Telangana High Court
A Vijay Raj Soni vs Bedley Sujay Kumar on 23 August, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CITY CIVIL COURT APPEAL Nos.41 & 131 OF 2014
COMMON JUDGMENT:
Heard Sri Vedula Srinivas, learned senior counsel appearing for Sri Wasim Ahmed Khan, learned counsel on record for the appellant in both the Appeals; Sri D.Prakash Reddy, learned senior counsel appearing for Sri D.Madhava Rao, learned counsel on record for respondent Nos.2 and 3 in CCCA.No.41 of 2014 and respondent Nos.1 and 2 in CCCA No.131 of 2014; and Sri V.Hariharan, learned counsel for respondent No.4 in CCCA No.41 of 2014 and respondent No.4 in CCCA No.131 of 2014.
2. The suits-O.S.Nos.50 and 67 of 2002 were heard together and by common judgment, dated 11.02.2014, the trial Court partly decreed the suit in O.S.No.50 of 2002 and dismissed the suit in O.S.No.67 of 2002. Against the judgment in O.S.No.50 of 2002, CCCA.No.131 of 2014 is filed by the 2nd defendant therein. Against the judgment in O.S.No.67 of 2002, CCCA.No.41 of 2014 is filed by the plaintiff therein.
LNA,J CCCA Nos.41 & 131 of 2014 2
3. As the dispute relates to the same property, these two Appeals are clubbed, heard together and are disposed of by common judgment.
CCCA No.41 of 2014:
4. The appellant herein is the plaintiff and the respondents herein are the defendants in O.S.No.67 of 2002 filed for specific performance of agreement of sale, dated 17.04.2000, by directing defendant No.1 to execute registered sale deed in his favour in respect of the property bearing No.10-2-292 in Plot No.179 (Part-B), admeasuring 300 square yards, situated at West Marredpally, Secunderabad (hereinafter referred to as 'the suit schedule property') or in alternative, to direct the defendants to return the entire sale consideration of Rs.21,03,500/- along with damages and interest from the date of agreement of sale till the date of realization and to grant perpetual injunction restraining the defendants and their men from interfering with plaintiff's peaceful possession or dispossessing the plaintiff from the schedule property.
5. It was averred that the plaintiff entered into agreement of sale dated 17.04.2000 with defendant No.1 to purchase the suit schedule property for a total sale consideration of LNA,J CCCA Nos.41 & 131 of 2014 3 Rs.21,00,000/- and by the date of agreement, he paid an amount of Rs.4,25,000/- as advance and agreed to pay the balance amount of Rs.16,75,000/- at the time of registration. It was averred that by the date of agreement of sale, the plaintiff was already in possession of the schedule property by running business in the name and style of 'Raj Engineers and Raj marketing' in partnership with his friend and that the plaintiff paid a total sum of Rs.21,03,500/- to defendant No.1 on various occasions under receipts and the same were endorsed by defendant No.1 himself and even on the overleaf of the original agreement of sale on 28.07.2001. It was further averred that the said transactions were in the knowledge of defendant No.2. Defendant No.2 is the wife and defendant No.3 is the son of defendant No.1.
6. It was averred that though the plaintiff has paid more than the agreed sale consideration and performed his part of contract, defendant No.1 was deliberately avoiding and delaying the execution of registered sale deed in his favour in spite of repeated requests and demands on the pretext that he has borrowed amount from Andhra Bank and that original documents are lying with the Bank and he will execute the registered sale deed after getting the documents from the Bank.
LNA,J CCCA Nos.41 & 131 of 2014 4
7. It was further averred that all of a sudden, on behalf of defendant No.3, defendant No.2, in collusion with defendant No.1, gave a paper publication in Deccan Chronicle English Daily newspaper on 29.04.2002, by falsely contending that defendant No.3 has got a share in the suit schedule property as the said property is an ancestral property; that the plaintiff got issued reply notice to the claim of defendant No.3 contending that the schedule property is the absolute property of defendant No.1 and that defendant No.1 and his mother, by name Bededy Leela Bai, were the joint owners of 600 square yards of property and that they have partitioned the same on 21.05.2001 through registered partition deed bearing document No.1009/ 2001, as per which, the suit schedule property absolutely fell to the share of defendant No.1; that earlier, defendant No.1 and his mother obtained registered conveyance deed dated 01.08.1997 executed by the Government in their favour converting the leasehold rights into freehold rights; that there is also a document of Memorandum of Past Partition Deed, dated 20.11.1971, under which, defendant No.1 was shown as owner of the suit schedule property; and that contrary to these documents, defendant Nos.2 and 3 cannot contend that the schedule LNA,J CCCA Nos.41 & 131 of 2014 5 property is an ancestral property and that defendant No.3 has got a share in it.
8. It was averred that on coming to know the criminal intention and collusion between defendants Nos.1 to 3 and the fraud played by them, plaintiff issued a legal notice dated 06.05.2002 calling upon defendant No.1 to execute registered sale deed, but he gave a vague reply dated 22.05.2002 stating that he is not in a position to recollect the agreement of sale, dated 17.04.2000, and asked the plaintiff to send a copy of the same and further stated that he is not interested to execute the registered sale deed in favour of plaintiff. Thus, defendant No.1, with ulterior motive and mala fide intention, cheated the plaintiff and thereby, committed the criminal acts.
9. It was averred that since the plaintiff is in physical possession of the schedule property and the defendants are trying to interfere with his peaceful possession, plaintiff filed a complaint before the West Marredpally Police Station, Secunderabad, on 09.05.2002; that plaintiff has made out a prima facie case and has not committed any default and there are no latches on his part in performing his part of contract. Hence, the suit for specific performance of the aforesaid agreement of sale.
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10. Defendant No.1 remained ex parte.
11. Defendant Nos.2 and 3 filed written statement denying the averments made in the plaint. However, they admitted that plaintiff was in possession of schedule property, which stands in the name of defendant No.1. They denied about execution of agreement of sale dated 17.04.2000 and receiving of advance sale consideration of Rs.4,25,000/- and the balance sale consideration from the plaintiff. Defendant No.2 specifically denied of any knowledge or notice about the alleged agreement of sale or the receipts allegedly passed by defendant No.1 to plaintiff.
12. It was contended that defendant No.1 is a mentally affected person and he was never looking after the affairs of the property and was incapable of doing so; that defendant No.1 was not enabled to negotiate or make any sale and there was no personal, family or legal necessity for such alleged sale; and that plaintiff seems to have taken advantage of the situation of defendant No.1 and got fabricated the agreement of sale and the receipts.
13. It was contended that the suit schedule property is an ancestral property and that defendant No.3 and B.Sanmitha, LNA,J CCCA Nos.41 & 131 of 2014 7 who are the son and daughter of defendant Nos.1 and 2, respectively, filed a suit for partition in O.S.No.50 of 2002 and therefore, defendant No.1, who is mentally unsound and addicted to alcohol and undergoing medical treatment, has no right to deal with the suit schedule property; that in view of partition suit, plaintiff is not entitled to seek the relief of specific performance based on fraudulent agreement of sale. It was further contended that a portion of the schedule property was leased to one Smt. Vijaya, who is running a firm by name 'Raj Engineering' and hence, the possession was not delivered to the plaintiff at any point of time and finally, defendant nos.1 to 3 prayed to dismiss the suit-O.S.No.67 of 2002. CCCA.No.131 of 2014:
14. Appellant herein is defendant No.2, respondent Nos.1 and 2 herein are the plaintiffs, respondent no.3 herein is defendant no.1 in O.S.No.50 of 2002. Respondent No.4 herein is the wife respondent no.3 herein. Plaintiffs filed the suit-O.S.No.50 of 2002 for preliminary decree in their favour and against the defendants for partition of the suit schedule property as the plaintiffs are entitled to 2/3rd share and separate possession of the plaint schedule property and to restrain defendant No.1 LNA,J CCCA Nos.41 & 131 of 2014 8 from alienating the suit schedule property in favour of defendant No.2 or any person or authority.
15. Brief facts of the case, as narrated in the plaint filed in O.S.No.50 of 2002, are that plaintiff Nos.1 and 2 are the son and daughter of defendant No.1, respectively; that originally, the suit schedule property belongs to B.Jagadishwaraiah, grandfather of defendant No.1, who died on 08.05.1973; that after demise of the said B.Jagadishwaraiah, the properties were partitioned by virtue of Memorandum of Partition, dated 20.11.1974, among the family members; that the properties bearing H.Nos.10-2-291 and 10-2-292 in Plot No.179, admeasuring 600 square yards, situated at West Marredpally, Secunderabad, were partitioned equally between defendant No.1 and his mother-Leela Bai, W/o B.Chandramouli, by virtue of partition deed, vide document No.1009/2001, dated 21.05.2001; thus, defendant No.1 inherited the property bearing No.10-2-292, Plot No.179, Part-B, admeasuring 294 square yards by virtue of the said partition deed and therefore, the suit schedule property being an ancestral property of the plaintiffs, they have right in the same.
16. It was averred that defendant No.1 had been addicted to alcohol and was also mentally depressed since nearly five years;
LNA,J CCCA Nos.41 & 131 of 2014 9 that defendant No.2, being a friend of defendant No.1, taking undue advantage of his mental condition, obtained the signature of defendant No.1 on several stamp papers and receipts and the same was converted into agreement of sale; that on 25.04.2002, defendant No.2 threatened defendant No.1 and plaintiffs that he will forcibly take possession of the schedule property; that the plaintiffs caused a public notice on 29.04.2002 in 'Deccan Chronicle' English Daily newspaper stating that defendant No.1 is trying to alienate the suit schedule property to defendant No.2 without the consent and knowledge of the plaintiffs and without any right; that defendant No.2 has given reply notice on 03.05.2002 through his counsel in 'Deccan Chronicle' English Daily newspaper claiming himself to be an agreement holder with defendant No.1 in respect of the schedule property; that plaintiffs again got issued publication on 08.05.2002 by way of reply, to the reply notice in Deccan Chronicle, claiming 2/3rd share in the schedule property; and that defendant No.2 issued a legal notice to defendant No.1 on 06.05.2002 and also filed a Caveat against the plaintiffs and defendant No.1 on 10.05.2002.
17. It was averred that defendant No.1 being a drug addict, neglected to look after his wife and children i.e. plaintiff Nos.1 LNA,J CCCA Nos.41 & 131 of 2014 10 and 2; that defendant No.2, trying to deprive the legitimate share of the plaintiffs, hatched a plan to knock away the schedule property taking undue advantage of the mental depression of defendant No.1; that defendant No.1 has no manner of right to alienate any part or portion of schedule property exclusively, to the detriment of plaintiffs' interest as he is not the exclusive owner of the suit schedule property; and that the alleged agreement of sale set up by defendant No.2 is unlawful, illegal and not binding on plaintiffs. The allegations that defendant No.2 has paid defendant No.1 certain amount as sale consideration is incorrect; that there was neither any family necessity nor personal need for defendant No.1 or his family members to sell the schedule property; that in order to protect the plaintiffs from the vagaries of defendant No.1's activities, temporarily the plaintiffs had been staying with their maternal grandparents and that in spite of the same, defendant No.2 is bent upon going ahead with his nefarious plans and threatening plaintiffs in this regard. Hence, the aforesaid suit-O.S.No.50 of 2002 for partition of the suit schedule property.
18. Defendant No.1 remained ex parte.
19. Defendant No.2 filed written statement denying the averments in the plaint and contended that the plaintiffs and LNA,J CCCA Nos.41 & 131 of 2014 11 defendant No.l have filed the collusive suit with a mala fide intention in order to cause undue loss to him; that defendant No.2 was the tenant of defendant No.1 in respect of the schedule property from the last 12 years till the execution of agreement of sale; that defendant No.1 is the absolute owner and possessor of the suit schedule property by virtue of registered Partition Deed bearing document No.1009/2001, dated 21.05.2001; that, in fact, earlier to obtaining the suit schedule property under the partition, defendant No.1 and his mother obtained Registered Conveyance Deed, dated 01.08.1997, executed by the Government in their favour in respect of the land admeasuring 600 square yards, converting the leasehold rights into freehold rights; that there is also a document of Memorandum of Past Partition Deed, dated 20.11.1971, under which, defendant No.1 was shown as owner of the suit schedule property; and that in view of documentary evidence, defendant no.1 is the absolute owner of the suit schedule property under registered document and therefore, it is not proper on the part of the plaintiffs to contend that the suit schedule property is an ancestral property and that the plaintiffs have got share in it. The contention that the property LNA,J CCCA Nos.41 & 131 of 2014 12 originally belongs to B.Jagadeshwaraiah, the grandfather of defendant No.1, is not known to defendant No.2.
20. It was contended that under the registered Partition Deed, dated 21.05.2001, defendant No.1 and his mother-Bededy Leela Bai equally partitioned the entire 600 square yards of land and defendant No.1 obtained the suit schedule property to his share. Therefore, in view of the above allotment of specific share, defendant No.1 became the absolute owner of the suit schedule property and as such, the said property loses its significance as the ancestral property. Therefore, plaintiffs do not have any right or share in the suit schedule property.
21. It was further averred that the plaintiffs are not at all entitled to any share, much less 2/3rd share in the suit schedule property. The allegation that plaintiffs have leased out the suit schedule property to one Mrs. Vijaya, Proprietor of Raj Engineering, is not correct, and in fact, defendant No.2 is in possession of suit schedule property by running the business in the name of 'Raj Engineering and Raj Marketing' in partnership with his friend. In any case, after execution of the agreement of sale in favour of defendant No.2 on 17.04.2000, the relationship of landlord and tenant ceased to exist.
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22. It was further averred that defendant No.1, for want of money and to meet other legal necessities, has requested defendant No.2 to purchase the suit schedule property for a total sale consideration of Rs.21,00,000/- and to that effect, an agreement of sale was executed on 17.04.2000 and by the date of above agreement of sale, defendant No.1 received an amount of Rs.4,25,000/- towards advance sale consideration; that the balance sale consideration of Rs.16,75,000/- was agreed to be paid at the time of registration and defendant No.1 was supposed to obtain necessary and requisite permission/ sanction and also the Certificates under the Income Tax Act, Municipal Act and other enacted laws before execution of the registered sale deed.
