mother Reddy Surya Prabhavathi on her own right, title and interest since July 1984 and it is not a vacant site. She constructed a building therein and setup an Ice Factory by name Sri Surya Ice Industries by installing machinery after obtaining permission from Gram Panchayat, Annayyapeta and other concerned officials and running the said business in the schedule 4 A.S.No.939 of 1999 property in the past three years without any interruption.
The door number of the building situated in the schedule property is 136/2.
(iii) Even the appellant is aware of the said fact and he concocted the agreement of sale by playing fraud. The father of the respondent, who is addicted for vices, colluded with the appellant created the suit document. The alleged contract of sale became impossible of performance and the appellant is not entitled for the relief of specific performance. Hence, prays to dismiss the suit with costs.
7. Subsequently, the appellant also filed a rejoinder by denying the averments in the additional written statement and contended interalia as follows:
i) The schedule property belongs to respondent only. By 02.07.1984, the respondent attained majority and on 02.07.1984 two sites admeasuring Ac.0.09 cents in Annaipeta, hamlet of Vegayammapeta were purchased in favour of the respondent and his mother 5 A.S.No.939 of 1999 each from the same vendors. Since them the respondent as well his mother has been enjoying their respective plots with absolute rights. The sale deed in respect of an extent of Ac.0.09 cents in favour of the respondent was registered as Document No.1623/1984 in the Office of Sub-Registrar, Drakasharama and the sale deed in respect of an extent of Ac.0.09 cents in favour of the mother of the respondent was registered as Document No.1622/1984. Thus, the properties of the respondent and his mother are two different plots under separate sale deeds, dated 02.07.1984, which were filed by the appellant into the court along with the plaint.
ii) The site of the respondent, which is plaint schedule property, is bounded by Annayipeta road on East. The original sale deed dated 02.07.1984 was handed over to the appellant at the time of sale agreement, dated 12.06.1986. The respondent attained 6 A.S.No.939 of 1999 majority even by the time he purchased the property on 02.07.1984.
iii) Having received advance amount of Rs.9,000/- out of sale consideration of Rs.30,000/-, the respondent executed the sale agreement with all the terms, which was attested by the father of the respondent. Whatever constructions are there in the plaint schedule property by the time of sale agreement, the same is pertains to all such constructions and the site.
8. On these pleadings, the trial Court settled the following issues for trial:
"1. Whether the agreement of sale executed by defendant is void?
2. Whether the plaintiff paid the amount to the defendant as contended by him?
3.Whether the plaintiff is entitled to specific performance of the agreement of sale? and
4.To what relief?"7 A.S.No.939 of 1999
9. At the trial, on behalf of the appellant/plaintiff, P.Ws.1 to 4 were examined while relying on Exs.A.1 to A.7 in support of his contentions. On behalf of the respondent/defendant, D.Ws.1 to 4 were examined and got marked Exs.B.1 to B.15.
10. Basing on the material and evidence, trial Court came to conclusion that the respondent is minor by the date of execution of agreement of sale and as the contract entered with the minor is ab initio void and cannot be enforceable against him and also the appellant even not entitled for refund of the amount alleged to be paid under the said agreement of sale. Thus, dismissed the suit.
11. It is against this decree and judgment, the appellant/plaintiff preferred this appeal.
12. Heard Sri T.V.S.Prabhakar Rao, learned counsel for the appellant/plaintiff and Sri M.V.Suresh, learned counsel for the respondent/defendant.
13. For the sake of convenience, the parties hereinafter referred to as they arrayed before the trial Court. 8 A.S.No.939 of 1999
14. It is against this backdrop, the following point, which arise for determination and need for consideration now:
Whether the judgment and decree of the trial Court is liable to be set aside, if so, to what extent and to what relief?
15. POINT:
In-order to appreciate this point, this Court has to decide the following points:
i.Whether the agreement of sale executed by defendant is void?
ii.Whether the plaintiff paid the amount to the defendant as contended by him? and iii.Whether the plaintiff is entitled to specific performance of the agreement of sale? The undisputed fact is that defendant is the owner of the plaint schedule property. The contention of the plaintiff is that he agreed to sell the same to him for a sum of Rs.30,000/- on 12.06.1986 for the purpose of business expenses and a sum of Rs.9,000/- was received as an advance and executed a sale agreement and as per the terms 9 A.S.No.939 of 1999 of said agreement, balance of Rs.21,000/- was agreed to be paid before the Registrar at the time of registration and that he always ready and willing to perform his part of contract with balance sale consideration and willing to obtain the sale deed with his expenses. As defendant failed to execute the same on demand by saying that he has no salable interest, he was constrained to file the suit.
