Andhra HC (Pre-Telangana)
Vummalaneni Basavayya And Ors. vs Myneni Venkayya (Died) Per L.Rs. And ... on 9 September, 1997
JUDGMENT Krishna Saran Shrivastav, J.
1. A.S.No. 2869 of 1986:
The First and the Second Defendants are the appellants. Suit for specific performance has been decreed.
2. This judgment shall also govern the disposal of appeal A.S.2867/1986 which has been filed by the third and the fourth defendants.
3. The facts giving rise to this appeal may briefly be stated as follows :-
The 1st and the 2nd defendants are the husband and wife, while the 3rd and the 4th defendants are their sons. The 1st and the 2nd defendants had executed an agreement, Ex.A-1, on 9-2-1978, to sell 1554-1-0 Sq.Yds. of land situated in 10th Ward, Tenali town (for short 'the suit land') to the plaintiff for a consideration of Rs. 26,512/- and had received an earnest money of Rs. 1,000/- on the same day. It was agreed between them that the plaintiff would pay the balance of consideration in cash within a period of one month therefrom and get the sale deed executed and registered in his name at his own cost. It was further agreed between them that, if the plaintiff failed to perform his part of the contract within the stipulated time, he would pay interest at the rate of 18 per cent per annum on the balance amount of consideration and after paying this amount with interest, he would get the sale deed executed and registered in his name. It was also agreed between them that the 1st and the 2nd defendants would deliver possession of the suit land only on the date of the execution and registration of the sale deed. The plaintiff instituted a suit for specific performance of the contract and for possession alleging that, as per the terms of the agreement, he had raised the level of the ground in a portion of the suit land and had kept hay-rick that the 1st and the 2nd defendants in his absence on 5-10-1978 and 6-10-1978 had meddled with the hay-stack and had thrown away the hay and bamboos in the adjoining land causing damages of Rs. 3,000/- and, therefore, he had filed a suit for damages in O.S.No. 682/1978 and that he was anxious to pay the balance amount of consideration by the end of December, 1978 itself, but these defendants had adopted unlawful attitude. He further alleged that he was always ready to perform the terms of the contract and had arranged the balance amount of consideration to be paid to the defendants, that through his Advocate, he sent a telegraphic notice on 11-5-1980 to the defendants for receiving the balance amount of consideration and to get the sale deed executed and registered within one week therefrom, but while the first defendant evaded to receive the telegram, the 2nd defendant had refused to receive it, that he had published in the daily newspaper 'Andhra Prabha' a public notice, that these defendants had committed wilful breach of the agreement and, therefore, he was not liable to pay interest on the balance amount of consideration and that he was entitled to a decree of specific performance of the contract as also for a decree for possession of the suit land.
4. The 1st defendant denied that he had ever agreed for raising the level of the ground in a portion of the suit land for storing hay or the plaintiff had done so by spending an amount of Rs. 1,000/-. He had further denied that the plaintiff was ever anxious to pay the balance amount of consideration by the end of December, 1978. He had also denied that he had ever adopted unlawful attitude. He had denied that he had removed the hay-stack or had thrown away the hay or the bamboos. He had also denied that the plaintiff was always ready and willing to perform the terms of the contract or he had arranged for ready cash for the payment of balance amount of consideration. He had alleged that the plaintiff was not the real purchaser and one K. Venkataratnam had obtained the agreement, Ex.A-1, in the name of the plaintiff. He had pleaded that, time was the essence of the contract. The plaintiff had no money to pay the balance amount of consideration. He did not pay the balance amount of consideration within the stipulated time and, therefore, he sent a registered notice, Ex.B-1, dated 12-6-1978 to the plaintiff, but he had avoided to receive it. The plaintiff had made material alterations in the terms of the contract and had played fraud and, therefore, he had disentitled himself of equitable relief of specific performance of the contract. The 1st defendant had further alleged that the plaintiff had committed breach of the contract and, therefore, the suit was liable to be dismissed, particularly because he had varied the terms of the contract by interpolating extraneous matter into the agreement, Ex.A-1.