23. It was averred that defendant No.2 paid more than the entire sale consideration and performed his part of contract, but defendant No.1 was deliberately avoiding to execute the registered sale deed in his favour, in spite of repeated requests and demands; that defendant No.1 and his wife, who have jointly received more than Rs.21,00,000/- from defendant No.2, are guilty of committing acts of cheating and breach of promise, etc; that the plaintiffs' mother, who is the wife of defendant No.1, has also counter signed several receipts to show that she LNA,J CCCA Nos.41 & 131 of 2014 14 has taken active part in collecting the balance sale consideration.
24. It was averred that defendant No.1 alone has lawful rights over the suit schedule property and as such, he has legally and rightfully executed the agreement of sale in favour of defendant No.2 and on such, defendant No.2 is the lawful and bona fide purchaser of the suit schedule property and in performance of his part of contract, he paid the entire sale consideration.
25. It was further averred that defendant No.2 filed O.S.No.67/2002 for specific performance of agreement of sale dated 17.04.2000 and that the plaintiffs are not entitled to equitable relief of injunction; that the suit-O.S.No.50 of 2002 is filed in collusion with each other suppressing the execution of the agreement of sale and collecting more than the sale consideration.
26. Basing on the above pleadings of the parties in both the suits, the trial Court framed the following issues for trial:
O.S.No.50 of 2002:
1) Whether the plaintiffs are entitled for the relief of partition of the suit schedule property and allotment of 2/3rd share in it to them?
LNA,J CCCA Nos.41 & 131 of 2014 15
2) Whether the plaintiffs are entitled for the permanent injunction prayed for?
3) To what relief?
O.S.No.67/2002:
1) Whether the suit agreement of sale, dated 17.04.2000 is true, valid and binding on the defendants ?
2) Whether the plaintiff is entitled for specific performance of the suit agreement of sale OR the alternative relief of refund of any sale consideration ?
3) Whether the plaintiff is entitled for perpetual injunction prayed for?
4) To what relief?
27. In O.S.No.50 of 2002, on behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A1 to A12 were marked.
28. In O.S.No.67 of 2002, the plaintiff got himself examined as P.W.1 and got marked Exs.A1 to A63, subsequently, as per orders dated 27.02.2012, P.W.1 in OS.No.67 of 2002 is treated as DW.1 and Exs.A1 to A63 are treated as Exs.B1 to B63 in O.S.No.50 of 2002.
29. On issue No.1 in O.S.No.50 of 2002, the trial Court observed that one B.Jagadishwaraiah was the owner of the entire properties bearing Nos.10-2-291 and 10-2-292 in Plot No.179 admeasuring 600 square yards situated at West Marredpally, Secunderabad, and after his demise; the properties LNA,J CCCA Nos.41 & 131 of 2014 16 were partitioned by virtue of memorandum of partition dated 20.11.1974 among the family members. The Government has executed the conveyance deed on 01.11.1997 converting the leasehold rights into freehold rights in favour of Sujay Kumar and his mother and thus, they became joint owners of the property admeasuring 600 square yards. Subsequently, Sujay Kumar and his mother-Leela Bai entered into partition deed dated 21.05.2001 vide registered document bearing No.1009/2001 (marked as Ex.A1 in O.S.No.50 of 2002), by which the house properties i.e., H.Nos.10-2-291 and 10-2-202 in Plot No.179, admeasuring 600 square yards, were partitioned equally between them.
30. The trial court held that it is not at all safe to keep the house property in the name of defendant No.1 as the manager as he was addicted to alcohol and opium substances and it will not serve the welfare of his two minor children. Thus, the trial Court held that the plaintiffs have established their case for partition of the suit property covered in O.S.No.50 of 2002 and accordingly, issue No.1 was answered in favour of the plaintiffs and against the defendants.
31. On Issue No.1 in OS No.67 of 2002, the trial Court observed that it can be safely concluded that the property LNA,J CCCA Nos.41 & 131 of 2014 17 covered by sale agreement dated 17.04.2000 is the ancestral property of B.Sujay Kumar, in which himself as well as plaintiffs in OS.No.50 of 2002 are entitled for their respective shares in the event of said property partitioned; and that both the minor children of Sujay Kumar are not parties to the agreement of sale dated 17.04.2000. The trial Court, taking into consideration the entire oral and documentary evidence and the nature and genesis of the suit schedule property, held that the suit schedule property is the ancestral property and hence, Sujay Kumar is not the absolute owner of the suit schedule property as on the date of agreement of sale. Thus, Sujay Kumar has no right to execute the sale agreement dated 17.04.2000 in favour of any third parties, much less, Vijay Raj Soni and therefore, the agreement of sale dated 17.04.2000 is unenforceable in the eye of law and not valid and binding on the defendants in O.S.No.67 of 2002. Thus, the issue was answered accordingly against the plaintiff in OS.No.67 of 2002.
32. On issue No.2 in O.S.No.67 of 2002, the trial Court recorded that according to Vijay Raj Soni, he purchased the suit property for total sale consideration of Rs.21,00,000/- from Sujay Kumar, and he paid more than the sale consideration; and that he purchased the said property in easy instalments by LNA,J CCCA Nos.41 & 131 of 2014 18 giving small amounts to Sujay Kumar. In the cross-examination of Vijay Raj Soni as DW.1, he admitted that he has not given any paper publication calling for objections, if any, before entering into agreement of sale, dated 17.04.2000.
33. The trial Court observed that taking advantage of Sujay Kumar's vices like addiction to alcohol, etc., Vijay Raj Soni got obtained sale agreement dated 17.04.2000 by giving some small amounts to Sujay Kumar in instalments now and then, may be, to meet the expenses of his vices; and the acts of Vijay Raj Soni in obtaining sale agreement in respect of the ancestral property of Sujay Kumar, in which his two minor children are also having rights, go to show that Vijay Raj Soni has not approached the Court with clean hands; that apart, he had not taken steps to implead the minor children of Sujay Kumar in the suit- O.S.No.67 of 2002 filed by him for specific performance, though the said objection was taken by the other side who filed the suit in O.S.No.50 of 2002 for partition. By observing thus, the trial Court held that the suit-O.S.No.67 of 2002 is bad for non- joinder of necessary parties.
34. The trial Court further observed that admittedly, Vijay Raj Soni is a tenant in respect of the suit schedule property, which is the ancestral property of Sujay Kumar and his family; that LNA,J CCCA Nos.41 & 131 of 2014 19 Vijay Raj Soni used to advance amounts to Sujay Kumar now and then. The other contention raised by Vijay Raj Soni was that some of the payments alleged to have been made by him were through cheques got issued by his wife, but she was not examined as a witness to substantiate the due payments covered by those cheques, the receipts covered by document Nos.4 to 7, which were marked on behalf of Vijay Rai Soni; that on some receipts, dated 08.02.2002 and 02.02.2002, which appeared to have been received by Smt. Sashikala Soni, W/o Vijay Raj Soni, the signatures of Smt. B.Sushmitha, W/o Sujay Kumar, were affixed and the said B.Sushmitha, who was examined as guardian of minor children of Sujay Kumar, has not disputed her signatures on those receipts and that she agreed to refund the sale consideration subject to proof and relevancy.
