Andhra Pradesh High Court - Amravati
K. Thayaramma vs A. Vinod Kumar on 6 December, 2023
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
Appeal Suit No.272 of 2005
Judgment:
This appeal is filed by the appellant/4th defendant challenging the
judgment and decree, dated 18-01-2005, in O.S.No.139 of 1997 passed
by the learned Principal Senior Civil Judge, Tirupati, Chittoor District.
The 1st respondent herein is the plaintiff and respondents 2 to 4 are
defendants 1 to 3 in the said suit.
2. The parties will hereinafter be referred to as arrayed before the
trial Court.
3. The 1st respondent/plaintiff filed the suit for specific
performance of agreement of sale dated 05-8-1995 and also for delivery
of possession of plaint schedule property.
4. In a nutshell, the averments in the plaint are as follows:
Defendants 1 to 3 are absolute owners of the plaint schedule
house property. Defendants 1 and 3 are parents of the 2 nd defendant
(son). Defendants 1 and 2 on behalf of their joint family borrowed
several amounts on several occasions through cheques and
a promissory note from the plaintiff for construction of plaint schedule
house with promises to repay those amounts with interest at the rate of
24% per annum. While so, on 05-8-1995 they expressed their inability
to repay the amounts due to the plaintiff and offered to sell away the
plaint schedule property to discharge all their debts, for which the
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as_272_2005 plaintiff accepted to purchase the said house for a valid consideration of Rs.4,50,000/-. The defendants also accepted for the same and they calculated the amounts due and arrived at a sum of Rs.2,27,000/- as on that date and adjusted the same as part of sale consideration and defendants also received a sum of Rs.1,50,000/- towards advance. Thus, the defendants received total sum of Rs.3,77,000/- out of total consideration of Rs.4,50,000/- and accordingly, the defendants 1 to 3 jointly executed an agreement of sale on 05-8-1995 in favour of the plaintiff agreeing to receive balance sale consideration of Rs.73,000/- within one year and it was further agreed that if the defendants fail to receive the balance sale consideration and commit breach of the above contract of sale, the plaintiff has to deposit the balance sale consideration into Court and get a sale deed through Court as per law and further, the defendants agreed to pay Rs.3,000/- towards rent to the plaintiff for use and occupation from the date of breach of said contract till the date of execution of sale deed and delivery of possession of the suit house. At the end of stipulated period of one year, when the plaintiff asked the defendants to receive the balance sale consideration and execute sale deed, the defendants requested another six months' time as they could not secure alternative accommodation and accordingly the plaintiff waited till the end of March, 1997 and from 01-4-1997, defendants 1 and 2 are not available in the house and somehow they were evading to meet the plaintiff. While so, 3 VGKR, J.
as_272_2005 on 17-4-1997 the plaintiff came to know that defendants 1 to 3 are planning to create some sham, nominal, spurious and antedated document in the name of 4th defendant, who is well aware of the agreement of sale dated 05-8-1995 and if at all any such document is already created, it is not valid and binding on the plaintiff. The plaintiff is always ready and willing to perform his part of contract and the defendants committed breach of contract of sale dated 05-8-1995 entered in respect of plaint schedule property. Hence, the suit for specific performance as prayed above.
5. The case of the 2nd defendant, in brief, is as follows:
It is stated that defendants 1 and 3 are his parents and the 4th defendant is the wife of his close friend. The so-called payments under cheques and promissory note, as referred in plaint, are totally denied and the part payment of Rs.1,50,000/- also denied. Further, it is stated that the 2nd defendant is absolute owner of the plaint schedule house property as his parents given that house because he is the only son and mutation also taken place in Government records in the year 1980 itself. The plaintiff himself taken their signatures in the sale agreement dated 05-8-1995 forcibly. The plaintiff is running several private chits and during those chit transactions, the plaintiff gave cheques, which are mentioned in the plaint. Similarly, the promissory note dated 20-10-1994 for Rs.75,000/- also taken as security from the defendants for chit amount of Rs.75,000/- and the 4 VGKR, J.