16. Learned counsel for the plaintiff submits that plaintiff himself examined to prove his case, not only the plaintiff, but also three witnesses were examined on his behalf, among them P.Ws.2 and 3 are scribe and attestor of Ex.A.1.
17. He further submits that the defendant herein said to have sold the property to one Kamarina Kamala and to prove the same the scribe of said document was examined as P.W.4. Not only, the said document, but also executed another sale deed dated 04.03.1987 by the defendant under Ex.A.7.
10 A.S.No.939 of 1999
18. He further submits that the contention of the defendant that he is minor by the date of agreement is absolutely false and to deny the execution of regular sale deed the defendant has taken plea that he has no salable interest. But, in fact, himself sold some other property to other parties, which clearly goes to show that he is not a minor by then i.e., as on the date of execution of agreement of sale dated 12.06.1986.
19. He also submits that defendant gave his original title deed to the plaintiff, said to be purchased by him on 02.07.1984, at the time of agreement of sale and the plaintiff also filed encumbrance certificate under Ex.A.3.
20. He further submits that the scribe and attestor i.e., P.Ws.2 and 3 consistently stated that Ex.A.1 document was executed before them, not only in their presence, but also defendant's father Reddy Ramakrishna present and in their presence, plaintiff paid Rs.9,000/- as an advance to the defendant out of sale consideration of Rs.30,000/-. 11 A.S.No.939 of 1999
21. He further submits that on 04.03.1987, defendant executed a sale deed along with his mother in favour of one Meka Suryanarayana, sold the land in Survey No.335/6 to an extent of Ac.0.26 cents; that the mother of the defendant, who was examined as D.W.2 by name Reddy Surya Prabhavathi, gave Ex.A.4 sale deed dated 02.07.1984, said to be executed by Angara Suryakantham and others, to him as security. Exs.A.4 and A.7 reads together shows that only in- order to wriggle out of the contract under Ex.A.1, they took a defence that defendant is a minor by the date of Ex.A.1 and did not attain majority as on 12.06.1986 and he born on 20.06.1970, which is incorrect and their contention as on the date of agreement, he was aged sixteen (16) years is absolutely false. Thereby, their contention that he has no salable interest is not correct. When Exs.A.4, A.5 and A.7 reads together, the defendant intends to commit breach of contract and plaintiff is entitled for regular sale deed by 12 A.S.No.939 of 1999 directing the defendant to receive balance sale consideration after execution of regular sale deed.
22. He further submits that the trial Court failed to consider all these aspects and erroneously dismissed the suit without considering the material on record.
23. Per contra, learned counsel for the defendant submits that defendant born on 20.06.1970 and date of agreement of sale was on 12.06.1986 and by the date of alleged agreement of sale, he is only aged about sixteen (16) years eight (8) days. Thereby, he is minor at the time of alleged agreement of sale.
24. He further submits that the defendant did not execute any agreement of sale in favour of plaintiff at any point of time either on 12.06.1986 or subsequent dates nor received any amount much less Rs.9,000/- as an advance and in support of his contention, he filed photostat copy of secondary school certificate covered under Ex.B.2 and also certificate of date of birth of defendant issued by the 13 A.S.No.939 of 1999 Correspondent & Head Master, S.M.H. High School, Ramachandrapuram covered under Ex.B.4.
25. As well, he further contends that, in Ex.B.1, which is a registration extract of settlement deed executed by his grand- father Vobilineni Venkanna in favour of his mother, in which it is recited that the marriage of his mother held on 04.06.1969, which corroborates to his case.
26. He further submits that the defendant has no salable interest over the plaint schedule property and that schedule property is always been in possession and enjoyment of his mother Reddy Surya Prabhavathi with her own title and interest since July, 1984 and that it was not a vacant site, in which his mother constructed a building and has been in exclusive possession and enjoyment, also set up an ice factory by name Sri Surya Ice Industries after obtaining necessary permission from Gram Panchayat, Annayyapeta and also other necessary permissions from the Town Planning, Hyderabad, Assistant Director, Small Scale 14 A.S.No.939 of 1999 Industries, Rajahmundry and Inspector of Factories, Kakinada and approved by the Medical and Health Department, Kakinada and after construction of the building in the schedule premises, she purchased all the necessary machinery at her own cost and installed the said Ice Factory and the door number of the building situated in the schedule site is 136/2.
