Yembeti Vemaiah vs Kaluvayi Prabhakara Reddy
2023 Latest Caselaw 5166 AP

            THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                       APPEAL SUIT No.683 OF 2010

JUDGMENT:

1. The Appeal, under Section 96 of the Code of the Civil Procedure, is

filed by the appellants/defendants 1 and 2 challenging the decree and

Judgment dated 17.06.2010 in O.S.No.27 of 2004 passed by the learned

Principal District Judge, Nellore (for short, 'trial court').

2. Referring to the parties hereinafter as arrayed in the suit is

expedient to mitigate potential confusion and better comprehend the case.

3. The 1st respondent is the plaintiff, who filed the suit in O.S.No.27 of

2004 seeking Specific Performance of an agreement of sale dated

14.09.2003 by directing the defendants to execute a regular registered

sale deed in favour of the plaintiff after receiving a sum of Rs.8,93,500/-

towards the balance of sale consideration.

4. The factual matrix, necessary and germane for adjudicating the

contentious issues between the parties inter se, may be delineated as

follows:

(a) The defendants are the absolute owners of the plaint schedule

property and have been in possession and enjoyment of the same. The

defendants offered to sell the plaint schedule property @ Rs.2,70,000/-

per acre to the plaintiff. On 14.09.2003, the defendants received a sum of

Rs.2,00,000/- towards advance of sale consideration and executed a

stamped sale agreement in plaintiff's favour. According to the terms of the

agreement, the schedule land needed to be measured to determine its

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actual extent, and the plaintiff is expected to pay the outstanding sale

consideration for the verified extent at the agreed rate. The plaintiff has to

obtain a registered sale deed at his expense within five months from the

date of agreement dated 14.09.2003. Despite the plaintiff's request for

cooperation in measuring the land to ascertain the actual extent and to

receive the balance of sale consideration and execute the registered sale

deed, the defendants were postponing the same on one pretext or other.

The plaintiff has always been ready and willing to perform his part of the

contract. However, the defendants did not come forward to fulfil their part

of the contract. As there was no response from the defendants, the

plaintiff issued a notice dated 27.01.2004 requesting the defendants to

complete their part of the contract. The defendants replied on 12.02.2004

confirming the execution of the sale agreement and receipt of

Rs.2,00,000/- as advance for the sale consideration. Nevertheless, they

made several false allegations concerning land ownership and other

related matters.

(b) Within a short time, the defendants sent a mediator to the

plaintiff stating that they had already measured the said land at the time

of their purchase on 12.09.1980 and offered to execute a regular sale deed

on payment of the balance of sale consideration for Ac.4.05 cents @

Rs.2,70,000/- per acre. The plaintiff agreed to pay the balance of the sale

consideration to the defendants. Even after that, the defendants started

prolonging the matter without performing their part of the contract. Now,

it has become apparent that the defendants are attempting to sell the

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plaint schedule property to third parties at higher price, while concealing

their existing sale agreement with the plaintiff. If they are successful in

doing so, it would result in significant and irreparable losses for the

plaintiff.

5. (a) The 2nd defendant adopted the 1st defendant's written statement,

contended that the 1st defendant had received an advance payment of

Rs.2,00,000/- from the plaintiff and signed the stamped agreement of sale

dt.14.09.2003; he denied the plaintiff's claim of non-cooperation by the

defendants in measuring the land and ascertaining its actual extent; the

2nd defendant also acknowledged the notice issued by the plaintiff and

subsequent reply by the 1st defendant. According to the 2nd defendant, the

plaintiff is involved in real estate business and as the schedule lands are

located near Nellore City, the plaintiff approached the defendants

expressing interest in purchasing the lands. The defendants informed the

plaintiff that there were other co-sharers of the lands, and they were

willing to consider their share subject to the agreement other co-owners.

(b) The plaintiff allegedly took advantage of the defendants'

illiteracy and prepared an agreement according to his own wishes. He got

this agreement signed by the defendants at midnight and paid an amount

of Rs.2,00,000, promising to obtain the signatures of the other co-sharers.