as_272_2005 said promissory note had been cancelled and endorsed by the plaintiff himself. It is further stated that before 10 days prior to the registration of sale deed to the 4th defendant, the plaintiff, one Bhaskar Reddy, Suresh and four other unknown persons came to his house and forcibly obtained signatures from his parents as well as himself on empty stamp papers with two empty dummy papers and that B Memos, revenue receipts and house tax receipts pertaining to the plaint schedule house were also taken away forcibly. There were some misunderstandings between the plaintiff and himself as such the plaintiff fabricated the sale agreement with ante-date though he is well aware of sale agreement dated 20-3-1997 executed by him in favour of the 4th defendant.
6. Defendants 1 and 3 adopted written statement of the 2nd defendant.
7. The case of 4th defendant, in brief, is as follows:
It is stated that she is bona fide purchaser of the plaint schedule house under a registered sale deed dated 20-3-1997 for valid consideration of Rs.4,77,000/- and she is in possession and enjoyment of the suit schedule property as absolute owner. Further, it is stated that after thorough enquiry only, she purchased the said property. The plaintiff never raised any objection either for purchase or with regard to possession. The present suit is filed at the instigation of defendants 1 and 3 and in collusion with the 2nd defendant as she refused to pay another Rs.50,000/-. There is no proper cause of action and the alleged 5 VGKR, J.
as_272_2005 cause of action mentioned is connected one. The suit is mala fide one to get wrongful gain. Finally, he prayed to dismiss the suit with costs.
8. Based on the above pleadings, the following issues are settled for trial by the trial Court:
(1) Whether the sale agreement dated 05-8-1995 is true, valid and supported by consideration ?
(2) Whether the plaintiff is entitled to the relief of specific performance of Agreement of sale from the 1st defendant to the 4th defendant ?
(3) Whether the plaintiff is entitled for possession of the same ? (4) Whether the 4th defendant is a bona fide purchaser for valid consideration and she is in possession and enjoyment of the same in pursuance of the sale ?
(5) Whether the plaintiff and others obtained the signatures of 1st defendant to 3rd defendant forcibly 10 days prior to filing of this suit on empty stamp papers and empty dummy papers and took possession of B memos etc., and created the sale agreement ?
(6) Whether the suit claim is barred by limitation ? and (7) To what relief ?
9. During the course of trial, on behalf of the plaintiff, P.Ws.1 to 4 are examined and marked Exs.A-1 to A-8. The 2nd defendant is examined as D.W.1 and 4th defendant is examined as D.W.4 and they got examined 4 more witnesses as D.Ws.2, 3, 5 and 6. On behalf of the defendants, Exs.B-1 to B-15 are marked.
10. After completion of trial and hearing arguments of both sides, the trial Court decreed the suit for specific performance of agreement of sale dated 05-8-1995 together with costs. The trial Court further held that the plaintiff shall deposit the balance sale consideration of 6 VGKR, J.
as_272_2005 Rs.73,000/- into Court within two months from the date of decree and on the money being deposited, defendants 1 to 4 shall execute the sale deed within one month from the date of deposit of money in favour of the plaintiff, failing which the plaintiff will be entitled to have the sale deed executed through Court. The plaintiff will also be put in possession of the plaint schedule house thereafter. If the plaintiff fails to deposit the amount within the time allowed, the suit will stand dismissed with costs to the defendants.
11. Aggrieved against the said judgment and decree, the 4th defendant filed the present appeal questioning the finding given by the trial Court with the following among other grounds:
(a) The trial Court failed to see that the plaintiff, at no point of time, had issued any notice for the performance of the terms of agreement, more so when the plaintiff is saying that substantial portion of sale consideration of Rs.3,77,000/- out of total sale consideration of Rs.4,50,000/- was paid even though 20 months' period had elapsed between the date of agreement and the filing of the suit;
(b) The trial Court is absolutely not correct in saying that time is not essence of contract when particularly time was fixed for execution of sale deed and interest clause was also inserted in the agreement dated 05-8-1995 and the suit was filed on 24-4-1997;
(c) The trial Court is not correct in saying that the 4th defendant failed to prove her possession in view of Exs.B-9 to B-13;
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as_272_2005
(d) The trial Court failed to see that Ex.A-1 is not valid since it was not registered in view of the amendment wherein even the agreements are made liable to be registered, more so when admittedly possession of suit schedule house was not given to the plaintiff; and
(e) The trial Court failed to see that the 4th defendant is purchaser of suit schedule house by virtue of Ex.B-8, which is protected by the provisions of Section 19 of the Specific Relief Act, 1963.
12. Heard Sri L.J. Veera Reddy, on behalf of counsel for the appellant and so also Ms. M.L. Neelima, on behalf of counsel for the 1st respondent.
13. I have carefully perused the pleadings, evidence, judgment of the trial Court and the grounds of appeal with utmost circumspection.
14. Sri L.J. Veera Reddy, learned counsel for the appellant, would contend that the 4th defendant is a bona fide purchaser and the trial Court failed to see the relationship of Exs.B-1 to B-7. He would further contend that the trial Court failed to see collusion between the plaintiff with defendants 1 to 3 and the trial Court came to wrong conclusion and decreed the suit.
15. Per contra, Ms. M.L. Neelima, on behalf of counsel for the 1strespondent, would contend that the trial Court, on appreciation of the entire evidence on record, rightly decreed the suit and there is no need to interfere with the finding given by the trial Judge and the appeal may be dismissed.
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as_272_2005
16. Having regard to the pleadings in the suit, findings recorded by the trial Court, in the light of rival contentions and submissions made on either side before this Court, the following points would arise for determination:
(1) Whether the trial Court is justified in holding that the plaintiff is entitled to the relief of specific performance of agreement of sale dated 05-8-1995 from defendants 1 to 4 and so also the appellant/4th defendant failed to prove that she is a bona fide purchaser ?
(2) Whether the judgment and decree passed by the trial Court need any interference ? and (3) To what extent ?
17. Point No.1:- Whether the trial Court is justified in holding that the plaintiff is entitled to the relief of specific performance of agreement of sale dated 05-8-1995 from defendants 1 to 4 and so also the appellant/4th defendant failed to prove that she is a bona fide purchaser ?
The trial Court passed a decree for specific performance against all the defendants i.e., the 1st to the 4th defendants. Admittedly, no appeal is filed by defendants 1 to 3 against the judgment and decree passed by the learned trial Judge. The appeal is filed by the unsuccessful 4th defendant alone. It is the contention of the plaintiff that defendants 1 to 3 are absolute owners of the plaint schedule property and defendants 1 and 3 are parents of the 2nd defendant and all the defendants together executed an agreement of sale dated 05-8-1995 in favour of the plaintiff by agreeing to sell the plaint 9 VGKR, J.
as_272_2005 schedule property. In fact, defendants 1 and 2 on behalf of their joint family borrowed several amounts on several occasions through cheques and a promissory note from the plaintiff for construction of plaint schedule house with promise to repay those amounts with interest at the rate of 24% per annum and while so, on 05-8-1995 the defendants expressed their inability to repay the amount due to the plaintiff and offered to sell away the plaint schedule property to discharge their debts. Further, the plaintiff accepted to purchase the said house for valid consideration of Rs.4,50,000/- and the defendants calculated the outstanding amounts due and arrived at a sum of Rs.2,27,000/- as on that day and adjusted the said total debt amount towards part of sale consideration and defendants also received a sum of Rs.1,50,000/- towards advance on the date of agreement of sale. Thus, in total, defendants 1 to 3 received a sum of Rs.3,77,000/- out of total consideration of Rs.4,50,000/-. The plaintiff further pleaded that to defeat the rights of the plaintiff, the 2nd defendant without any manner of right alienated the plaint schedule property to the 4th defendant, who is none other than close relative of mother of the 2nd defendant and the 4th defendant is not a bona fide purchaser.