27. He further submits that there are differences between defendant's father and mother and they are living separately; that plaintiff playing fraud against the Court by trying to secure an order behind the back of the individual, who is owning and possessing the property; that the father of the defendant by name Reddy Ramakrishna was addicted to all sorts of vices and squandering away the properties and that is the reason, his father Ramakrishna colluded with the plaintiff and obtained financial accommodation to meet his vices and created this litigation; that the alleged contract of 15 A.S.No.939 of 1999 sale became impossible of performance and that plaintiff is not entitled any relief of specific performance.
28. He further submits that the trial Court by considering all these aspects and material placed on record rightly dismissed the suit and there are no tenable grounds to interfere with the judgment and decree of the trial Court.
29. Point Nos.i to iii:
Now, under these circumstances and in view of the rival contentions, it has to be appreciated that to what extent the plaintiff is proved the agreement of sale, said to be placed on record, is acceptable rather enforceable and whether the plaintiff paid the amount to the defendant as contented in Ex.A.1 agreement of sale.
30. No doubt, the plaintiff took a plea that defendant attained majority by 02.07.1984 itself, that is the reason he purchased two sites measuring Ac.0.09 cents each, one is in favour of defendant and another one is in favour of his mother from some vendors. Since then, defendant and his 16 A.S.No.939 of 1999 mother enjoyed their respective plots with absolute rights. The site said to be purchased by the mother of the defendant exists south of Draksharama-Yanam road in respect of sale deed dated 02.07.1984 vide document No.1622 of 1984 covered under Ex.A.4 and to the south of the said property, the present plaint schedule property is in existence and sale deed in respect of defendant is vide document No.1623 of 1984 in the office of Sub-Registrar, Draksharama covered under Ex.A.2.
31. Thus, as per the plaintiff, the defendant and his mother though purchased plots under separate deeds, in-order to avoid the specific performance started this litigation.
32. Since the defendant taken a plea that he was a minor by that time, plaintiff cannot execute rather enforce specific performance of agreement of sale against him. For that, he filed Ex.B.2 Secondary School Certificate, in which his date of birth is mentioned as 20.06.1970. According to the defendant, Ex.B.2 is that of him.
17 A.S.No.939 of 1999
33. Not only that, but he also filed date of birth certificate issued by Correspondent & Headmaster, S.M.H. High School, Vegayammapeta under Ex.B.4. While marking Exs.B.2 and B.4, no objection was taken by the plaintiff and marked the same as unchallenged and in which it is specifically stated that while admitting the defendant in S.M.H. High School with admission No.4012, his date of birth is mentioned as 20.06.1970. As per the records and S.C.C. certificate, the defendant's by name Reddy Rajasekhar date of birth is mentioned as 20.06.1970. These two documents go to show that by the date of execution of alleged agreement of sale i.e., on 12.06.1986, he is only aged about sixteen (16) years and eight (8) days.
34. Specific performance is a remedy rooted in principles of equity. It allows a party who has suffered damage due to a contract breach to seek enforcement of the contract terms. However, specific performance is not granted automatically. The Court has to consider various factors before compelling 18 A.S.No.939 of 1999 specific performance. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case.
35. It is settled law that Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff.
36. For a plaintiff to succeed in a suit for specific performance, he must establish that he has either performed or has always been ready and willing to fulfil the essential terms of the contract on his part. The plaintiff must also demonstrate that the defendant has failed to fulfill his obligations under the contract.
37. In this connection, it is ought to have mentioned a judgment of Hon'ble Supreme Court reported in Gobinad 19 A.S.No.939 of 1999 Ram v. Gian Chand1. It is also kept in mind a judgment of the Hon'ble Supreme court reported in Mayawanti v. Kaushalya Devi2, wherein at paragraph No.8 held as follows:
"In the case of specific performance, it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the 1 (2000) 7 SCC 548 2 (1990) 3 SCC1 20 A.S.No.939 of 1999 foundation of the obligation the order of specific performance is to enforce that obligation."