35. By observing thus, trial Court held that it is just and reasonable on the part of B.Sushmitha to refund the entire amounts to Vijay Raj Soni. Accordingly, considering the said evidence of Sushmitha and other documents placed on record, the trial Court directed the defendants in O.S.No.67 of 2002 to refund the amount of Rs.21,03,500/- to the plaintiff therein LNA,J CCCA Nos.41 & 131 of 2014 20 within a period of three months from the date of the order and accordingly, the issue was answered.
36. On Issue No.2 in O.S.No.50/2002 and Issue No.3 in O.S.No.67 of 2002, the trial Court observed that the suit schedule property was originally acquired by the grandfather of Sujay Kumar by name Jagadishwaraiah and after his death, the said property was partitioned among B.Sujay Kumar and his mother-Leela Bai vide partition deed dated 21.05.2001, which is marked as Ex.A1 in OS.No.50 of 2002 and the said property continued to be the joint family property of B.Sujay Kumar for himself and on behalf of his minor children. Therefore, Sujay Kumar has no absolute right to enter into agreement of sale with Vijay Raj Soni to alienate the suit schedule property at the cost of the rights, interest and welfare of his minor children, particularly, when Sujay Kumar was said to be addicted to vices like liquor, drugs, etc. That in case of alienation, permission from the competent Court of law has to be obtained by the Head of the family to dispose of the property of the minors to third parties, however, no such attempt was made in the present case. Therefore, the alleged agreement of sale between Vijay Raj Soni and Sujay Kumar cannot have the necessary legal sanction and thus, Vijay Raj Soni is not entitled to the relief of specific LNA,J CCCA Nos.41 & 131 of 2014 21 performance and also for injunction. Since, Vijay Raj Soni is said to be a tenant in occupation of the suit schedule property, injunction cannot be granted in favour of plaintiffs in OS.No.50 of 2002. Therefore, the relief of permanent injunction sought in both the suits cannot be granted to either of the parties and accordingly, these issues are answered.
37. In view of the above findings on issues in O.S.No.50 of 2002, the trial Court partly allowed the suit, granting a preliminary decree partitioning the suit schedule property into three equal shares and by allotting 2/3rd share to the plaintiffs and also separate possession of the same to them.
38. In view of the above findings on issues in O.S.No.67 of 2002, the trial Court dismissed the suit. However, the trial Court observed that the plaintiff is entitled for refund of the amount of Rs.21,03,500/- from the defendants within three months from the date of the order, failing which, he is at liberty to recover the same with subsequent interest @ 6% per annum from the date of default till realization.
39. Challenging the impugned common judgment, Vijay Raj Soni preferred the aforesaid two Appeals raising the grounds mentioned in the memorandum of grounds of Appeals.
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40. During the course of hearing of both the Appeals, learned senior counsel for the appellant submitted as under:
(i) That the trial Court has erred is dismissing the suit of the appellant i.e., O.S.No.67 of 2002, for specific performance, even though the appellant has made out a prima facie case and discharged the burden upon him and also established that he was always ready and willing to perform his part of contract.
(ii) That the trial Court also erred in allowing the suit filed by the respondents for partition of the suit schedule property even though the respondents did not make out a prima facie case nor discharged the burden upon them.
(iii) That the trial Court has failed to see that suit schedule property is not the ancestral property, but it is self acquired property of Sujay Kumar in view of the registered Partition Deed dated 21.05.2001; that if really, the suit schedule property belonged to the grandfather of Sujay Kumar, by name B.Jagadishwaraiah and he died intestate, the same would naturally devolve upon his son and wife, since it was his self acquired property; that because it was the self acquired property of B.Jagadishwaraiah, it was accordingly divided between his daughter and grandson-Sujay Kumar under LNA,J CCCA Nos.41 & 131 of 2014 23 registered partition deed dated 21.05.2001 and earlier to that, both of them also obtained Registered Conveyance Deed dated 01.08.1997 from the Estate Officer, Secunderabad, after converting the Leasehold Rights into freehold rights, besides entering into separate Memorandum of Partition.
(iv) That if really the suit schedule property was the ancestral property of Sujay Kumar, then his wife and children would have laid claim even in respect of 300 square yards which Leela Bai, daughter of late B.Jagadishwaraiah, received under registered partition deed dated 21.05.2001, but admittedly, the children of Sujay Kumar did not ask for partition of their grandmother's share, who already constructed a building on it and sold it to third parties. Hence, the present claim of the minor children of Sujay Kumar was speculative and collusive one; that if really Sujay Kumar was a drug addict and abnormal person, his mother would not have partitioned the 600 square yards of property between herself and her son under Registered Partition Deed dated 21.05.2001 and that itself shows that B.Sujay Kumar was a normal person.
(v) That the trial Court failed to see that whoever lays claim on the basis of joint family property, the burden of proof lies upon him/her to establish under what joint family business, the LNA,J CCCA Nos.41 & 131 of 2014 24 said joint family property was purchased or about the nucleus, but, in the present case, the said burden was not discharged.
(vi) That the trial Court failed to see that when Sujay Kumar and his mother have obtained conveyance deed from the Government in their joint names and when they partitioned the suit schedule property between them under registered partition deed, the legal presumption would be that it is the self acquired property of Sujay Kumar and not his ancestral property. Hence, the question of treating the suit schedule property as co- parcenary property does not arise.
(vii) That the trial Court erred in relying upon some admissions of PW.1 in the cross examination, wherein it is stated that 600 square yards was the ancestral property of B.Sujay Kumar, when, in fact, it is a settled law that the plaintiff has to succeed on the basis of his own pleadings and documents, and not on the admissions of the other side, since the burden to prove that the property is a joint family property or ancestral property lies on the plaintiff.
(viii) That Sujay Kumar in collusion with his wife and son deliberately remained ex parte in the suit filed for specific performance and only wife and son of Sujay Kumar contested LNA,J CCCA Nos.41 & 131 of 2014 25 the case in order to defeat the agreement of sale and the rights of Vijay Raj Soni; that Sujay Kumar was hale and healthy and was not addicted to vices, as falsely projected by his wife and son, and even assuming, without admitting, Sujay Kumar was addicted to some bad vices, it will not disentitle him from entering into agreements; that before filing the suit, Vijay Raj Soni had got issued legal notice dated 06.05.2002 under Ex.B35 to Sujay Kumar and after receiving the same, Sujay Kumar got issued a reply notice dated 22.05.2005 through a lawyer under Ex.B38 asking Vijay Raj Soni to send a copy of agreement of sale and thereafter, he has also filed a Caveat; that if really, Sujay Kumar was unfit and unstable, as projected by his wife and son, how could he approach a lawyer and instruct him to issue reply notice.
(ix) That the appellant has already paid the entire sale consideration to Sujay Kumar, which was collected by him from time to time and the same was acknowledged by endorsing and signing on the overleaf of the original agreement of sale (Ex.B2); that even the wife of Sujay Kumar also passed some receipts while receiving the balance sale consideration and in spite of the same, she stated that her husband has no right to execute the agreement and that she is unaware about it.
LNA,J CCCA Nos.41 & 131 of 2014 26
(x) That filing of O.S.No.50 of 2002 for partition and claiming 2/3rd share in the suit schedule property was done in collusion with Sujay Kumar to avoid sale of the suit schedule property to Vijay Raj Soni and despite receiving the entire sale consideration, Sujay Kumar was not interested to execute the registered sale deed in favour of Vijay Raj Soni.
(xi) That Vijay Raj Soni has paid a total sale consideration of Rs.21,03,500/- and that by the date of the agreement of sale, he has already paid an amount of Rs.4,25,000/- to Sujay Kumar i.e., on 25.09.1999 he paid Rs.1,00,000/-; on 13.11.1999 he paid Rs. 2,00,000/-; on 04.03.2000 he paid Rs.60,000/-; and on the date of the agreement he paid Rs.65,000/-. That Sujay Kumar was regularly collecting the balance sale consideration in pursuance of the above agreement of sale in instalments from time to time and passing the receipts and that at one time, he collected Rs.5,00,000/- through cheque; that, in all, Sujay Kumar collected Rs.21,03,500/- under various receipts; that despite paying more than the agreed sale consideration, Sujay Kumar was avoiding execution of registered Sale Deed in spite of his repeated requests and demands and went on taking time by saying that he borrowed certain amount from Andhra Bank and that he will execute the registered Sale Deed after clearing the LNA,J CCCA Nos.41 & 131 of 2014 27 loan and after obtaining the Partition Deed with his mother and after getting back the original documents of the above property.
(xii) That the trial Court failed to see that Vijay Raj Soni never failed to perform his part of contract and that in good faith, he paid the entire sale consideration to Sujay Kumar; that there are some receipts passed and counter signed by the wife of Sujay Kumar, which show that she has also got knowledge of agreement of sale entered into by her husband with Vijay Raj Soni; and that the said receipts are marked as Exs.B4 to B7 showing the payment of Rs.1,75,000/-, Rs.75,000/-, Rs.1,50,000/- and Rs.1,00,000/- respectively.
41. The learned counsel for the appellant finally submitted that the trial Court has erred in not considering the pleadings, the legal aspects involved in the case and the documents filed by the appellant, and erroneously dismissed the suit filed by him in a mechanical manner without proper findings and at the same time, the trial Court erroneously decreed the suit filed for partition and that the suit in O.S.No.50 of 2002 is a vexatious and false suit filed in collusion with B.Sujay Kumar by contending that the suit schedule property is their ancestral property and they went to the extent of falsely contending that wife of B.Sujay Kumar is not aware about the agreement of sale, LNA,J CCCA Nos.41 & 131 of 2014 28 when in fact, she has also countersigned the receipts under Exs.B4 to B7 in favour of the appellant.
42. Learned counsel for appellant placed reliance on the following decisions in support of his contentions:
(i) Hotel Queen Road P. Ltd., vs. UOI and others 1; and
(ii) Arshnoor Singh vs. Harpal Kaur and others 2
43. Per contra, the learned senior counsel appearing for respondents submitted that on due consideration of the oral and documentary evidence and the material placed on record, the trial Court had rightly came to a conclusion that the suit schedule property is the ancestral property, in which the respondents are having equal shares, and therefore, the trial Court rightly declined to grant the relief of permanent injunction sought in respect of the suit schedule property; that the trial Court rightly held that Vijay Raj Soni is entitled to refund of the amount of Rs.21,03,500/- from the respondents; that the impugned common judgment is a well reasoned one and was passed on proper appreciation of pleadings and evidence on record; and that therefore, the impugned common judgment needs no interference by this Court and prayed to dismiss the Appeals.
1MANU/DE/1715/2015 2 AIR 2019 SC 3098 LNA,J CCCA Nos.41 & 131 of 2014 29
44. Learned senior counsel for respondents further submitted that the suit schedule property is ancestral property and therefore, Section 6 of Hindu Succession Act, 1956, would apply, but not Section 8 thereof. He further submitted that originally, B.Jagadishwaraiah was the owner of the suit schedule property and he expired on 08.05.1973. After his demise, the properties bearing house Nos.10-2-291 and 10-2- 292 in Plot No.179, admeasuring 600 square yards were partitioned equally between B.Leela Bai and Sujay Kumar, who are the daughter and grandson of said Jagadishwaraiah respectively; that the Government executed conveyance deed dated 01.08.1997 in favour of Leela Bai and Sujay Kumar converting the leasehold rights into freehold rights.
45. Learned senior counsel further submitted that since the property devolved upon Sujay Kumar from his grandfather, i.e. Jagadishwaraiah, the same is the ancestral property and not a self acquired property or absolute property of Sujay Kumar, as has been contended by the appellant. Learned senior counsel further submitted that the alleged sale consideration was paid by appellant by way of small instalments over a period of time, ranging as small as Rs.2,500/- upwards, except two considerable amounts, which clearly shows that agreement of LNA,J CCCA Nos.41 & 131 of 2014 30 sale was manipulated taking advantage of the mental condition of the Sujay Kumar, who was addicted to alcohol, opium, vices, etc., and who was also under psychiatric treatment, which is evident from the deposition of P.W.2, who treated Sujay Kumar. Thus, the Agreement of Sale dated 17.04.2000, is sham and manipulated document and therefore, the same is not enforceable.
46. Learned senior counsel for respondents placed reliance on the following decisions:
(i) Parakunnan Veetill Joseph's Son Mathew v.
Nedumbara Kuruvila's Son and others 3
(ii) Sardar Singh v. Krishna Devi (Smt) and another 4;
(iii) Dalip Kumar v. Om Prakash and others 5;
(iv) Smt. Katta Sujatha Reddy and another v.
Siddamsetty Infra Projects Pvt. Ltd., & others 6 Consideration :
47. Considering the grounds, pleadings and the contentions raised by the learned senior counsel appearing for both the parties, the following issues arise for consideration in these Appeals:
3
1987 AIR SC 2328 4 1995 AIR SC 491 5 2015 SCC Online Del 11768 6 (2023) 1 SC 355 LNA,J CCCA Nos.41 & 131 of 2014 31
1) Whether the suit schedule property is the ancestral or self-acquired property of Sujay Kumar?
2) Whether the minor children of Sujay Kumar are entitled to the relief of partition of the suit schedule property and allotment of 2/3rd share in it to them?
3) Whether the agreement of sale, dated 17.04.2000 is valid and binding on respondents?
4) Whether the appellant is entitled for specific performance of the agreement of sale, dated 17.04.2000, OR in the alternative, the relief of refund of sale consideration?
5) Whether the common judgment and decree, dated 11.02.2014, passed by the Additional Chief Judge, Secunderabad in O.SNos.50 and 67 of 2002, is sustainable or requires interference by this Court?
6) To What Relief?
48. For convenience, the parties are hereinafter referred to as they are arrayed in O.S.No.67 of 2002 before the trial Court. Issue Nos.1 & 2:-
49. Defendant No.3 and one Sanmita, being son and daughter of defendant No.1, respectively, represented by their natural mother and guardian - Smt. Sushmitha, filed the suit-O.S.No.50 of 2002 for partition of the suit schedule property claiming 2/3rd share in it and for separate possession. They contended that LNA,J CCCA Nos.41 & 131 of 2014 32 the suit schedule property was the ancestral property and therefore, they are entitled to share in the said property. Though the said fact was known to the plaintiff, he entered into agreement of sale with defendant No.1 taking undue advantage of his mental and physical condition, who was addicted to alcohol and vices and was also mentally depressed. Thus, defendant No.1 has no manner of exclusive right to alienate any part of the suit schedule property to the detriment of his minor children's interest in the ancestral property.
50. Perusal of the evidence and the material placed on record would show that originally, B.Jagadishwaraiah, grandfather of defendant No.1, was the owner of the entire properties bearing H.Nos.10-2-291 and 10-2-292 in Plot No.179 admeasuring 600 square yards and after his demise on 08.05.1973, the properties were partitioned between defendant No.1 and his mother-Leela Bai by partition deed vide document No.1009/2001 dated 21.05.2001, which is marked as Ex.A1. In Ex.A1-registered partition deed, it was mentioned that 'A' and 'B' schedule properties allotted to Leela Bai and Sujay Kumar, respectively, were originally acquired through a Conveyance Deed bearing document No.1269/1997, dated 01.11.1997 by virtue of a sub- division sanction vide file No.9/SD/Layout/ SD/2001; and the LNA,J CCCA Nos.41 & 131 of 2014 33 said description shows that the properties that were partitioned between them were in their joint possession prior to Ex.A1. Thus, the recitals of Ex.A1-partition deed is strengthening the evidence of the wife of defendant No.1, namely Sushmitha, who was examined as P.W.1, that both the properties covered by Ex.A1 were acquired from their ancestor i.e., B.Jagadishwaraiah and that defendant No.1 had not purchased the property from any third parties.
51. The above said fact was admitted by the plaintiff in his evidence as D.W.1 in O.S.No.50 of 2002, which is reproduced as hereunder:
"In the beginning, the entire property belonged to the grand-father of Sujay Kumar i.e., B.Jagadishwariah, who died on 08.05.1973. It is true that the entire properties were partitioned by the family members of B. Sujay Kumar. It is true that the 600 sq. yards of the property at Maredpally is allotted to the mother of Sujay Kumar when he was at the age of 18 years. It is true that prior to the sale agreement, dated. 17.04.2000, the total 600 sq. yards was the joint property of Sujay Kumar and his mother. Earlier, the said 600 sq. yards was the ancestral property of Sujay Kumar.
...
I know the defendant No.1 and their family since more than 30 years, even prior to the marriage of D1 we have family relationship with defendant No.1 parents etc. I have not obtained legal opinion from any advocate that is agreement of sale dated 17.04.2000. I have not given any paper publication calling the objection if any. I obtained the schedule property on rent 12 years prior to exhibit B2 (Agreement of Sale).
LNA,J CCCA Nos.41 & 131 of 2014 34 ...
I have not filed any document to show defendant No.1 is the owner as on the date of exhibit B2. It is true as on the date of exhibit B2, total 600 sq. yards is in the name of mother and defendant No.1, out of which schedule property is 300. In the beginning the entire property belonged to grandfather of defendant No.1. It is true earlier the property allotted by Government as leasehold rights to the grandfather of D1, who died on 08.05.1973. It is true the entire properties were partitioned by their family members of defendant No.1. It is true that 600 sq yards of property at Maredpally bearing plot No.179 was allotted to the mother of defendant No.1 and defendant No.1 when he was minor of 8 years age. It is true both defendant No.1 and his mother obtained registered conveyance deed dated 01.08.1997 converted leasehold rights into freehold one. It is true prior to exhibit B2, total 600 sq. yards was the joint property of defendant No.1 and his mother. Earlier the said 600 sq. yards was the ancestral property of defendant No.1. Prior to exhibit B2, defendant No.1 was working with me and the same not pleaded by me in the plaint. I have not filed any document to show that defendant No.1 was working with me..."
52. From the cross-examination of D.W.1-A.Vijay Raj Soni, it is clear that he was aware of the nature of the suit schedule property and that the same was devolved upon defendant No.1 from his grandfather. It is also evident that DW.1 has neither taken any legal opinion nor given any paper publication before entering into agreement of sale with defendant No.1. Therefore, the plaintiff cannot be termed as a bona fide purchaser.
53. The principal contention advanced by the learned senior counsel for respondents is that subject property is ancestral LNA,J CCCA Nos.41 & 131 of 2014 35 property and the same devolved upon defendant No.1 from his grandfather under Section 6 of the Hindu Succession Act and therefore, Section 8 thereof has no application.
54. It is relevant to refer to the judgment of the Hon'ble Apex Court in Bhubaneshwar Prasad Narain Singh v. Sidheswar Mukherjee 7 wherein it was held as under:-
"The appellants who were not in actual possession were deemed to be in constructive possession through the plaintiff in view of their status as co-sharers."
Furthermore, in paragraph-14 of the judgment, it was held as follows:-
"...merely because a manager or coparcener was found in actual possession of the property, the rights of other coparceners cannot be defeated under the law of succession..."
55. The Hon'ble Apex Court in N.Padmamma & Ors. v. S.Ramakrishna Reddy & Ors. 8, held that merely because a coparcener was found in actual possession of property, rights of other coparceners cannot be defeated under law of succession. The Hon'ble Apex Court in paragraph-11 of the judgment further held as under:-
"...when an occupancy right is granted is granted in the name of the manager of the joint family, it would enure for the benefit of the entire family. The lands vested in the state, but as soon as the occupancy right is granted, 7 (1971) 1 SCC 556 8 (2008) 15 SCC 517 LNA,J CCCA Nos.41 & 131 of 2014 36 in the event it is held that the same enured to the benefit of the entire family, it becomes partible."
56. It is also relevant to refer to the judgment of erstwhile High Court of Andhra Pradesh in Govind Rao v. Joint Collector, Adilabad and others 9, wherein the High Court by placing reliance on the decision of the Hon'ble Supreme Court in Bhubaneshwar Prasad Narain Singh (7th cited supra) and N.Padmamma's case (8th cited supra) and referring to Section 2(d) of the A.P. (Telangana Area) Abolition of Inams Act, 1955, held that where an Inamdar is a joint Hindu family, granting ORC (Occupancy Rights Certificate) in favour of a coparcener on the ground that he was found in personal cultivation cannot be sustained in law.
57. In Hotel Queen Road Pvt. Ltd., (supra) relied upon by the learned counsel for the appellant, the issue is completely different, wherein, the petitioner sought direction to Union of India to execute conveyance deed converting leasehold rights into freehold rights. Therefore, observation made in paragraphs 13 and 14 are not applicable to the issue in the present case.
58. In Arshnoor Singh (supra), the Hon'ble Supreme Court held as under:
9
(2010) SCC Online AP 600 LNA,J CCCA Nos.41 & 131 of 2014 37 "7.5. After the Hindu Succession Act, 1995 came into force, this position has undergone a change. Post-1956, if a person inherits a self-acquired property from his parental ancestors, the said property becomes his self-acquired property and does not remain coparcenary property."
59. However, it is relevant to refer to the judgment of the Hon'ble Apex Court in Rohit Chauhan vs. Surinder Singh and others 10, wherein the Hon'ble Apex Court at paragraph-11 held as under:
"11. We have bestowed our consideration to the rival submissions and we find substance in the submission of Mr Rao. In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener."