18. The suit is based on Ex.A-1 agreement of sale said to have been executed by the 1st to 3rd defendants. The said agreement of sale is dated 05-8-1995. Here, it is relevant to say about the relationship of defendants 1 to 3. Defendants 1 and 3 are none other than parents of 10 VGKR, J.
as_272_2005 the 2nd defendant. The only relief sought by the plaintiff is to grant specific performance of agreement of sale dated 05-8-1995.
19. The legal position, in this regard is no more res integra. The law is well settled that grant of decree of specific performance is not automatic and it is a discretionary relief but not arbitrary. The discretion must be exercised in accordance with sound and reasonable judicial principles. As regards suit for specific performance, the law is very well clear that the plaintiff must plead and prove his readiness and willingness to perform his part of contract all through i.e. right from the date of contract till the date of institution of the suit.
20. The plaintiff to discharge his burden examined himself as P.W.1. It is in the evidence of P.W.1 that defendants 1 to 3 are absolute owners of the plaint schedule property, the 2nd defendant is none other than the son of defendants 1 and 2, and defendants 1 and 2 borrowed totally a sum of Rs.1,72,000/- on several occasions through cheques and a promissory note for construction of the plaint schedule house with a promise to repay the same with interest at 24% per annum and they could not repay those amounts and on 05-8-1995 they expressed their inability and offered to sell away their house to discharge all their debts. He further deposed in his evidence that he accepted to purchase the said house for a valid consideration of Rs.4,50,000/- and agreed to adjust the amounts due to him along with interest at the rate of 24% per annum i.e. a sum of Rs.2,27,000/- and paid a sum of Rs.1,50,000/-
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as_272_2005 on 05-8-1995. As per his evidence, defendants 1 to 3 executed an agreement of sale on the same day and it was also agreed to receive balance sale consideration of Rs.73,000/- within one year from the date of agreement of sale dated 05-8-1995 and if he failed to pay the said balance sale consideration, he has to pay interest at the rate of 24% per annum. The evidence of P.W.1 is consistent and cogent and well corroborated with the pleadings and so also recitals of Ex.A-1 agreement of sale.
21. It was pleaded by defendants 1 to 3 in the written statement that their signatures were obtained by the plaintiff forcibly, 10 days prior to the fling of the present suit on empty stamp papers and created a sale agreement. Though the plaintiff i.e. P.W.1 was cross-examined by the learned counsel for defendants in lengthy cross-examination, nothing was elicited from P.W.1 to discredit the testimony of P.W.1 and the evidence of P.W.1 is not at all disturbed on the material aspects of the case. Per contra, the learned counsel for defendants 1 to 3 gave a suggestion to P.W.1 that he entered into an agreement of sale for lesser price. The said suggestion is denied by P.W.1. As stated supra, the evidence of P.W.1 is quite consistent with the recitals of Ex.A-1.
22. In order to discharge his liability, the plaintiff examined the two attestors in Ex.A-1 as P.Ws.2 and 3 and the scribe of Ex.A-1 is examined as P.W.4. The evidence of P.Ws.2 to 4 is corroborated with the evidence of P.W.1. P.Ws.2 and 3 deposed in their evidence about 12 VGKR, J.
as_272_2005 the execution of Ex.A-1 agreement of sale by defendants 1 to 3 in favour of the plaintiff in respect of the plaint schedule property. As per their case, on 05-8-1995 defendants 1 to 3 entered into contract of the suit schedule property with the plaintiff. They have stated about the passing of consideration under Ex.A-1 towards part payment. As per the evidence of plaintiff, he has to pay the balance sale consideration of Rs.73,000/- within one year from the date of Ex.A-1 i.e. 05-8-1995. The material on record reveals that from out of total sale consideration of Rs.4,50,000/-, Rs.73,000/- has to be paid by the plaintiff within one year from the date of Ex.A-1. In cross-examination, nothing was elicited from P.Ws.2 and 3 to discredit the testimony of P.Ws.2 and 3. Moreover, P.Ws.2 and 3 are independent witnesses and they are not related to the plaintiff. The evidence of P.Ws.2 and 3 is trustworthy and there is no enmity in between the defendants and P.Ws.2 and 3 on one hand, no enmity was attributed to P.Ws.2 and 3 to depose falsehood against the defendants. Therefore, P.Ws.2 and 3 have no need or interest to depose falsehood against the defendants. Therefore, I do not find any reason to suspect the evidence of P.Ws.2 and 3.
23. The scribe of Ex.A-1 agreement of sale is examined as P.W.4. In his evidence, he stated that he is the scribe of Ex.A-1 and he read over the contents of Ex.A-1 agreement of sale to both the parties to Ex.A-1 and later, they signed in his presence and the execution of Ex.A-1 is true. It was simply suggested to P.W.4 that Ex.A-1 is created.
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as_272_2005 The said suggestion is denied by P.W.4. Moreover, P.W.4 is an independent witness and he is not related to the plaintiff. The evidence of P.W.4 is trustworthy and there is no enmity in between the defendants and P.W.4 on one hand, no enmity was attributed to P.W.4 to depose falsehood against the defendants.
24. In order to prove the evidence of defendants 1 to 3, the 2nd defendant is examined as D.W.1 before the trial Court. As stated supra, defendants 1 to 3 did not deny the execution of Ex.A-1 agreement of sale. Their specific plea is that their signatures were obtained by the plaintiff on Ex.A-1 under coercion by force. The 2nd defendant i.e. D.W.1 deposed in his evidence in cross-examination that the plaint schedule property is acquired by his father. Admittedly, the father of 2nd defendant i.e. the 1st defendant did not enter into the witness-box. The defence of defendants 1 to 3 in the written statement is that the plaintiff obtained the signatures of defendants 1 to 3 on Ex.A-1 under coercion by force. But, he categorically admitted in his evidence in cross-examination that on 05-8-1995, the plaintiff obtained their signatures on Ex.A-1 forcibly and they did not lodge any police complaint. He further admitted in his evidence in cross-examination itself that on the said date, along with the plaintiff one Bhaskar and Suresh, who are known to him, were also came and forced to sign and they beat him and they threatened their parents to kill if they did not sign on Ex.A-1 agreement of sale. There is no whisper in the written 14 VGKR, J.
as_272_2005 statement of defendants 1 to 3 that the plaintiff and his two followers Bhaskar and Suresh forced them to sign and they beat him and threatened his parents to kill if they did not sign on Ex.A-1. Admittedly, no police complaint is filed by the 2nd defendant against the plaintiff and so also the alleged Bhaskar and Suresh. It clearly goes to show that the 2nd defendant created a false theory during the course of trial at the stage of his evidence. Therefore, his evidence is not trustworthy. Moreover, there was a clear admission by the 2nd defendant during the course of cross-examination that all the payments shown in the plaint are correct. Admittedly, the said payments are reflected in Ex.A-1 agreement of sale. In such a case, I see no reason to disbelieve Ex.A-1 transaction. Moreover, the same is supported by the independent witnesses P.Ws.2 to 4.
25. To discharge his burden, the 2nd defendant examined his wife as D.W.3 before the trial Court. As per her own admissions, she was present at the time of making signature on Ex.A-1 by her husband and her father-in-law. The evidence of P.Ws.1 to 4 is consistent and cogent with regard to execution of Ex.A-1 agreement of sale. Their evidence clearly proves about Ex.A-1 transaction. On the other hand, to prove the defence of defendants 1 to 3, they did not adduce any evidence to show that their signatures are obtained on Ex.A-1 by force and coercion by the plaintiff. It was admitted by the 2nd defendant that his father acquired the plaint schedule property and it is his self-acquisition 15 VGKR, J.
as_272_2005 property. For the reasons best known to the defendants, even though the 1st defendant is alive, he did not enter into the witness-box.
26. For the foregoing reasons, Ex.A-1 agreement of sale is true and defendants 1 to 3 executed Ex.A-1 agreement of sale voluntarily without any coercion as alleged by the defendants. The decree was passed by the trial Court against all the defendants. In fact, no appeal is filed by defendants 1 to 3 to challenge the judgment and decree passed by the trial Court on 18-01-2005. The present appeal is filed by the 4th defendant alone.
27. The learned counsel for appellant/4th defendant argued that no notice is issued by the plaintiff to defendants 1 to 3 prior to institution of the suit demanding them that he is ready with balance sale consideration of Rs.73,000/- and that the case of the plaintiff is unbelievable and he placed reliance on a judgment of composite High Court of Andhra Pradesh at Hyderabad in Baddam Prathap Reddy v. Chennadi Jalapathi Reddy1, wherein at para-22 it was held as follows:
"22. A study of four decisions cited by the learned Counsel for the appellant namely, Abdul Khader Rowther v. P.K. Sara Bai MANU/SC/0006/1989 : 1989(43) ELT 797 (SC), Syed Dastagir (supra), Pushparani S. Sundaram (supra) and Manjunath Anandappa (supra), would show that if the requirement of sending a communication or notice demanding execution of sale deed is not complied with prior to filing of the suit, it would weaken the case of 1 2008 (5) ALT 192 16 VGKR, J.
as_272_2005 plaintiff for enforcing specific performance of contract in respect of immovable property. If a notice is issued by the plaintiff, it itself would
- to a large extent, might lead to an inference that the plaintiff was ready and willing to perform his part of the contract. Mere allegation that the plaintiff was ready and willing to perform his part of the contract would not be sufficient for enforcement of the contract."
28. But, in the case on hand, by the end of stipulated year of one year when the plaintiff asked the defendants to receive balance sale consideration of paltry amount of Rs.73,000/- and execute sale deed in terms of agreement of sale dated 05-8-1995, the defendants requested the plaintiff to wait for six months to execute a sale deed and deliver possession of the plaint schedule house, as they could not secure alternative accommodation and asked him to pay the balance sale consideration after six months without interest for the six months' period and also requested him to forego the rent for which they have to pay for the period of delay caused by them. As per the case of the plaintiff, he obliged the defendants and waited till the end of March, 1997 and later on 17-4-1997, he came to know that defendants 1 to 3 are planning to commit a breach of contract of agreement of sale and to deprive his rights over the plaint schedule property creating a nominal and sham document. The same is stated by the plaintiff in his evidence. There is no specific denial on the part of defendants. No suggestion was given to P.W.1 in cross-examination by the learned counsel for 17 VGKR, J.
as_272_2005 defendants that the above contention pleaded by the plaintiff is nothing but a false.
29. In the aforesaid decision, the composite High Court of Andhra Pradesh held at para-26 as follows:
"26. ... ... ... This Court also hastens to add that in appropriate case, subject to strictly proving such allegation, an oral demand can also be proper compliance with requirement of law, but this question has to be gone into in detail in appropriate case."
30. The law is well settled that plaintiff cannot be punished by refusing the relief of specific performance despite the fact that the execution of agreement of sale in his favour has been established and proved that he is also ready and willing to perform his part of contract. Not to grant a decree of specific performance despite execution of agreement of sale is proved and the plaintiff is always ready and willing to perform his part of the contract would encourage dishonesty.
31. For the foregoing reasons, Ex.A-1 agreement of sale is proved.
32. It is the case of the appellant i.e. the 4th defendant that she is a bona fide purchaser of the plaint schedule property and she purchased the plaint schedule property under Ex.B-8, dated 20-3-1997. To prove the said Ex.B-8, the attestors and scribe of Ex.B-8 are examined as D.Ws.3, 6 and 5 respectively. The recitals of Ex.B-8 go to show that no consideration was passed on the date of Ex.B-8. In Ex.B-8 sale deed, dated 20-3-1997, it was recited that the 2nd defendant sold the said property on 03-01-1997 for Rs.4,77,000/-
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as_272_2005 and the said property was delivered on 29-01-1997 prior to the sale deed. But, admittedly, the sale deed is dated 20-3-1997. Some back payments and some debts alleged to have been borrowed by the 2nd defendant are referred in Ex.B-8. But, the same are not at all proved. Moreover, the 2nd defendant, who executed Ex.B-8 sale deed, admits that the said property is self-acquired property of his father.
33. The so-called purchaser i.e. appellant/4th defendant is examined as D.W.4. It is the case of 4th defendant that the father of 2nd defendant executed a settlement deed in favour of the 2nd defendant. But, in cross-examination, she admits that she purchased the schedule property from the 2nd defendant and the said property is the self- acquired property of father of 2nd defendant and the 1st defendant is the father of 2nd defendant and she learnt that the 1st defendant settled the said property in favour of his son/2nd defendant. She further admits that the 2nd defendant handed over the said document to her at the time of her purchase. The above admissions of 4th defendant itself clearly go to show that the 2nd defendant is not having any valid title. Here, such settlement deed alleged to have been executed by the 1st defendant in favour of the 2nd defendant is not at all filed by the appellant. More so, the wife of 2nd defendant admits in cross-examination that the 4th defendant is their family friend, the 2nd defendant himself admitted in his evidence in cross-examination that his father did not execute any settlement deed in his favour. The wife of 1st defendant, who is none 19 VGKR, J.
as_272_2005 other than the mother of 3rd defendant, also admits in cross- examination that her husband did not execute any settlement deed in favour of the 2nd defendant. Therefore, the own admissions of defendants 2 and 3 clearly go to show that no settlement deed was executed by the 1st defendant in favour of the 2nd defendant. As per the case of 2nd defendant also, his father i.e. 1st defendant alone is the absolute owner of the plaint schedule property and it is his self-acquired property. The alleged sale deed Ex.B-8 is executed by the 2nd defendant alone. Therefore, it is undoubtedly clear that the 4th defendant/appellant did not get any valid title through Ex.B-8. Furthermore, the wife of 2nd defendant himself admits in cross- examination that the appellant is their family friend. Furthermore, the mother of 2nd defendant i.e. 3rd defendant herself admitted in her evidence that she informed D.W.4 that Ex.A-1 was obtained by force by the plaintiff. The 4th defendant stated in her chief-examination affidavit in para-7 itself that at the time of her purchase, the plaintiff also tried to purchase the plaint schedule property for lesser consideration.
34. The above circumstances clearly go to show that on knowing the Ex.A-1 agreement transaction, dated 05-8-1995, the 4th defendant obtained a sale deed dated 03-01-1997 under the original of Ex.B-8 from the 2nd defendant alone. As stated supra, the 2nd defendant is not having any valid title in the plaint schedule property. Therefore, the 20 VGKR, J.
as_272_2005 question of transferring the title and interest in the plaint schedule property by the 2nd defendant to the 4th defendant does not arise at all.
35. It is settled proposition that among two contradicted documents one which is earlier in the point of time has to be preferred, provided the transaction is a bona fide and beyond the pale of suspicion. In civil matters, the degree of proof that is required is measured on the touch-stone of preponderance of probabilities while weighing the probabilities, the Court would lean on the side where the preponderance of probabilities is more. Section 19(b) of the Specific Relief Act, 1963 lays down an exception to the ordinary rule that a person is bound to perform his obligation under a contract of sale and that agreement- holder has a priority in the matter of obtaining the title of the vendor. But, equity protects a subsequent purchaser even as against a prior agreement-holder, provided he establishes that he parted with the entire money innocently to the knowledge of the prior agreement. It follows, therefore, that unless he paid the entire money or its equivalent before he had any such notice, he will not entitle to the protection. Where out of the sale consideration, a party is payable in discharge of debt due to third party and the same remained unpaid, the subsequent purchaser cannot be said to be the person who has paid full money before he has notice of agreement of sale. As stated supra, some back payments and some debts alleged to have been borrowed by the 2nd defendant are referred in Ex.B-8 sale deed. More so, 21 VGKR, J.
as_272_2005 no consideration is passed under Ex.B-8 from the 4th defendant to the 2nd defendant on the date of sale deed. The wife of 2nd defendant i.e. D.W.3 admits that the 4th defendant is their family friend. As stated supra, the 2nd defendant is not having valid right and title in the plaint schedule property. On knowing the same, the appellant herein obtained the sale deed from the 2nd defendant alone. The above circumstances, as explained by me, clearly go to show that the appellant herein is having knowledge of Ex.A-1 agreement of sale prior to obtaining Ex.B-8 sale deed from the 2nd defendant.
36. The law is settled that it is a trite to say that a person is bound to perform his obligation under a contract of sale and agreement-holder has a priority in the matter of obtaining title of the vendor, but the respective agreement-holders are required to establish the genuineness of agreements. If at all both the documents are found to be valid and genuine, the earliest document has to be preferred. Here, in the case on hand, the earliest document is Ex.A-1 agreement of sale dated 05-8-1995. Admittedly, from out of total sale consideration of Rs.4,50,000/-, a paltry amount of Rs.73,000/- has to be paid by the plaintiff and the said agreement of sale is obtained by the plaintiff from defendants 1 to 3. The 2nd defendant is none other than the son of defendants 1 and 3. As stated supra, the 1st defendant is having valid right and title in the plaint schedule property, the same is not disputed by the appellant/4th defendant. As stated supra, on knowing Ex.A-1 22 VGKR, J.
as_272_2005 agreement of sale, the appellant/4th defendant obtained a sale deed on 03-01-1997 from the 2nd defendant alone, who is not having any valid title in the plaint schedule property. More so, the 4th defendant is not an unknown person to defendants 1 to 3. As per the own admissions of the wife of 2nd defendant, the appellant herein is their family friend. In such a case, undoubtedly, the 4th defendant/appellant is not a bona fide purchaser.
37. As stated supra, in the present case, Ex.A-1 agreement of sale is dated 05-8-1995, which is obtained from defendants 1 to 3 by the plaintiff and 85% of total consideration was paid to defendants 1 to 3 by the plaintiff. As per the own case of 2nd defendant, his father 1st defendant is the original owner. The same is also not disputed by the appellant herein. As stated supra, the appellant pleaded that the 1st defendant executed a settlement deed in favour of the 2nd defendant, but the 2nd defendant clearly admits that there is no such settlement deed executed by his father. The 3rd defendant i.e. mother of 2nd defendant, also admitted that herself and her husband/ 1st defendant did not execute any settlement deed in favour of the 2nd defendant. Therefore, undoubtedly, the 4th defendant cannot get any valid title. Since the 2nd defendant is not having valid title to the plaint schedule property, no valid title is transferred to the appellant under Ex.B-8. More so, the appellant is having clear knowledge of Ex.A-1 transaction, by the date of alleged Ex.B-8 sale transaction.
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as_272_2005 On knowing Ex.A-1 transaction, he obtained Ex.B-8 subsequent to two years from the date of Ex.A-1 transaction. Therefore, the finding of the trial Court that the 4th defendant is not a bona fide purchaser and that the 4th defendant has to execute a registered sale deed along with defendants 1 to 3 in favour of the plaintiff after receipt of balance sale consideration of Rs.73,000/- is sustainable under law and it requires no interference. Accordingly, this point is answered against the appellant.
38. Point No.2:- Whether the judgment and decree passed by the trial Court need any interference ?
In view of my finding on point No.1, there is no illegality in the judgment and decree passed by the trial Court and the judgment and decree passed by the trial Court is perfectly sustainable under law and it requires no interference.
39. Point No.3:- To what extent ?
Resultantly, the appeal is dismissed confirming the judgment and decree dated 18-01-2005 in O.S.No.139 of 1997 passed by the Principal Senior Civil Judge, Tirupati, Chittoor District. Pending applications, if any, shall stand closed. No costs.
_____________________________ V. GOPALA KRISHNA RAO, J.
06th December, 2023.
Ak 24 VGKR, J.
as_272_2005 HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO Appeal Suit No.272 of 2005 06th December, 2023.
(Ak)