5. The second defendant had adopted the written statement of the first defendant.
6. The third and the fourth defendants were added as parties to the suit vide order dated 25-11-1981 passed by the trial Court in I.A.No. 1683/81. They pleaded that the suit land, though standing in the name of the first and the second defendants, belongs to the Joint Hindu Family consisting of all the defendants, because, it has been purchased from the funds of the ancestral property and, therefore, the first and the second defendants had no right, title or interest to sell the same to the plaintiff, particularly when the fourth defendant was a minor. They requested that the suit should be dismissed.
7. It is a matter of record that the suit filed by the plaintiff against the defendants No. 1 and 2 for damages in O.S.No. 682/1978 (new number O.S.91/81) was consolidated with the suit for specific performance in O.S.No. 33/1981.
8. The trial Court tried both the suits together and reached the conclusion that the plaintiff is entitled for specific performance of the contract, but he has failed to prove the damages. Holding so, the trial Court has decreed the suit for specific performance in O.S.33/1981 and dismissed the suit for damages in O.S.91 /1981. The plaintiff did not file any appeal against the decree of dismissal of the suit O.S.91/1981. The 1st and the 2nd defendants had preferred appeal A.S.No. 2869/1986 while the 3rd and the 4th defendants had preferred appeal A.S.2867/1986.
9. It is urged on behalf of the appellants that, although the trial Court has rightly held in Para 21 of its judgment that, the plaintiff had surreptitiously interpolated the agreement to sell, Ex.A-1, by inserting the sentence "Meanwhile, we shall have no objection if you raise the level of the ground floor in a portion of the said site to place your hay-stack", yet committed an error in holding that this alteration is not material and, therefore, did not vary the rights and liabilities of the parties to the agreement, Ex.A-1, and, therefore, this alteration did not in any manner render the contract void. It is further urged on behalf of the appellants that, the trial Court has erred in holding that the plaintiff was capable of arranging the balance amount of consideration of Rs. 25,512/- at any time and was always ready and willing to perform his part of the contract. Due to the material alterations in the agreement, Ex.A-1, the agreement had become void and was, therefore, rightly cancelled by the appellants. The plaintiff-respondent having not filed an appeal against the judgment of dismissal of the suit for damages, cannot urge that there is no material alteration in Ex.A-1, because this issue cannot be reagitated by virtue of the doctrine of Res judicata. The trial Court has committed an error in holding that the sale in question was for the benefit of the defendants Nos.3 and 4 also. It is lastly urged on behalf of the appellants that the trial Court should not have decreed the suit for specific performance of the contract because the plaintiff had not come to the Court with clean hands and, therefore, the discretionary powers should not have been exercised by the trial Court in his favour.
9. On the other had, it is contended on behalf of the plaintiff-respondent that the trial Court has not at all evaluated the evidence of P.Ws. 1 to 3 as also of the 1st defendant, D.W.1, regarding the alleged alteration in the agreement to sell, Ex.A-1. It has, though reproduced some portions of their evidence in Para 21 of its judgment, held, merely on its observation, that the last sentence in the body of the agreement to sell, Ex.A-1, had been interpolated. On correct assessment of the evidence on record, it is established that the alleged sentence had been written by the scribe, P.W.3, before the 1st and the 2nd defendants had put their signatures on it after giving their consent for keeping hay on a portion of the suit land. It is further contended that, even otherwise the trial Court has rightly found that the alleged alteration is not at all material because it did not vary the rights and liabilities of the parties to the agreement and, therefore, it is inconsequential. It is also contended on behalf of the plaintiff-respondent that the trial Court has wrongly held that the suit land belongs to the Joint Hindu Family consisting of the defendants. It is lastly contended on behalf of the plaintiff-respondent that, omission of the plaintiff to pay interest on the balance amount of consideration before filing the plaint should not be construed as an omission on his behalf to make an offer of their willingness to perform their part of the bargain. Reliance has been placed on the case of Sellappa Chetty and Ors. v. Marappa Goundar and Ors., AIR 1965 Mad. 37.
