Andhra Pradesh High Court - Amravati

M. Nageswara Rao, vs R. Rajasekhar, on 2 January, 2024

            THE HON'BLE SRI JUSTICE V.SRINIVAS

                 APPEAL SUIT No.939 of 1999

JUDGMENT:

This regular appeal under Section 96 Code of Civil

Procedure (hereinafter referred to as 'CPC') is directed against

the decree and judgment in O.S.No.49 of 1989 dated

27.10.1998 on the file of the Court of learned Senior Civil

Judge, Ramachandrapuram.

2. The plaintiff, before the trial Court, is the appellant.

The respondent herein is the defendant.

3. The appellant instituted the suit for specific

performance of contract directing the respondent to execute a

proper sale deed in his favour and get it register for the

schedule property after receiving the balance of sale

consideration and further to deliver the possession of the

schedule property together with improvements thereon or in

the alternatively to grant a decree to refund of advance money

together with interest @ 18% per annum.

4. Before adverting to the material and evidence on record

and nature of findings in the judgment of the trial Court, it is

necessary to scan through the case pleaded by the parties in

their respective pleadings.

5. The case of the appellant/plaintiff in brief in the plaint

was as follows:

(i) The respondent is the owner of the property

which is a vacant site in Vegayampeta. For the purpose

of business expenses, respondent agreed to sell the said

schedule property to the appellant for a sum of

Rs.30,000/- on 12.06.1986 and having received a sum

of Rs.9,000/- as advance executed an agreement of sale

dated 12.06.1986. As per the said agreement of sale,

the balance of Rs.21,000/- was agreed to be paid before

the Registrar by the appellant to the respondent at the

time of registration of sale deed.

(ii) Inspite of repeated demands, respondent failed to

execute the sale deed. The appellant is always ready

and willing to get the sale deed with balance sale

consideration and expenses. But the respondent

postponed the same. Hence, the suit.

6. The respondent denying all the allegations in the plaint

and contending in the written statement and additional

written statement as follows:

(i) He did not obtain any amount from the appellant

under an agreement of sale dated 12.06.1986. His date of

birth is 20.06.1970 and his age at the time of alleged

execution of agreement of sale is 16 years 8 days and he

is a minor. To prove the same, he filed photostat copy of

secondary school certificate. As such, the appellant is not

entitled to claim the relief.

(ii) Moreover, he has no salable interest over the plaint

schedule property and the same is always in possession

and enjoyment of his mother Reddy Surya Prabhavathi on

her own right, title and interest since July 1984 and it is

not a vacant site. She constructed a building therein and

setup an Ice Factory by name Sri Surya Ice Industries by

installing machinery after obtaining permission from

Gram Panchayat, Annayyapeta and other concerned

officials and running the said business in the schedule

property in the past three years without any interruption.

The door number of the building situated in the schedule

property is 136/2.

(iii) Even the appellant is aware of the said fact and he

concocted the agreement of sale by playing fraud. The

father of the respondent, who is addicted for vices,

colluded with the appellant created the suit document.

The alleged contract of sale became impossible of

performance and the appellant is not entitled for the relief

of specific performance. Hence, prays to dismiss the suit

with costs.

7. Subsequently, the appellant also filed a rejoinder by

denying the averments in the additional written statement

and contended interalia as follows:

i) The schedule property belongs to respondent

only. By 02.07.1984, the respondent attained majority

and on 02.07.1984 two sites admeasuring Ac.0.09

cents in Annaipeta, hamlet of Vegayammapeta were

purchased in favour of the respondent and his mother

each from the same vendors. Since them the

respondent as well his mother has been enjoying their

respective plots with absolute rights. The sale deed in

respect of an extent of Ac.0.09 cents in favour of the

respondent was registered as Document No.1623/1984

in the Office of Sub-Registrar, Drakasharama and the

sale deed in respect of an extent of Ac.0.09 cents in

favour of the mother of the respondent was registered

as Document No.1622/1984. Thus, the properties of

the respondent and his mother are two different plots

under separate sale deeds, dated 02.07.1984, which

were filed by the appellant into the court along with the

plaint.

ii) The site of the respondent, which is plaint

schedule property, is bounded by Annayipeta road on

East. The original sale deed dated 02.07.1984 was

handed over to the appellant at the time of sale

agreement, dated 12.06.1986. The respondent attained

majority even by the time he purchased the property on

02.07.1984.

iii) Having received advance amount of Rs.9,000/-

out of sale consideration of Rs.30,000/-, the

respondent executed the sale agreement with all the

terms, which was attested by the father of the

respondent. Whatever constructions are there in the

plaint schedule property by the time of sale agreement,

the same is pertains to all such constructions and the

site.

8. On these pleadings, the trial Court settled the following

issues for trial:

"1. Whether the agreement of sale executed by defendant is void?

2. Whether the plaintiff paid the amount to the defendant as contended by him?

3.Whether the plaintiff is entitled to specific performance of the agreement of sale? and

4.To what relief?"

9. At the trial, on behalf of the appellant/plaintiff, P.Ws.1

to 4 were examined while relying on Exs.A.1 to A.7 in support

of his contentions. On behalf of the respondent/defendant,

D.Ws.1 to 4 were examined and got marked Exs.B.1 to B.15.

10. Basing on the material and evidence, trial Court came

to conclusion that the respondent is minor by the date of

execution of agreement of sale and as the contract entered

with the minor is ab initio void and cannot be enforceable

against him and also the appellant even not entitled for

refund of the amount alleged to be paid under the said

agreement of sale. Thus, dismissed the suit.

11. It is against this decree and judgment, the

appellant/plaintiff preferred this appeal.

12. Heard Sri T.V.S.Prabhakar Rao, learned counsel for the

appellant/plaintiff and Sri M.V.Suresh, learned counsel for

the respondent/defendant.

13. For the sake of convenience, the parties hereinafter

referred to as they arrayed before the trial Court.

14. It is against this backdrop, the following point, which

arise for determination and need for consideration now:

Whether the judgment and decree of the trial Court is liable to be set aside, if so, to what extent and to what relief?

15. POINT:

In-order to appreciate this point, this Court has to

decide the following points:

i.Whether the agreement of sale executed by defendant is void?

ii.Whether the plaintiff paid the amount to the defendant as contended by him? and iii.Whether the plaintiff is entitled to specific performance of the agreement of sale? The undisputed fact is that defendant is the owner of

the plaint schedule property. The contention of the plaintiff is

that he agreed to sell the same to him for a sum of

Rs.30,000/- on 12.06.1986 for the purpose of business

expenses and a sum of Rs.9,000/- was received as an

advance and executed a sale agreement and as per the terms

of said agreement, balance of Rs.21,000/- was agreed to be

paid before the Registrar at the time of registration and that

he always ready and willing to perform his part of contract

with balance sale consideration and willing to obtain the sale

deed with his expenses. As defendant failed to execute the

same on demand by saying that he has no salable interest, he

was constrained to file the suit.

16. Learned counsel for the plaintiff submits that plaintiff

himself examined to prove his case, not only the plaintiff, but

also three witnesses were examined on his behalf, among

them P.Ws.2 and 3 are scribe and attestor of Ex.A.1.

17. He further submits that the defendant herein said to

have sold the property to one Kamarina Kamala and to prove

the same the scribe of said document was examined as

P.W.4. Not only, the said document, but also executed

another sale deed dated 04.03.1987 by the defendant under

Ex.A.7.

18. He further submits that the contention of the defendant

that he is minor by the date of agreement is absolutely false

and to deny the execution of regular sale deed the defendant

has taken plea that he has no salable interest. But, in fact,

himself sold some other property to other parties, which

clearly goes to show that he is not a minor by then i.e., as on

the date of execution of agreement of sale dated 12.06.1986.

19. He also submits that defendant gave his original title

deed to the plaintiff, said to be purchased by him on

02.07.1984, at the time of agreement of sale and the plaintiff

also filed encumbrance certificate under Ex.A.3.

20. He further submits that the scribe and attestor i.e.,

P.Ws.2 and 3 consistently stated that Ex.A.1 document was

executed before them, not only in their presence, but also

defendant's father Reddy Ramakrishna present and in their

presence, plaintiff paid Rs.9,000/- as an advance to the

defendant out of sale consideration of Rs.30,000/-.

21. He further submits that on 04.03.1987, defendant

executed a sale deed along with his mother in favour of one

Meka Suryanarayana, sold the land in Survey No.335/6 to an

extent of Ac.0.26 cents; that the mother of the defendant,

who was examined as D.W.2 by name Reddy Surya

Prabhavathi, gave Ex.A.4 sale deed dated 02.07.1984, said to

be executed by Angara Suryakantham and others, to him as

security. Exs.A.4 and A.7 reads together shows that only in-

order to wriggle out of the contract under Ex.A.1, they took a

defence that defendant is a minor by the date of Ex.A.1 and

did not attain majority as on 12.06.1986 and he born on

20.06.1970, which is incorrect and their contention as on the

date of agreement, he was aged sixteen (16) years is

absolutely false. Thereby, their contention that he has no

salable interest is not correct. When Exs.A.4, A.5 and A.7

reads together, the defendant intends to commit breach of

contract and plaintiff is entitled for regular sale deed by

directing the defendant to receive balance sale consideration

after execution of regular sale deed.

22. He further submits that the trial Court failed to

consider all these aspects and erroneously dismissed the suit

without considering the material on record.

23. Per contra, learned counsel for the defendant submits

that defendant born on 20.06.1970 and date of agreement of

sale was on 12.06.1986 and by the date of alleged agreement

of sale, he is only aged about sixteen (16) years eight (8) days.

Thereby, he is minor at the time of alleged agreement of sale.

24. He further submits that the defendant did not execute

any agreement of sale in favour of plaintiff at any point of

time either on 12.06.1986 or subsequent dates nor received

any amount much less Rs.9,000/- as an advance and in

support of his contention, he filed photostat copy of

secondary school certificate covered under Ex.B.2 and also

certificate of date of birth of defendant issued by the

Correspondent & Head Master, S.M.H. High School,

Ramachandrapuram covered under Ex.B.4.

25. As well, he further contends that, in Ex.B.1, which is a

registration extract of settlement deed executed by his grand-

father Vobilineni Venkanna in favour of his mother, in which

it is recited that the marriage of his mother held on

04.06.1969, which corroborates to his case.

26. He further submits that the defendant has no salable

interest over the plaint schedule property and that schedule

property is always been in possession and enjoyment of his

mother Reddy Surya Prabhavathi with her own title and

interest since July, 1984 and that it was not a vacant site, in

which his mother constructed a building and has been in

exclusive possession and enjoyment, also set up an ice

factory by name Sri Surya Ice Industries after obtaining

necessary permission from Gram Panchayat, Annayyapeta

and also other necessary permissions from the Town

Planning, Hyderabad, Assistant Director, Small Scale

Industries, Rajahmundry and Inspector of Factories,

Kakinada and approved by the Medical and Health

Department, Kakinada and after construction of the building

in the schedule premises, she purchased all the necessary

machinery at her own cost and installed the said Ice Factory

and the door number of the building situated in the schedule

site is 136/2.

27. He further submits that there are differences between

defendant's father and mother and they are living separately;

that plaintiff playing fraud against the Court by trying to

secure an order behind the back of the individual, who is

owning and possessing the property; that the father of the

defendant by name Reddy Ramakrishna was addicted to all

sorts of vices and squandering away the properties and that

is the reason, his father Ramakrishna colluded with the

plaintiff and obtained financial accommodation to meet his

vices and created this litigation; that the alleged contract of

sale became impossible of performance and that plaintiff is

not entitled any relief of specific performance.

28. He further submits that the trial Court by considering

all these aspects and material placed on record rightly

dismissed the suit and there are no tenable grounds to

interfere with the judgment and decree of the trial Court.

29. Point Nos.i to iii:

Now, under these circumstances and in view of the rival

contentions, it has to be appreciated that to what extent the

plaintiff is proved the agreement of sale, said to be placed on

record, is acceptable rather enforceable and whether the

plaintiff paid the amount to the defendant as contented in

Ex.A.1 agreement of sale.

30. No doubt, the plaintiff took a plea that defendant

attained majority by 02.07.1984 itself, that is the reason he

purchased two sites measuring Ac.0.09 cents each, one is in

favour of defendant and another one is in favour of his

mother from some vendors. Since then, defendant and his

mother enjoyed their respective plots with absolute rights.

The site said to be purchased by the mother of the defendant

exists south of Draksharama-Yanam road in respect of sale

deed dated 02.07.1984 vide document No.1622 of 1984

covered under Ex.A.4 and to the south of the said property,

the present plaint schedule property is in existence and sale

deed in respect of defendant is vide document No.1623 of

1984 in the office of Sub-Registrar, Draksharama covered

under Ex.A.2.

31. Thus, as per the plaintiff, the defendant and his mother

though purchased plots under separate deeds, in-order to

avoid the specific performance started this litigation.

32. Since the defendant taken a plea that he was a minor

by that time, plaintiff cannot execute rather enforce specific

performance of agreement of sale against him. For that, he

filed Ex.B.2 Secondary School Certificate, in which his date of

birth is mentioned as 20.06.1970. According to the

defendant, Ex.B.2 is that of him.

33. Not only that, but he also filed date of birth certificate

issued by Correspondent & Headmaster, S.M.H. High School,

Vegayammapeta under Ex.B.4. While marking Exs.B.2 and

B.4, no objection was taken by the plaintiff and marked the

same as unchallenged and in which it is specifically stated

that while admitting the defendant in S.M.H. High School

with admission No.4012, his date of birth is mentioned as

20.06.1970. As per the records and S.C.C. certificate, the

defendant's by name Reddy Rajasekhar date of birth is

mentioned as 20.06.1970. These two documents go to show

that by the date of execution of alleged agreement of sale i.e.,

on 12.06.1986, he is only aged about sixteen (16) years and

eight (8) days.

34. Specific performance is a remedy rooted in principles of

equity. It allows a party who has suffered damage due to a

contract breach to seek enforcement of the contract terms.

However, specific performance is not granted automatically.

The Court has to consider various factors before compelling

specific performance. 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.

35. It is settled law that 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

to the plaintiff.

36. For a plaintiff to succeed in a suit for specific

performance, he must establish that he has either performed

or has always been ready and willing to fulfil the essential

terms of the contract on his part. The plaintiff must also

demonstrate that the defendant has failed to fulfill his

obligations under the contract.

37. In this connection, it is ought to have mentioned a

judgment of Hon'ble Supreme Court reported in Gobinad

Ram v. Gian Chand1. It is also kept in mind a judgment of

the Hon'ble Supreme court reported in Mayawanti v.

Kaushalya Devi2, wherein at paragraph No.8 held as follows:

"In the case of specific performance, it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the

1 (2000) 7 SCC 548 2 (1990) 3 SCC1

foundation of the obligation the order of specific performance is to enforce that obligation."

38. It is specifically held by the APEX Court that while

ordering the specific performance, the courts are necessary to

see whether there has been a valid and enforceable contract

and then to see the nature and obligation arising out of it.

The contract being the foundation of the obligation, the order

of specific performance is to enforce that obligation. The same

principle is also followed in a case between K.Prakash v.

B.R.Sampath Kumar3, wherein the Hon'ble Supreme Court

held that:

"Indisputably, remedy for specific performance is an equitable remedy. The Court while granting relief for specific performance exercise discretionary jurisdiction. Section 20 of the Act specifically provides that the court's jurisdiction to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with the sound and reasonable judicial principles."

3 (2015) 1 SCC 597

39. In the above judgment also, it is clear that while

granting relief for specific performance exercise discretionary

jurisdiction and that Section 20 of the Act specifically provides

that the court's jurisdiction to grant decree of specific

performance is discretionary, but not arbitrary and that

discretion must be exercised in accordance with the sound and

reasonable judicial principles.

40. The contingency arising in this appeal, the defense of

the defendant, is that he is minor by the date of execution of

Ex.A.1 agreement of sale. It is settled law that the defendant

(below the age of majority) has limited capacity to enter into

contracts. Contracts with minors are generally voidable at the

minor's option. This means that the minor can choose to

enforce or avoid the contract. Specific performance is

generally not available against a minor. Courts are reluctant

to compel a minor to perform contractual obligations because

of their limited legal capacity.

41. The sheet anchor in the suit by the defendant is that he

is minor by the date of agreement for sale covered under

Ex.A.1. Since, defendant being minor, the plaintiff could not

get the right to enforce that agreement.

42. Way back, in the year 1999 itself, the Hon'ble Supreme

Court in a judgment reported in K.Narendra v. Riviera

Apartments (P) Ltd4, interpreted Section 20 of the Act and

laid down the following propositions:

"Section 20 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; 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. Performance of the contract involving some hardship on the defendant which he did not foresee while non-performance involving no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance............."

4 (1999) 5 SCC 77

43. This is more or less as observed by the Hon'ble

Supreme Court in K.Prakash case (referred to supra).

44. In these circumstances, it is to be seen to what extent

the defendant placed material and whether it is relevant or

admissible 'an entry relating to date of birth made in school

45. In this connection, it is relevant to mention, Section 77

of Indian Evidence Act deals with production of certified

copies to prove content of public documents as well Section

79 of the Indian Evidence Act deals with presumption as to

genuineness of the certified copies.

46. It is also relevant to say that an entry relating to the

date of birth made in the school register is relevant and

admissible under Section 35 of the Act, but the entry

regarding the age of a person in a school register is of not

much evidentiary value to prove the age of the person in the

absence of the material on which the age was recorded.

47. In summary, the date of birth in a school register is

considered as evidence and its probative value depends on

additional factors and corroborating evidence. Herein this

case, the mother of the defendant examined was D.W.2. In

her evidence, she consistently deposed that defendant born

on 20.06.1970 and to support it both Secondary School

Certificate as well certificate issued by the Correspondent &

Head Master, S.M.H. High School, were placed on record.

48. In Mayawanti case (referred to supra) the Hon'ble

Supreme Court categorically held that where there is a valid

and enforceable contract and then to see the nature and

obligation arising out of it.

49. Herein in this case, defendant contended as minor by

the date of execution of Ex.A.1 agreement of sale and it

cannot be enforceable against him. This Court already

discussed supra about the relevancy, admissibility and

probative value of documents produced by the defendant.

50. In this connection, it is also relevant to refer a

judgment of the Hon'ble Supreme Court reported in Birad

Mal Singhvi v. Anand Purohit5, wherein it was held that

"the basis on which the entry pertaining to date of birth in a

school register was recorded needs to be established for it to

have evidentiary value". It is further held that "to render a

document admissible under Section 35, three conditions

must be satisfied, Firstly, the entry that is relied on must be

one in a public or other official book, register or record.

Secondly, it must be an entry stating a fact in issue or

relevant fact. Thirdly, it must be made by a public servant in

discharge of his official duty, or any other person in

performance of a duty specially enjoined by law".

51. Herein this case, Ex.B.4 is a public document, certified

copy and is a register maintained by the school and that

admission number is also mentioned therein, coupled with

Ex.B.4 an entry of date of birth in Secondary School

5 AIR 1988 SC 1796

Certificate covered in Ex.B.2 also is a relevant fact and the

same were issued by the public servant in discharge of official

duty.

52. It is also settled law that the person who provided the

information for the entry (such as a parent or guardian) is

examined, it strengthens the probative value. So far as the

evidentiary value of the scholar register and mark sheet is

concerned, it would be apt to refer to the decision rendered

by the Hon'ble Supreme court in the case of Biran Mal

Singhvi (referred to supra), which reads as follows:

"No evidence was produced by the respondent to prove that the aforesaid documents related to Hukmi Chand and Suraj Prakash Joshi who had filed nomination nation papers. Neither the admission form nor the examination form on the basis of which the aforesaid entries relating to the date of birth of Hukmi Chand and Suraj Prakash Joshi were recorded was produced before the High Court. No doubt, Exs.8, 9. 10, 11 and 12 are relevant and admissible but these documents have no evidentiary value for purpose of proof of date of birth of Hukmi Chand and Suraj Prakash Joshi as the vital piece

of evidence is missing, because no evidence was placed before the Court to show on whose information the date of birth of Hukmi Chand and the date of birth of Suraj Prakash Joshi were recorded in the aforesaid document. As already stated neither of the parents of the two candidates nor any other person having special knowledge about their date of birth was examined by the respondent to prove the date of birth as mentioned in the aforesaid documents. Parents or near relations having special knowledge are the best person to depose about the date of birth of a person. If entry regarding date of birth in the scholars register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value. The testimony of Anantram Sharma and Kailash Chandra Taparia merely prove the documents but the contents of those documents were not proved. The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's

register regarding date of birth is made in the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely because the documents Exs.8, 9, 10, 11 and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs.8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents."

53. From the above, in the case on hand, it is clear that the

mother of defendant was examined as D.W.2, who has special

knowledge and best persons to depose about his date of birth

and proved the date of birth mentioned in Exs.B.2 and B.4.

The above said judgment goes to show that the evidence of

D.W.2 regarding date of birth of defendant being mother has

probative value.

54. Besides, these documents, the defendant is also filed

Ex.B.1, which is a certified copy of registration extract of

settlement deed dated 27.05.1969 executed in favour of

father of the defendant. This document was pressed into

service by the defendant to show that his parents i.e., D.W.2

and his father married on 04.06.1969. So far as this

document is concerned, an unregistered document can also

be admitted into evidence for a collateral fact or collateral

purpose. Let us now look at the meaning of "collateral

purpose" as was explained by the Hon'ble Supreme Court in a

judgment reported in M/s.K.B.Saha And Sons Private

Limited v. M/s Development Consultant Limited6. Besides

Haran Chandra Chakrvarti v. Kaliprasanna Sarkar7,

wherein it was held that "to use such an instrument for the

purpose of proving such a term would not be using it for a

collateral purpose and that the question as to who is the

tenant and on what terms he has been created a tenant are

not collateral facts but they are important terms of the

contract of tenancy, which cannot be proved by admission of

an unregistered lease-deed into evidence".

6 (2008) 8 SCC 564 7 AIR 1932 Cal 83(2)

55. Herein this case, the document under Ex.B.1 was

pressed into service only to prove that there was marriage

held between D.W.2 and her husband Reddy Ramakrishna on

04.06.1969.

56. In Bajaj Auto Limited v. Behari Lal Kohli8, as well

Rana Vidya Bhushan Singh v. Ratiram9, the Hon'ble

Supreme Court held that "a document required by law to be

registered, if unregistered, is inadmissible as evidence of a

transaction affecting immovable property, but it may be

admitted as evidence of collateral facts, or for any collateral

purpose, that is for any purpose other than that of creating,

declaring, assigning, limiting or extinguishing a right to

immovable property".

57. So, the said gift deed under Ex.B.1 was placed on

record not to prove the gift, is only to prove the fact of

marriage held in between D.W.2 by name Reddy Surya

Prabhavathi and Reddy Ramakrishna on 04.06.1969. So, in

8 AIR 1989 SC 1806 9 1969 (1) UJ 86 (SC)

that scope i.e., collateral purpose only this document can be

looked into and can be used as evidence for collateral

purpose. More so, it is a settled law that a collateral

transaction must be independent of, or divisible from, the

transaction to effect which the law required registration.

58. Even this Court in K.Ramamoorthi v.

C.Surendranatha Reddy10, held that "object in putting the

document in evidence does not fall within the two purposes

that to use the document to affect the immovable property

and to use the document as evidence of a tractions affecting

the immovable property. The document cannot be executed

from evidence altogether". Further held that the phrase

"collateral purpose" is with reference to the transaction and

not to the relief claimed in the suit. Whether a transaction is

collateral or not needs to be decided on the nature, purpose,

and recitals of the document. Having culled out the legal

propositions, the discussion on this issue will be incomplete

10 2012 SCC Online AP 125

if a few illustrations as to what constitutes collateral

transaction are not enumerated as given out in Radhomal

Alumal v. K.B.Allah Baksh Khan Haji Muhammad

Umar11."

59. In a judgment reported in Bondar Singh v. Nihal

Singh12, the Hon'ble Supreme Court held that "a sale deed of

immovable property requiring registration but not registered

can be used to show nature of possession".

60. So, herein this case, where the document covered

under Ex.B.1 is only to prove the marriage between D.W.2

and Reddy Ramakrishna held on 04.06.1969 and

subsequently on 20.06.1970 defendant was born as per the

testimony of D.W.2 coupled with Exs.B.2 and B.4, which

clinchingly proves that he is minor by the date of execution of

Ex.A.1 i.e., on 12.06.1986. Moreover, the genuinity or

otherwise of the documents in Exs.B.1, B.2 and B.4 is not

disputed by the plaintiff.

11 AIR 1942 Sind 27 12 AIR 2003 SC 1905

61. Thus, from the above discussion, it can be safely held

that the evidence on record is sufficient to prove the date of

birth, which clearly established that the defendant is minor

by the date of execution of Ex.A.1 agreement of sale and entry

made regarding date of birth of the defendant in Ex.B.4,

which is an official book or register or record stating a fact in

issue or relevant fact under Section 35 of Indian Evidence Act

and a public servant in discharge of his official duty recorded

the same is acceptable and in as much as the entry made by

the public servant in discharge of official duties has to be

presumed correct and there is no contra evidence was

established by the plaintiff to disbelieve the same.

62. Moreover, in-order to prove the fact, the Correspondent

& Head Master, S.M.H. High School by name M.Lakshmi

Ganapathi also examined as D.W.3 by the defendant. He

stated that the date of birth of defendant recorded in school

record as 20.06.1970. Further, defendant and D.W.2 mother

of the defendant also deposed in same lines that the

defendant was born on 20.06.1970, when comparatively

Ex.B.1 clearly goes to show that the marriage between D.W.2

and Reddy Ramakrishna took place on 04.06.1969. Thus,

comparatively it is possible to say the defendant was minor

by the date of Ex.A.1 and even Ex.A.6.

63. May be true, by the date of Ex.A.6 i.e., on 29.10.1986

also, the defendant was minor, but as already stated supra, it

is not going to disprove the fact stated by D.Ws.2 and 3

coupled with Exs.B.1, B.2 and B.4.

64. No doubt, as per Ex.A.6, his age is sixteen (16) years

three (3) months twenty-five (25) days by then. If at all the

purchase under Ex.A.6 is questioned, it is only relevant to

deny the same by the defendant only.

65. Here no evidence is forthcoming to say that the

purchase under Ex.A.5 is void and he is not entitled to

execute such sale deed if the defence taken by the defendant

is proved, as contended by the learned counsel for the

plaintiff.

66. In this regard, learned counsel for the plaintiff submits

that the defendant executed certain documents and he

purchased some land and sold some land on

misrepresentation. Before the trial Court the defendant

consistently taken a defence that he was minor by then and

the trial Court discussed a judgment of Madhya Pradesh High

Court reported in Nihal Singh v. Ram Bai13 as well

judgment of High Court of Orrissa reported in Daneyi

Gurumurthy v. Raghu Podhan14. These decisions are going

to show that contract between minor(defendant) and plaintiff

is voidable issue and cannot be enforceable against him and

also submitted that the plaintiff even not entitled to refund of

amount alleged to be paid under Ex.A.1.

67. In fact, one more instance which should be proved that

D.W.2 Reddy Surya Prabhavathi, who is mother of the

defendant, and Reddy Ramakrishna father of the defendant

were living separately and D.W.2 in her evidence categorically

13 AIR 1987 MP 126 14 AIR 1967 Orissa 68

deposed that her husband is not looking her properly as he

addicted to all sorts of vices, she is living separately along

with D.W.1 and she performed the marriage of her daughter.

She further deposed that about fourteen (14) or fifteen (15)

years ago disputes arose between her and her husband.

Notices were not exchanged between them.

68. It is the specific defence taken by D.W.1 that his father

being addicted to vices, while he was minor, colluded with

plaintiff and created Ex.A.1 document. In support of the same

not only D.W.1, but also his mother D.W.2 deposed the same

in her evidence and denied the execution of Ex.A.1 itself

intoto.

69. Further discussion regarding contract between plaintiff

and D.W.1 is concerned, it is specifically established that

D.W.1 being minor, any contract entered into with a minor is

not enforceable in particularly under Section 20 of Specific

Relief Act.

70. One more aspect, which is also to be accepted from the

testimony of P.W.1 that he categorically stated that he does

not know whether marriage of D.W.2 took place on

04.06.1969 and he does not know whether defendant was

born on 20.06.1970. Even after filing of those documents in

particularly Exs.B.2 and B.4, plaintiff did not make any

efforts to disprove the same.

71. Since plaintiff is seeking equitable relief, not only above

subject, but also to prove that he came to the Court with

clean hands as specific performance is a remedy rooted in

principles of equity. This Court already stated supra, a party

who has suffered damage due to contract breach to seek

enforcement of the contract terms. However, specific

performance is not granted automatically and he has to prove

that the contract is a valid one and terms in the agreement

are enforceable.

72. It is the specific case of the defendant that he has no

salable interest over the plaint schedule property and has

always been in possession and enjoyment of his mother i.e.,

D.W.2 with her own right, title and interest since July, 1984.

Further contended that the property is not a vacant site and

there is an ice factory as well constructed building in the

schedule property.

73. When that is the case, this Court perused the schedule

attached to the plaint. The plaintiff made a mention in the

schedule attached to the plaint that vacant site and the site

together with construction therein R.S.No.12/2 of an extent

of Ac.0.09 cents within the following boundaries:

East : Road leading to Annayyapeta

South: Land of Aketi Ramulu

West: land of Aketi Ramulu

North: Land sold to Reddy Surya Prabhavathi with all easementary rights etc.

74. Whereas in the plaint at paragraph No.4, he has

specifically stated that it is a vacant site. In the schedule of

the same, he mentioned that some construction was there.

Whereas, coming to the evidence, he deposed that before

execution of Ex.A.1, he went to the site and he has seen at

that time there was a tin sheet shed. But, during the cross

examination, he admitted that he went to the schedule site,

there were three shop rooms in the front portion of Ex.A.4

site and some constructions were also going on in the said

site.

75. Whereas, D.W.2, who is mother of the defendant,

deposed that her father purchased the property under Ex.A.2

with her money in the name of D.W.1, on the same day, her

father also purchased Ex.A.4 property in her name with her

money and Ex.A.2 site is to the south of Ex.A.4 site and that

she has been in possession and enjoyment of these sites.

These facts were not disputed by the defendant.

76. D.W.2 further deposed that she got constructed an ice

factory in Ex.A.2 site with the sale proceeds of her Stridhana.

She got constructed shop rooms and a residential house in

Ex.A.4 site and as per vastu sastra, Ex.A.2 site was obtained

in the name of defendant. She further deposed that after

obtaining necessary permissions from the concerned

authorities, she got constructed an ice factory in Ex.A.2 site.

From 1985 onwards she is running an ice factory and she

has been in possession and enjoyment. She also filed

documents like license receipt covered under Ex.B.5, a letter

addressed by the Inspector of Factories to Executive Officer,

Annaipeta Gram Panchayat under Ex.B.6, letter dated

21.11.1984 from the Director of Town and Country Planning,

Hyderabad addressed to the Executive Officer, Annaipeta

approving the proposal of Reddy Surya Prabhavathi (D.W.2)

for running an ice factory covered under Ex.B.7, Ex.B.8 copy

of the letter addressed to D.W.2 by the Assistant Director of

Industries, Rajahmundry registering her ice factory as small

scale industry and Ex.B.9 certified copy of resolution, dated

31.08.1984 passed by the Grama Panchayat, Annaipeta

granting permission to construct the ice factory. These

documents clearly and categorically show that Reddy Surya

Prabhavathi (D.W.2) running an ice factory in the suit

schedule property, whereas default schedule was attached to

the plaint and no contra evidence was placed by the plaintiff

to show the schedule premises is a vacant site.

77. When D.W.2 consistently states that D.W.1 has no right

to execute any agreement of sale, Ex.A.2 site is belonging to

her and she raised an ice factory in the said property and

running the same since 1985, no doubt, this Court already

stated supra, even taken into consideration Ex.A.1, defendant

being minor, plaintiff cannot enforce specific performance

against minor and as discussed supra plaintiff is unable to

prove the agreement of sale, which is in question is totally

void. More so, there is no material to make believe that

plaintiff paid the amount to the defendant.

78. For all these reasons, as admittedly proved that

defendant was minor by the date of Ex.A.1 and D.Ws.1 and 2

are living separately from the father of the defendant (D.W.1)

and any amount paid to the D.W.1 if at all proved, the

plaintiff is not entitled to seek refund of the same as

discussed supra, however, paying advance of consideration is

also not proved with all preponderance of probabilities.

79. In view of the above discussion, no evidence is

forthcoming to say that defendant misrepresented the

plaintiff and that defendant categorically established that

there are disputes in their family. When defendant

consistently states that he has not executed Ex.A.1 and

proved that he was minor by then, this Court is of the firm

opinion that plaintiff is not entitled any specific performance

nor return of amount allegedly paid under Ex.A.1.

80. Having regard to the above discussion and in view of

the settled proposition of law discussed supra, this Court

does not find any grounds to interfere with the well-

articulated judgment and decree of the trial Court. Therefore,

there are no merits in this appeal and as such the same is

liable to be dismissed.

81. In the result, the appeal is dismissed by confirming the

decree and judgment dated 27.10.1998 in O.S.No.49 of 1989

on the file of the Court of learned Senior Civil Judge,

Ramachandrapuram. There shall be no order as to costs.

82. Interim orders granted earlier if any, stand vacated.

83. Miscellaneous petitions pending if any, stand closed.

____________________ JUSTICE V.SRINIVAS

Date: 03.01.2024 Krs

L.R. copy to be marked.

THE HON'BLE SRI JUSTICE V.SRINIVAS

DATE: 03.01.2024

Krs

IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATI ***** THE HON'BLE SRI JUSTICE V.SRINIVAS APPEAL SUIT NO.939 OF 1999

Between:

Mutyala Nageswara Rao, S/o.Venkata Rao, Aged 38 years, R/o.Kakinada, East Godavari District.

... Appellate AND

Reddy Rajasekhar, S/o.Ramakrishna, Aged 34 years, Yanam Road, Draksharama, Ramachandrapuram Mandal, East Godavari District. .. Respondent

DATE OF JUDGMENT PRONOUNCED: 03.01.2024

SUBMITTED FOR APPROVAL: