Puli Sitamahalakshmi vs Varre Lakshmi
2021 Latest Caselaw 5530 AP

              HON'BLE SRI JUSTICE M.VENKATA RAMANA

                   SECOND APPEAL No. 1108 of 2000

JUDGMENT :

The 1st defendant is the appellant. The respondent was the

plaintiff.

2. The parties as arrayed in the suit are referred to hereinafter, for

convenience.

3. The plaintiff claimed the relief of specific performance of the

contract under the agreement for sale dated 13.04.1984 against the 1st

defendant and her mother.

4. The contention of the plaintiff is that the 1st defendant had

agreed to sell the plaint schedule land, which is an extent of Ac.0-60 cents

in S.No.175-5 out of Ac.2-76 cents at Turangi village of East Godavari

District, to the plaintiff and received Rs.500/- as advance on the date of

the agreement itself. It is also the case of the plaintiff that the balance

consideration was to be paid on or before 13.08.1984. The plaintiff was

always ready and willing to perform her part of the contract and according

to her the 1st defendant began to delay in performing her part of the

contract that made her to issue a legal notice dated 08.04.1987.

5. The 2nd defendant was also made a party to the suit basing on

the contention of the 1st defendant, who claimed that the property

covered by the agreement for sale belonged to her.

6. The predominant defence of the 1st defendant is that the

plaintiff while entering into the agreement for sale, was informed by her MVRJ, S.A.No.1108 of 2000

that the plaint schedule property belonged to her mother and that she did

not have any right to it, on which the plaintiff took her to confidence

stating that she would apprise her mother and make her join in execution

of the sale deed. In those circumstances, according to the 1st defendant,

believing the plaintiff, she executed the suit agreement for sale on

13.04.1984 and had received Rs.500/- towards advance from her. Further

contention of the 1st defendant is that her mother however did not agree

to sell this property to the plaintiff, while disputing that there was a

demand on her to perform her part of the contract under this agreement

for sale. Thus, the 1st defendant questioned the very maintainability of the

suit.

7. Basing on the pleadings, the following issues and additional

issues were settled:

1. Whether the plaintiff is entitled for specific performance of the agreement of sale dated 13.04.1984 as prayed for?

2. Whether the plaintiff is alternatively entitled for the refund of the advance money paid under the agreement of sale dated 13.04.1984?

3. Whether the defendant is not the owner of the suit schedule property as pleaded by her ?

4. Whether the defendant's mother is a necessary party to the suit?, and

5. To what relief?

Additional issues framed on 08.10.1990:

1. Whether the 2nd defendant is the owner of the schedule property? and

2. Whether the 1st defendant has no right to execute an agreement of sale in favour of the plaintiff?"

MVRJ, S.A.No.1108 of 2000

8. At the trial, the plaintiff examined herself as P.W.1 and three

other witnesses, while relying on Ex.A1 to Ex.A4 and Ex.X1. Both the

defendants examined themselves as D.W.1 and D.W.2 respectively in

support of their contention.

9. On the material rejecting the defence and holding that the plaint

schedule land was a part of the property given to the 1st defendant by the

2nd defendant at the time of her marriage towards 'pasupu kumkuma' and

further that the vendor under the agreement for sale cannot set up a

defence that she did not have title to its subject matter, the trial Court in

exercise of its discretion decreed the suit as prayed directing specific

performance of the contract against the 1st defendant and directing her to

execute a sale deed in terms of this contract in favour of the plaintiff.

However, the suit against the 2nd defendant was dismissed on the ground

that there was no privity of contract between the plaintiff and herself nor

she is a party to the suit transaction.

10. In the appeal by the 1st defendant, the learned appellate Judge

held that the plea relating to 'pasupu kumkuma' conferring the plaint

schedule property to the plaintiff cannot be accepted, since it is not based

on pleadings and on the ground that by the decree and judgment of the

trial Court since the 2nd defendant is adversely affected, who did not

choose to file an appeal, agreeing with the contention of the plaintiff that

she was always ready and willing to perform her part of the contract, the

appeal was dismissed ultimately leading to confirming the decree and

judgment of the trial Court.

MVRJ, S.A.No.1108 of 2000

11. In these circumstances, this second appeal is preferred by the

1st defendant.

12. Heard Sri Venkateswara Rao Gudapati, learned counsel for the

appellant and Smt. Pulipati Radhika, learned counsel for the respondent.

13. This second appeal is admitted on the following substantial

questions of law:

"1. Whether the judgments of the Courts below are perverse or not, more particularly, with reference to the finding that the appellant-defendant No.1 is the owner of the suit schedule property by way of pasupu kumkuma gift given by the 2nd defendant which is not pleaded or proved by the plaintiff- respondent?

2. Whether the finding of the 1st appellate Court, that defendant No.2 is the aggrieved party and has not filed an appeal and the 1st defendant, who is not aggrieved party is a perverse finding in view of the fact that the suit was dismissed against the defendant No.2 by the trial Court?"