11. In the case of Pala Narayana and Anr. v. M. Veera Somaiah, 1990 (2) ALT 336 (D.B.), the plaintiff had filed a suit for eviction of the defendants from the suit schedule house. The defendants filed a suit against the plaintiff and one another for permanent injunction restraining them from removing the electricity supply meter and for disconnecting the supply of electricity. The trial Court decreed the suit for eviction, but dismissed the suit for damages (sic. injunction). The defendants preferred an appeal against the judgment and decree passed for eviction in the High Court and another appeal against the judgment of dismissal of their suit for permanent injunction in the Court of the District Judge which appeal was requisitioned by the High Court for disposal. This transfer appeal was dismissed for non-compliance of the order of the Court, regarding the supply of typed copies of judgments and payment of translation and printing charges. The question that fell for consideration was whether the dimissal of the transfer appeal operates as Res Judicata in appeal filed against the judgment of acquittal (sic. eviction). A Division Bench of this Court held that, in both the suits, the title litigated is common, the matters directly and substantially in issue are common and the subject matter is also common and, therefore, the dimissal of the transferred appeal for non-payment of translation and printing charges by the High Court, amounts to confirming the judgment of the trial Court on merits and it operated as Res Judicata and the appeal is barred by the principles of res judicata.
12. In the case on hand, the plaintiff had filed the suit for specific performance of the contract on the strength of the agreement, Ex.A-1, and he had filed another suit also for damages on the strength of this agreement, Ex.A-1, only, particularly basing his case on the 7th line which reads "Meanwhile, we shall have no objection if you raise the level of the ground floor in a portion of the said site to place your hay-stack" in the agreement to sell, Ex.A-1. The trial Court, discussing the evidence on record found that, the aforementioned 7th line was subsequently interpolated. The suit for damages had been dismissed and no appeal has been filed against this. Therefore, the judgment has become final. On the touchstone of the law laid down in the case of Pala Namyana (2 supra), I hold that the issue regarding the alteration and interpolation in the agreement to sell, Ex.A-1, cannot be reagitated as it is barred by the principles of res judicata. Even otherwise, the finding of the trial Court that the aforementioned 7th sentence is interpolated appears to be correct for the reasons given in the subsequent paragraphs.
14. In the case of Kalianm Goundcr v. Palani Gounder, AIR 1970 SC 1942 it is held that, a material alteration is one which varies the rights and liabilities or legal position of the parties as ascertained by the deed in its original state or otherwise varies the legal effect of the instrument as originally expressed or reduces to certainty some provision which was originally unascertained and as such void or which may otherwise prejudice the party bound by the deed as originally executed.
15. Again, in the case of Loonkaran Sethia v. Ivan E. John, AIR 1977 SC 36, the Apex Court, after reproducing Para 378 of Vol.12 of Halsbury's Laws of England, 4th Edition, observed that, a material alteration, according to this authoritative work, is one which varies the rights, liabilities, or legal position of the parties as ascertained by the deed in its original state or otherwise varies the legal effect of the instrument as originally expressed or reduces to certainty some provision which was originally unascertained and as such void or which may otherwise prejudice the party bound by the deed as originally executed. The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed.
16. It is true that, only a small portion out of the suit land had been utilised by the plaintiff for storing hay and the aforementioned 7th line has been subsequently interpolated in the agreement to sell, Ex.A-1. A perusal of the agreement to sell, Ex.A-1, reveals that it has been mentioned in very specific terms that the possession of the suit land would be delivered to the plaintiff ONLY after the execution and registration of the sale deed. By making this alteration, the plaintiff had taken illegal possession of that portion of the suit land without any right to do so and thus has prejudiced the rights of the defendants No. 1 and 2. therefore, it cannot be said that the 1st and the 2nd defendants had granted a licence to the plaintiff for storing hay on a portion of the suit land. Under these circumstances, it cannot be said that the alteration made in the agreement to sell, Ex.A-1, after its execution was not material and did not in any way affect the validity of the deed. For the reasons aforesaid, disagreeing with the learned trial Court, I hold that due to the material alteration in the agreement to sell, Ex.A-1, without the consent of the defendants Nos.1 and 2, amounts to cancelling the agreement to sell, Ex.A-1, itself.
17. There is evidence on record that the plaintiff owned about Ac.3-06 ets. of land. The learned lower Court has held that, it is not difficult for a person possessing about Ac.3 of land to purchase a site for Rs. 25,000/-. It is further held that, there are certain discrepancies in the evidence of the plaintiff and his son-in-law, P.W.2, with regard to the availability of funds, but it is well settled that the plaintiff must not have ready cash in his hands but should show that at all material times he could have raised the amount of consideration.
18. The statement of P.W.1, and his son-in-law, P.W.2 that they used to earn about Rs. 20,000/- annually out of the total land of six acres is not supported either by documentary evidence or oral evidence of independent persons, who, according to them, were commission agents or purchasers of the produce. Even otherwise, Rs. 20,000/- has been alleged to be the income from six acres of land. Therefore, it can be reasonably inferred that, at the best, P.W.1 was getting about Rs. 10,000/- per annum from his about three acres of agricultural land. P.W.1 has testified that, at the time of execution of the agreement to sell, Ex.A-1, he had received Rs. 5,000/-. This statement contradicts the statement of his son-in-law, P.W.2, who has testified that, he had borrowed an amount of Rs. 10,000/- from his father and paid the same to his father-in-law, that is, P.W.1. Again, P.W.1 has stated that in addition to Rs. 5,000/- which he had received at the time of execution of the agreement to sell, Ex.A-1, he had to get an amount of Rs. 16,000/- from his five other pronotes executed in favour of his son-in-law by the debtors, and he had intended to borrow the remaining amount of Rs. 6,000/- from others or from the bank to pay Rs. 26,512/- to the first and the 2nd defendants. This witness had admitted that he did not know the names of his debtors. It is pertinent to note that, P.W.2 had not stated on oath that he had lent Rs. 16,000/- to persons under five pronotes on behalf of P.W.1. It is also interesting to note that the father of P.W.2 was also indebted to others and he had to mortgage his land with the bank to borrow Rs. 4,000/-. P.W.2 has admitted in cross-examination that he had not made any attempt to arrange the balance amount of consideration, because P.W.1 did not ask him afterwards to arrange money for getting the sale deed executed. For the reasons aforesaid, it is difficult to accept the evidence of P.W.1 that he had to recover an amount of Rs. 16,000/- under five pronotes executed in favour of his son-in-law, particularly because his son-in-law, P.W.2, has not stated so. Thus, it appears that, neither at the time of the agreement to sell, Ex.A-1, nor subsequent thereto, P.W.1, was either in possession of the whole amount of consideration or had attempted and succeeded in making arrangements by borrowing from others. The saving from the agricultural income was wholly insufficient for payment of the balance amount of consideration. Otherwise, P.W.1, would not have stated that he would borrow from the bank or from others for payment of the balance amount of consideration. P.W.1 has also stated that, he could not collect amounts from his debtors and could not arrange money within one month stipulated in the agreement to sell, Ex.A-1, and, therefore, his say that, after 20 days or one month from the due date, he demanded the defendants Nos. 1 and 2 to execute the sale deed, appears to be false, particularly when through his notice, Ex.B-2, dated 10-7-1978, he had informed the defendants Nos.1 and 2 that he would pay the balance amount of consideration before the end of that year and get the sale deed registered. It has also been mentioned in this notice that as per the terms of the contract, his client had agreed to pay the balance amount of considertion within one month and in default would pay interest at the rate of Rs. 1-50 Ps. per month per hundred on the balance amount of consideration from the date of the contract to the date of the registration of the sale deed.