38. It is specifically held by the APEX Court that while ordering the specific performance, the courts are necessary to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation, the order of specific performance is to enforce that obligation. The same principle is also followed in a case between K.Prakash v. B.R.Sampath Kumar3, wherein the Hon'ble Supreme Court held that:
"Indisputably, remedy for specific performance is an equitable remedy. The Court while granting relief for specific performance exercise discretionary jurisdiction. Section 20 of the Act specifically provides that the court's jurisdiction to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with the sound and reasonable judicial principles."
3 (2015) 1 SCC 597 21 A.S.No.939 of 1999
39. In the above judgment also, it is clear that while granting relief for specific performance exercise discretionary jurisdiction and that Section 20 of the Act specifically provides that the court's jurisdiction to grant decree of specific performance is discretionary, but not arbitrary and that discretion must be exercised in accordance with the sound and reasonable judicial principles.
40. The contingency arising in this appeal, the defense of the defendant, is that he is minor by the date of execution of Ex.A.1 agreement of sale. It is settled law that the defendant (below the age of majority) has limited capacity to enter into contracts. Contracts with minors are generally voidable at the minor's option. This means that the minor can choose to enforce or avoid the contract. Specific performance is generally not available against a minor. Courts are reluctant to compel a minor to perform contractual obligations because of their limited legal capacity.
22 A.S.No.939 of 1999
41. The sheet anchor in the suit by the defendant is that he is minor by the date of agreement for sale covered under Ex.A.1. Since, defendant being minor, the plaintiff could not get the right to enforce that agreement.
42. Way back, in the year 1999 itself, the Hon'ble Supreme Court in a judgment reported in K.Narendra v. Riviera Apartments (P) Ltd4, interpreted Section 20 of the Act and laid down the following propositions:
"Section 20 of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so; the discretion of the court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a court of appeal. Performance of the contract involving some hardship on the defendant which he did not foresee while non-performance involving no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance............."
4 (1999) 5 SCC 77 23 A.S.No.939 of 1999
43. This is more or less as observed by the Hon'ble Supreme Court in K.Prakash case (referred to supra).
44. In these circumstances, it is to be seen to what extent the defendant placed material and whether it is relevant or admissible 'an entry relating to date of birth made in school register' or not and its probative value.
45. In this connection, it is relevant to mention, Section 77 of Indian Evidence Act deals with production of certified copies to prove content of public documents as well Section 79 of the Indian Evidence Act deals with presumption as to genuineness of the certified copies.
46. It is also relevant to say that an entry relating to the date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. 24 A.S.No.939 of 1999
47. In summary, the date of birth in a school register is considered as evidence and its probative value depends on additional factors and corroborating evidence. Herein this case, the mother of the defendant examined was D.W.2. In her evidence, she consistently deposed that defendant born on 20.06.1970 and to support it both Secondary School Certificate as well certificate issued by the Correspondent & Head Master, S.M.H. High School, were placed on record.
48. In Mayawanti case (referred to supra) the Hon'ble Supreme Court categorically held that where there is a valid and enforceable contract and then to see the nature and obligation arising out of it.
49. Herein in this case, defendant contended as minor by the date of execution of Ex.A.1 agreement of sale and it cannot be enforceable against him. This Court already discussed supra about the relevancy, admissibility and probative value of documents produced by the defendant. 25 A.S.No.939 of 1999
50. In this connection, it is also relevant to refer a judgment of the Hon'ble Supreme Court reported in Birad Mal Singhvi v. Anand Purohit5, wherein it was held that "the basis on which the entry pertaining to date of birth in a school register was recorded needs to be established for it to have evidentiary value". It is further held that "to render a document admissible under Section 35, three conditions must be satisfied, Firstly, the entry that is relied on must be one in a public or other official book, register or record. Secondly, it must be an entry stating a fact in issue or relevant fact. Thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law".
51. Herein this case, Ex.B.4 is a public document, certified copy and is a register maintained by the school and that admission number is also mentioned therein, coupled with Ex.B.4 an entry of date of birth in Secondary School 5 AIR 1988 SC 1796 26 A.S.No.939 of 1999 Certificate covered in Ex.B.2 also is a relevant fact and the same were issued by the public servant in discharge of official duty.
