Andhra Pradesh High Court - Amravati
Y.Venkata Narasimha Rao vs A.M.Krishnamurthy8 on 13 September, 2024
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sAPHC010166332009
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
FRIDAY, THE THIRTEENTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO
APPEAL SUIT NO: 79/2009
Between:
Y.venkata Narasimha Rao, Agiripalli Mandal, Krishna District ...APPELLANT
APPELLANT
AND
V Naga Mani Agripalli V M Krishna District And 6 Othrs ...RESPONDENT
RESPONDENT(S)
and Others
Counsel for the Appellant
Appellant:
1. RAJA REDDY KONETI
Counsel for the Respondent
Respondent(S):
1. CHAVALI RAMANAND
2. GHANTA SRIDHAR
3. SIVA SANKARA RAO BORRA
4. NARAM NAGESWARA RAO
TRANSFER APPEAL NO: 358/2014
Between:
Yanduru Venkata Narasimha Rao ...APPELLANT
APPELLANT
AND
Yanduru Venkataratnam Died 7 Others and Others ...RESPONDENT
RESPONDENT(S)
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Counsel for the Appellant:
1. RAJA REDDY KONETI
2. NIMMAGADDA SATYANARAYANA
Counsel for the Respondent(S):
1. GHANTA SRIDHAR
2. NARAM NAGESWARA RAO
The Court made the following COMMON JUDGMENT:
1. Since both the appeals arise from the common judgment, they are
being disposed of by way of this common judgment.
2. A.S.No.79 of 2009 is filed, under Section 96 of the Code of the Civil
Procedure, 1908 (for short, "CPC") by the Appellant/2 nd Defendant challenging
the decree and judgment dated 13.03.2008 in O.S.No.07 of 2002 passed by
the learned Senior Civil Judge, Nuzvid (for short, 'trial court').The Respondent
No.1/Plaintiff filed a suit in O.S.No.07 of 2002, for specific performance of
contract directing the Defendants 2, 3, 5, 6 and 7 to execute a registered Sale
Deed in favour of the Plaintiff in respect of the schedule property after
receiving the balance of sale consideration of Rs.2,30,000/- from the Plaintiff
and to deliver vacant possession of the schedule property to the Plaintiff.
3. The Appellant/Plaintiff filed suit in O.S.No.46 of 1998 for partition of
plaint schedule property into 16 equal shares and allot 10 such shares to the
Plaintiff by meets and bunds as per good and bad qualities and allotment of
such share to the Plaintiff and for separate possession of the same.
4. A petition has been filed under Section 24 of the CPC by the
Appellant/Plaintiff in O.S. No. 46 of 1998. The petitioner seeks to transfer
A.S.No.55 of 2013 from the jurisdiction of the learned XV Additional District
Judge, Nuzvid, Krishna District, to this Court, so it can be heard along with
A.S. No. 79 of 2009. Following the Order, in TR.CMP. No. 513 of 2013 dated
02.04.2014, the learned Judge of the Composite High Court of Andhra
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Pradesh, allowed the petition. Consequently, A.S.No.55 of 2013 is transferred
to High Court and renumbered as TRAS.No.358 of 2014.
5. The parties in both appeals will hereinafter be referred to as they were
arrayed before the trial court.
6. The brief averments, of the plaint, in O.S.No.46 of 1998, are as under:
(a) The Plaintiff is the sole son of the deceased 1 st Defendant, and they
are members of a Hindu joint family. During 1st Defendant's lifetime, he
acquired the schedule property through a registered sale deed on 21.08.1980,
using funds obtained from the sale of ancestral property located in Tenneru
Village, Kankipadu Mandal. Since that time, both the Plaintiff and D.1 have
shared joint possession and enjoyment of the schedule property.
(b) In 1985, 1st Defendant transferred the Oil Dall Mill and flour mill,
which is Item No.2 of the plaint schedule property, to the Plaintiff at his
request. This arrangement was documented in an unregistered partition
agreement on 16.02.1986. Following this, the Plaintiff operated the Oil Mill
business, while D.1 ran a Kirana business on the premises associated with
Item No.1 of the plaint schedule property. Currently, the Plaintiff manages the
Kirana shop located on Item No.1, while 1st Defendant continues to oversee
the Oil Mill, which is Item No.2. The unregistered partition agreement dated
16.02.1986, was intended to facilitate independent business operations by the
parties but was never fully implemented. Consequently, the entire property
remains under the joint and constructive possession of the Plaintiff and the
deceased D.1. Additionally, Defendants 2 and 3, who operate an automobile
business in Agiripalli, have been influencing 1st Defendant to sell the schedule
property to them and are attempting to secure documentation in their favour
concerning the property.
7. Pursuant to the docket order dated 04.03.1999, the written statement of
1st Defendant was forfeited due to his failure to file it. 2nd Defendant submitted
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his written statement, and 3rd Defendant adopted the written statement filed by
2nd Defendant. In his written statement, 2nd Defendant denied all allegations
made in the plaint, asserting that 1st Defendant is the absolute owner of Item
No. 1 of the plaint schedule property and that it is D.1's self-acquired property.
2nd Defendant contended that, in order to settle 1st Defendant's debts, he sold
Item No.1 of the plaint schedule property for a consideration of Rs.8,00,000/-.
Additionally, 1st Defendant entered into an agreement of sale with his wife, 3rd
Defendant, on 15.07.1998, and 2nd Defendant paid Rs.4,25,000/- on the same
day as part performance of the contract.
(a) According to the agreement, the Plaintiff was required to pay the
remaining balance of Rs.3,75,000/- to 1st Defendant by the end of September,
1998, at which point 1st Defendant was to execute the registered sale deed in
favour of the Plaintiff at her own expense. Subsequently, 2nd Defendant paid
Rs.1,45,000/- to 1st Defendant, as evidenced by a receipt dated 20.08.1998.
Both 2nd Defendant and 3rd Defendant expressed their readiness and
willingness to fulfil their contractual obligations by arranging the remaining
balance of Rs.2,30,000/-, as well as covering the costs for stamp duty and
registration expenses.
(b) 1st Defendant, having received the majority of the sale consideration
and settled his debts, is now attempting to evade the execution of the
registered sale deed. Consequently, he has initiated the present suit through
his son. 1st Defendant remains in possession of two shops on Item No.1 of the
schedule property, where he is conducting an automobile business and also
residing. Meanwhile, the Plaintiff is in possession and enjoyment of Item No.2
of the plaint schedule property. The Plaintiff is not entitled to seek a partition of
Item No.1 of the plaint schedule property, as it is 1 st Defendant's self-acquired
property. Therefore, 3rd Defendant is considered a bona fide purchaser of Item
No.1 of the schedule property for valid consideration.