19. The defendants Nos.1 and 2 through notice, Ex.B-7, had informed the plaintiff that, in spite of his letter, Ex.B-2, he did not fulfil the terms of the contract by the end of the year 1978 and failed to pay the balance amount of consideration by the end of the year 1979. This notice was sent on 8-12-1979. In answer to this notice, the plaintiff throughhis notice Ex.B-9, dated 21-12-1979, replied that, it was agreed between them that the balance amount of consideration of Rs. 25,512/- would be payable with interest at the rate of 18 per cent per annum in case he was unable to pay the balance amount of consideration and get the sale deed registered within one month from 9-2-1978 and that the contract would remain in force for a period of three years therefrom, that is upto 9-2-1981. But, there is no whisper in this reply notice that he had got sufficient funds to pay the balance amount of consideration. From the language used in this reply, it appears that he did not want to pay the balance amount of consideration even on 21-12-1979, but had claimed time upto 9-12-1981 for performing his part of the contract by payment of the balance amount of consideration with interest at the rate of 18 per cent per annum on it.
20. It would be beneficial to give a gist of the relevant agreement regarding the payment of interest.
"If you fail to do in the above manner within the stipulated time mentioned above and commit any default in this regard, you are required to pay from the date of the default to the date of the payment an interest of Rs. 1-50 Ps. per month per hundred on the balance amount of sale consideration due to us. You shall pay the balance sale consideration together with interest in the above said manner and get the sale deed executed and registered in your name or in the name of your nominee at your cost or at the cost of your nominee."
21. From the above clause, it is established that the plaintiff was entitled to get the sale deed executed and registered by the defendants Nos.1 and 2 not only on paying the balance amount of consideration but also by paying interest at the rate of 18 per cent per annum on it from the date of default, that is, 9-3-1978 to the date of payment and it is also established from the notice, Ex.B-2, and the reply notice, Ex.B-9, dated 21-12-1979 that the plaintiff had accepted to pay interest at the aforesaid rate on the balance amount of consideration of Rs. 25,512/-.
22. P.W.1 had sent a telegram to the defendants Nos.1 and 2 on 11-5-1980, copy of which is at Ex.A-4. Through this telegram, he had intimated the defendants Nos.1 and 2 that he was ready with the balance amount of consideration and asked them to execute the sale deed within a period of seven days, but he has not mentioned in this telegram the date, time and place where the defendants Nos.1 and 2 should make themselves available to receive the balance amount of consideration with due interest for execution and registration of the sale deed. It is also not out of place to mention that the plaintiff did not institute the suit immediately after sending the telegram notice, but he instituted it on 6-2-1981. The plaintiff, P.W.1, has admitted in his cross-examination not to have visisted the defendants Nos.1 and 2 before or after the telegram notice, Ex.A-4, to fix the time and place for execution and registration of the sale deed. He did not send his messenger also for this purpose.
23. The plaintiff has pleaded in Para 4 of the plaint that the defendants Nos.1 and 2 did not execute the sale deed within one week from the date of the notice, Ex.A-4, dated 11-5-1980 and, therefore, they had committed a wilful breach of the terms of the contract and for this reason he was not liable to pay interest on the balance of sale consideration. Thus, it is crystal clear that the plaintiff, P.W.1, was not prepared to pay the interest at the agreed rate or at any rate on the balance amount of consideration of Rs. 25,512/- from 9-3-1978 neither upto the date of the notice, Ex.A-4, nor upto the date of the institution of the suit. A look at the agreement to sell, Ex.A-1, shows that it was not agreed between the plaintiff and the defendants Nos. 1 and 2 that, in the case of default committed by the defendants Nos.1 and 2, the plaintiff would not be liable to pay the agreed interest on the balance amount of consideration. Therefore, it cannot be said that the plaintiff was entitled for non-payment of the interest at the agreed rate merely because the defendants Nos.1 and 2 did not execute the sale deed in pursuance of the telegram notice, Ex.A-4, dated 11-5-1980.
24. In the case of Seilappa Chetty (1 supra), the agreement, Ex.A-4, contained a penalty clause. According to mis penalty clause, in case of default by the defendants, the plaintiffs were liable to pay only Rs. 10,000/- out of the purchase money of Rs. 14,912/-. In other words, the defendants having been at fault, should forfeit the balance of Rs. 4,912/- as penalty, according to the terms of the agreement. In this case, it was found that the defendants had committed a default and, therefore, the plaintiffs came to the Court with the offer of only Rs. 10,000/- out of the purchase money of Rs. 14,912/- and under these circumstances, it was held that the plaintiffs were entitled to take the view that they were not liable to pay the whole amount of consideration and, therefore, the omission of the plaintiffs to deposit Rs. 4,912/- out of the total consideration before filing the plaint could not be construed as an omission on their part to make an offer of their willingness to perform their part of the bargain. This case is distinguishable on facts. The reason is that, as noted above, there is no term in the agreement to sell, Ex.A-1, similar to the term in Sellappa Chetty's case (1 supra) that, in the event of default by the defendants, they would be disentitled to claim interest at the rate of 18 per cent per annum or at any rate on the balance amount of consideration of Rs. 25,512/-. Section 24(b) of the Specific Relief Act is not attracted in the case on hand, because, this section speaks about a violation of an essential term of the contract, that is a term Which is absolutely vital to the bargain. In the case on hand, the question is whether the plaintiff was ever ready and willing to perform his part of the contract and to establish whether he had proved to be in possession or was capable of collecting the balance amount of consideration at any point of time and was prepared to pay the balance amount of consideration as per the terms of the agreement? Thus, the law laid down in the case of Sellappa Chetty (1 supra) is of no help to the case of the plaintiff.
25. The case of Gomathinayagam Pillai and Ors. v. Palaniswami Nadar, AIR 1967 SC 868 is also of no help to the plaintiff because in that case, it is held that if time is not of essence originally, it can be made essence even subsequently by service of notice on the other party and in this case no such notice was ever given to the plaintiff for performing his part of the contract within the stipulated period, whereas in the case on hand, there is evidence on record that the defendants Nos. 1 and 2 had served at least two notices on the plaintiff in which default on his part was brought to his notice.
26. In the case of Simon Jacob Silas v. Casper John Balthasar Kohlhoff, AIR 1954 T.C. 440 it is held that, where the plaintiff wanted the implementing of the contract not according to the terms contained therein but with the modifications he deemed proper and even in the plaint the willingness disclosed was not a willingness to deposit the full amount due under it, but such balance as remained after making the deductions; he considered justifiable, it was a negation of his "continued readiness and willingness" to perform the obligations under the contract and should by itself entail a dismissal of the suit.
27. As noted above, the plaintiff has pleaded in Para 4 of the plaint that he wanted to implement the contract not as per the terms of the contract contained therein, mat is to say by paying interest at the rate of 18% per annum on the balance amount of consideration from the date of default, but by paying only the balance amount of consideration excluding interest and it shows that he was not willing to deposit the full amount of consideration with agreed interest due and, therefore, it can be inferred that he was not continuously ready and willing to perform the obligations under the contract.
28. In the case of Kommisetti Venkatasubbayya v. Kammsetti Venkateszvarlu and Ors., AIR 1971 A.P. 279 the plaintiff had asserted to have paid Rs. 1,500/- to the defendant and was willing to pay the balance amount of Rs. 272-50, but it was found that he had not paid the sum of Rs. 1,500/- to the defendant and, therefore, it was held that the plaintiff was disentitled to the discretionary relief of specific performance not only on the ground that he had set up a false plea but also that he was not ready and willing to perform his part of the contract.
29. The learned lower Court due to the oversight of the aforementioned material facts, has committed an error in reaching the conclusion that the plaintiff, P.W.1, had the capacity to arrange for balance amount of consideration at any time before the institution of the suit.
30. In the case of N.P, Thirugnanam (D) by L.Rs. v. Dr. R. Jagan Mohan Rao and Ors., AIR 1996 SC 116 it is held in Para 5 that :-
"It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the Court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated Under Section 20 of the Specific Relief Act 1963 (for short, 'the Act'). Under Section 20, the Court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."
31. Testing the facts of the case on the touchstone of the law laid down in the case of N.P. Thirugnanam (8 supra), I hold that, the plaintiff has failed to prove that he had with him the balance amount of consideration with the agreed interest right from 3-3-1978 to the date of institution of the suit, that is, 6-5-1981 and I also hold that he was unwilling to pay the agreed amount of interest on the balance amount of consideration, that is, Rs. 25,512/- and, therefore, the only conclusion that can be drawn is that he was not really willing to perform his part of the contract and at no time he was ready either with money or resources to fulfil his part of the contract. The fact of depositing the balance amount of consideration with interest in pursuance of the decree passed by the trial Court would be of little help to the plaintiff.
32. The Court below has committed manifest error of law in exercising its discretion directing the specific performance of the contract. Equity and justice demanded refusal of the specific performance of the contract.
33. Before parting, I would like to discuss the case of the defendants No. 3 and 4 also. It is pertinent to note that the 1st defendant has not amended his written statement subsequent to the filing of the written statement of the defendants Nos.3 and 4 that the suit land was purchased from the sale price of the ancestral property and, therefore, the suit property is the property of the Joint Hindu Family consisting of the defendants Nos.1 to 4. The defendant No. 3 examined himself as D.W.5. He has stated that his date of birth is 10-7-1959. He has further stated that his father has sold the ancestral properties through registered sale deeds, the certified copies of which sale deeds are at Exs,B-10 to B-12. He has admitted in cross-examination that he does not know what his father did with the amount realised by him through these sale deeds. He has also admitted that his father has a bank account. Ex.B-11 was executed on 1-4-1978 and Ex.B-12 was executed on 16-2-1986, whereas the suit land has been admittedly purchased in the year 1974 and, therefore, the consideration received by execution of the sale deeds, Exs.B-11 and Ex.B-12 cannot be said to have been utilised in making the purchase of the suit land. The sale deed, Ex.B-10, was executed on 21-8-1967. There is no evidence on record as to where D.W.1 kept the sale amount from 21-8-1967 till the year 1974, that is for a period of about 7 years. He is a Lecturer. Admittedly, he has got a bank account. Had he deposited the amount in the bank, the defendants Nos.3 and 4 would have filed and proved the entries to show that the amount deposited in the bank account in the year 1967, was utilised for purchasing the suit-land. It is hard to digest that a person like D.W.1 would keep the amount in his house for a period of seven years to be utilised in purchasing the suit-land. D.W.1 has admitted that upto the year 1974, his monthly salary was Rs. 1,000/- and income from his lands was Rs. 700/- or Rs. 800/- per annum. Under these circumstances, it can be safely inferred that the consideration obtained by execution of the sale deed, Ex.B-10, was utilised in meeting the needs of the family because it is difficult to accept the say of D.W.1, that too without pleadings, that in the year 1974, he had joint family funds to the tune of Rs. 15,000/-, particularly when he has not filed and proved the bank account.
34. For the foregoing reasons, disagreeing with the learned lower Court, I hold that the defendants No. 3 and 4 have miserably failed to prove that from the sale proceeds of their ancestral properties, the suit land had been purchased by their father, that is D.W.1, in his name as also in the name of his wife, that is D.W.2, and, under these circumstances, the defendants Nos. 3 and 4 who are not parties to the agreement to sell, Ex. A-1, are not entitled to question this document, Ex.A-1.
35. In result, the appeal filed by the defendants Nos. 3 and 4 bearing A.S.No. 2867 of 1986 has no force and it is dismissed. The appeal filed by the defendants Nos. 1 and 2 bearing A.S.No. 2869 of 1986 is allowed. The judgment and decree for specific performance of the contract and possession passed by the trial Court are set aside and the suit for specific performance of the contract and possession of the suit land is dismissed. However, in the circumstances of the case, I leave the parties to bear their own costs.