52. It is also settled law that the person who provided the information for the entry (such as a parent or guardian) is examined, it strengthens the probative value. So far as the evidentiary value of the scholar register and mark sheet is concerned, it would be apt to refer to the decision rendered by the Hon'ble Supreme court in the case of Biran Mal Singhvi (referred to supra), which reads as follows:
"No evidence was produced by the respondent to prove that the aforesaid documents related to Hukmi Chand and Suraj Prakash Joshi who had filed nomination nation papers. Neither the admission form nor the examination form on the basis of which the aforesaid entries relating to the date of birth of Hukmi Chand and Suraj Prakash Joshi were recorded was produced before the High Court. No doubt, Exs.8, 9. 10, 11 and 12 are relevant and admissible but these documents have no evidentiary value for purpose of proof of date of birth of Hukmi Chand and Suraj Prakash Joshi as the vital piece 27 A.S.No.939 of 1999 of evidence is missing, because no evidence was placed before the Court to show on whose information the date of birth of Hukmi Chand and the date of birth of Suraj Prakash Joshi were recorded in the aforesaid document. As already stated neither of the parents of the two candidates nor any other person having special knowledge about their date of birth was examined by the respondent to prove the date of birth as mentioned in the aforesaid documents. Parents or near relations having special knowledge are the best person to depose about the date of birth of a person. If entry regarding date of birth in the scholars register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value. The testimony of Anantram Sharma and Kailash Chandra Taparia merely prove the documents but the contents of those documents were not proved. The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's 28 A.S.No.939 of 1999 register regarding date of birth is made in the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely because the documents Exs.8, 9, 10, 11 and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs.8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents."
53. From the above, in the case on hand, it is clear that the mother of defendant was examined as D.W.2, who has special knowledge and best persons to depose about his date of birth and proved the date of birth mentioned in Exs.B.2 and B.4. The above said judgment goes to show that the evidence of D.W.2 regarding date of birth of defendant being mother has probative value.
54. Besides, these documents, the defendant is also filed Ex.B.1, which is a certified copy of registration extract of settlement deed dated 27.05.1969 executed in favour of 29 A.S.No.939 of 1999 father of the defendant. This document was pressed into service by the defendant to show that his parents i.e., D.W.2 and his father married on 04.06.1969. So far as this document is concerned, an unregistered document can also be admitted into evidence for a collateral fact or collateral purpose. Let us now look at the meaning of "collateral purpose" as was explained by the Hon'ble Supreme Court in a judgment reported in M/s.K.B.Saha And Sons Private Limited v. M/s Development Consultant Limited6. Besides Haran Chandra Chakrvarti v. Kaliprasanna Sarkar7, wherein it was held that "to use such an instrument for the purpose of proving such a term would not be using it for a collateral purpose and that the question as to who is the tenant and on what terms he has been created a tenant are not collateral facts but they are important terms of the contract of tenancy, which cannot be proved by admission of an unregistered lease-deed into evidence". 6 (2008) 8 SCC 564 7 AIR 1932 Cal 83(2) 30 A.S.No.939 of 1999
55. Herein this case, the document under Ex.B.1 was pressed into service only to prove that there was marriage held between D.W.2 and her husband Reddy Ramakrishna on 04.06.1969.
56. In Bajaj Auto Limited v. Behari Lal Kohli8, as well Rana Vidya Bhushan Singh v. Ratiram9, the Hon'ble Supreme Court held that "a document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property".
57. So, the said gift deed under Ex.B.1 was placed on record not to prove the gift, is only to prove the fact of marriage held in between D.W.2 by name Reddy Surya Prabhavathi and Reddy Ramakrishna on 04.06.1969. So, in 8 AIR 1989 SC 1806 9 1969 (1) UJ 86 (SC) 31 A.S.No.939 of 1999 that scope i.e., collateral purpose only this document can be looked into and can be used as evidence for collateral purpose. More so, it is a settled law that a collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
58. Even this Court in K.Ramamoorthi v.
C.Surendranatha Reddy10, held that "object in putting the document in evidence does not fall within the two purposes that to use the document to affect the immovable property and to use the document as evidence of a tractions affecting the immovable property. The document cannot be executed from evidence altogether". Further held that the phrase "collateral purpose" is with reference to the transaction and not to the relief claimed in the suit. Whether a transaction is collateral or not needs to be decided on the nature, purpose, and recitals of the document. Having culled out the legal propositions, the discussion on this issue will be incomplete 10 2012 SCC Online AP 125 32 A.S.No.939 of 1999 if a few illustrations as to what constitutes collateral transaction are not enumerated as given out in Radhomal Alumal v. K.B.Allah Baksh Khan Haji Muhammad Umar11."