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8. 4th Defendant filed a written statement, and Defendants 5 to 7 adopted
the written statement filed by 4th Defendant. They contend that the Plaintiff is
the only son of 1st Defendant, while 4th Defendant and Jyothi, who was the
wife of 5th Defendant and mother of Defendants 6 and 7, are daughters of 1st
Defendant. Jyothi has since passed away, leaving behind Defendants 5, 6 and
7. According to the amended Hindu Succession Act, 4th Defendant and Jyothi
are also co-parceners in the joint family of 1 st Defendant. As such, Defendants
4 and 5 to 7 assert that they have a bonafide right and share in the joint family
properties of the deceased 1st Defendant. The plaint schedule properties were
acquired using assets from the ancestral properties of 1 st Defendant.
Consequently, they assert that the agreement of sale in favor of 3rd Defendant
is not binding upon them. Therefore, they claim that the suit filed by 3 rd
Defendant in O.S.No.7 of 2002 against the Plaintiff and 1 st Defendant is not
maintainable.
9. Additional written statement filed by 2nd Defendant, which was adopted
by 3rd Defendant, asserts that neither the Plaintiff nor Defendants 4 to 7 are
entitled to any share in the plaint schedule property, as it constitutes self-
acquired property of 1st Defendant. Defendants 4 to 7 were introduced into the
case at the behest of the Plaintiff and 1st Defendant, with the intention of
undermining 3rd Defendant's right to seek specific performance of the contract
made between her and 1st Defendant.
10. 8th Defendant filed a written statement, contending that Defendants 4 to
7, along with the Plaintiff, holds joint shares in the plaint schedule property.
This property, according to 8th Defendant, was acquired by 1 st Defendant with
the aid and assistance of the ancestral nucleus of the joint family.
11. Basing on the averments in the plaint and written statement, the trial
Court framed the following issues:
1) Whether the Plaintiff is entitled to seek partition of the plaint schedule
property?
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2) Whether the partition pleaded by the Plaintiff which was reduced in writing
as partition list dated 16.02.1986 is not binding upon him?
3) Are there any properties left open for partition after 16.02.1986?
Additional Issues:
1) Whether the 4th Defendant and deceased Seedarla Jyothi are entitled to
equal shares as per Section 29(A) of Hindu Succession Act, 1956?
2) Whether D.4 to D.7 are entitled to claim any right over the plaint schedule
property or not?
3) To what relief?
12. The brief averments, of the plaint, in O.S.No.07 of 2002, are as under:
(a) The plaint schedule property is claimed to be the self-acquired
property of 1st Defendant, in which 2nd Defendant has no share. Approximately
four years ago, the Plaintiff's husband rented two shops and a portion of the
residential house from 1st Defendant. He operates a business under the name
and style of Hanuman Automobile and Pesticides Shop, and resides in the
rented portion of the residential house on Item No.1 of the schedule property.
On 15.07.1998, 1st Defendant executed an agreement of sale in favour of the
Plaintiff in Nuzvid, having received Rs.4,25,000/- in respect of the schedule
properties. According to the agreement, the Plaintiff was to pay the remaining
balance of Rs.3,75,000/- to 1st Defendant by the end of September 1998, at
which point 1st Defendant was to execute the registered sale deed in favour of
the Plaintiff. The Plaintiff and her husband have been in possession of the two
shops and the residential portion as tenants, as specified in the agreement of
sale. The Plaintiff has consistently been ready and willing to fulfil her
contractual obligations, including paying the balance of the sale consideration
and covering the expenses for obtaining the registered sale deed, which she
was prepared to do by 20.08.1999.
(b) Subsequently, the Plaintiff's husband paid Rs.1,45,000/- to 1st
Defendant on 20.08.1998, on behalf of the Plaintiff as part of the balance of
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the sale consideration. 1st Defendant issued a receipt in the name of the
Plaintiff's husband. As a result, the Plaintiff still owes Rs.2,30,000/- towards
the remaining balance. However, 1st Defendant, in collusion with his son 2nd
Defendant, filed a suit in O.S. No. 46 of 1998 seeking partition of the schedule
property, claiming that the properties are joint family assets, and thus
attempting to evade the execution of the registered sale deed. In response,
the Plaintiff issued a registered notice on 17.05.2001, demanding that 1 st
Defendant fulfil his part of the contract. 1st Defendant received this notice on
18.05.2001, and subsequently sent a reply notice on 08.06.2001, containing
untenable allegations. As a result of these developments, the Plaintiff was
compelled to file the present suit.
13. The 1st Defendant filed a written statement denying all the allegations
made by the Plaintiff. He asserts that all assets are jointly and constructively
possessed by the deceased 1st Defendant and his son, 2nd Defendant. The
Plaintiff's husband, Uma Maheswara Rao, is a tenant in three units--two
shops and a residential premises with a godown in Agiripalli. They were under
a definitive agreement to pay a consolidated rent of Rs.2,800/- per month. The
rent was paid regularly until the end of March 1999, after which the payments
ceased. 1st Defendant intended to sell the schedule property with the consent
of 2nd Defendant. However, the Plaintiff and her husband allegedly acted with
malafide intent by obtaining 1st Defendant's signature on blank papers,
claiming that they would later obtain 2 nd Defendant's signature on those same
papers. Subsequently, 2nd Defendant secured an injunction order against 1st
Defendant and the Plaintiff and her husband in O.S.No.46 of 1998, prohibiting
the sale or purchase of the schedule property to the Plaintiff or any other party
pending the suit's resolution. The matter was subsequently brought before
elders, who advised the Plaintiff to accept the advance amount of
Rs.4,25,000/- from 1st Defendant. It is claimed that the Plaintiff's husband did
not pay Rs.1,45,000/- to 1st Defendant on 20.08.1998, as part of the balance
of the sale consideration, and this amount was unrelated to the sale
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transaction. As such, the Plaintiff is argued to have no legitimate claim for
specific performance of the contract under Section 10 of the Indian Contract
Act.
14. The 2nd Defendant filed a written statement, reiterating the assertions
made by the 1st Defendant. He further contends that the schedule property is
not 1st Defendant's self-acquired property but rather an ancestral property of
the Defendants' family. The 2nd Defendant claims a share in the schedule
property and other properties in Agiripalli Village, which are jointly enjoyed by
the Defendants. Additionally, the 2nd Defendant initiated a suit in O.S.No.46
of 1998 against 1st Defendant, seeking a partition of the schedule properties
into two equal shares. He asserts that 2nd Defendant did not sign the suit sale
agreement. The Plaintiff, according to the 2 nd Defendant, obtained signatures
from 1st Defendant on blank papers with the intent of unlawfully claiming the
schedule property.
15. Pursuant to the orders in I.A.No.473 of 2005 dated 29.11.2005,
Defendants 3 to 6 were added as parties to the suit. 3 rd Defendant filed a
written statement, which was adopted by Defendants 4 to 6. 3rd Defendant
contends that Defendants 2, 3, and the deceased daughter of 1st Defendant,
Jyothi, are co-parceners in the joint family of 1st Defendant. She further
asserts that 1st Defendant has no right to sell the entire property and is only
entitled to sell his undivided share. Furthermore, 3 rd Defendant asserts that
the alleged agreement of sale is neither valid nor binding upon Defendants 2
to 6.
16. In accordance with the orders in I.A.No.330 of 2006 dated 26.06.2006,
7th Defendant was added as the legal representative of the deceased 1st
Defendant. 7th Defendant filed a written statement contending that the plaint
schedule property was acquired with the aid and assistance of the ancestral
nucleus and belongs to the joint family of 1st Defendant. Defendants 7 and 1
had a male child, 2nd Defendant, and female children, 3rd Defendant and
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Seedarla Jyothi (who is the wife of 4th Defendant and the mother of
Defendants 5 and 6). 3rd Defendant's marriage took place on 04.03.1993, in
Agiripalli with Valiveti Naga Venkata Satya Srinivasa Rao. As both daughters
of 1st Defendant are co-parceners in the joint family, which includes
Defendants 1 to D.3 and Jyothi, 1st Defendant did not have the right to
execute the agreement of sale in favour of the Plaintiff concerning the plaint
schedule property. Consequently, the plaint schedule property is not
considered self-acquired by 1st Defendant.
17. Basing on the averments of the plaint and written statements, the trial
Court has framed the following issues:
1) Whether the Defendant subscribed his signature on the blank stamped
papers believing the words of Plaintiff and her husband without passing
consideration as alleged in the written statement is true?
2) Whether the elders of Agiripalli advised the Plaintiff and her husband to
receive the advance amount from the Defendants as alleged in the Written
Statement is true?
3) Whether the Plaintiff is entitled to the Specific Performance under an
agreement of sale?
4) Whether the Plaintiff is entitled to alternate relief?
5) To what relief?
Additional Issues:
1) Whether the plaint schedule property is joint family property of Defendants?
2) Whether the 1st Defendant has no legal necessity to sell the schedule
property?
18. During the course of trial, both the suits in O.S.No.46 of 1998 and
O.S.No.07 of 2002 were clubbed together and the evidence was adduced in
O.S.No.46 of 1998.
19. The Plaintiff in O.S.No.46 of 1998 who is D.2 in O.S.No.07 of 2002 was
examined as P.W.1 and on his behalf, the junior paternal uncle of P.W.1 was
examined as P.W.2 and Ex.A1 to A.17 were marked. On behalf of the
Defendant, Defendants 4 to 8 in O.S.No.46 of 1998, who are Defendants 3 to
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7 in O.S.No.07 of 2002 among them 4th Defendant is examined as D.W.1.
Husband of 4th Defendant is examined as D.W.2, 8th Defendant examined as
D.W.3. On behalf of the Defendants 2 and 3 in O.S.No.46 of 1998, 3rd
Defendant, who is Plaintiff in O.S.No.07 of 2002, is examined as D.W.4. 2nd
Defendant is examined as D.W.5. One of the attestor of Ex.B2 is examined
as D.W.6. The scribe of Ex.B2 is examined as D.W.7. On behalf of the
Defendants, Exs.B.1 to B.10 and Exs.X1 to X.5 were marked.
20. After completing the trial and hearing the arguments of both sides, suit
in O.S.No.46 of 1998 was dismissed and suit in O.S.No.07 of 2002 was
decreed in respect of Item No.1 of schedule property, directing the Plaintiff in
O.S.No.7 of 2002 to deposit the balance of sale consideration of Rs.2,30,000/-
within 30 days from the date of order and that the Plaintiff and Defendant
Nos.4 to 8 in O.S.No.46 of 1998 are entitled to receive the same and further
directed the Plaintiff and Defendant Nos.4 to 8 in O.S.No.46 of 1998 to
execute a Regular Sale Deed in favour of the Plaintiff in O.S.No.7 of 2002
within 30 days from the date of the order. Aggrieved by the Common
Judgment and decree, the parties in both the suits have filed the present
Appeals.
21. I have heard learned counsel for the Appellant/Plaintiff in TRAS No.358
of 2014 and learned counsel for the Respondents.
22. Learned counsel for the Appellant contends that the trial court should
have recognized that combining trials for discretionary reliefs with those for
substantial statutory reliefs is not advisable, as it may prejudice either type of
relief. Learned counsel further contended that the trial court should have
evaluated the evidence provided by P.Ws.1 and 2, and D.Ws.1 to 3, regarding
the nature of the plaint schedule properties. This evidence, is sufficient to
demonstrate that the plaint schedule properties are joint family properties and
that the Plaintiff has fulfilled his duty in proving this claim. Furthermore, the
learned counsel contends that Defendants 2 and 3, who intended to purchase
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Item No. 1 from the 1st Defendant, failed to provide adequate documentary
evidence to establish that Item No. 1 of the plaint schedule is the self-acquired
property of the 1st Defendant. There was no sufficient documentary or oral
proof presented by Defendants 2 and 3 to substantiate their claim that Item No.
1 of the plaint schedule properties is self-acquired by the 1st Defendant.
23. Learned counsel for the Appellant further contends that Defendants 2
and 3, being current tenants of the property, are well aware of the property
rights of the Plaintiff and his father (D.1); the fact that Defendants 2 and 3
inquired whether the Plaintiff would sign the agreement of sale, and received
no consent from him, indicates that they recognized the Plaintiff's rights in the
property. Learned Counsel further contended that the trial court should have
accepted the depositions and documents provided by the Plaintiff and
Defendants 4 to 8, which demonstrate that the properties listed in the plaint
schedule are joint family properties; the deceased 1st Defendant did not have
the right to alienate the entire property on his own, especially without any
demonstrated necessity. Furthermore, learned counsel further submit that the
trial court erred in rejecting the statutory relief sought by the Plaintiff and
Defendants 4 to 8 for the partition of the joint family properties listed in the
plaint schedule. This decision, the learned counsel asserts, was made despite
the absence of any evidence from Defendants 2 and 3 contradicting the
evidence presented by P.Ws.1 and 2, and D.Ws. 1 to 3.
24. I have heard learned counsel for the Appellant in A.S.No.79 of 2009
and learned counsel for the Respondents.
25. Learned counsel for the Appellant contends that the trial court should
have dismissed the suit for specific performance rather than granting it; the
trial court overlooked the fact that there was a joint family nucleus at the time
of the purchase of the suit property by D.1 in Thenneru Village; this property
was acquired in 1st Defendant's name as the Kartha and Manager of the joint
family, which included himself and the Appellant.
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26. Learned counsel further asserts that the trial court erred by not
adequately considering Exs.A.1, A.16, and A.17, which are crucial for
determining the nature of the property; the agreement of sale relied upon by
the 1st Respondent is neither authentic nor valid, and therefore is not binding
on the Appellant or the other Respondents. Furthermore, the 1st Respondent
failed to present evidence refuting the claim that the suit property is joint family
property, as documented in Exs.A.1, A.16, and A.17. Additionally, the
Appellant had filed a suit in O.S.No.46 of 1998 for the partition of joint family
properties, which included the suit property. The 1st Respondent, who
purportedly obtained the agreement of sale from the Appellant's father, did not
pursue the matter until 2002.
27. Learned counsel for the Appellant further contends that the trial court
should have rejected Ex.B.5, the receipt, as a suspicious document due to its
lack of proper proof; the trial court failed to address why, in the presence of an
agreement of sale in favour of the 1st Respondent, the payment was made
without an endorsement on the agreement, and why a separate receipt,
Ex.B.5, was obtained. This discrepancy was neither explained nor
substantiated by the evidence. Additionally, learned counsel asserts that the
trial court overlooked that Ex.B.2, the agreement of sale in favor of the 1st
Respondent, specifies that time is of the essence in the contract. The trial
court should have determined that the plaint schedule property is joint family
property of the Appellant and his deceased father, and that the Appellant had
no right to alienate it. Learned counsel further contended that the sale contract
allegedly executed by the Appellant's father was neither for legal necessity nor
for the benefit of the estate.
28. The learned counsel for the Respondents supported the findings and
observations made by the trial Court.
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29. I have carefully perused the pleadings, evidence, Common Judgment of
the Trial Court and the grounds of Appeals with utmost circumspection and
considered the rival submissions.
30. Having regard to the pleadings in both the suits, the findings recorded
by the Trial Court and in light of the rival contentions and submissions made
on either side before this Court.
31. Yenduri Venkatarathnam, the 1st Defendant in both cases, passed away
during the proceedings. Subsequently, his wife, Yenduri Rajalakshmi, was
impleaded as a party in both suits. Their daughter, V. Sujatha, was also
arrayed as a party in the suits. Sujatha and late Jyothi are the daughters of the
deceased 1st Defendant. Jyothi, who is married to Nehruji, has children named
Sai Pavan and Praneeth, who are also shown as parties to the suits. To
establish the relationship between Nehruji, Sai Pavan, and Praneeth with
Jyothi and the deceased 1st Defendant, certain documents were submitted,
marked as Exs.X.1 to X.5. One V.N.S.V.Srinivasa Kumar, is examined as
DW.2 in the suit. The trial court noted that he is married to DW.1and
confirmed that there is no dispute regarding the recitals in Exs.X.1 to X.5.
Furthermore, the trial Court acknowledged that Defendants 6 and 7 are the
children of the late Seedarla Jyothi. The relationships delineated above are
undisputed. The Plaintiff in O.S.No.46 of 1998 is the son of the 1 st Defendant,
and he is shown as the 2nd Defendant in the suit in O.S.No.7 of 2002.
32. The trial Court consolidated both suits, and the evidence was recorded
in O.S.No.46 of 1998. To avoid any confusion, all parties and witnesses will
henceforth be referenced as they are shown in O.S.No.46 of 1998.
33. In O.S. No. 46 of 1998, the Plaintiff asserts that the schedule property is
joint family property belonging to himself and the 1 st Defendant. The purchase
of this property by the 1st Defendant, evidenced by Ex.A.1 (certified copy of
the sale deed dated 21.08.1980). However, the Plaintiff contends that the
property was acquired using funds obtained from the sale of ancestral
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property located in Tenneru village, Kankipadu Mandal. According to the
pleadings and evidence presented by both parties, it is undisputed that the 1 st
Defendant, originally from Tenneru village, later relocated to Agripalli,
Nuzividu Mandal, after selling the family properties. The certified copy of the
sale deed, Ex.A.1, confirms that the property was purchased by the 1st
Defendant from Yenduri Kasipathi Rao, Vishnuvardhan Rao, and Mallikarjuna
Rao, which is also not in dispute.
34. In O.S. No. 7 of 2002, the Plaintiff contends that the properties shown in
the plaint schedule are the self-acquired assets of the 1st Defendant,
Venkatarathnam, and were purchased using income earned from business
activities in Agripalli. Notably, the Plaintiff in O.S. No. 7 of 2002 is named as
the 3rd Defendant in O.S. No. 46 of 1998, while her husband is arrayed as the
2nd Defendant in that suit. Given the arguments presented in both suits, the
principal issues for determination are, whether the schedule property is indeed
the self-acquired property of the 1st Defendant or if it was acquired with funds
obtained from the sale of ancestral properties located in Thanneru village.
Additionally, it must be determined whether the 1st Defendant had any legal
necessity to sell the schedule property. In light of these considerations, now
the points for determination are as follows:
1. Whether the trial Court is justified in dismissing the suit in
O.S.No.46 of 1998 by determining that the schedule property
is the self acquired property of the 1st Defendant and thereby,
the Plaintiff is not entitled for partition of the schedule property?
2. Whether the trial court was correct in adjudging that the
agreement of sale is valid, true, and binding on the
Defendants in O.S. No. 7 of 2002?
3. To what relief?
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POINT NO.1:
35. In O.S. No. 46 of 1998, the Plaintiff contends that both he and his father
(1st Defendant), engaged in business activities in Agiripalli and utilized their
earnings to acquire the schedule properties. He also contends that the 1st
Defendant acquired the property detailed in Ex.A.1 with funds realized from
the sale of the schedule properties. As the trial court correctly observed, the
Plaintiff's assertion that the 1st Defendant purchased the property shown as
item No.1 using the sale proceeds from selling a one-fourth share of an
ancestral house, along with business income, was introduced only after the
trial concluded on 14.12.2007. This assertion was not included in the initial
plaint. It is undisputed that the 1st Defendant and his brother purchased land in
Agiripalli from Madhupalli Bala Nagaiah and others, encompassing 418
square yards. To support this, the Plaintiff provided Ex.A.17, a registered
extract of the sale deed.
36. The Plaintiff examined PW.2 (Y. Subramanyam). It is not in dispute that
the Plaintiff is his elder brother's son. PW.2 testified that they sold their joint
family properties in Tenneru village and used the sale proceeds to acquire
properties in Agiripalli. He specifically mentioned purchasing the 1 st
Defendant's share of the property in 1983 under Ex.A.16, a document
executed by the 1st Defendant and Narasimha Rao in favour of PW.2. Ex.A.16
indicates that the 1st Defendant transferred his one-fourth share of the
property to PW.2. As observed by the trial court, the Plaintiff did not claim to
have been present during the sale of his father's one-fourth share of the
property to PW.2. Consequently, the trial court's finding that no ancestral
properties remained with the deceased 1st Defendant after this transaction is
upheld. In cross-examination, PW.2 acknowledged that they acquired a tiled
house in Agripalli by selling all the properties in Tenneru village, except a
house and a site. PW.2 further testified that there were no joint family
properties remaining and that there is no documentation indicating that all the
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brothers engaged in joint business activities. Additionally, PW.2 confirmed the
absence of a registered partition deed.
37. The Plaintiff's assertion in O.S.No.46 of 1998 that his father and his four
brothers owned 3.50 acres of wet land in R.S. Nos. 337 and 335, which was
sold to one Yarlagadda Apparao under a registered sale deed dated
17.08.1967 (Ex.B.1), was contested. PW.1 confirmed during cross-
examination that apart from the property detailed in Ex.B.1, there were no
other properties in Tenneru village. Although the Plaintiff attempted to argue
that the 1st Defendant used the proceeds from Ex.B.1 to purchase the
schedule properties, this plea was not included in the initial plaint.
38. Regarding the income from the joint family business, PW.1
acknowledged the lack of documentary evidence to support the claim of
business activities in sundry items, fancy goods, and fertilizers, and was
uncertain about the investment amount by his father. Additionally, evidence
suggests that by the time of the partition, the Plaintiff was not yet born; he
completed his 10th standard in 1982, and the property in question was
acquired by the 1st Defendant on 21.08.1980. The trial court's observation that
the Plaintiff would have been under sixteen years old at the time of this
purchase is accurate.
39. The Plaintiff's claim in O.S.No.46 of 1998 that he and his father
conducted business in Agripalli and used the proceeds to acquire the
schedule properties has been found to be incorrect. The Plaintiff also claimed
an unregistered partition deed dated 16.02.1986, which purportedly
documented a partition between him and his father and subsequent
reunification for joint business. However, no such unregistered partition deed
was produced in evidence. The trial court, after thoroughly examining DW.1's
testimony, correctly concluded that the Plaintiff's assertions in this regard were
unsubstantiated and lacked credibility.
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40. In Makhan Singh (Died) by LRs. v. Kulwant Singh 1 , the Hon'ble
Supreme Court held that:
"The legal, therefore, is that there is no presumption of a property being
joint family property only on account of existence of a joint Hindu family.
The one who asserts has to prove that the property is a joint family property.
If, however, the person so asserting proves that there was nucleus with
which the joint family property could be acquired, there would be
presumption of the property being joint and the onus would shift on the
person who claims it to be self-acquired property to prove that he
purchased the property with his own funds and not out of joint family
nucleus that was available".
41. In Mudi Gowda Gowdappa Sankh V. Ram Chandra Ravagowda
Sankh2, the Hon'ble Apex Court held that:
Of course, there is no presumption that merely because the family is joint
so the property is also joint. So the person alleging the property to be joint
family property must prove it. In that case, this Court further held that the
burden of proving that any particular property is joint family property is,
therefore, in the first instance, upon the person who claims it to be
coparcenary property. But if the possession of a nucleus of the joint family
property is either admitted or proved, any acquisition made by a member of
the joint family is presumed to be joint family property. The Court carved out
an exception and observed that, "this is, however, subject to the limitation
that the joint family property must be such as with its aid the property in
question could have been acquired. It is only after the possession of an
adequate nucleus is shown, that the onus shifts on to the person who
claims the property as self-acquisition to affirmatively make out that the
property was acquired without any aid from the family estate.
42. In Mudi Gowda Gowdappa Sankh (cited supra), the Hon'ble Supreme
Court heavily relied upon the ratio of the Privy Council judgment in Randhi
Appalaswami v. Randhi Suryanarayanamurti3, wherein the legal position of Hindu
Law has been beautifully articulated by Sir John Beaumont. The relevant portion of
the judgment is reproduced as under: (Randhi Appalaswami case [ILR 1948 Mad
440 (PC)] , ILR pp. 447-48)
1
AIR 2007 (SC) 1808
2
(1969) 1 SCC 386
3
ILR 1948 Mad 440 (PC)
18
"... Proof of the existence of a joint family does not lead to the
presumption that property held by any member of the family is joint, and
the burden rests upon anyone asserting that any item of property is joint to
establish the fact. But where it is established that the family possessed
some joint property which from its nature and relative value may have
formed the nucleus from which the property in question may have been
acquired, the burden shifts to the party alleging self-acquisition to establish
affirmatively that the property was acquired without the aid of the joint
family property;"
43. Upon review of the evidence adduced, this Court finds that there is no
material on record demonstrating that the properties covered by Ex.B.1 were
ancestral properties of the 1st Defendant and his brothers. The evidence does
indicate that these individuals were engaged in business activities. Even
assuming that the 1st Defendant and his brothers did possess ancestral
properties, the evidence does not sufficiently establish that the property
described in Ex.A.1 was purchased with the funds from Ex.B.1. Furthermore,
the evidence does not support the assertion that the amount specified in
Ex.B.1 was adequate to acquire the properties outlined in Ex.B.1. Additionally,
PW.1's testimony reveals that his father conducted business to meet the
family's financial needs. Even if it were assumed that the 1st Defendant
acquired the schedule properties using the funds from Ex.B.1, the evidence
reviewed suggests that he acted merely as a manager of the family's assets.
44. The Plaintiff does not contend that his father lacked a legal necessity to
alienate the schedule properties. The evidence on record reveals that the 1 st
Defendant attended to the welfare of his son and two daughters, including
arranging their marriages. There has been no allegation from the Plaintiff
regarding any habitual vices on the part of his father. PW.1's testimony
indicates that in 1992, the marriages of Jyothi and the 4th Defendant were
conducted with grandeur in Agripalli, and that the 1st Defendant (the Plaintiff's
father) performed the Plaintiff's marriage in 1990. Additionally, item No.1 of
the house was constructed by the father in 1996. It was also noted that the 1st
Defendant did not secure any bank loan for the installation of item No.2 of the
schedule property. PW.1's evidence further confirms that the father had two
19
sisters, was a diligent individual who built his business through personal effort
and savings, and did not engage in any detrimental habits. The evidence
provided by PW.1 substantiates that the 1st Defendant made substantial
efforts to benefit the family. Initially, there were disputes between the Plaintiff
and the 1st Defendant, leading the 1st Defendant to file a caveat petition
asserting that the schedule properties were self-acquired. PW.1's testimony
also shows that a temporary injunction was obtained to prevent the 1st
Defendant from alienating the schedule properties.
45. In P.R. Kannaiyan (died) v. Ramasamy Mandiri4, the Division Bench
of Madras High Court, after discussing the two judgments of Hon'ble Apex
Court in D.S. Lakshmaiah v. L. Balasubramanyam 5 , and in Mallesappa
Bandeppa Desai v. Desai Mallappa @ Mallesappa6, has held as follows:
"From the decisions of the Supreme Court in Mallesappa Bandeppa
Desai v. Desai Mallappa @ Mallesappa, (cited supra)
Sankaranarayanan v. The Official Receiver, Tirunelveli, AIR 1977 (Mad.),
and also from the observations made by the Allahabad High Court
in Bhagwant Kishore v. Bishambhar Nath, AIR 1950 (All.) 54, and
in Maynes Treatise on Hindu Law and usage, and all other decisions
noticed above, it is apparent that no exception is carved out in the matter
relating to acquisition in the name of Kartha, where it is proved that Kartha
had no independent income and he is in possession of some nucleus and
not necessarily sufficient nucleus of the joint family property
46. In Sunil Kumar v. Ram Parkash7, the Hon'ble Apex Court held that:
6. ............... It is well settled that in a joint Hindu Mitakshara family, a son
acquires by birth an interest equal to that of the father in ancestral property.
The father by reason of his paternal relation and his position as the head of
the family is its Manager and he is entitled to alienate joint family property
so as to bind the interests of both adult and minor coparceners in the
property, provided that the alienation is made for legal necessity or for the
benefit of the estate or for meeting an antecedent debt. The power of the
Manager of a joint Hindu family to alienate a joint Hindu family property is
analogous to that of a Manager for an infant heir as observed by the
4
2005 (4) CTC 457 (DB)
5
2003 (10) SCC 310
6
AIR 1961 SC 1268
7
(1988) 2 SCC 77
20
Judicial Committee in Hunoomanpersaud Panday v. Mussumat Babooee
Munraj Koonweree [(1856) 6 Moo IA 393 (PC)] :
"The power of a Manager for an infant heir to charge ancestral estate by
loan or mortgage, is, by the Hindu Law, a limited and qualified power, which
can only be exercised rightly by the Manager in a case of need, or for the
benefit of the estate. But where the charge is one that a prudent owner
would make in order to benefit the estate, a bona fide lender is not affected
by the precedent mismanagement of the estate. The actual pressure on the
estate, the danger to be averted, or the benefit to be conferred, in the
particular instance, or the criteria to be regarded. If that danger arises from
any misconduct to which the lender has been a party, he cannot take
advantage of his own wrong to support a charge in his favour against the
heir, grounded on a necessity which his own wrong has helped to cause.
A lender, however, in such circumstances, is bound to inquire into the
necessities of the loan, and to satisfy himself as well as he can, with
reference to the parties with whom he is dealing, that the Manager is acting
in the particular instance for the benefit of the estate. If he does inquire, and
acts honestly, the real existence of an alleged and reasonably-credited
necessity is not a condition precedent to the validity of his charge, which
renders him bound to see to the application of the money."
47. The evidence on record demonstrates that the 1st Defendant, acting as
the karta or manager of the family, agreed to sell the schedule properties and
entered into the agreement to address the debts incurred by him, fund the
construction of the house shown as item No.1 of the schedule property, and
support the development of his oil business. The record establishes that the
schedule properties are the self-acquired assets of the 1st Defendant. Even
assuming, for the sake of argument, that the schedule properties are joint
family assets, it is evident that they were alienated solely to discharge debts
and facilitate business development. Consequently, this Court agrees with the
trial Court's conclusion that Ex.B.2, executed by the 1st Defendant, is binding
on the other Defendants. Accordingly, this point is answered.
POINT NO.2:
48. PW.1 testified that he was unaware whether the 1st Defendant
represented to Defendants 2 and 3 in O.S.No.46 of 1998 that item No.1 of the
21
plaint schedule property was self-acquired, and that he needed funds to
address debts incurred for the construction of a building. PW.1 stated that the
1st Defendant had offered to sell the property for Rs. 8,00,000/- and had
received Rs. 4,25,000/- from the 3rd Defendant on 15.07.1998, subsequently
executing Ex.B.2, an agreement in favour of the 3rd Defendant. PW.1
confirmed recognizing his father's signature on Ex.B.1 but was uncertain
whether the 2nd Defendant had paid Rs. 1,45,000/- to the 1st Defendant as
part of the sale consideration under Ex.B.2. He also testified that he did not
know whether the 1st Defendant had received Rs. 4,25,000/- from the 3rd
Defendant on 15.07.1998 as per Ex.B.2, or whether the 3 rd Defendant was
obligated to pay the remaining Rs. 3,75,000/- by the end of September 1998
according to Ex.B.2. PW.1 further stated that he was unaware if he had
expressed readiness to pay the remaining sale consideration and requested
his father to execute a sale deed in his favour in O.S.No.7 of 2002. In cross-
examination, PW.1 admitted he did not know if the 1st Defendant had settled
his debts with the payments made by the 3 rd Defendant on 15.07.1998 and by
the 2nd Defendant on behalf of the 3rd Defendant on 20.08.1998. The evidence
presented by PW.1 does not dispute the execution of Ex.B.3 by his father or
the payments made under the agreement. Moreover, PW.1's testimony during
cross-examination reveals that the Plaintiff in O.S.No.46 of 1998 did not
contest the claims made in O.S.No.7 of 2002 regarding the specific
performance of the agreement. Although PW.1 asserted that his financial
condition was stable at the time of filing the suit and during his testimony, he
later admitted in cross-examination that he had filed I.P.No.72 of 2005 against
twenty-six individuals seeking to be declared insolvent.
49. One V. Sujatha, the 4th Defendant in O.S.No.46 of 1998 and the 3rd
Defendant in O.S.No.7 of 2022, testified as DW.4. Her testimony indicated
that the 1st Defendant, herself, and her sister Jyothi, being members of a
Hindu undivided family, entitling her to a one-fourth share in her father's
properties. The 1st Defendant's wife, who is arrayed as the 8th Defendant in
22
O.S.No.46 of 1998 and the 7th Defendant in O.S.No.7 of 2022, was examined
as DW.3 and supported her son's version. V. Uma Maheswara Rao, the 2nd
Defendant in O.S.No. 46 of 1998 and the husband of the 3rd Defendant in that
suit, is also the spouse of Nagamani, who filed the suit in O.S.No.7 of 2002.
He was examined as DW.5 in that case and supported the Plaintiff's case in
O.S.No.7 of 2002.
50. B. Seetharamaiah, one of the attestors of Ex.B.2, was examined as
DW.6, and the scribe of Ex.B.2 was examined as DW.7. Both witnesses
supported the Plaintiff's case in O.S.No. 7 of 2002. The trial Court thoroughly
examined their testimonies and noted that the evidence provided by DWs. 4 to
7 was consistent regarding the execution of Ex.B.2 and the payment of
Rs.4,25,000/- to the deceased 1st Defendant. No contradictions were revealed
during the cross-examination of DWs. 4 to 7. The trial Court further observed
that Defendants 1 and 2 in O.S. No.7 of 2002 did not claim that Ex.B.2 was a
forged document. The execution of Ex.B.2 was acknowledged by the
deceased 1st Defendant in favour of the 3rd Defendant. Additionally, the 1 st
Defendant did not challenge the contents of Ex.B.8, which is a copy of a
caveat filed by him against his son, the 2nd Defendant in O.S.No.7 of 2002.
51. The evidence on record demonstrates that the 2 nd Defendant in
O.S.No.7 of 2002 has not disputed the execution of Ex.B.2 by his father or the
payment of consideration. DW.2's testimony reveals that there was no
challenge to the Plaintiff's assertion regarding readiness and willingness to
perform her obligations under the agreement. Furthermore, the evidence
indicates that the 1st Defendant sold the schedule property to discharge debts
incurred for constructing the house shown as item No.1 and for developing his
oil business, as detailed in Ex.B.2. The 2nd Defendant has not provided
evidence to refute these recitals in Ex.B.2. Although the 1 st Defendant initially
supported the Plaintiff's case in O.S.No.7 of 2002, it appears that Defendants
1 and 2 subsequently resolved their disputes, with the 1st Defendant aligning
with the 2nd Defendant's position in the suit. The Plaintiff in O.S.No.46 of 1998
23
has not contested the assertion in O.S.No.7 of 2002 that they began
occupying item No.1 of the plaint schedule property as tenants approximately
two years after the construction of the building in item No.2. The 2nd
Defendant then commenced business in automobiles and pesticides in the
second shop within item No.1 of the schedule property and also resided in the
residential portion as a tenant.
52. As rightly noted by the trial Court, it is undisputed that the Plaintiff and
her husband were in possession of two shops and residing in a portion of the
residential house referred to in item No.1 of the schedule property as tenants
by the date of Ex.B.2 agreement of sale; the 1st Defendant did not contest the
suit in O.S.No.46 of 1998 filed by his son, the 2nd Defendant, seeking specific
performance of the schedule property. The evidence, particularly from DWs.4
to 7, supports the execution of the Ex.B.2 agreement and the payment of
Rs.4,25,000/- to the 1st Defendant as part of the consideration, with the
balance of consideration i.e., Rs.3,75,000/- to be paid by the end of
September 1998. The trial Court correctly noted that there is no evidence from
Defendants 1 and 2 suggesting that the Ex.B.2 agreement of sale is forged.
Moreover, the 1st Defendant admitted to executing the Ex.B.2 agreement.
Upon reviewing the contents of the caveat petition (Ex.B.8), this Court views
that the Defendants' contention that the Plaintiff and her husband maliciously
obtained the 1st Defendant's signatures on blank papers with the promise of
obtaining their son's signatures later, is not credible.
53. Additionally, DW.3, who testified as PW.1 in C.C.No.321 of 2001 before
the Judicial Magistrate of First Class, Nuzividu on 06.10.2006, admitted that
her husband had agreed to sell the shopping complex and residential house in
Agiripalli to the 2nd Defendant (DW.4) and had executed an agreement of sale.
It is also acknowledged that 1st Defendant passed away on 18.01.2006, during
the pendency of the suit. Although the 1st Defendant contends that the
payment of amount of Rs.4,25,000/- was not made under Ex.B.2, the trial
Court correctly observed that he failed to explain the circumstances under
24
which he received Rs.4,25,000/-. Further, Ex.B7, a reply notice given by 1 st
Defendant, indicates his readiness and willingness to return the advance of
Rs.4,25,000/- upon the advice of elders. However, the elders who supposedly
advised the 1st Defendant, were not called to testify. The material placed on
record shows that the husband of the Plaintiff in O.S.No.7 of 2002, paid
Rs.1,45,000/-, as evidenced by Ex.B.5 receipt. The trial Court correctly noted
that the 1st Defendant did not explain the payment reflected in Ex.B.5 related
to which transaction.
54. On the other hand, the counsel for the Respondent/Plaintiff submits that
the Plaintiff at all material time was ready and willing to perform her part of the
contract. As the Defendants did not come forward, the Plaintiff promptly
issued legal notice to the Defendants and in the case of sale of immovable
properties, time is not the essence of the contract. Time, it is stated, is not the
essence of the contract in the case of immovable properties, unless, there are
grounds to hold to the contrary.
55. The Defendants' counsel contends that the Plaintiff failed to establish
that she is ready and willing to perform her part of the contract. He further
contends that the Plaintiff has to prove that she has the money or has
alternatively made necessary arrangements to get the money, and the
continuous readiness and willingness on the part of the Plaintiff is a condition
precedent to grant the relief of specific performance.
56. In U.N. Krishna Murthy (since deceased) Thr. Lrs Vs.
A.M.Krishnamurthy8, the Apex Court held that :
Section 16(c) of the Specific Relief Act, 1963, bars the relief of specific
performance of a contract in favour of a person who fails to aver and
prove his readiness and willingness to perform his part of the contract.
Given Explanation (i) to clause (c) of Section 16, it may not be essential
for the Plaintiff to tender money to the Defendant or to deposit money
in Court, except when so directed by the Court, to prove readiness and
willingness to perform the essential terms of a contract, which involves
payment of money. However, Explanation (ii) says the Plaintiff must
8
2022 Live law SC 588 in Civil Appeal No.4703 of 2022
25
aver performance or readiness and willingness to perform the contract
according to its true construction.
57. In Nathulal Vs. Phoolchand9, the Hon'ble Apex Court observed that:
6. ........To prove himself ready and willing, a purchaser has not
necessarily have to produce the money or to vouch for a concluded
scheme for financing the transaction: Bank of India Ltd. & Ors. v.
Jamsetji A. H. Chinoy and Messrs. Chinoy and Company 10.
.................
58. In P. Daivasigamani Vs. S.Sambandan 11 , the Hon'ble Apex Court referred to case of in case of Syed Dastagir v. T.R. Gopalakrishna Setty12, a three-Judge Bench of the Apex Court observed that:
10. It cannot be gainsaid said that even though time is not considered as the essence of the contract in case of immoveable property and that the suit could be filed within three years as provided in Article 54 of the Limitation Act, the Respondent - Plaintiff had to perform his part of the contract within the reasonable time having regard to the term of the agreement prescribing the time limit. The time limit prescribed in the agreement cannot be ignored on the ground that time was not made the essence of the agreement or that the suit could be filed within three years from the date fixed for performance or from the date when the performance is refused by the vendor. Nonetheless, as discussed above, the suit having been filed by the Respondent well within the prescribed time limit under Article 54 of the Limitation Act, the Respondent could not have been non-suited on the ground of the suit being barred by limitation as sought to be submitted by learned counsel for the Appellant.