14. Sri Venkateswara Rao Gudapati, learned counsel for the

appellant, contended that the appellate Court had rejected the finding of

the trial Court that the 1st defendant had right, title and interest to the

plaint schedule property given to her towards 'pasupu kumkuma' by the

2nd defendant at the time of her marriage for want of pleading in the

plaint. In such circumstances, it is further contended that when such

prime fact is found unacceptable, the appellate Court is not justified in

confirming the decree and judgment of the trial Court.

15. Even otherwise, Sri Venkateswara Rao Gudapati, learned

counsel for the appellant, contended that a 'pasupu kumkuma'

transaction is a gift, which shall be in writing and shall be compulsorily

registerable under Section 123 of the Transfer of Property Act and when MVRJ, S.A.No.1108 of 2000

effect of Section 17 of the Registration Act is taken into consideration, in

the absence of any record and document to prove such transaction

legally, the inferences drawn by the trial Court basing on the contents of

Ex.A1, Ex.A4 and Ex.X1 coupled with the testimony of P.W.3 and P.W.4,

cannot stand.

16. In support of this contention, Sri Venkateswara Rao Gudapati,

learned counsel for the appellant, relied on Gandevalla Jayaram Reddy

v. Mokkala Padmavathamma & others1. Where, in the given facts

and circumstances, in para-6 observed:

"6. ....... The Division Bench, in our opinion further committed a manifest error in holding that the 'pasupu kumkuma' being both involuntary as well as for consideration, the same would not be a gift within the meaning of Section 122 of the Transfer of Property Act. Evidently such a transaction would create right in immovable property in one and the right of the owner thereof shall be extinguished and thus the same would attract the provisions of Section 17(1) (b) of the Registration Act. No authority has been cited by the learned Division bench in support of their opinion that Pasupu Kumkuma could very well be done orally. "

17. Further contending that mere entries in the revenue records

would not confer any title to the party claiming benefit under 'pasupu

kumkuma' transaction, which is not evidenced by any registered

document, reliance is also placed by the learned counsel for the appellant

on Mahendra C.Mehta and others v. Kousalya Co-op. Housing

Society Ltd., Hyderabad and others2.

18. Smt. Pulipati Radhika, learned counsel for the respondent,

adverting to the pleadings and the evidence on record, strenuously

contended that the findings recorded by the learned trial Judge are right

. 2001(3) APLJ 1(FB)

. (2001) 5 ALT 197 MVRJ, S.A.No.1108 of 2000

and when the decree and judgment of the trial Court are upheld in the

appeal, in this second appeal exercising jurisdiction under Section 100

CPC, this Court shall not interfere with the judgments and decrees of both

the Courts below.

19. In support of her contention relating to application of Section

100 CPC and its parameters, Smt. Pulipati Radhika, learned counsel for

the respondent, relied on Hero Vinoth v. Seshammal3. In para-25 of

this ruling, principles relating to Section 100 CPC are pointed out.

Relevant portion relied on by the learned counsel for the respondent is:

"25. The principles relating to Section 100 CPC relevant for this case may be summarised thus:

(i) ...........

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

.(2006) 5 SCC 545 MVRJ, S.A.No.1108 of 2000

20. Smt. Pulipati Radhika, learned counsel for the respondent,

referring to the findings recorded by the learned trial Judge, that a vendor

in a suit for specific performance cannot set up a defence of defect in title

relied on Netyam Venkataramanna and others v. Mahankali

Narasimhan4. In this decision referring to M.A.H.Khan v. A.M.Khadri

{(AIR 1972 AP 178) (DB)} in para-18 one of the learned Judges of this

Court observed:

"18.........In a suit for specific performance, the defendant cannot plead defect in his title as a defence. This matter is concluded by a Division Bench judgment of this court in M.A.H. Khan v. A.M. Khadri (1) AIR 1972 A.P. 178. This Division Bench decision is binding on this court and the trial court judgment nowhere indicates how this judgment is not applicable to the facts of the case. In this decision, the Division Bench laid down that in a suit for specific performance by the purchaser, the vendor cannot put forward the defence that he had no title, but if the suit is by the vendor, the purchaser can plead that the vendor had no title or had defective title as a defence in paragraph 10 at page 181, the court observed as follows:

"It is settled law that if a person executes an agreement to sell property, the vendor is not entitled to put forward, in a suit for specific performance by the purchaser the defence that the vendor had no title or has defective title in a suit for specific performance by the vendor. But the vendor cannot set up defect in his own title as a defence in a suit for specific performance by the purchaser."

21. The 1st defendant admitted execution of Ex.A1 agreement for

sale in favour of the plaintiff agreeing to sell the plaint schedule property

subject to its terms and conditions. She had also received an advance of

Rs.500/- on the date of execution of Ex.A1 out of the total sale

consideration of Rs.30,000/-.

22. She tried to avoid this contract on the premise that she did not

have right or title to the plaint schedule land.

. 1994(1)ALT 185 MVRJ, S.A.No.1108 of 2000

23. As D.W.1, as observed by the learned trial Judge, the

statements made by the 1st defendant at the trial, not only with reference

to Ex.A1 but also Ex.X1 and Ex.A4, make her version, against the plaintiff

unacceptable.

24. The trial Court assigned clear and categorical reasons in

accepting the documentary proof under Ex.A1, Ex.X1 and Ex.A4.

25. As seen from Ex.A1 agreement for sale, the 1st defendant

claimed the plaint schedule property as a part of her 'stridhana' acquired

from her mother. Similarly, she executed Ex.X1 agreement for sale in

favour of P.W.4-Smt. Ch.Subbamma. Ex.A4 is the registration extract of

the sale deed dated 18.04.1984 under the original of which not only the

1st defendant but her mother-2nd defendant sold Ac.0-20 cents out of

total extent of Ac.2-76 cents in S.No.175-5 of Turangi village in favour of

one Sri Chinniboyina Polayya-husband of P.W.4.

26. While Ex.X1 was executed by the 1st defendant alone, the

original of Ex.A4 was executed by both the defendants. There is a recital

in Ex.A4 that at the instance of the purchaser, the 2nd defendant joined

execution of its original.

27. These transactions were admitted by the 1st defendant as

D.W.1 in cross-examination on behalf of the plaintiff.

28. The 2nd defendant as D.W.2 also admitted executing the

original of Ex.A4 and Ex.X1 as well as their contents. Though Ac.0-30

cents was agreed to be sold under Ex.X1; Ex.A4 reflects that only Ac.0-20

cents was registered in favour of the husband of P.W.4.

MVRJ, S.A.No.1108 of 2000

29. It is also in the evidence of D.W.1 and D.W.2 that the 1st

defendant had sold Ac.0-05 cents out of the same land to the wife of

P.W.3 and that both the defendants had executed the sale deed in favour

of his wife in respect thereof. Added to it, the eastern boundary of the

land covered by Ex.X1 and Ex.A4 is described as the land sold to the

plaintiff.

30. These were the circumstances that impelled the learned trial

Judge to accept the case of the plaintiff holding that the 1st defendant

sold the plaint schedule land under Ex.A1 on her own and rejecting her

defence.

31. Though reference is made by the trial Court that the entire

extent in S.No.175-5, out of which the plaint schedule land is a part, was

subject matter of ' pasupu kumkuma' transaction, for the reasons stated

by the appellate Court since it is not based on pleading of the plaintiff in

the plaint and as contended by Sri Venkateswara Rao Gudapati being not

evidenced by a registered document, it could not have been relied on by

the learned trial Judge.

32. Cogent reasons are assigned by the learned trial Judge in

respect of the contention of the plaintiff that the 1st defendant cannot

deny her title when she had entered into Ex.A1 contract, rightly relying on

Netyam Venkataramanna and others referred to above.

33. In the presence of the admitted situation whereby the 1st

defendant had admitted execution of Ex.A1 agreement for sale and the

probative value to be attached to the transactions covered under Ex.A1 MVRJ, S.A.No.1108 of 2000

and Ex.A4 as well as the testimony of P.W.3 and P.W.4, as observed by

the trial Court, the defence so set up by the 1st defendant cannot stand.

34. Even if the defence based on 'pasupu kumkuma' transaction is

rejected, the next ground on which the defence of the 1st defendant

cannot stand, has to be upheld.

35. A notice was issued before instituting the suit as seen from

Ex.A2. No reply was issued to it by the defendants. Both the trial Court

and the appellate Court concurrently held that the plaintiff was always

ready and willing to perform her part of the contract at all material times

and thus discretion was exercised by the trial Court under Section 20 of

the Specific Relief Act.

36. May be that the judgment of the appellate Court did not

present a satisfactory situation on which it sought to confirm the decree of

the trial Court. One of the reasons considered in this context is the

observation of the appellate Court that the 2nd defendant would be the

sufferer being aggrieved by the decree and judgment of the trial Court,

who did not choose to prefer an appeal, unmindful of the fact that the suit

was dismissed against the 2nd defendant. But these inappropriate

observations and findings cannot lead to interfere in this second appeal.

37. Therefore, in this backdrop, it is manifest that the decrees so

passed by the Courts below by their judgments are upon considering the

evidence on record and facts. The scenario so presented did not make out

that there are such questions much less substantial questions of law in MVRJ, S.A.No.1108 of 2000

this second appeal to consider. Hence, the second appeal has to be

dismissed.

38. In the result, the second appeal is dismissed. No costs.

As a sequel, pending miscellaneous petitions, if any, stand closed.

Interim Orders, if any, stand vacated.

________________________ JUSTICE M.VENKATA RAMANA

Dt: 28.12.2021 RR MVRJ, S.A.No.1108 of 2000

HON'BLE SRI JUSTICE M.VENKATA RAMANA

SECOND APPEAL No.1108 of 2000

Dt:28.12.2021

RR