59. In a judgment reported in Bondar Singh v. Nihal Singh12, the Hon'ble Supreme Court held that "a sale deed of immovable property requiring registration but not registered can be used to show nature of possession".
60. So, herein this case, where the document covered under Ex.B.1 is only to prove the marriage between D.W.2 and Reddy Ramakrishna held on 04.06.1969 and subsequently on 20.06.1970 defendant was born as per the testimony of D.W.2 coupled with Exs.B.2 and B.4, which clinchingly proves that he is minor by the date of execution of Ex.A.1 i.e., on 12.06.1986. Moreover, the genuinity or otherwise of the documents in Exs.B.1, B.2 and B.4 is not disputed by the plaintiff.
11 AIR 1942 Sind 27 12 AIR 2003 SC 1905 33 A.S.No.939 of 1999
61. Thus, from the above discussion, it can be safely held that the evidence on record is sufficient to prove the date of birth, which clearly established that the defendant is minor by the date of execution of Ex.A.1 agreement of sale and entry made regarding date of birth of the defendant in Ex.B.4, which is an official book or register or record stating a fact in issue or relevant fact under Section 35 of Indian Evidence Act and a public servant in discharge of his official duty recorded the same is acceptable and in as much as the entry made by the public servant in discharge of official duties has to be presumed correct and there is no contra evidence was established by the plaintiff to disbelieve the same.
62. Moreover, in-order to prove the fact, the Correspondent & Head Master, S.M.H. High School by name M.Lakshmi Ganapathi also examined as D.W.3 by the defendant. He stated that the date of birth of defendant recorded in school record as 20.06.1970. Further, defendant and D.W.2 mother of the defendant also deposed in same lines that the 34 A.S.No.939 of 1999 defendant was born on 20.06.1970, when comparatively Ex.B.1 clearly goes to show that the marriage between D.W.2 and Reddy Ramakrishna took place on 04.06.1969. Thus, comparatively it is possible to say the defendant was minor by the date of Ex.A.1 and even Ex.A.6.
63. May be true, by the date of Ex.A.6 i.e., on 29.10.1986 also, the defendant was minor, but as already stated supra, it is not going to disprove the fact stated by D.Ws.2 and 3 coupled with Exs.B.1, B.2 and B.4.
64. No doubt, as per Ex.A.6, his age is sixteen (16) years three (3) months twenty-five (25) days by then. If at all the purchase under Ex.A.6 is questioned, it is only relevant to deny the same by the defendant only.
65. Here no evidence is forthcoming to say that the purchase under Ex.A.5 is void and he is not entitled to execute such sale deed if the defence taken by the defendant is proved, as contended by the learned counsel for the plaintiff.
35 A.S.No.939 of 1999
66. In this regard, learned counsel for the plaintiff submits that the defendant executed certain documents and he purchased some land and sold some land on misrepresentation. Before the trial Court the defendant consistently taken a defence that he was minor by then and the trial Court discussed a judgment of Madhya Pradesh High Court reported in Nihal Singh v. Ram Bai13 as well judgment of High Court of Orrissa reported in Daneyi Gurumurthy v. Raghu Podhan14. These decisions are going to show that contract between minor(defendant) and plaintiff is voidable issue and cannot be enforceable against him and also submitted that the plaintiff even not entitled to refund of amount alleged to be paid under Ex.A.1.
67. In fact, one more instance which should be proved that D.W.2 Reddy Surya Prabhavathi, who is mother of the defendant, and Reddy Ramakrishna father of the defendant were living separately and D.W.2 in her evidence categorically 13 AIR 1987 MP 126 14 AIR 1967 Orissa 68 36 A.S.No.939 of 1999 deposed that her husband is not looking her properly as he addicted to all sorts of vices, she is living separately along with D.W.1 and she performed the marriage of her daughter. She further deposed that about fourteen (14) or fifteen (15) years ago disputes arose between her and her husband. Notices were not exchanged between them.