12. The ratio in Mademsetty Satyanarayana v. G. Yelloji Rao13, it has been observed as under:
"7. Mr. Lakshmaiah cited a long catena of English decisions to define the scope of a court's discretion. Before referring to them, it is necessary to know the fundamental difference between the two systems-- English and Indian--qua the relief of specific performance. In England the relief of specific performance pertains to the domain of equity; in India, to that of statutory law. In England there is no period of limitation for instituting a suit for the said relief and, therefore, mere delay -- the time lag depending upon circumstances -- may itself be 9 A.I.R. 1970 SC 546 10 A.I.R. 1950 P.C. 90 at p.96 11 2022 SCC OnLine SC 1391 12 (1999) 6 SCC 337 13 AIR 1965 SC 1405 26 sufficient to refuse the relief; but, in India mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law; it is beyond time, the suit will be dismissed as barred by time; in either case, no question of equity arises."
The aforesaid ratio has also been followed recently by this Court in R. Lakshmikantham v. Devaraji 14 . We, therefore, have no hesitation in holding that mere delay alone in filing the suit for specific performance, without reference to the conduct of the Plaintiff, could not be a ground for refusing the said relief, when the suit was filed within the statutory time limit by the Respondent-Plaintiff.
"It is significant that this explanation carves out a contract which involves payment of money as a separate class from Section 16(c). Explanation (i) uses the words "it is not essential for the Plaintiff to actually tender to the Defendant or to deposit in court any money except when so directed by the court". (emphasis supplied) This speaks in a negative term what is not essential for the Plaintiff to do. This is more in support of the Plaintiff that he need not tender to the Defendant or deposit in court any money but the Plaintiff must [as per Explanation (ii)] at least aver his performance or readiness and willingness to perform his part of the contract".
18. In Sukhbir Singh v. Brij Pal Singh15 this Court had laid down that Law is not in doubt and it is not a condition that the Respondents (Plaintiffs) should have ready cash with them. It is sufficient for the Respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till the date of the decree. The said principle was followed in case of A. Kanthamani v. Nasreen Ahmed16, in case of C.S. Venkatesh v. A.S.C. Murthy17 etc. In the light of the above settled legal position, this Court views that mere non deposit of the balance sale consideration amount, cannot be a ground to hold that the Plaintiff is not ready and willing to perform her part of the contract. It is not the Appellants/Defendants case that despite the direction of the trial Court or this Court, the Respondent/Plaintiff failed to deposit the amount.
14(2019) 8 SCC 62 15 (1997) 2 SCC 200 16 (2017) 4 SCC 654 17 (2020) 3 SCC 280 27
59. The evidence on record establishes that the 1st Defendant executed Ex.B.5 agreement of sale with the Plaintiff, agreeing to the terms and conditions. The trial Court, on proper appreciation of the evidence on record, has come to the correct conclusion regarding the execution of the sale agreement by the 1st Defendant.
60. In Prakash Chandra V. Angadial18, the Hon'ble Apex Court reiterated that the ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief.
61. Section 20(2) of the Specific Relief Act contains the cases in which the Court may properly exercise discretion not to decree specific Performance. Three types of cases have been given under subsection (2) in the form of clauses (a), (b) & (c), in which the Court exercises its discretion not to decree specific Performance; it is useful to extract the said clauses hereunder:
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the Plaintiff an unfair advantage over the Defendant; or
(b) where the performance of the contract would involve some hardship on Defendant which he did not foresee, whereas its non- performance would involve no such hardship on Plaintiff; or
(c) where Defendant entered into the contract under circumstances which though not rendering the contract voidable, make it inequitable to enforce specific performance.
62. The instant case does not fall under any of these clauses. Usually, when the trial Court exercises its discretion in one way or another after appreciating the entire evidence and the materials on record, the appellate Court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate Court should also not exercise its discretion against the grant of specific 18 A.I.R. 1979 SC 1241 28 performance on extraneous considerations or sympathetic considerations. It is true, as contemplated under section 20 of the Specific Relief Act, that a party is not entitled to get a decree for a specific performance merely because it is lawful to do so. Nevertheless, once an agreement to sell is legal and validly proved and further requirements for getting such a decree are established, the Court has to exercise its discretion to grant relief for a specific performance.
63. After going through the entire evidence on record, this Court upholds the trial court's findings that the 1 st Defendant executed Ex.B.5 registered agreement of sale agreeing to the terms and conditions therein and the Plaintiff is always ready and willing to perform her part of the contract.
64. Moreover, it is the Defendants who had always been trying to wriggle out of the contract by disputing the right of the 1st Defendant to execute agreement of sale and also execution of the agreement of sale and receipt of consideration amount. Now, the Defendants cannot take advantage of their wrong and then plead that grant of decree of specific performance would be inequitable. Specific Performance is equitable relief, and granting the relief is the discretion of the Court. The discretion has to be exercised by the Court judicially and within the settled principle of law.
65. After going through the entire evidence on record, this Court upholds the trial court's findings that the 1st Defendant executed Ex.B.5 agreement agreeing to the terms and conditions therein and the Plaintiff is always ready and willing to perform her part of the contract. There are no justifiable reasons to arrive at a different conclusion. The learned trial Judge used his discretion to grant relief of specific performance of the agreement, and the said discretion was based on the proper exercise of sound principles. The conduct of the Defendants resisting to execute the sale deed is quite incorrect.
66. On a consideration of the entire material, pleadings, evidence adduced and the impugned Judgment, I am convinced in the light of the analysis above that the trial Court rightly exercised its discretion in granting 29 the relief of specific performance and rightly decreed the suit. Accordingly, this point is answered.
POINT NO.3:
67. Having determined that the trial Court's common judgment and decree resulted from a thorough and correct evaluation of the evidence, I find no illegality or arbitrariness in the impugned Judgment and decree. Consequently, the view taken by the trial Court stands, and these appeals are dismissed. The decree and judgment passed by the trial Court are upheld.
68. As a result, the A.S.No.79 of 2009 and TRAS.No.358 of 2014 are hereby dismissed without costs by confirming the Common Decree and Judgment in O.S.No.46 of 1998 and O.S.No.7 of 2002, dated 13.03.2008 passed by the learned Senior Civil Judge, Nuzvid.
Miscellaneous applications pending, if any, in this Appeals, shall stand closed.
_____________________________ JUSTICE T. MALLIKARJUNA RAO Date: 13.09.2024 MS / SAK 30 THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO APPEAL SUIT NO: 79/2009 & TRANSFER APPEAL NO: 358/2014 Date: 13.09.2024 SAK