60. Thus, it is clear that, on partition, an ancestral property if it remains in the hand of a single coparcener, it has to be treated as a separate property and such a person shall be entitled to 10 (2013) 9 SCC 419 LNA,J CCCA Nos.41 & 131 of 2014 38 dispose of the coparcenary property, however, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener. The said legal proposition is approved by the Hon'ble Apex Court in Revanasiddappa vs. Mallikarjun 11.
61. In the instant case, admittedly, originally the property was given on lease to Jagadishwaraiah i.e., grandfather of defendant No.1 and after his demise, the Government executed conveyance deed in favour of defendant No.1 and his mother, Leela Bai, converting the leasehold rights into freehold rights. Therefore, applying the analogy of Govind Rao's case (supra) and N.Padmamma's case (supra), the suit schedule property has to be considered as Hindu joint family property and the same is governed by Section 6 of the Hindu Succession Act.
62. Similarly, in the present case, after the death of B.Jagadishwaraiah, the suit property was devolved upon Leela Bai and defendant No.1, through conveyance deed, dated 01.11.1997. Even though the conveyance deed was executed in favour of defendant No.1 and his mother, applying the analogy of the aforementioned cases to the present case, it can be 11 (2023) 10 SCC 1 LNA,J CCCA Nos.41 & 131 of 2014 39 considered that the suit schedule property is enured for the benefit of the whole family and accordingly, minor children of defendant No.1 being a part of the joint family, have a vested right in the ancestral property i.e., suit schedule property in terms of the provisions of the Hindu Succession Act.
63. Defendant No.1 has one son and one daughter through defendant No.2. Even though the said children were minors at the time of the execution of partition deed and the agreement of sale, they are still entitled to share in the ancestral property as they are deemed to be in constructive possession through defendant No.1, and their rights cannot be defeated solely on the ground that defendant No.1 was in possession of the suit schedule property.
64. Therefore, in the light of the above, the genesis and nature of the suit schedule property has to be treated as ancestral property of defendant No.1, who admittedly has one son and one daughter through his wife i.e., defendant No.2.
65. In O.S.No.50 of 2002, on behalf of Plaintiffs, P.W.2- Dr.Prabhakar Korada, Psychiatrist, was examined to substantiate their claim that defendant No.1 was addicted to alcohol, opium, vices, etc. P.W.2 deposed that defendant No.1, LNA,J CCCA Nos.41 & 131 of 2014 40 who was suffering from alcoholic addiction and buprenorphine (synthetic opioid) addiction, was admitted in J.S.Hospital and that he treated him. PW.2 further deposed that defendant No.1 was habituated to the above addictions and time and again, it has relapsed. P.W.2 further deposed that memory of defendant No.1 will be badly affected by the above addictions and his mood will be fluctuating; Ex.A6 is the discharge summary issued by J.S.hospital; Ex.A7 is the medical prescription issued by the duty doctor under PW.2's instructions; Ex.A8 contains five sheets of investigation reports of defendant No.1; Ex.A9 is the final bill issued by the hospital authority, in which PW.2's fee is shown; Ex.A10 is the medical certificate issued by PW.2; and Exs.A11 & 12 are the medical prescriptions issued by P.W.2, wherein he advised defendant No.1 to be admitted in J.S. Hospital.
66. From the above evidence of PW.2, it is clear that defendant No.1 was addicted to alcohol and vices and therefore, the agreement of sale entered by defendant No.1 with the plaintiff cannot be considered as for the benefit and legal necessities of his children. Thus, defendant No.1 being the Manager of ancestral property, failed to safeguard the interest of the minor children and no material is placed on record to show LNA,J CCCA Nos.41 & 131 of 2014 41 that the defendant no.1 entered into agreement of sale with plaintiff for the benefit or necessities or welfare of his minor children.
67. In view of the above discussion and also in the light of the admissions of the plaintiff in his evidence as D.W.1 in O.S.No.50 of 2002, this Court is of the considered opinion that the trial Court was justified in allowing O.S.No.50 of 2002 by observing that defendant No.1 was not the absolute owner of the suit schedule property as on the date of agreement of sale dated 17.04.2000 and the said property is the ancestral property having the claim of the minors in the ancestral nucleus besides the mother of defendant No.1 as joint owner and therefore, the plaintiffs in O.S.No.50 of 2002 are entitled to their respective shares in the event of the suit schedule property being partitioned.
68. Hence, issue Nos.1 and 2 are answered in favour of the respondents and against the appellant.
Issue Nos.3 & 4:
69. Admittedly, the appellant is a tenant of the suit schedule property which is the ancestral property of defendant No.1 and LNA,J CCCA Nos.41 & 131 of 2014 42 his family and that plaintiff used to advance certain amounts to defendant No.1 now and then to meet his expenses.
70. According to the plaintiff, he agreed to purchase the suit schedule property from defendant No.1 for a sale consideration of Rs.21,00,000/- and entered into an agreement of sale dated 17.04.2000 and has paid more than the sale consideration from time to time, which is evident from the endorsements on the sale agreement and also through the receipts got filed by him, which were marked as Exs.B4 to B32. Therefore, he filed suit- O.S.No.67 of 2002 for specific performance of agreement of sale dated 17.04.2000 by directing defendant No.1 to execute the registered sale deed in his favour in respect of the suit schedule property.
71. According to defendant Nos.2 and 3, the suit schedule property being an ancestral property, they filed suit for partition vide O.S.No.50 of 2002. It was further averred that the plaintiff, taking undue advantage of defendant No.1's medical condition, was trying to grab the suit schedule property.
72. As answered by this Court on issue Nos.1 and 2, the property covered by agreement of sale dated 17.04.2000 is an ancestral property, in which defendant No.1 as well as his son LNA,J CCCA Nos.41 & 131 of 2014 43 and daughter are entitled to their respective shares in the event of said property being partitioned; that both the minor children of defendant No.1 are not parties to the agreement of sale, dated 17.04.2000.
73. When the entire oral and documentary evidence and the nature and genesis of the suit schedule property is considered, it is to be held that the same is an ancestral property and defendant No.1 is not the absolute owner of the same as on the date of agreement of sale. Thus, defendant No.1 has no exclusive right to execute the agreement of sale dated 17.04.2000 in favour of any third parties, much less, the plaintiff.
74. In view of the foregoing reasons, this Court is of the considered view that once the nature of the suit schedule property is ancestral, defendant No.1 alone does not have the absolute right to enter into sale agreement with third parties in respect of the said property. As the son and daughter of defendant No.1 are minors by the date of entering into agreement of sale with the plaintiff, defendant No.1 has to obtain permission from a competent Court to sell the property of the minors. As seen from the record, no such permission was obtained by defendant No.1 from the competent Court.
LNA,J CCCA Nos.41 & 131 of 2014 44 Therefore, the agreement of sale dated 17.04.2000 is not valid and therefore, unenforceable in the eye of law.
75. Further, according to defendant Nos.2 and 3, the plaintiff taking advantage of defendant No.1's vices like addiction to alcohol, etc., got obtained sale agreement, dated 17.04.2000, by giving some small amounts to defendant No.1 in instalments now and then to meet the expenses of his vices; and the acts of plaintiff in obtaining a sale agreement in respect of the ancestral property of defendant No.1, in which his two minor children are also having rights, go to show that plaintiff has not approached the Court with clean hands and further, he did not take steps to implead the minor children of defendant No.1 in the suit filed by him for specific performance. As already held, the agreement of sale has not been entered for the benefit, welfare and legal necessities of minor children.
76. According to the plaintiff, some of the payments alleged to have been made by him to defendant No.1 were through cheques got issued by his wife through her account, however, she was not examined as a witness to substantiate the said payments covered by Exs.B4 to B7-receipts, marked on behalf of the plaintiff. On those receipts, the signatures of P.W.1- Smt. B.Sushmita, wife of defendant No.1 were affixed and when LNA,J CCCA Nos.41 & 131 of 2014 45 she is examined as P.W.1, being guardian of the minor children of defendant No.1, she has not disputed her signatures on those receipts and admitted to refund the sale consideration paid by the plaintiff, subject to proof and relevancy.
77. Here, it is apt to refer to Section 20 of the Specific Relief Act, 1963 (for short, 'the Act, 1963'). Section 20 of the Act, 1963 was amended by the Act 18 of 2018 w.e.f. 01.10.2018. Prior to the amendment, specific performance of agreement is a discretionary relief. Section 20 of the Act, 1963, prior to amendment reads as under:
"S.20. Discretion as to decreeing specific performance.--
(1) The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance -
(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 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 the defendant which he did not foresee, whereas is non-performance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance."
LNA,J CCCA Nos.41 & 131 of 2014 46
78. It is relevant to note that in O.S.No.67 of 2000 filed by A.Vijay Raj Soni, he has sought the relief of specific performance of agreement of sale dated 17.04.2000 or in alternative, for refund of entire sale consideration of Rs.21,03,500/- along with damages and interest. Therefore, un-amended Section 20 of the Act, 1963 is applicable to the present case.
79. In Parakunnan Veetill Joseph's Son Mathew's case (cited supra), the Hon'ble Supreme Court held as under:
"14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of Courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage of the plaintiff...."
80. In Sardar Singh (supra), the Hon'ble Supreme Court held as under:
"14. The next question is whether the courts below were justified in decreeing the suit for specific performance. Section 20(1) of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief, merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. The grant of relief of specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract."
LNA,J CCCA Nos.41 & 131 of 2014 47
81. In Dalip Kumar's case (cited supra), the issue involved is with regard to partition of tenancy rights. Therefore, the same is not applicable to the facts of the present case.
82. In the present case, the schedule property was devolved upon defendant No.1 from his grandfather and in view of birth of son and daughter, the schedule property became coparcenary property and minor son and daughter have became coparceners.
83. In Katta Sujatha Reddy's case (supra), the Hon'ble Supreme Court observed that the purchaser breached the essential condition of the contract, which altogether disentitles him to claim specific performance and that the claim of purchaser is hit by delay and laches and appropriate measures were not taken within the stipulated time and filing of the suit was also delayed by almost five years and thus, purchaser was not entitled to the relief of specific performance of agreement. However, the Hon'ble Apex Court held that with a view to render complete justice, deemed it appropriate to direct the vendors to repay the amount received by them with interest @ 7.5% per annum to the purchaser.
LNA,J CCCA Nos.41 & 131 of 2014 48
84. In Kamal Kumar vs. Premlata Joshi 12, the Hon'ble Supreme Court held as under:
"It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance are:
7.1. First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property.
7.2. Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract.
7.3. Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract.
7.4. Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff.
7.5. Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money, etc. and, if so, on what grounds."
85. In P.Daivasigamani vs. S.Sambandan 13, the Hon'ble Supreme Court held as under:
"26. Sub-section (2) of Section 20 of the Specific Relief Act (pre-amendment) lists some of the principles that the court should take into consideration while exercising discretion. The factors to be considered while exercising discretion include hardship to the defendant seller which 12 (2019) 3 SCC 704 13 (2022) 14 SCC 793 LNA,J CCCA Nos.41 & 131 of 2014 49 he did not foresee, hardship to the plaintiff purchaser in case of non-performance, or whether the contract, even when not void, was entered under the circumstances that make the enforcement of specific performance inequitable, or whether the plaintiff has done substantial acts or suffered losses as a consequence of the contract, and the conduct of the parties, including that of the defendant seller and other circumstances under which the contract was entered are such that they give an unfair advantage over the defendant seller."
86. A careful examination of judgments mentioned supra would show that the Hon'ble Apex Court consistently held that grant of relief of specific performance of agreements prior to amendment of Section 20(2) of Specific Relief Act is a discretionary and equitable relief and while granting relief of specific performance, Courts have to examine whether an agreement is valid and concluded contract and that the plaintiff was ready and willing to perform his part of contract and whether grant of relief of specific performance will cause any kind of hardship to the defendant. It is also equally pertinent to examine whether the plaintiff is gaining an unfair advantage and that whether the plaintiff is entitled to alternative relief, like refund of earnest money, etc.
87. According to the plaintiff, he purchased the property from defendant No.1 by way of agreement of sale, dated 17.04.2000 for a total sale consideration Rs.21,00,000/- and paid an advance sale amount of Rs.4,25,000/- by the date of agreement LNA,J CCCA Nos.41 & 131 of 2014 50 of sale, dated 17.04.2000, and the rest of the amount was paid on various occasions. In all, plaintiff paid an amount of Rs.21,03,500/-. To corroborate the same, plaintiff filed receipts and the same were marked as Exs.B4 to B32.
88. Once the nature of the suit schedule property is held to be ancestral property, defendant No.1 alone does not have absolute right over the same and he is only a coparcener, and as such, he is not entitled to enter into sale agreement with third parties. Hence, the sale agreement, dated. 17.04.2000 is not valid and binding on defendant No.2 and daughter of defendant No.1 and therefore, unenforceable in the eye of law.
89. As the agreement of sale itself is not enforceable, the question of granting the relief of specific performance does not arise. However, as it is admitted by P.W-1-B.Sushmitha, that she was agreeing to refund the amount paid by the plaintiff, this Court deems it just and reasonable to grant the relief of refund of sale consideration paid by the plaintiff. However, in view of peculiar facts and circumstances of this case and also by relying upon the decision of Hon'ble Supreme Court in Katta Sujatha Reddy (supra), this Court is of the considered view that plaintiff LNA,J CCCA Nos.41 & 131 of 2014 51 is entitled to interest @ 7.5% per annum. Issue Nos.3 & 4 are answered accordingly.
Issue No.5:
90. In the light of the foregoing discussion on Issue Nos.1 to 4, this Court is of the considered opinion that the trial Court was justified in partly allowing the O.A.No.50 of 2002, granting a preliminary decree partitioning the suit schedule property into three equal shares and by allotting 2/3rd share to the plaintiffs in O.S.No.50 of 2002 and also separate possession of the same to them and dismissing the suit - OS NO.67 of 2002 filed for specific performance. However, defendants are directed to refund the amount of Rs.21,03,500/- to the plaintiff together with interest @ 7.5% per annum from the date of payment till realization. This issue is answered accordingly. Issue No.6:
91. For the foregoing discussion and reasons, both the Appeals are dismissed. There shall be no order as to costs.
92. Miscellaneous Petitions pending, if any, shall stand closed.
___________________________________ LAXMI NARAYANA ALISHETTY,J Date: 23.08.2024 Kkm/dr