68. It is the specific defence taken by D.W.1 that his father being addicted to vices, while he was minor, colluded with plaintiff and created Ex.A.1 document. In support of the same not only D.W.1, but also his mother D.W.2 deposed the same in her evidence and denied the execution of Ex.A.1 itself intoto.
69. Further discussion regarding contract between plaintiff and D.W.1 is concerned, it is specifically established that D.W.1 being minor, any contract entered into with a minor is not enforceable in particularly under Section 20 of Specific Relief Act.
37 A.S.No.939 of 1999
70. One more aspect, which is also to be accepted from the testimony of P.W.1 that he categorically stated that he does not know whether marriage of D.W.2 took place on 04.06.1969 and he does not know whether defendant was born on 20.06.1970. Even after filing of those documents in particularly Exs.B.2 and B.4, plaintiff did not make any efforts to disprove the same.
71. Since plaintiff is seeking equitable relief, not only above subject, but also to prove that he came to the Court with clean hands as specific performance is a remedy rooted in principles of equity. This Court already stated supra, a party who has suffered damage due to contract breach to seek enforcement of the contract terms. However, specific performance is not granted automatically and he has to prove that the contract is a valid one and terms in the agreement are enforceable.
72. It is the specific case of the defendant that he has no salable interest over the plaint schedule property and has 38 A.S.No.939 of 1999 always been in possession and enjoyment of his mother i.e., D.W.2 with her own right, title and interest since July, 1984. Further contended that the property is not a vacant site and there is an ice factory as well constructed building in the schedule property.
73. When that is the case, this Court perused the schedule attached to the plaint. The plaintiff made a mention in the schedule attached to the plaint that vacant site and the site together with construction therein R.S.No.12/2 of an extent of Ac.0.09 cents within the following boundaries:
East : Road leading to Annayyapeta South: Land of Aketi Ramulu West: land of Aketi Ramulu North: Land sold to Reddy Surya Prabhavathi with all easementary rights etc.
74. Whereas in the plaint at paragraph No.4, he has specifically stated that it is a vacant site. In the schedule of the same, he mentioned that some construction was there. Whereas, coming to the evidence, he deposed that before 39 A.S.No.939 of 1999 execution of Ex.A.1, he went to the site and he has seen at that time there was a tin sheet shed. But, during the cross examination, he admitted that he went to the schedule site, there were three shop rooms in the front portion of Ex.A.4 site and some constructions were also going on in the said site.
75. Whereas, D.W.2, who is mother of the defendant, deposed that her father purchased the property under Ex.A.2 with her money in the name of D.W.1, on the same day, her father also purchased Ex.A.4 property in her name with her money and Ex.A.2 site is to the south of Ex.A.4 site and that she has been in possession and enjoyment of these sites. These facts were not disputed by the defendant.
76. D.W.2 further deposed that she got constructed an ice factory in Ex.A.2 site with the sale proceeds of her Stridhana. She got constructed shop rooms and a residential house in Ex.A.4 site and as per vastu sastra, Ex.A.2 site was obtained in the name of defendant. She further deposed that after 40 A.S.No.939 of 1999 obtaining necessary permissions from the concerned authorities, she got constructed an ice factory in Ex.A.2 site. From 1985 onwards she is running an ice factory and she has been in possession and enjoyment. She also filed documents like license receipt covered under Ex.B.5, a letter addressed by the Inspector of Factories to Executive Officer, Annaipeta Gram Panchayat under Ex.B.6, letter dated 21.11.1984 from the Director of Town and Country Planning, Hyderabad addressed to the Executive Officer, Annaipeta approving the proposal of Reddy Surya Prabhavathi (D.W.2) for running an ice factory covered under Ex.B.7, Ex.B.8 copy of the letter addressed to D.W.2 by the Assistant Director of Industries, Rajahmundry registering her ice factory as small scale industry and Ex.B.9 certified copy of resolution, dated 31.08.1984 passed by the Grama Panchayat, Annaipeta granting permission to construct the ice factory. These documents clearly and categorically show that Reddy Surya Prabhavathi (D.W.2) running an ice factory in the suit 41 A.S.No.939 of 1999 schedule property, whereas default schedule was attached to the plaint and no contra evidence was placed by the plaintiff to show the schedule premises is a vacant site.
77. When D.W.2 consistently states that D.W.1 has no right to execute any agreement of sale, Ex.A.2 site is belonging to her and she raised an ice factory in the said property and running the same since 1985, no doubt, this Court already stated supra, even taken into consideration Ex.A.1, defendant being minor, plaintiff cannot enforce specific performance against minor and as discussed supra plaintiff is unable to prove the agreement of sale, which is in question is totally void. More so, there is no material to make believe that plaintiff paid the amount to the defendant.
78. For all these reasons, as admittedly proved that defendant was minor by the date of Ex.A.1 and D.Ws.1 and 2 are living separately from the father of the defendant (D.W.1) and any amount paid to the D.W.1 if at all proved, the plaintiff is not entitled to seek refund of the same as 42 A.S.No.939 of 1999 discussed supra, however, paying advance of consideration is also not proved with all preponderance of probabilities.
79. In view of the above discussion, no evidence is forthcoming to say that defendant misrepresented the plaintiff and that defendant categorically established that there are disputes in their family. When defendant consistently states that he has not executed Ex.A.1 and proved that he was minor by then, this Court is of the firm opinion that plaintiff is not entitled any specific performance nor return of amount allegedly paid under Ex.A.1.
80. Having regard to the above discussion and in view of the settled proposition of law discussed supra, this Court does not find any grounds to interfere with the well- articulated judgment and decree of the trial Court. Therefore, there are no merits in this appeal and as such the same is liable to be dismissed.
81. In the result, the appeal is dismissed by confirming the decree and judgment dated 27.10.1998 in O.S.No.49 of 1989 43 A.S.No.939 of 1999 on the file of the Court of learned Senior Civil Judge, Ramachandrapuram. There shall be no order as to costs.
82. Interim orders granted earlier if any, stand vacated.
83. Miscellaneous petitions pending if any, stand closed.
____________________ JUSTICE V.SRINIVAS Date: 03.01.2024 Krs L.R. copy to be marked.
44 A.S.No.939 of 19992
THE HON'BLE SRI JUSTICE V.SRINIVAS APPEAL SUIT No.939 of 1999 DATE: 03.01.2024 Krs 45 A.S.No.939 of 1999 IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATI ***** THE HON'BLE SRI JUSTICE V.SRINIVAS APPEAL SUIT NO.939 OF 1999 Between:
Mutyala Nageswara Rao, S/o.Venkata Rao, Aged 38 years, R/o.Kakinada, East Godavari District.
... Appellate AND Reddy Rajasekhar, S/o.Ramakrishna, Aged 34 years, Yanam Road, Draksharama, Ramachandrapuram Mandal, East Godavari District. .. Respondent DATE OF JUDGMENT PRONOUNCED: 03.01.2024 SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE V.SRINIVAS
1. Whether Reporters of Local newspapers Yes/No may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No Marked to Law Reporters/Journals.
3. Whether Their ladyship/Lordship wishes Yes/No to see the fair copy of the Judgment?
______________________ JUSTICE V.SRINIVAS 46 A.S.No.939 of 1999 * HON'BLE SRI JUSTICE V.SRINIVAS + APPEAL SUIT NO.939 OF 1999 % 03.01.2024 # Mutyala Nageswara Rao, S/o.Venkata Rao, Aged 38 years, R/o.Kakinada, East Godavari District.
.. Appellant Vs. $ Reddy Rajasekhar, S/o.Ramakrishna, Aged 34 years, Yanam Road, Draksharama, Ramachandrapuram Mandal, East Godavari District.
.. Respondent ! Counsel for the Appellant : Sri T.V.S.Prabhakar Rao Counsel for Respondent : Sri M.V.Suresh <Gist :
>Head Note:
? Cases referred:
1. (2000) 7 SCC 548
2. (1990) 3 SCC 1
3. (2015) 1 SCC 597
4. (1999) 5 SCC 77
5. AIR 1988 SC 1796
6. (2008) 8 SCC 564
7. AIR 1932 Cal 83(2)
8. AIR 1989 SC 1806
9. 1969 (1) UJ 86 (SC) 47 A.S.No.939 of 1999
10. 2012 SCC Online AP 125
11. AIR 1942 Sind 27
12. AIR 2003 SC 1905
13. AIR 1986 MP 126
14. AIR 1967 Orissa 68 This Court made the following: