Telangana High Court
Sri Sreekanth Raju vs Ravi Varma on 1 April, 2024
* THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
+ Appeal Suit No.462 OF 2023
% 01.04.2024
# Between:
Podila Sailaja @ Lakkineni Sailaja
Appellant
Vs.
Podila Sasikala
Respondent
! Counsel for Appellants : Sri Sheelam Ashok Reddy
^ Counsel for Respondents : Sri M. Achuta Reddy
<GIST:
> HEAD NOTE:
? Cases referred :
1. (1996) 9 Supreme Court Cases 388
2. 2009 (7) SCC 363]
3. MANU/SC/1112/2021
4. MANU/SC/1093/2013
2
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THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
I.A.No.1 of 2023
In and
A.S.No.462 OF 2023
JUDGMENT:
Aggrieved by the judgment and decree dated 13.09.2023 in
O.S.No.90 of 2012 (Old O.S.No.782 of 2022) (hereinafter will be
referred as 'impugned judgment') passed by the learned XI Additional
District and Sessions Judge, Ranga Reddy District at L.B.Nagar
(hereinafter will be referred as 'trial Court'), the defendant preferred
the present appeal to set aside the impugned judgment.
2. For the sake of convenience, the parties hereinafter are referred
to as they are arrayed before the trial Court.
3. The brief facts of the case, which necessitated the appellant to
file the present appeal, are as follows:
a) The plaintiff filed O.S.No.90 of 2012 (Old O.S.No.782 of 2022)
against defendant Nos.1 and 2 claiming specific performance of deed
of cancellation of agreement of sale cum GPA vide document
No.4471 of 2007, dated 21.09.2012 and consequently cancelling the
sale deed vide document No.5470 of 2012 dated 29.10.2012 in
favour of defendant No.2. The brief averments of the plaint are as
under:
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i) Plaintiff is the owner of suit schedule property i.e., agricultural
land in Sy.No.135 (Ac.7.18 guntas), 136 (Ac.4.24 guntas), 137
(Ac.6.06 guntas), 138 (Ac.2.27 guntas), 139 (Ac.0.11 guntas) and
140 (Ac.6.12 guntas) total admeasuring Ac.27.18 guntas in
Edulapally Village, Kothur Mandal, Mahaboobnagar District having
acquired the same by virtue of registered sale deed bearing
document No.7554 of 2006. The plaintiff being owner of the suit
schedule property and as he was in need of money, agreed to sell the
suit schedule property. The defendant No.1, who is father-in-law of
daughter of the plaintiff was interested to purchase the suit schedule
property. As defendant No.1 and his son were in real estate
business, they promised the plaintiff that they are in a position to
find a purchaser and pay the money. However, defendant No.1
could not identify a buyer and could not bring the property to sale.
Therefore, the plaintiff was regularly in contact and requesting
defendant No.1 either to sell or get the agreement of sale cum GPA
bearing document No.4471 of 2007 executed on 05.03.2007 be got
cancelled or otherwise pay the consideration what was agreed which
was not paid at the time of execution of document. Defendant No.1
neither sold the property nor paid the money, as such, the defendant
No.1 agreed to come and execute the cancellation agreement before
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the Sub-Registrar, Shadnagar.
ii) On 21.09.2012 the defendant No.1 has executed the deed of
cancellation of agreement of sale cum GPA, where under the
defendant No.1 had accepted that he did not pay any sale
consideration in respect of the document that was executed vide
document No.4471 of 2007 dated 05.03.2007 and that it was not
acted upon and both the parties have agreed to treat the document
as cancelled. It was also stated in the document that the document
was never acted upon and no transaction took place out of the said
document. However, the defendant No.1 did not come to the
registration office to get the document presented and admitted for
registration as required under law within.
iii) The plaintiff got issued a telegraphic notice to defendant No.1
to attend registration office on 25.10.2012 failing which the plaintiff
will be compelled to seek enforcement by an appropriate direction
from the court. Despite receipt of the notice, the defendant No.1 did
not come forward to attend the registration office, though the
plaintiff waited with the document at registration office. Hence, the
plaintiff was constrained to file the suit seeking a specific direction
directing the defendant to get the deed of cancellation to present and
get it admitted or else present the document on behalf of the
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defendant and get it admitted and registered as per law.
iv) After issuance of telegraphic notice, the defendant No.1 in
collusion with defendant No.2, got executed sale deed bearing
document No.5470 of 2012 dated 29.10.2012 in favour of defendant
No.2 to an extent of Ac.25.18 guntas out of total extent of Ac.27.18
guntas. The said transaction is fraudulent, as such the plaintiff took
criminal steps against defendants. Defendant No.2 is the brother-in-
law of one D.V.S.Subramanyam Raju, who is the son of defendant
No.1 herein. The said D.V.S.Subramanyam Raju is behind the entire
conspiracy in siphoning of the properties including the suit
properties.
b) In reply to the plaint averments, the defendant No.1 filed
written statement, the brief averments of which are as under:
i) Plaintiff is no more the owner of the suit schedule property
having sold it to defendant No.1 through agreement of sale cum GPA
vide document No.4471 of 2007, dated 05.03.2007 having received
sale consideration of Rs.10,99,000/-. Thus, defendant No.1 had
become absolute owner and possessor of the property and out of it
he sold an extent of Ac.2.00 gts in Sy.No.135 to Mohd. Assadullah
Chisti and Mohd. Kamal Khan vide registered sale deed bearing
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document Nos.2893 of 2010 and 2892 of 2010. Thereafter, this
defendant entered into Agreement of sale with defendant No.2 on
05.09.2012 to sell the remaining land admeasuring Ac.25.18 guntas.
After receiving total sale consideration, this defendant executed a
registered sale deed in favour of defendant No.2 vide document
No.5470 of 2012 dated 29.10.2012 for his immediate necessities.
ii) After payment of entire sale consideration of Rs.10,99,000/-
by the defendant No.1, the plaintiff has handed over the physical
possession of the suit schedule property to the defendant No.1. The
sale consideration passed to the plaintiff is clearly mentioned in the
recitals of AGPA vide document No.4471 of 2007. The plaintiff and
his family members by playing fraud on this defendant created
alleged deed of cancellation of agreement of sale dated 21.09.2012
without the knowledge and consent of this defendant, who came to
know about the alleged deed of cancellation after receiving notice
from the Court.
iii) Plaintiff is the father of this defendant's younger son DVS
Varma Raju married plaintiff's daughter D. Rajeshwari Sirisha about
12 years back and they blessed with only son by name Ruthvik, who
is aged about 5 years. During the life time of DVS Varma Raju, he
has no cordial relationship with his wife, who was residing
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separately with her parents for last two years. DVS Varma Raju fell
sick with chronic disease of heart problem and hyper tension due to
the harassment of his wife and her parents i.e., the plaintiffs herein
and finally expired on 20.07.2012 at Fortune Towers, Madhapur,
Hyderabad.
iv) After the death of this defendant's son i.e., DVS Varma Raju,
the plaintiff and his family members in greedy of money and to
absorb the properties of this defendant and his family members
created false and fabricated documents by maintaining cordial
relationship with this defendant. When this defendant went to see
his grandson Ruthwik at the residence of the plaintiffs on
22.09.2012, the plaintiff and his family members i.e., daughter in
law, wife of plaintiff and one DVV Laxmipathi Raju in collusion with
each other took signatures of this defendant on non judicial stamp
paper (5 Nos.) worth Rs.20/- and on other papers by making false
representations that the property standing in the name of DVS
Varma Raju situated at Gowadavelly Village to transfer the same in
the name of his grandson Ruthvik. This defendant does not know
English and blindly put the signatures on the said papers believing
the plaintiff and his family members as they have maintained good
cordial relationship. The plaintiff by playing fraud and
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misrepresenting this defendant, prepared a document in the style of
deed of cancellation of Agreement of sale cum GPA dated 21.09.2012
to retain the property. After knowing the alleged creation of deed of
cancellation of agreement of sale cum GPA, this defendant filed a
criminal complaint against the plaintiff and two others.
iv) This defendant shifted his residence from the address
mentioned in the notice (4-67, Sampanbool, Hrijanwada, Jaganguda
Village, Shameerpet Mandal, R.R. District) about 7 or 8 years back
and came to Hyderabad. The plaintiff having known about the
change of address, he sent the notice to the wrong address. Thus,
this defendant is not aware about the notice, as such the question
this defendant on receipt of notice agreeing to execute the deed of
cancellation on 21.09.2012 does not arise.
v) This defendant on receipt of total sale consideration and
having full capacity to convey the property, executed a registered
sale deed in favour of defendant No.2 in respect of suit property. The
sale transaction between this defendant No.1 and defendant No.2 is
not fraudulent one and it is a fair deal.
vi) The suit of the plaintiff is barred by limitation and it is also not
maintainable for seeking the relief of specific performance under the
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provisions of Specific Relief Act. Therefore, the suit is liable to be
dismissed on this ground. The cause of action is false and fictitious
and made only for the purpose of filing the present suit. The plaintiff
has approached the Court with unclean hands and by suppressing
the real facts and by creating false and fabricated documents, as
such the plaintiff is not entitled for any relief and finally prayed to
dismiss the suit.
c) In reply to the plaint averments, the defendant No.2 filed
written statement, the brief averments of which are as under:
i) The plaintiff has created a false story and in order to grab the
property of the defendant No.2 filed the vexatious suit with all false
and frivolous allegations. D. Sreenivasa Raju and the plaintiff have
jointly purchased the suit schedule lands through registered sale
deed bearing document No.7554 of 2006 dated 03.04.2006.
ii) The plaintiff offered to sell his undivided share of property in
the suit schedule lands and executed registered agreement of sale
cum GPA with possession in favour of defendant No.1 through
registered document bearing No.4471 of 2007 dated 05.03.2007.
Defendant No.1 paid entire sale consideration amount to the plaintiff
for the sale of lands and thereafter the defendant No.1 sold the suit
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schedule lands in favour of this defendant No.2 through registered
sale deed bearing document No.5470 of 2012 dated 29.10.2012 and
delivered the vacant possession of land to an extent of Ac.25.18
guntas of Edulapally Village. Pattadar passbooks and title deeds
were issued in favour of defendant No.2 in respect suit schedule
lands.
iii) It is utter false to aver that the plaintiff approached the
defendant No.1 at his residence and requested him to come and
execute the deed of cancellation of agreement sale cum GPA dated
05.03.2007. There was no occasion for the plaintiff to approach the
defendant No.1 for the said purpose, as he had already sold the suit
schedule lands to the defendant No.1. the defendant No.1 neither
agreed to execute the deed of cancellation nor he agreed that he had
not paid the sale consideration amount as alleged.
iv) The alleged document dated 21.09.2012 is bogus, forged and
fabricated and brought into existence so as to cause hardship and
irreparable loss to this defendant No.2. This defendant No.2
apprehends that defendant No.1 might be in collusion with the
plaintiff in bringing the documents into existence. There was no
contractual obligation on the part of defendant No.1 to perform or to
execute any document in favour of the plaintiff. The contentions
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made in para No.3 (x) of the plaint are highly objectionable and
defamatory and this defendant No.2 is nothing to do with the sale
transaction of defendant No.2 with defendant No.1. There was no
fraud as alleged and the defendant No.2 reserves the right of suing
the plaintiff for making such deliberate allegations. Thus, prayed to
dismiss the suit.
d) Based on the pleadings of both the sides, the trial Court has
framed the following issues:
1. Whether the deed of cancellations of the agreement of sale cum
GPA is true and valid?
2. Whether the sale deed dated 29.10.2012 executed by
defendant No.1 in favour of defendant No.2 vide document
No.5470 of 2012 is valid and binding on plaintiff?
3. Whether the plaintiff is entitled for specific performance of
contract as prayed for?
4. To what relief?
e) The plaintiff, in support of his contentions, examined PWs 1
and 2 and got marked Exs. A1 to A6. On the other hand, the
defendant got examined DWs 1 and 2 and got marked Exs.B1 and
B2. The trial Court on appreciating the evidence on record, has
decreed the suit by cancelling the Agreement of sale cum General
Power of Attorney bearing document No.4471 of 2007 dated
05.03.2007 executed by the plaintiff in favour of defendant No.1 and
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consequently the registered sale deed bearing document No.5470 of
2012 dated 29.10.2012 executed by defendant No.2 is also
cancelled.
4. Aggrieved by the judgment and decree, the defendant No.2
filed the present appeal.
5. Heard both sides and perused the record including the
grounds of appeal.
6. The first and foremost contention of the learned counsel for
the defendant No.2 is that plaintiff, who was examined as PW1,
admitted to the receipt of total sale consideration under Agreement
of Sale cum GPA document bearing No.4471 of 2007 dated
05.03.2007 and sold the same to defendant No.1, as such, defendant
No.1 is the absolute owner and possessor and bonafide purchaser,
thus, the Agreement of Sale - cum - GPA dated 05.03.2007 is valid
document. It is further contended that the defendant No.2 is
bonafide purchaser having purchased the property under Ex.A4 by
paying considerable value without having any knowledge or notice of
such alleged fraudulent cancellation deed i.e., Ex.A6, hence, the
defendant No.2 cannot be put to loss or injury. As seen from Ex.A1
i.e., sale deed through which plaintiff and his brother-in-law D.
Srinivasa Raju have jointly purchased Ac.54.38 guntas in the year
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2006 for a sale consideration of Rs.10,99,000/-. Ex.A2 dated
05.03.2007 is the Agreement of Sale - cum - GPA through which
plaintiff authorized defendant No.1 to alienate the suit schedule
property to third parties. As per Ex.A2 the sale consideration is
Rs.10,99,000/- in respect of Ac. 27.18 guntas, which is part and
parcel of schedule property mentioned in Ex.A1. At this juncture,
the trial Court has rightly observed that when with such a
phenomenal increase in the cost of suit land of only Ac.27.18 guntas
was purchased, which on the face of it is unusual, why had
defendant No.1 not obtained 'sale deed' from plaintiff instead of
agreement of sale cum GPA is concerned, there is no plausible
explanation emanate from the defendant No.1. It is also to be seen
that the trial Court in the impugned judgment observed that when a
document evidences a transaction, no amount of oral evidence per
contra to such transaction do become relevant, nor can such
evidence be allowed to be adduced in terms of Section 92 of Indian
Evidence Act.
7. The other contention of the learned counsel for the defendant
No.2 is that the trial Court ought to have seen that there cannot be a
cancellation agreement in respect of a registered sale deed in favour
of the third party and or an agreement of cancellation in respect of a
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registered document and the only remedy that is available for a party
is to mutually cancel the document by going to the concerned sub-
registrar or ought to have filed a suit for cancellation of the
registered document in accordance with the provisions of the
Specific Relief Act. It is further contended that Ex.A2 is Agreement
of Sale - cum - GPA coupled with interest including delivery of
possession and handing over of the link documents to the defendant
No.1 and that mere nomenclature of the document would not change
the nature of transaction. In Namburi Basava Subrahmanyam v.
Alapati Hymavathi and others 1, the Honourable Supreme Court
observed that the nomenclature of the document is not conclusive
and the recitals in the document as a whole and the intention of the
executant and acknowledgment thereof by the parties are conclusive.
It was further observed that the Court has to find whether the
document confers any interest in the property in praesenti so as to
take effect intra vivos and whether an irrevocable interest thereby, is
created in favour of the recipient under the document. There is
absolutely no doubt that the contents of the documents need to be
understood and it is nothing to do with the nomenclature of the
document. A perusal of Ex.A2 discloses that as per clause No.7 the
principal is unable to execute the sale transaction and get them
1 (1996) 9 Supreme Court Cases 388
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registered personally due to domestic pre-occupations. Further as
per clause No.19 the principal has to ratify and confirm and agree to
ratify and confirm all the acts deed receipts and things lawfully done
by the attorney. From these two clauses, it is evident that the
transactions done by the agent i.e., defendant No.1 would be
completed only when the plaintiff ratifies the acts of the defendant
No.1 and that sale transaction is not yet completed. When the sale
transaction is not completed, the defendant No.1 will not have any
rights to alienate the suit schedule property to defendant No.2, more
particularly when Ex.A6 - Cancellation deed in respect of Ex.A2 -
Agreement of sale - cum - GPA was already executed between
plaintiff and defendant No.1.
8. It is further contended that the trial Court ought to have seen
that the entire plaint as well as alleged cancellation of agreement
would show that the same is purported to be cancelled for non
payment of alleged sale consideration of Rs.10,99,000/-, in such
circumstances, money would have been an adequate compensation
to the plaintiff and there was no need for specific performance of
cancellation of agreement of sale cum GPA. It is to be seen that the
Agreement of Sale - cum - GPA was executed in the year 2007 and
five years thereafter the said agreement was cancelled. It is the
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plaintiff who has given authorization to the defendant No.1 to
alienate the suit schedule property to third parties and on the failure
of the defendant No.1 to alienate the suit schedule property to third
parties, it is the discretion of the plaintiff either to ask for specific
performance or refund of money. On one hand, the defendants are
contending that the consideration under Ex.A2 is received by the
plaintiff and on the other hand defendants are contending that
money would have been an adequate compensation to the plaintiff
and there was no need for specific performance of cancellation of
agreement of sale cum GPA. Thus, the defendants are blowing hot
and cold at a time. If at all the defendant No.1 has paid sale
consideration under Ex.A2 to the plaintiff, there is no necessity for
the defendant No.2 to contend that money would have been an
adequate compensation to the plaintiff instead of seeking relief of
specific performance of cancellation of agreement of sale cum GPA.
9. It is to be seen that the defendant No.1 is a GPA holder of
plaintiff based on unregistered Agreement of sale - cum - GPA and
based on such unregistered Agreement of Sale - cum - GPA
defendant No.1 has alienated the suit schedule property to the
defendant No.2. Whether such alienation by defendant No.1 in
favour of defendant No.2 in respect of suit schedule property is valid
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as per law is the question that has to be decided at this juncture.
In Suraj Lamps and Industries Private Limited v. State of
Harayana and others 2 the Honourable Supreme Court observed as
under:
"16. We therefore reiterate that immovable property can be
legally and lawfully transferred/conveyed only by a registered
deed of conveyance. Transactions of the nature of `GPA sales' or
`SA/GPA/WILL transfers' do not convey title and do not amount to
transfer, nor can they be recognized or valid mode of transfer of
immoveable property. The courts will not treat such transactions as
completed or concluded transfers or as conveyances as they
neither convey title nor create any interest in an immovable
property. They cannot be recognized as deeds of title, except to the
limited extent of section 53A of the TP Act. Such transactions
cannot be relied upon or made the basis for mutations in Municipal
or Revenue Records. What is stated above will apply not only to
deeds of conveyance in regard to freehold property but also to
transfer of leasehold property. A lease can be validly transferred
only under a registered Assignment of Lease. It is time that an end
is put to the pernicious practice of SA/GPA/WILL transactions
known as GPA sales."
10. In view of the principle laid down in the above said decision, it
can be held that transactions in the nature of GPA do not convey
title and do not amount to transfer, nor can they be recognized or
valid mode of transfer of immovable property. Though the principle
laid down in Namburi Basava Subrahmanyam case (supra) is
absolutely correct, it is to be seen that in the case on hand, as per
Ex.A6, wherein the defendant No.1 subscribed his signature, the
consideration of Rs.10,99,000/- was not paid to plaintiff. A contract
without consideration is invalid in view of the provisions of Contract
2 2009 (7) SCC 363]
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Act. In Kewal Krishan v. Rajesh Kumar and others 3 the
Honourable Supreme Court observed as under:
15. Section 54 of the Transfer of Property Act, 1882 (for
short "the TP Act") reads thus:
"54. "Sale" defined.--"Sale" is a transfer of ownership in
exchange for a price paid or promised or part-paid and part-
promised.
Sale how made.--Such transfer, in the case of tangible
immoveable property of the value of one hundred rupees
and upwards, or in the case of a reversion or other
intangible thing, can be made only by a registered
instrument.
In the case of tangible immoveable property of a value less
than one hundred rupees, such transfer may be made
either by a registered instrument or by delivery of the
property.
Delivery of tangible immoveable property takes place when
the seller places the buyer, or such person as he directs, in
possession of the property.
Contract for sale.--A contract for the sale of immoveable
property is a contract that a sale of such property shall take
place on terms settled between the parties. It does not, of
itself, create any interest in or charge on such property."
Hence, a sale of an immovable property has to be for a
price. The price may be payable in future. It may be partly paid
and the remaining part can be made payable in future. The
payment of price is an essential part of a sale covered by section
54 of the TP Act. If a sale deed in respect of an immovable property
is executed without payment of price and if it does not provide for
the payment of price at a future date, it is not a sale at all in the
eyes of law. It is of no legal effect. Therefore, such a sale will be
void. It will not effect the transfer of the immovable property.
16. Now, coming back to the case in hand, both the sale
deeds record that the consideration has been paid. That is the
specific case of the respondents. It is the specific case made out in
the plaints as originally filed that the sale deeds are void as the
same are without consideration. It is pleaded that the same are
sham as the purchasers who were minor sons and wife of
Sudarshan Kumar had no earning capacity. No evidence was
adduced by Sudarshan Kumar about the payment of the price
mentioned in the sale deeds as well as the earning capacity at the
relevant time of his wife and minor sons. Hence, the sale deeds will
have to be held as void being executed without consideration.
Hence, the sale deeds did not affect in any manner one half share
of the appellant in the suit properties. In fact, such a transaction
made by Sudarshan Kumar of selling the suit properties on the
3 MANU/SC/1112/2021
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basis of the power of attorney of the appellant to his own wife and
minor sons is a sham transaction. Thus, the sale deeds of 10th
April 1981 will not confer any right, title and interest on Sudarshan
Kumar's wife and children as the sale deeds will have to be
ignored being void. It was not necessary for the appellant to
specifically claim a declaration as regards the sale deeds by way
of amendment to the plaint. The reason being that there were
specific pleadings in the plaints as originally filed that the sale
deeds were void. A document which is void need not be challenged
by claiming a declaration as the said plea can be set up and
proved even in collateral proceedings."
Even in the case on hand, the plaintiff executed Ex.A2
cancelling the agreement of sale cum GPA on the ground that
consideration was not paid by defendant No.1. Furthermore, the
defendant No.1 alleged to have executed Ex.A4 in favour of
defendant No.2 without consideration with an intention to deprive
the rights of the plaintiff over the suit schedule property.
11. The appellant/defendant No.2, who is examined as DW2
admitted in his cross examination that he may have done business
worth of Rs.80,00,000/- upto the year 2012 and filing income tax
returns since the year 2011 and 2012. He further admitted that he
shows all his business transactions in his income tax returns,
however, he adds that since 2012 to 2017 he did not show
transactions of his business in his income tax returns. DW2 further
admits that he has not shown the transactions between himself and
defendant No.1 with regard to the sale deed dated 29.10.2012 vide
document No. 5470 of 2012 - Ex.A4. If at all the transaction
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between himself and defendant No.1 is a genuine one, certainly he
would have shown the transaction in his income tax returns,
otherwise, there is no reason for the defendant No.2 in not disclosing
the said transaction between himself and defendant No.2 in his
income tax returns.
12. DW2 further admitted that as per Ex.A4 sale deed, the market
value of the property as per basic value register is Rs.1,27,25,000/-.
A perusal of Ex.A4, it is clearly mentioned that the value of the
property is Rs.5 lakhs per acre and the total value of land to an
extent of Ac.25.18 guntas is Rs.1,27,25,000/- and they have also
paid stamp duty. But for the reasons best known to the defendants
the total sale consideration of the property mentioned in Ex.A4 is
Rs.63,62,500/-. Furthermore, Ex.A4 was executed in pursuance of
an agreement of sale on which the defendant No.2 alleged to have
paid Rs.50,00,000/- as advance sale consideration. But neither the
defendant No.1 nor defendant No.2 could produce the alleged
agreement of sale before the trial Court and they did not even
disclose the date on which the advance sale consideration of Rs.50
lakhs was alleged to have been paid by the defendant No.2 to
defendant No.1. However, the appellant filed I.A.No.1 of 2023 under
XLI Rule 27 of the Civil Procedure to receive the Agreement of Sale
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dated 05.09.2012 and the old pattadar passbook and the old title
deed both bearing patta No.1064 and the new pattadar passbook
and title deed bearing Khata No.1122. The reason assigned by the
appellant for not producing the documents before the trial Court is
that the appellant could not trace the documents at the relevant time
despite due diligence. Considering the submission of learned counsel
for the appellant and since it is the contention of the defendant No.2
that these documents are relevant for proper adjudication of the
case, this Court is inclined to consider the plea of defendant No.2 to
receive the documents filed along with I.A.No.1 of 2023. Accordingly,
I.A.No.1 of 2023 is ordered. As seen from the documents filed along
with I.A.No.1 of 2023, the name of the defendant No.2 is mutated in
the revenue records. But the fact remains is the defendant No.2 is
claiming his rights through defendant No.1, who is only a GPA
holder of plaintiff. When the title of defendant No.1 is not perfected,
the defendant No.2, who is the subsequent purchaser from
defendant No.1, cannot be considered to be a bonafide purchaser.
13. A perusal of Ex.A4 discloses that it was written with different
ink that balance of Rs.13,62,500/- will be paid on the execution date
i.e., on 29.10.2012. Thus, the columns in the sale deed were kept
blank for the reasons best known to the defendants. A perusal of
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Ex.A4 further discloses that column No.7 was inserted at page No.3
and it was inscribed that principal vendor is alive and AGPA is in
force till today. If at all the AGPA is valid and in force as on the date
of Ex.A4, there is no necessity for the defendants to mention
specifically about the existence of AGPA by inserting column No.7 by
writing with pen.
14. A perusal of Ex.A4 does not clearly disclose as to what kind of
document was executed by the plaintiff in favour of the defendant
No.1 under Ex.A2. On one hand, the defendant No.1 submitted in
Ex.A4 that Ex.A2 is Agreement of Sale cum GPA and on the other
hand he submitted that under Ex.A2 the plaintiff has alienated it to
him. Thus, there is an ambiguity as to whether Ex.A2 is a sale deed
or an agreement of Sale cum GPA. If at all the plaintiff has sold the
property to the defendant No.1, there is no necessity for the plaintiff
to execute agreement of sale cum GPA and in fact he ought to have
executed a sale deed.
15. As stated supra, DW2 deposed in his cross examination
deposed that he done business worth of Rs.80 lakhs and that he
worked as Consultant Geologist and also did real estate business.
But DW2 pleaded ignorance that he had no idea about the open
market value of the property purchased under EX.A4 as on the year
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2012 and even the present value. A prospective purchaser, who is
intending to purchase a property, more particularly, a person, who is
thorough with the real estate business, is bound to have knowledge
about the property, more specifically the market value of the
property. But surprisingly, the defendant No.2 pleaded ignorance
about the market value of the property, which he is going to
purchase it.
16. It is pertinent to note that the attestors to Ex.A4 are none
other than the brother in laws of DW2, who admitted that Mr.
Venkat Ram Reddy came on his behalf and Subramanya Raju came
on behalf of Defendant No.1. But surprisingly DW1 denied that his
son Subrahmanya Raju is one of the attesting witnesses to the sale
deed.
17. DW2 admitted that he has paid Rs.63,62,500/- as sale
consideration under Ex.A4 by way of cash but he has not shown the
same in his income tax returns. DW2 deposed that he paid cash of
Rs.50,00,000/- under agreement dated 05.09.2012. A suggestion
was given to DW2 that without payment of sale consideration, DW2
and defendant No.1 and his son brought the sale deed into
existence. This suggestion gains strength from the following
admission made by DW2.
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"It is true that the sale deed was typed keeping the amount
columns blank."
However, DW1 pleaded ignorance as to whether the column in
consideration of sale deed was kept blank and it was filled later with
pen. Thus, the defendant No.1 is not even aware of the contents of
the document under Ex.A4.
18. In I.S.Sikandar (d) by LRs v. K. Subramani and others 4 the
Honourable Supreme Court observed that the Court has to see the
conduct of party as well as attending circumstances of case
regarding whether readiness and willingness of party can be inferred.
A perusal of Ex.A2 discloses that the main purport of executing the
said deed is authorizing defendant No.1, who is in the field of real
estate, to sell the suit schedule property to third parties. But DW1
admitted in his cross examination that since the date of the
agreement of sale cum - GPA vide document No.4471 of 2007 dated
05.03.2007 till death of Varma Raju i.e., from 2007 till execution of
alleged sale deed in favour of D2 in the year 2012, he has not made
any alienation of the property to third parties. It is to be seen that
the son of defendant No.1 died on 27.07.2012 and two months
thereafter the defendant No.1 purchased stamp paper on 03.09.2012
and executed agreement of sale dated 05.09.2012 in favour of
4 MANU/SC/1093/2013
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defendant No.2 and in pursuance of the same executed Ex.A4 in
favour of defendant No.2 on 29.10.2012 in order to defeat the rights
of the plaintiff in respect of suit schedule property. Since the
defendant No.1 failed to fulfil his promise to sell the property to third
parties, the plaintiff got executed a deed cancellation of Agreement of
Sale - cum - GPA by obtaining the signature of defendant No.1 on it
and when the plaintiff insisted the presence of defendant No.1 for
registration of the cancellation deed document, the defendant No.1 is
postponing on one pretext or the other. It is to be seen that
defendant No.2 is none other than the brother in law of his second
son of defendant No.1. It is also admitted that A. Venkatram Reddy
another attesting witness of document bearing No.5470 of 2012
dated 29.10.2012 is one of the distant relatives of his son
Subrahmanya Raju and Srikanth Raju (D2). Thus, the two attesting
witnesses to the document are none other than the closely related
family members of defendant No.1.
19. As per the record, originally, the daughter of plaintiff was given
in marriage to the son of defendant No.1 but the son of defendant
No.1 got addicted to alcohol, which became the prime reason for the
daughter of the plaintiff to get herself separated from the son of the
defendant No.1. In the meanwhile, the son of defendant No.1 got
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issued legal notice to the daughter of plaintiff asking her to join his
matrimonial life. But the son of the defendant No.1 died on
20.07.2012. Thereafter disputes arose between the members of two
families. DW1 admitted that during life time of his son Varma Raju
there were differences between him and his wife Rajeshwari
Shireesha with regard to consumption of alcohol by Varma Raju and
Rajeshwari Shireesha was at the house of her parents on the date of
death of Varma Raju.
20. DW1 deposed that he cannot read and write English language.
The plaintiff and his family members i.e., daughter in law, wife of
plaintiff and one DVV Laxmipathi Raju in collusion with each other
took signatures of this defendant on non judicial stamp paper (5
Nos.) worth Rs.20/- and on other papers by making false
representations that the property standing in the name of DVS
Varma Raju situated at Gowadavelly Village to transfer the same in
the name of his grandson Ruthvik. It is further deposed by
defendant No.1/DW1 that he does not know English and blindly put
the signatures on the said papers believing the plaintiff and his
family members as they have maintained good cordial relationship.
At this juncture, the trial Court has rightly observed in the
impugned judgment that the landed property at Gowdavelly village
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stands in the name of son of defendant No.1 and the daughter of the
plaintiff and in such circumstances, the defendant No.1 cannot even
imagine to transfer the property in the name of his grandson by
executing any kind of document, more particularly, the document
under Ex.A6. Any transfer of property at Gowdavelly village
belonging to son and daughter in law of defendant No.1 can be made
by daughter - in - law of defendant No.1 in favour of grandson of
defendant No.1 but not defendant No.1. Thus, the reason assigned
by the defendant No.1 for subscribing his signature on Ex.A6 is
appearing to be far from truth.
21. DW1 deposed that the sale deed bearing document No.5470 of
2012 dated 29.10.2012 was got prepared by defendant No.2 and that
he do not know the contents of the said document. From the above
paragraph, it is clear that the defendant No.1 does not know reading
and writing of English. Ex.A6 and Ex.A4 are drafted in English.
Thus, the defendant No.1 is not aware of the contents of both the
documents and he admitted to have signed in both the documents
without knowing the contents of the documents. The defendant No.1
is taking advantage of this situation and speaking falsehood against
the plaintiff that he does not know the contents of the document as
the relationship between plaintiff and defendant No.1 were strained
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after the death of son of defendant No.1. Since he has executed
Ex.A4 in favour of defendant No.2, who is none other than the
brother - in - law of his second son, though he does not know the
contents of Ex.A4, he has signed it without any inconvenience.
Once, the signature is admitted, it is deemed that the person, who
subscribes his signatures is aware of the contents of the document
until and unless contrary is proved. The defendants failed to
establish that the defendant No.1 has subscribed his signature on
Ex.A6 without knowing the contents of document. Though the
learned counsel for the defendant No.2 contended that the plaintiff
and defendant No.1 colluded with each other and depriving his right
over the suit schedule property, it is to be seen that defendant No.2
is closer relative of defendant No.1 rather than plaintiff. Hence, any
amount of collusion between the parties can be inferred from the
transactions between the defendant No.1 and defendant No.2 and
their conduct in executing Ex.A4 despite having knowledge that
there was cancellation agreement between plaintiff and defendant
No.1 cancelling the agreement of sale cum GPA executed by plaintiff
in favour of defendant No.1.
22. It is the contention of the defendant No.2 that plaintiff, who
on one hand is seeking cancellation of agreement of sale cum GPA
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dated 05.03.2007, has not even questioned or challenged the above
mentioned sale deeds executed by defendant No.1 in favour of third
parties. It is also contended that the plaintiff has not made the
purchasers of Exs.B1 and B2 as parties to the suit. It is to be seen
that the Ex.A2 was executed in respect of property admeasuring
Ac.27.18 guntas and in pursuance of the same defendant No.1
alienated two acres of land under Exs.B1 and B2. The plaintiff is not
challenging those two sale deeds as those deeds were executed in the
year 2010 and by that time the agreement of sale - cum - GPA was
very much subsisting. When the plaintiff is not challenging sale
deeds under Exs.B1 and B2, the question of non joinder of
purchasers under Exs.B1 and B2 does not arise, more particularly,
when the Agreement of Sale - cum - GPA under Ex.A2 is subsisting
as on the date of execution of Exs.B1 and B2.
23. It is the contention of the defendant No.2 that plaintiff is a
third party to Ex.A4, which was validly executed by defendant No.1
in favour of defendant No.2, as such the plaintiff cannot seek
cancellation of the said document. In this regard, the trial Court in
the impugned judgment rightly observed that Ex.A4 reflects that the
said document was in fact executed by the plaintiff himself,
therefore, the plaintiff being the affected party has every right to
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challenge the said document.
24. It is further contention of the defendant No.2 that the trial
Court ought to have dismissed the suit as the plaintiff failed to seek
for the relief of recovery/payment of sale consideration. It is to be
seen that right from the inception of the suit the only grievance is
that the defendant No.1 having agreed to sell the schedule property
to third parties, failed to fulfil his obligation and that while executing
Ex.A2 there was no consideration paid by the defendant No.1 to the
plaintiff. As stated supra, the purpose of executing agreement of
sale - cum - GPA is authorizing defendant No.1 to sell the schedule
of property to third parties and the plaintiff himself asserted that no
consideration was paid. Further, Ex.A4 is not a sale deed and it is
only an agreement of sale - cum - GPA, as such, the plaintiff being
bonafide party cannot insist for a payment/recovery of the money,
which is not at all existing in either of the transactions i.e.,
transaction between plaintiff and defendant No.1 and transaction
between defendant No.1 and defendant No.2.
25. It is the contention of the defendant No.2 that existence and
veracity of Ex.A6 is being questioned for being fraudulent,
fabricated, illegal and nonest in law, as such no relief especially that
of specific performance ought not to have been granted. As evident
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from Ex.A6 and as per the admission of DW1, the defendant No.1
has subscribed his signature and also failed to explain the reasons
for subscribing his signature on Ex.A6. In such circumstances, it
cannot be said that Ex.A6 is fraudulent.
26. It is the contention of the defendant No.2 that the trial Court
ought to have dismissed the suit as plaintiff has not sought recovery
of possession of the suit schedule property despite being fully aware
about the suit property being in possession and enjoyment of the
defendant No.2 pursuant to sale deed dated under Ex.A4. As stated
supra, the rights of defendant No.2 over the schedule property are
subject to the perfection of title over the schedule property by
defendant No.1. When the title of the defendant No.1 is defective,
the defendant No.2 has nothing to say with regard to his title and
possession as he alleged to have obtained such rights through
defendant No.1. Once the Agreement of Sale - cum - GPA under
Ex.A2 is cancelled by executing Ex.A6 i.e., prior to execution of
Ex.A4, the defendant No.2 cannot claim any rights in respect of suit
schedule property.
27. The defendant No.2 has raised several grounds in this appeal,
however, it is pertinent to note that most of those grounds were not
raised by the defendant No.1 before the trial Court. The proper
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function of an appellate court is to correct an error in the judgment
or proceedings of the court below and not to adjudicate upon a
different kind of dispute a dispute that was never taken before the
court below. It is only in exceptional cases that the appellate court
may in its discretion allow a new point to be raised before it provided
there are good grounds for allowing it to be raised and no prejudice
is caused thereby to the opponent of the party permitted to raise
such point. For the reasons best known, the defendant No.2 failed
to satisfy this Court that there are exceptional cases to entertain the
new grounds urged in this appeal.
28. It is to be seen that all the alleged alienations made by the
defendant No.1 in favour of third parties were made in the
capacity of GPA holder but not in the capacity of 'owner'. One of
the grounds urged by the defendant No.1 for executing sale
deeds in the capacity of GPA holder but not as a 'owner' is that
though sale consideration is paid, the plaintiff is not coming
forward to executed registered sale deed in his favour. If at all
the plaintiff is not coming forward to execute sale deed in
pursuance of Ex.A2, certainly the defendant No.1 is entitled to
initiate necessary steps to proceed against the plaintiff in
accordance with law. The defendant No.1 has not even issued
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any legal notice to the plaintiff asking him to come forward and
execute sale deed in respect of suit schedule property in
pursuance of Ex.A2. Even as per the covenants of Ex.A2, the
defendant No.1 cannot be considered as owner of the suit
schedule property and in such circumstances, since the
defendant No.2 alleged to have purchased the suit schedule
proeprty from defendant No.1, who has not better title, then
certrainly the defednant No.2 cannot claim his rights over the
suit schedule property as a bonafide purchaser.
29. In view of the above facts and circumstances, this Court do
not find any merits in the appeal to set aside the impugned
Judgment and in fact, the trial Court has elaborately discussed all
the aspects and arrived at a proper conclusion. Thus, the appeal is
liable to be dismissed.
30. In the result, this appeal is dismissed. There shall be no order
as to costs.
As a sequel, pending miscellaneous applications, if any, shall
stand closed.
_______________________________
JUSTICE M.G. PRIYADARSINI
Date: 01.04.2024
Note: LR copy to be marked.
B/o. AS