However, the next day, the defendants noticed that the plaintiff had never

approached the other co-owners for their consent. Upon consulting with

the other co-owners, the defendants informed the plaintiff of their

intention to return the Rs.2,00,000 advanced for the sale consideration.

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The plaintiff, realizing he could not deceive the defendants, remained

silent for an extended period and avoided contact with the defendants, for

reasons known only to him. The defendants have consistently expressed

their readiness to refund the advance amount of Rs.2,00,000/- to the

plaintiff. Even after the plaintiff sent a reply notice on February 12, 2004,

the plaintiff remained silent for about five months and eventually filed a

suit with unfounded and baseless claims.

6. During the pendency of the suit before the trial Court, the

defendants 3 to 7 were brought on record as per the orders in I.A.No.342

of 2007, dated 12.09.2007. The 5th defendant adopted the written

statement filed by defendants 3, 4, 6 and 7. Defendants 3 to 7 contended

that defendants 1 and 2 are their parents; the property was purchased

using joint family funds and for the benefit of the joint family; as

defendants 1 and 2 are the elders of the family, the sale deeds for the suit

property were executed in their names; they denied any knowledge of the

execution of an agreement of sale by the defendants 1 and 2 in favour of

the plaintiff. Furthermore, the defendants contended that as per the terms

of the sale agreement, the land had to be measured, the actual extent had

to be determined, and the plaintiff had to pay the remaining sale

consideration; they refuted the plaintiff's claims of readiness and

willingness to fulfill his obligations under the contract; they asserted that

they are entitled to 5/7th share in the suit property; they never authorized

the defendants 1 and 2 to execute any agreement of sale related to the

schedule property.

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7. The plaintiff filed a rejoinder denying most of the allegations made

in the 5th defendant's written statement. Defendants 3 to 7 have no right

over the plaint schedule property and they added the year 2007 in the suit

only to protract the litigation and cause trial delays.

8. Based on the above pleadings, the trial Court framed the following issues:

(1) Whether the contract of sale, dated 14.09.2003, vitiated for the reasons stated by the first defendant?

(2) Whether the contract is not enforceable as the other sharers are not parties to the agreement?

(3) Whether the plaintiff is not entitled to specific performance of the contract of sale?

(4) To what relief?

9. The trial Court also framed the following additional issues:

(1) Whether the defendants 3 to 7 are bound by the contract and enforceable against them?

10. During the trial, on behalf of the plaintiff, P.Ws.1 to 3 were

examined, and Exs.A1 to A.5 were marked. On behalf of the defendants,

D.Ws.1 to 3 were examined, and Ex.B.1 was marked.

11. After the trial's completion and hearing both sides' arguments, the

trial Court decreed the suit with costs by granting specific performance of

the contract.

12. Learned counsel representing the appellants/defendants contends

that the trial Court erred in granting a decree in favour of the plaintiff

without considering the well established principle that discretionary relief

of specific performance should not be granted to a plaintiff, whose conduct

is blame worthy; the plaintiff came to Court with a false claim, stating that

after exchanging notices, the defendants 1 and 2 sent a mediator with a

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Xerox copy of the sale deed promising to receive the remaining sale

consideration and execute a sale deed as per Ex.A.1; the trial Court failed

to consider the delay in filing the suit after exchange of notices; In

addition, it's pointed out that Ex.A.1 had issues with its formatting, which

should have led the trial Court to conclude that it was written on stamp

papers containing the signatures and thumb impressions of defendants 1

and 2. Moreover, given the evidence of PWs.1 to 3 and the property's

value, Ex.A.1 is considered unconscionable and therefore unenforceable.

The evidence of PWs.1 to 3 is criticized as unreliable, as they are close

friends and interested witnesses. The plaintiff's readiness and willingness

to perform his part of the contract within the stipulated time under

Ex.A.1, as required by Section 16 of the Specific Relief Act, is also

questioned. It is argued that the plaintiff did not demonstrate that he had

the necessary funds or resources to pay the remaining sale consideration;

the trial Court without considering the evidence erred in relying upon the

Ex.A.1 contents to hold that the plaint schedule property is not the joint

family property and it is self acquired property of defendants 1 and 2; the

trial Court erred in holding that defendants 3 to 7 are bound by Ex.A.1 as

it was executed by defendants 1 and 2 as managers of the joint family.

13. Per contra, the learned counsel appearing for the

respondent/plaintiff would contend that the trial Court correctly

appreciated the facts of the case and reached a correct conclusion. The

reasons given by the trial Court do not require any modifications.

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14. Concerning the pleadings in the suit, the findings recorded by the

Trial Court and in light of the rival contentions and submissions made on

either side before this Court, the following points would arise for

determination:

1. Is the trial Court justified in granting relief of specific Performance of the sale agreement dated 14.09.2003?

2. Does the Judgment passed by the trial Court need any interference?

POINT NOs.1 & 2:

15. To prove the plaintiff's case, the plaintiff himself was examined as

P.W.1; the attestor and scribe of (Ex.A1) agreement of sale were examined

as P.Ws 2 and 3. It is the version of P.Ws.1 to 3 that the defendants 1 and

2 agreed to sell the schedule property at Rs.2,70,000/- per acre, and they

received a sum of Rs.2,00,000/- towards advance of sale consideration

and executed (Ex.A1) agreement of sale in favour of the plaintiff on

14.09.2003. The 1st defendant, in his written statement, admitted that he

received Rs.2,00,000/- from the plaintiff and signed the stamped

agreement. The 2nd defendant/Y. Meeramma was examined as D.W.1. She

subscribed her signature, and her husband put his thumb impression on

(Ex.A1) agreement of sale. She and her husband received a sum of

Rs.2,00,000/- from the plaintiff.

16. On behalf of the defendants, the 5th defendant was examined as

D.W.2. It can be seen from the record that the children of defendants 1

and 2 are brought on record as D.3 to D.7 as per the orders in I.A.No.342

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of 2007 dated 12.09.2007. D.5 filed a written statement, which was

adopted by D.3, D.4, D.6 and D.7. According to the version of D.3 to D.5,

D.1 and D.2 are not the absolute owners of the suit schedule property.

D.1, D.3, to D.5 are the members of the Hindu joint family. D.1 is their

father, and D.2 is their mother. The suit schedule property was purchased

with joint family funds and for the benefits thereof. As rightly held by the

trial Court that it is not in dispute that D.1 and D.2 agreed to sell the

scheduled property at Rs.2,70,000/- per acre and entered into an

agreement of sale on 14.09.2003 after receiving Rs.2,00,000/- towards

advance of sale consideration. D.1 and D.2 have taken a plea in the

written statement that the plaintiff has taken undue advantage of illiteracy

and prepared an agreement and got it signed, promising to get the

signatures of other co-sharers. As seen from the said plea taken in the

written statement, the defendants are not disputing the terms and

conditions of the agreement. Still, their contest is that the plaintiff

persuaded them to sign an (Ex.A1) agreement on the pretext that he would

get the signature of other co-sharers. It is their stand that as the co-

sharers did not come forward to execute the registered sale deed, they are

helpless. Ex.A1 agreement does not show that the plaintiff has assured

D.1 and D.2 that he would convince the children of D.1 and D.2 to get the

signatures of other co-sharers.

17. In examining the nature of the suit schedule property, it's essential

to determine whether it belongs to defendants 1 and 2 individually or

whether it is part of the joint family property involving defendants 1 to 7.

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Ex.A1, the agreement, does not explicitly state that the property is

ancestral or joint family property of the defendants. The agreement

indicates that defendants 1 and 2 purchased the property on 12.09.1980

from P. Chenchuramaiah. The defendants also produced (Ex.B1) a

registered sale deed dated 12.09.1980, which confirms the purchase of the

schedule property by defendants 1 and 2. Notably, there is no mention in

the agreement that the property was acquired by defendants 1 and 2

using income from the joint family nucleus or joint family funds. It also

lacks a statement that the property was acquired by defendants 1 and 2

for the benefit of the joint family and that the children of defendants 1 and

2 have rights over it. The defendants have not presented any evidence to

demonstrate that the property was acquired by defendants 1 and 2 using

joint family income or joint family funds.

18. Defendants 1 and 2 have not disputed the rate fixed per acre and

extent of land covered under Ex.A1. Defendants 3 to 7 have not placed

any material before the Court to show they have a 5/7th share in the

schedule property. Though, D.W.1 stated in her evidence that her sons

purchased the schedule property in her name and her husband's name,

no plea is taken in the written statement filed by D.5 that the schedule

property was purchased by D.3 to D.7 in the name of their parents (D.1

and D.2). In the absence of such plea in the written statement of D.5, it is

difficult to accept the evidence of D.W.1 in this regard. It is also the

plaintiff's case that D.3 was present and signed on Ex.A1. D.3 has not

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come forward to dispute the signature on Ex.A1, as contended by the

plaintiff.

19. It is not the case of D.1 and D.2 that the signature of D.3 was forged

in Ex.A1. It shows that D.3 knows the terms of the Ex.A1 agreement.

D.W.1 admitted that they had not filed documents showing that her sons

purchased the schedule property with their earnings in her and her

husband's names.

20. Coming to the evidence of D.W.2- Yembeti Yeshaiah, he also stated

that D.3 to D.5 purchased the schedule property in the name of D.1 and

D.2. As seen from the written statement filed by D.5, such plea has not

been taken. It is contended in the written statement of D.5 that D.3 to D.7

are entitled to a 5/7th share in the suit schedule property. D.5 has not

taken a plea regarding the purchase of schedule property by D.3 to D.7 in

the name of D.1 and D.2.

21. The defendants also got examined D.W.3-Kayala Muddukrishna. His

evidence shows that D.1 and D.2 are his grandparents. He also stated that

the plaintiff paid Rs.2,00,000/- to defendants 1 and 2 and obtained their

signatures on (Ex.A1) agreement; as the plaintiff has not got the consent

of other sharers to purchase the schedule land, his grand-parents have

sent him and their son Vasantha Rao to return the amount paid by the

plaintiff, but, he did not receive the amount.

22. The evidence of D.W.3 in the cross-examination shows that on

15.09.2003, he was asked to go to the plaintiff's house, and there are no

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disputes among the defendants. The evidence of D.W.2 shows that D.1 to

D.7 lives under one roof. It is somewhat difficult to believe that D.1 and

D.2 entered into an agreement of sale with the plaintiff without consent of

D.3 to D.7. The evidence of D.W.3 in the cross-examination shows that he

does not know the street in which the plaintiff is residing. He does not

know on which floor the plaintiff resides. It creates doubt about his

evidence concerning going to the plaintiff's house.

23. After considering the oral and documentary evidence adduced on

behalf of both sides, the trial Court has correctly conclusion that the

defendants failed to produce any evidence to substantiate their contention

that the property covered under Ex.A1 is not the self-acquired property of

D.1 and it is the joint family property consisting of all the defendants. The

defendants have not disputed the terms of the agreement. As per Ex.A1

agreement, the schedule property has to be measured, and the actual

extent has to be ascertained, and the plaintiff has to pay the balance of

sale consideration for the said extent at the fixed rate, as stated above.

Though the plaintiff contends that the defendants engaged a mediator,

who informed the plaintiff that the defendants had already measured the

land, but no cogent material is placed to establish the contention. After

considering the material on record, this Court views that the plaintiff

failed to furnish the details of the measurement of the schedule property

on the initiative by the defendants.

24. The plaintiff indeed sent a legal notice, (Ex.A2) dated 27.01.2004, to

defendants 1 and 2, as is undisputed. In this notice, the plaintiff stated

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that he had been requesting the defendants to cooperate for the

measurement and determination of the actual extent of the land, but they

consistently postponed these actions on various pretexts. The plaintiff

expressed his readiness and willingness to fulfill his part of the contract

as stipulated in the Ex.A1 agreement. However, the defendants had not

taken steps to fulfill their obligations under the agreement. It's worth

noting that D.1 and D.2 received the legal notice, as confirmed by postal

acknowledgment. In response, the defendants sent a reply notice (Ex.A5)

to the plaintiff, contending that the plaintiff had taken advantage of their

illiteracy by preparing an agreement and paying an advance of

Rs.2,00,000/-. The plaintiff had promised to obtain the signatures of the

other co-owners but, after consulting their children, but the plaintiff had

never approached them. However, the (Ex.A5) reply notice did not provide

a clear explanation regarding the issue of property measurements. The

evidence on record indicates that the defendants 1 and 2 had not taken

steps to measure the scheduled property, as stipulated in the Ex.A1

agreement, due to the non-cooperation of their children. It appears that

defendants 3 to 7 were not willing to sell the schedule property though

defendants 1 and 2 had agreed to sell to the plaintiff and received the

advance amount, and as such, they did not proceed with the property

measurements, as per the agreement's terms.

25. After considering the entire material on record, this Court views that

the trial Court has come to the correct conclusion that the plaintiff has

always been ready and willing to perform his part of the contract.

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26. In Nirmala Anand V. Advent Corporation Private Limited1, the

Hon'ble Apex Court held that:

6) It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the consideration besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the consideration to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing the specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.

27. In light of the law laid down by the Apex Court, now I consider

whether the additional amount can be awarded to the D.1 and D.2. As

seen from the record, due to the non-cooperation of D.3 to D.7, D.1 and

D.2 could not execute the registered sale deed, and they have yet to

receive the balance of the sale consideration amount. Had they received

the sale consideration amount as per the terms of (Ex.A1) agreement, they

could have purchased the property by utilizing the said amount; this

Court views that an additional amount is to be awarded to the defendants

1 2002 0 AIR(SC) 3396

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because the defendants are the agriculturists and they are eking out their

livelihood on agriculture. Considering the escalation of prices and with the

amounts deposited, they may not able to purchase considerable extent of

property, this Court views that an additional amount of Rs.2,00,000/- will

be awarded to the defendants to meet the ends of justice.

28. After careful consideration, the trial Court had adequately

appreciated the evidence. There is no reason for this Court to arrive at a

different conclusion than the one arrived at by the trial Court except

directing to pay additional payment of Rs.2,00,000/-. I am of the opinion

that the findings arrived at by the trial Court are correct, and no

justifiable reasons have been shown by the appellants/defendants for

arriving at different conclusions. I agree with the conclusion reached by

the trial Court.

29. As a result,

i) The Appeal is partly allowed without costs by modifying the decree and judgment dated 17.06.2010 in O.S.No.27 of 2004, passed by the learned Principal District Judge, Nellore, to the extent, as mentioned below;

(i) Both parties are directed to take steps to measure the suit schedule property with a qualified surveyor within two (2) months from the date of receipt of Judgment, otherwise, the plaintiff can work out his remedies by approaching the Court in accordance with the procedure;

(ii) The respondent/plaintiff is directed to deposit the balance sale consideration amount with interest @ 12% per annum from 14.09.2003 till the date of deposit of the balance sale

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consideration amount (if he has not already deposited) as per the terms and conditions of (Ex.A1) agreement as per the extent of the land measured within two (2) month from the date of determination of the actual extent of the land;

(iii) The plaintiff is further directed to deposit an additional amount of Rs.2,00,000/- (Rupees two lakhs only) within two months from the date of Judgment in addition to the balance sale consideration amount;

(iv) On such deposits, D.1 and D.2 are directed to execute the registered sale deed in favour of the plaintiff within one month, failing which, the Court shall execute the sale deed in favour of the plaintiff in respect of the plaint schedule property;

(v) After execution of the sale deed, D.1 and D.2 are entitled to withdraw the balance of sale consideration with interest and additional amount deposited in the Court;

(vi) In the facts and circumstances, the parties have to bear their costs in the Appeal.

Miscellaneous petitions pending, if any, in this Appeal, shall stand

closed.

___________________________________ JUSTICE T. MALLIKARJUNA RAO

Date:20.10.2023 SAK/MS

T.M.R, J A.S. No.683 of 2010

THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

APPEAL SUIT NO.683 OF 2010

Date:20.10.2023

MS