Telangana High Court
Smt. G.Varalaxmi vs Mende Sunil Kumar Yadav on 16 April, 2024
* THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
+ Appeal Suit No.69 OF 2019
% 16.04.2024
# Between:
Podila Sailaja @ Lakkineni Sailaja
Appellant
Vs.
Podila Sasikala
Respondent
! Counsel for Appellants : Sri Vadeendra Joshi
^ Counsel for Respondents : Sri L. Srinivas Patel
<GIST:
> HEAD NOTE:
? Cases referred :
1. CCCA Nos.111 and 112 of 2021 decided on 10.06.2022
2. AIR 1969 SC 73
3. 2006 SCC Online AP 754
4. 2022 SCC Online SC 1545
5. 2022 SCC Online SC 840
6. (2009) 7 Supreme Court Cases 444
2
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THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
A.S.No.69 OF 2019
JUDGMENT:
Aggrieved by the judgment and decree dated 20.11.2018 in
O.S.No.30 of 2014 (hereinafter will be referred as 'impugned
judgment') passed by the learned VI Additional District Judge at
Siddipet (hereinafter will be referred as 'trial Court'), the defendant
No.2 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.30 of 2014 against defendant Nos.1
and 2 seeking specific performance of agreement of sale - cum- GPA
and to declare the registered sale deed bearing document No.6153 of
2014 dated 08.05.2014 as null and void and not binding on the
plaintiff and for perpetual injunction restraining the defendants from
interfering with the peaceful possession and enjoyment of plaintiff in
respect of agricultural land admeasuring Ac.4.24 guntas in Sy.No.61
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of Brahmanpally Village, Toopran Mandal, Medak District
(hereinafter will be referred as suit schedule property). The brief
averments of the plaint are as under:
i) Defendant No.1 has executed an agreement of sale cum GPA
with possession in favour of suit schedule property vide document
bearing No.142 of 2012 dated 03.02.2012 by receiving sale
consideration from the plaintiff and also delivered vacant, physical
and peaceful possession of the property apart from handing over all
the original documents to the plaintiff. As per the terms of
agreement, defendant No.1 agreed to execute registered sale deeds in
favour of intending purchasers either in part or in total.
ii) Without knowledge of the plaintiff, the defendant No.1 by
suppression and concealment of material facts of agreement, sold
away suit property to defendant No.2 vide document bearing
No.6153 of 2014 dated 08.05.2014. Defendant No.1 is not
competent to execute impugned sale deed in favour of defendant
No.2 during subsistence of agreement of sale cum - GPA. The
impugned sale deed executed by defendant No.1 in favour of
defendant No.2 is a fraudulent document and thus, liable to be
declared as null and void and not binding on the plaintiff.
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iii) On 27.11.2014 defendant No.2 along with her henchmen in
collusion with defendant No.1 came to suit land, tried to dispossess
the plaintiff, who could resist them with the help of neighbours and
well wishers. Hence, plaintiff filed the suit for specific performance.
b) In reply to the plaint averments, the defendant No.1 filed
written statement, the brief averments of which are as under:
i) Plaintiff misrepresented the actual facts as the plaintiff
executed an undertaking letter dated 03.02.2012 on the same day
when the document No.142 of 2012 was executed. The plaintiff did
not pay any sale consideration and executed an undertaking letter to
defendant No.1 and stated that he will pay sale consideration of
Rs.10,00,000/- to defendant No.1 on 18.03.2012. Defendant No.1
executed a Revocation Deed on 17.01.2013. There is no delivery of
possession and no sale consideration was paid by the plaintiff.
There is no cause of action for filing of the suit. Suit is bad for
suppression of facts.
ii) Defendant No.1 issued notice to the plaintiff, for which the
plaintiff issued reply notice on 30.07.2014, then defendant No.1
issued rejoinder notice to the counsel for the plaintiff. Plaintiff filed
the suit suppressing the fact that GPA was cancelled. It is defendant
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No.2, who is holding peaceful possession as absolute owner. Plaintiff
is aware about the case vide File No.F3/2831/2012,
F3/22/ROR/2012 adjudicated before the Joint Collector.
iii) Originally Mohammed Hafeezuddin, S/o. Mohd. Sardar Ali was
pattadar and possessor of suit schedule property and he has gifted
the said land on 02.11.1947 to Mohd. Amjad Ali, S/o.Md.Mumtaz
Ali, who is brother in law (sister's husband). After the demise of
Mohd. Amjad Ali, his sons Mohd. Jaffar Ali and Mohd.Mumtaz Ali
succeeded the land as sons and MRO, Toopran issued ROR
proceedings in favour of Jaffar Ali being elder son of Mohd. Amjad Ali
and in the present case, plaintiff allegedly got General Power of
Attorney from defendant No.1 only and said GPA is null and void.
c) In reply to the plaint averments, the defendant No.2 filed
written statement, the brief averments of which are as under:
i) Defendant No.2 purchased only after verification of title and
possession of defendant No.1 Mohammad Jaffer Ali, Mohammed
Mumtaz Ali for a consideration of Rs.13,80,000/- vide registered sale
deed bearing document No.6153 of 2014 dated 08.05.2014. The
defendant No.2 was inducted into possession by their vendors.
Plaintiff and defendant No.1 were having cordial relationship, with a
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pre plan created alleged agreement of sale cum GPA to deceive
intending purchasers.
ii) The relief of specific performance is an equitable relief.
Plaintiff filed suit in collusion with defendant No.1 by suppressing
the real facts. Defendant No.2 is a bonafide purchaser. After
receiving summons, defendant No.2 questioned defendant No.1, who
replied that he cancelled the said agreement of sale - cum - GPA, as
plaintiff did not pay any sale consideration nor possession was
delivered to plaintiff.
iii) On the death of Mohd. Amjad ali, the suit land devolved on his
sons defendant No.1 Mohammed Jaffar Ali and Mohammed Mumtaz
Ali, as such the alleged agreement of sale - cum - GPA bearing
document No.142 of 2012 dated 03.02.2012 is void and it cannot be
enforced against third party. The suit is bad for non joinder of
necessary party. Defendant No.2 is in possession and enjoyment of
the suit land and question of dispossession of plaintiff does not
arise.
d) Based on the pleadings of both the sides, the trial Court has
framed the following issues and additional issue:
1. Whether the registered agreement of sale cum GPA document
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No.142 of 2012 dated 03.02.2012 is true, valid and binding on
the defendants?
2. Whether the plaintiff is entitled for specific performance of
agreement of sale dated 03.02.2012 by defendants with
respect to suit property?
3. Whether the plaintiff is entitled for declaration that the
registered sale deed document No.6153/2014 dated
08.085.2014 of Joint Registrar, Sangareddy is null and void
and not binding on the plaintiff"
4. To what relief?
Whether the plaintiff is entitled for perpetual injunction
restraining the defendants from interfering in the possession
and enjoyment of plaintiff over suit property?
e) The plaintiff, in support of his contentions, examined himself
as PW1 and got marked Exs. A1 to A10. On the other hand, the
defendants got examined DWs 1 and 2 and got marked Exs.B1 to
B3. The trial Court on appreciating the evidence on record, has
decreed the suit by directing the defendant No.1 to executed
registered sale deed in favour of plaintiff in respect of suit schedule
property within two months, failing which the plaintiff is at liberty to
proceed as per law. Further, the registered sale deed bearing
document No.6153/2014 dated 08.05.2014 executed by defendant
No.1 in favour of defendant No.2 was declared as null and void and
not binding on the plaintiff. The defendant Nos.1 and 2 were
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restrained by way of perpetual injunction from interfering inn the
peaceful possession and enjoyment of the plaintiff over the suit
lands.
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. It is the contention of the defendant No.2 that the cause of
action shown by the plaintiff is concocted one for the purpose of
filing the suit and that the trial Court failed to take into
consideration that prior to filing of the suit no notice was issued to
the defendants to execute the sale deed. It is to be seen that except
asserting that the cause of action shown by the plaintiff is concocted
one, the defendant No.2 has not produced any material before this
Court. If at all the contention of the defendant No.2 is true, then
certainly the defendant No.2 ought to have elicited the same while
cross examining the plaintiff/PW1 or atleast she ought to have given
a suggestion to PW1 in that regard. But there is no such instance.
Moreover, the plaintiff has clearly stated five dates on which cause of
action arose for him to file the suit i.e., on 03.02.2012 when
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agreement of sale cum GPA with possession was executed between
plaintiff and defendant No.1, on 08.05.2014 when the impugned sale
deed document No.6153 of 2014 and finally on 27.11.2014 and
09.12.2014 when the defendants threatened the plaintiff to
dispossess him from the suit schedule property. The factum of
execution of Ex.A1 and Ex.B1 on 03.02.2012 and 08.05.2014
respectively is not being denied by the defendant No.2. Coming to
the aspect of issuing notice prior to filing of suit for specific
performance, the requirement of issuing a legal notice before filing a
suit for specific performance is not mandatory in all cases.
Moreover, it is to be seen that when the plaintiff has come to know
about the execution of sale deed by defendant No.1 in favour of
defendant No.2 during the subsistence of Ex.A1 Agreement of Sale -
cum - irrevocable GPA between plaintiff and defendant No.1, there is
no point in sending legal notice to the defendants rather than filing a
suit for specific performance, more particularly, when the defendants
alleged to have come to the suit schedule property and threatening
the plaintiff to dispossess him from the suit schedule property.
7. It is further contention of the defendant No.2 that the trial
Court failed to see that the plaintiff utterly failed to show that he was
in physical possession of the suit schedule land and has not filed an
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iota of evidence to prove his physical possession and that except oral
statement of the plaintiff, no documentary evidence is filed. The
learned counsel for the defendant No.2 contended that there is no
proof of delivery of possession after execution of the agreement of
sale - cum - GPA and the trial Court has failed to take into
consideration that no mutation has taken place in revenue records
in favour of the plaintiff. Though the plaintiff has got marked
Exs.A1 to A10, much reliance is placed on Ex.A1 i.e., Agreement of
sale - cum - irrevocable GPA with possession. The description of the
document itself speaks a lot about the nature of the document. It is
very much evident that the possession was also delivered on the date
of execution of document. Thus, no other better document can be
expected other than Ex.A1 from the plaintiff to establish his
possession over the suit schedule property. It is settled law that
mere execution of Agreement of Sale cum GPA would not confer any
title to the immovable property. Thus, there is no point in expecting
mutation of name of the plaintiff in revenue records based on Ex.A1
i.e., Agreement of sale - cum - irrevocable GPA with possession.
8. The learned counsel for the defendant No.2 contended that the
trial Court failed to take into consideration that the vendor of the
plaintiff i.e., defendant No.1 is not the exclusive owner of the suit
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schedule property and ought not to have decreed the suit for specific
performance when the plaintiff himself has admitted the same. It is
specific contention of the defendant No.2 that the property originally
belongs to Mohd. Hafeezuddin, who has gifted the property to his
Mohd. Amjad i.e., father of defendant No.1 and after the death of
Mohd.Amjad the suit schedule property would succeed to his two
sons i.e., the defendant No.1 and one Mumtaj Ali. In order to refute
the above contentions, the plaintiff relied upon Exs.A3, A4 and A10
i.e., original pattadar passbook, original title deed and original
proceedings No.B/3137/2009 issued by Tahsildar Toopra mandal in
favour of Defendant No.1 in respect of suit schedule property. A
perusal of Ex.A10 clearly discloses that the defendant No.1 has
submitted an application before the Tahsildar, Toopran Mandal and
on such application and revenue records i.e., Khasra Pahani for the
years 1954-55, 1979-80, 1989-90, gift deed executed in the year
1947 and report of Mandal Revenue Inspector, succession was
granted in favour of defendant No.1 by the Tahsildar, Toopran
Mandal. A perusal of Ex.A1 discloses that the brother of defendant
No.1 i.e., Mumtaj Ali has subscribed his signature as a witness to
the said document. If a witness is stranger to the transaction and its
parties, then certainly the question of not knowing the contents of
the document arises. But the attesting witness to Ex.A1 is none
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other than the own brother of defendant No.1. In such
circumstances, the brother of defendant No.1 would certainly be
aware of the transaction that his brother is alienating the suit
schedule property in favour of plaintiff. Even for the sake of
arguments, if we accept that the brother of defendant No.1 is also
having claim over the suit schedule property, there is no explanation
from the defendants as to what prevented the defendant No.1 to
make his brother as party to Ex.A1. It is not the case of defendants
that Ex.A1 is forged and fabricated document. Even on perusal of
Ex.A2, it is clearly stated that defendant No.1 is the absolute owner
and peaceful possessor of the suit schedule property. It was further
averred that vendor Nos.2 to 4 were joined as vendors along with
vendor No.1 to avoid future litigation. Thus, even from the contents
of Ex.A2, it is very much clear that vendor Nos.2 to 4 have no
interest over the suit schedule property and only to avoid future
litigations, their names were added as co-vendors.
9. It is surprising to note that defendant No.1 did not come
forward to enter into the witness box to depose about his grievance.
There is no explanation on the part of defendant No.1 as to why he
has executed sale deed under Ex.B2 in favour of defendant No.2
during the subsistence of Ex.A1. It is not the case of the defendants
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that Ex.A1 was terminated or cancelled under due process of law. It
is not even the case of the defendants that defendant No.1 has not
executed Ex.A1 in favour of the plaintiff. When defendant No.1 is
intending to execute sale deed in favour of defendant No.2 in respect
of suit schedule property, he ought to have cancelled Ex.A1 which is
subsisting between plaintiff and defendant No.1 in respect of same
property. Mere issuance of legal notice by defendant No.1 to
plaintiff expressing his intention to cancel the GPA is not sufficient.
It is pertinent to note that after issuance of legal notice defendant
No.1, the plaintiff has also issued reply notice. But unfortunately
none of the parties before this Court could produce the alleged
correspondence between them to ascertain as to what kind of
conversation took place between them.
10. It is further contention of the defendant No.1 that the trial
Court failed to take into consideration that the agreement of sale -
cum - GPA was cancelled by the defendant No.1. It is the contention
of the defendant No.1 that he has issued notice to plaintiff stating
that the agreement of sale - cum - GPA is cancelled. Now at this
juncture, it is appropriate to appreciate as to whether unilateral
cancellation of agreement of sale - cum - GPA is permissible. It is
pertinent to note that Ex.A1 is registered agreement of sale - cum -
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irrevocable GPA with possession. In Mr.P.Venkata Ravi Kishore v.
M/s.JMR Developers Private Limited Represented by its
Managing Director 1 this Court observed as under:
"34. Section 202 keeps a small window to terminate the agency.
But, its doors are automatically closed, when agent has an interest
in the subject property and when no termination clause is
incorporated in the agreement. By virtue of Exs.A1 and A2,
agreements, interest is created to first plaintiff and the agreements
have not provided for unilateral termination of agency. Therefore,
the principal cannot cancel the agency unilaterally when the agent
has interest in the suit schedule properties.
35. Further, Section 202 of the Contract Act in general terms
regulates the relationship of principal and agent. It does not
impinge upon the parties to enter into written agreements and to
register those agreements. Section 202 presupposes existence of a
written agreement. If such agreement requires registration, it has to
be registered under the Indian Registration Act. There is no
overlapping of area covered by Section 202 of Indian Contract Act
and Section 17 of the Indian Registration Act. They are in harmony
with each other. At no stretch it can be assumed to override the
statutory prescription of the Indian Registration Act and the
Registration Rules made there under. The Registration Act and the
Rules made there under, as held by the Constitutional Courts,
prohibits unilateral cancellation of any document by one party
without the consent of other party. Once an agreement is registered
under the Indian Registration Act, such agreement cannot be
cancelled unilaterally by one party to the detriment of other party
even when it deals with agency and when no clause is
incorporated in the registered document authorizing principal to
unilaterally cancel the agency affecting the interest of the agent."
In Seth Loon Karan Sethiya v. Ivan E John 2 the Honourable
Supreme Court observed as under:
"8. There is hardly any doubt that the power given by the
appellant in favour of the bank is a power coupled with interest.
That is clear both from the tenor of the document as well as from
its terms. Section 202 of the Contract Act provides that where the
agent has himself an interest in the property which forms the
subject-matter of the agency, the agency cannot, in the absence of
CCCA Nos.111 and 112 of 2021 decided on 10.06.2022
AIR 1969 SC 73
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an express contract, be terminated to the prejudice of such
interest. It is settled law that where the agency is created for
valuable consideration and authority is given to effectuate a
security or to secure interest of the agent, the authority cannot be
revoked. The document itself says that the power given to the
bank is irrevocable. It must be said in fairness to Shri Chagla that
he did not contest the finding of the High Court that the power in
question was irrevocable."
In the case on hand, a perusal of Ex.A1, which is a registered
document, does not disclose any covenant with regard to power of
principal in unilaterally cancelling the agreement. Moreover,
covenant No.1 discloses that plaintiff paid Rs.6,90,000/- towards
consideration and the same was acknowledged by the defendant
No.1. Thus, certainly, the interest of the agent i.e., plaintiff is
involved in the schedule property mentioned in the said agreement
and thus, unilateral cancellation of said agreement under Ex.A1
causes great prejudice to the agent.
11. It is the contention of the defendant No.2 that the trial Court
failed to take into consideration that no person other than the
plaintiff was examined to show that plaintiff was in possession and
not even a scrap of paper was filed to show that the plaintiff is in
actual possession of the suit schedule property and whereas the
defendant No.2 has not only examined herself but also his neighbour
to show that she was in possession of suit land and nothing was
elicited from the said witness to discredit his testimony. As stated
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supra, no other better document can be expected other than Ex.A1
to establish the possession of plaintiff over the suit schedule
property. Furthermore, the title and possession of the defendant
No.2 over the suit schedule property is subject to cancellation of
Ex.A1 by due process of law. The title and possession of defendant
No.2 over the suit schedule property will be perfected only after
cancellation of Ex.A1 by due process of law. Until and unless Ex.A1
is cancelled in accordance with law, defendant No.2 cannot claim her
rights over the suit schedule property. DW2 admitted that he did
not see any document showing suit land in the name of Limba Goud
or Vara Laxmi. DW2 deposed that when the land of Limba Goud
was surveyed he saw Varalaxmi at that time. DW2, who is village
servant, did not depose about the extent of survey number 61. DW2
did not depose the specific month or year, much less the date, on
which he saw the defendant No.2 at the suit schedule land. In such
circumstances, the probability of DW2 identifying the suit schedule
property allegedly belonging to defendant No.2 is doubtful. Even if
the evidence of DW2 is considered as true and correct, it is settled
law that the title of the owner of a property will be perfected
12. It is further contention of the defendant No.2 that trial Court
has filed to see that defendant No.2 is a bonafide purchaser and that
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the Agreement of sale - cum - GPA entered into by the plaintiff and
defendant No. 1 is a sham document under which no consideration
has been passed as evidenced by Ex.B2. It is contended that the trial
Court has failed to take into consideration the undertaking given by
the plaintiff to the effect that he still had to pay an amount of
Rs.10,00,000/- to the defendant No.1 under Agreement of sale -
cum - GPA and the same was admitted in the cross examination.
Ex.B2 is alleged to be undertaking issued by the plaintiff stating that
he has to pay Rs.10 lakhs to defendant No.1. But a perusal of Ex.A1
discloses that entire sale consideration was paid. On a comparison
of Ex.B2 and Ex.A2 certainly an ambiguity arises as to what is the
appropriate sale consideration that was agreed between the plaintiff
and defendant No.1 for purchase of the suit schedule property i.e.,
Rs.6,90,000/- or Rs.10,00,000/- or Rs.16,90,000/-. Moreover, as
per Ex.A1 the sale consideration of Rs.6,90,000/- is in proper
perspective as the amount per acre was shown as Rs.1,50,000/- but
as per Ex.B2 there is no explanation as to how the consideration of
Rs.10,00,000/- was arrived. It is pertinent to note that there is no
reference of Ex.A1 in Ex.B2 and there is no reference of Ex.B2 in
Ex.A1. Defendant No.1 with an ulterior motive failed to come to the
witness box to explain as to under what circumstances, Ex.B2 was
executed by plaintiff. Though the plaintiff has admitted his
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signature on Ex.B2, he denied the contents of Ex.B2. It is pertinent
to note that the date on which Ex.B2 was executed is not available,
however, the stamp was alleged to have purchased on 03.02.2012.
Thus, the date of purchase of stamp paper of Ex.B2 and the date of
execution of Ex.A1 are both one and the same day. When Ex.A1 was
already executed with the contents that entire sale consideration was
paid, then there is no necessity for the plaintiff to execute Ex.B2
stating that he has to pay Rs.10,00,000/- to the defendant No.1. If
at all the plaintiff needs to pay Rs.10,00,000/- to defendant No.1 at
a subsequent date to 03.02.2012 then certainly the same would have
been incorporated in Ex.A1 Agreement of sale - cum - irrevocable
GPA with possession. Even for the sake of arguments, if we consider
that plaintiff has not paid entire sale consideration to the defendant
No.1, then what prompted the defendant No.1 to hand over the
physically possession of the suit schedule property to plaintiff prior
to the payment of entire sale consideration as per the covenant No.3
of Ex.A1. Not only handing over the possession in respect of suit
schedule property, a perusal of covenant No.4 of Ex.A1 discloses that
the defendant No.1 has also handed over original link documents
pertaining to the suit schedule property to the plaintiff. As
discussed above, if the plaintiff has not paid entire sale
consideration to the defendant No.1, there is absolutely no
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circumstance prevails for defendant No.1 to deliver possession as
well as original link documents to plaintiff, more particularly, prior
to receipt of entire sale consideration (as per the contention of the
defendants). The admission on the part of DW1, who is the husband
of defendant No.2, that when he asked about original of passbook,
defendant No.1 stated that said document was lost, lends any
amount of credence to the version of plaintiff. This admission on
the part of DW1 was not denied by defendant No.1. The defendant
No.1 has not explained as to when and where he lost the documents.
If at all the original link documents were lost by the defendant No.1,
then certainly he ought to have taken some immediate measures to
trace out the said documents. But there is no such instance in the
case on hand.
13. Furthermore, DW1 deposed in his cross examination that even
as on today the suit land stands in the name of Defendant No.1 in
the official records. The suit was filed in the year 2014 and the
evidence of DW1 was recorded on 20.04.2018. Even if we consider
that defendant No.1 has executed sale deed under Ex.A2 in favour of
defendant No.2, there is no explanation on the part of defendants as
to why the name of defendant No.1 is still continuing as owner of the
suit schedule property in the official records. It is also to be seen
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that DW1 is doing real estate business and he is bound to obtain
encumbrance certificate before purchase of the suit schedule
property. Though DW1 pleaded ignorance about Ex.A1, it is to be
seen that Ex.A1 is a registered document and it will be reflected in
the encumbrance certificate. No man of ordinary prudence will dare
to purchase a property without obtaining encumbrance certificate to
know the previous encumbrances in respect of said property. DW1
deposed that he did not obtain encumbrance certificate. Ex.A5
encumbrance certificate obtained by the plaintiff on 17.12.2014
clearly discloses about execution of Ex.A1 between plaintiff and
defendant No.1. Thus, the contention of defendant No.2 that Ex.A2
is sham document is unsustainable. It is pertinent to note that
Ex.A1 is much prior to execution of Ex.A2. In the above
circumstances, it is appropriate to state that Ex.A2 might have been
created by the defendants to defeat the interest of plaintiff accrued to
him by virtue of Ex.A1 rather than saying that Ex.A1 is a sham
document created for the purpose of defeating the rights of
defendant No.2.
14. The learned counsel for the defendant No.2 contended that the
suit is liable to be dismissed on the ground of non-joinder of
necessary parties as the plaintiff failed to add all the vendors of
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Ex.A2 to the suit while seeking for cancellation of Ex.A2. In support
of the said contention, the learned counsel for the defendant No.2
relied upon a decision in D. Sarala v. P. Pratap Reddy 3, wherein the
High Court for the State of Andhra Pradesh observed as under:
"This decision by the Apex Court puts beyond doubt the
necessity of the subsequent purchaser being made a party to the
suit for specific performance. It also further indicates that a
person directly and legally interested in the answers to the
controversies involved in the suit regarding the rights set up and
the relief claimed, will undoubtedly be a proper party and may
also be a necessary party. If the vendor is not made a party to the
suit to declare the sale deed executed by the vendor in favour of
the subsequent purchaser as null and void, the vendor's rights
and interests would be affected without notice to and without an
opportunity of hearing for the vendor. Any grant of such
declaration of nullity of sale deed is likely to make the vendor
answerable for any claim by the subsequent purchaser for
equities or the rights regarding the consideration paid by him or
the damages or loss sustained by him or the compensation or
reimbursement to which he may be entitled to. Though all rights of
ownership in the property are conveyed and passed from the
vendor to the subsequent purchaser under a registered
conveyance, the absence of subsisting interest for the vendor in
the property is only so long as that sale deed stands. If the sale
deed were to be rendered legally ineffective in a judicial
proceeding, the vendor will not only subject himself to any
consequential claims from the subsequent purchaser due to the
sale in his favour being nullified but also to the claims of the
vendee to subject the vendor to specifically perform his
contractual obligations in respect of the same property. In fact, it
was held in Azhar Hasan and Ors. v. District Judge, Saharanpur
and Ors. , that return of plaint by a civil Court was right, as the
sale deed which has been questioned on the basis of fraud, was
not executed by the plaintiffs but by others, and they were not
parties thereto so as to allege the incidence of fraud. The decision
clearly lays down the principle that when a sale deed is sought to
be avoided on the basis of fraud, the executants of the sale deed
must be made parties to the legal proceeding to avoid such sale.
The principle has to as well extend to any suit or legal proceeding
seeking to avoid the sale deed on any analogous ground.
Cancellation of an instrument without impleading the executant
thereof and without notice to and hearing him, is clearly opposed
to the basic rules of natural justice and the fundamental
2006 SCC Online AP 754
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principles of judicial procedure. The same principles and logic by
which the subsequent purchaser is considered necessary in the
suit for specific performance, would equally apply to the necessity
of the executant of a sale deed being a party to any suit for
cancellation or setting aside of such document or for declaration
that it is null and void.
33. Though no direct judicial pronouncement is placed
before this Court about the vendor being a necessary party to the
suit for cancellation of a sale deed or for declaration that the sale
deed is void, the same is inherent and evident from the
various precedents referred to above."
15. There is absolutely no doubt in the principle laid down in the
above said decision. In the case on hand, as stated supra, only
defendant No.1 i.e., vendor No.1 is the owner and possessor of the
suit schedule property as he succeeded to the property of his father
which is evident from Exs.A3, A4 and A10 and vendor Nos.2 to 4
were added only to avoid future litigation. It is not the case of the
defendant No.2 that though vendor Nos.2 to 4 are having interest,
they were not impleaded as parties to the suit and thereby depriving
their right to be heard while declaring the sale deed to be null and
void. If Ex.A2 sale deed is declared as null and void, vendor Nos.2 to
4 will not suffer any loss as vendor No.1 i.e., defendant No.1 alone
has succeeded to the property. It is not even the case of defendant
No.2 that the sale consideration was received by all the four vendors.
16. The learned counsel for the defendant No.2 contended that the
trial Court failed to frame issue regarding readiness and willingness
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of the plaintiff. In support of the said contention, the learned
counsel for the defendant No.2 placed his reliance on a decision of
the Honourable Supreme Court in V.S. Ramakrishnan v.
P.M.Mohammed Ali 4 wherein it was observed as under:
"There must be a specific issue framed on readiness and
willingness on the part of the plaintiff in a suit for specific
performance and before giving any specific finding, the parties
must be put to notice. The object and purpose of framing the issue
is so that the parties to the suit can lead the specific evidence on
the same."
17. The learned counsel for the defendant No.2 also contended
that the plaintiff failed to aver the readiness and willingness to
perform his part of contract and thus, the suit is liable to be
dismissed. In support of the said contention, the learned counsel for
the defendant No.2 placed his reliance on a decision of the
Honourable Supreme Court in U.N. Krishnamurthy v.
A.M.Krishnamurthy 5 wherein it was observed as under:
"27. In Pt. Prem Raj v. D.L.F. Housing and Construction
(Private) Ltd. And Anr.2 cited by Mr. Venugopal, this Court
speaking 1 (2010) 10 SCC 512 2 AIR 1968 SC 1355 through
Ramaswamy J. held that "it is well-settled that in a suit for
specific performance the plaintiff should allege that he is ready
and willing to perform his part of the contract....." and if the fact is
traversed, he is required to prove a continuous readiness and
willingness from the date of the contract to the time of the hearing,
to perform the contract on his part. For such conclusion the
learned Judge relied upon the opinion of Lord Blanesburgh,
in Ardeshir Mama v. Flora Sassoon3.
2022 SCC Online SC 1545
2022 SCC Online SC 840
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28. In D.L.F. Housing and Construction (Pvt.) Ltd. (supra),
in the absence of an averment on the part of the Plaintiff in the
plaint, that he was ready and willing to perform his part of the
contract, it was held that the Plaintiff had no cause of action so
far as the relief for Specific Performance was concerned. In this
case, of course, there is an averment in the plaint that the
Respondent Plaintiff was all along ready and willing to perform
his obligations under the contract. The question is whether the
Respondent Plaintiff had proved his readiness and willingness to
perform his obligations under the contract.
29. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and
Ors. 4, this Court reiterated that Section 16(c) of the Specific Relief
Act, 1963 envisages that the Plaintiff must plead and prove that
he had performed or has always been ready and willing to
perform the essential terms of the contract which were to be
performed by him 3 55 IA 300, at pg. 372:AIR 1928 PC 208 4
(1995) 5 SCC 115 other than those terms, the performance of
which has been prevented or waived by the Defendant. In N.P.
Thirugnanam (supra) this Court said that the continuous
readiness and willingness on the part of the Plaintiff was a
condition precedent for grant of the relief of Specific Performance."
18. There is absolutely no doubt in the principles laid down in the
above said decisions. In V.S. Ramakrishnan's case (supra), the
plaintiff was intending to purchase property for Rs.1 crore and
accordingly paid Rs.65 lakhs in cash and also issued a post dated
cheque for Rs.35 lakhs. In such circumstances, the plaintiff was
supposed to retain sufficient balance of Rs.35 lakhs to ensure that
the said cheque gets honoured. Thus, the plaintiff therein needs to
aver in the pleadings that he is ready and willing to perform his part
of contract and the trial Court is also bound to frame an issue in
that regard. But the facts in the case on hand are entirely different.
As per Ex.A1 the plaintiff has paid entire sale consideration of
Rs.6,90,000/- and in such circumstances, the question of plaintiff
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being ready and willing to perform his part of contract and the
obligation of the trial Court to frame an issue regarding the plaintiff's
willingness to perform his part of contract does not arise at all.
19. The learned counsel for the defendant No.2 relied upon a
decision in Ramdas v. Sitabai and others 6 the Honourable Apex
Court observed that an undivided share of co-sharer may be a
subject matter of sale, but possession cannot be handed over to
vendee unless the property is partitioned by metes and bounds
amicably and through mutual settlement or by a decree of Court.
On going through the facts in the above said decision, it is clear that
on the death of Sukha, who is the absolute owner of the properties,
the plaintiff and defendant became joint owners and possessors of
the suit schedule property, however, in the case on hand, after the
death of Mohd. Amjad Ali, his elder son Mohd. Jaffar Ali (defendant
No.1) succeeded the land as son and MRO, Toopran issued ROR
proceedings in favour of Jaffar Ali being elder son of Mohd. Amjad
Ali. There is no document to show that defendant No.1 and his
brother Mumtaj Ali are joint owners and possessors of the property
belonging to Mohd. Amjad Ali. Even in the sale deed executed by the
defendant No.1 in favour of defendant No.2, the defendant No.1 was
6 (2009) 7 Supreme Court Cases 444
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shown as absolute owner and possessors of the suit schedule
properties. It is pertinent to note that in Ex.A1 and Ex.A2 the
signatures of the younger brother of defendant No.1 i.e., Mumtaj Ali
were obtained, as such, Mumtaj Ali is very much aware of the alleged
alienations made by his own brother i.e., defendant No.1. Even if
Mumtaj Ali is having any interest in the suit schedule properties,
certainly he would have objected for such alienations before
subscribing his signatures on Exs.A1 and A2. But there is no such
instance in the case on hand. Hence, the facts of the case in the
above said decision are quite different from the facts of the case on
hand and thereby the defendants cannot expect any assistance from
the principle laid down in the above said decision.
20. It is pertinent to note that the suit schedule properties are
located in Brahmanpally Village, Toopra Mandal and the appropriate
registration office nearer to the said locality is office of Joint
Registrar, Toopran and accordingly, Ex.A1 was registered in the said
office. But the defendants with the sole intention to suppress the
said document, have cleverly got registered Ex.A2 in the office of
Joint Registrar, Sangareddy. The trial Court has rightly observed in
paragraph No.63 of the impugned judgment that defendant No.2 and
her husband were aware about Ex.A1, yet they chose to enter into
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Ex.B1 transaction for their self serving needs and to defeat the rights
of plaintiff under Ex.A1.
21. The defendant No.2 is a purchaser of the suit schedule
properties from defendant No.1, who is the original owner. Now,
it has to be ascertained as to whether the defendant No.2 was
diligent enough in making discrete enquiries before purchase of
the suit schedule properties. Purchasing an immovable
property requires utmost care and caution. The purchaser has
to examine and find out the title of the seller or nature of his
right. A seller can sell only what he possesses. Therefore, if a
seller has proper and valid title, on purchase the purchaser will
get valid title. If the seller's title is defective, the purchaser will
get only defective title. The simple reasoning is that the seller
can sell what he has, and nothing more. While buying an
immovable property, legal due diligence is essential for the
purchaser to avoid getting entangled in legal issues later.
Generally most of the purchasers will verify title deeds and all
connected documents before buying an immovable property, but
fail to verify the antecedents of the vendor. It is better to verify
the antecedents of the vendor. The title of the property forms
the foundation of any contract. According to the Indian Contract
Act, no seller can pass on to the purchaser a better title than
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what he already possesses. Therefore, the title of the seller must
be clear and free from any encumbrance. A search of the
records at the sub-registrar's office may be carried out for
documents that may affect the property and may have been
registered. The report will show the recorded owner of title of the
property and changes in the title of the property. Buyer beware
is the crucial aspect that needs to be considered while dealing
with immovable property transactions. Therefore, the entire
onus lies on the purchaser in verifying the title, ownership and
possession of the property. He must take all reasonable steps to
ensure that he is purchasing the property from a right person
and also a right property.
22. The most important precaution is undertaking a personal
inspection of the property under the sale. During the personal
inspection, the buyer shall inquire with the neighbours
regarding the ownership and possession of the property,
disputes if any and they shall make discrete enquiries with
various persons in and around the property like elders of the
locality, longstanding property owners/tenants, workmen, etc.
Though the defendant No.2 came to know about Ex.A1 through
defendant No.1, DW1 or defendant No.2 did not take any
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precautions before entering into transaction with defendant
No.1 under Ex.A2. It is always necessary to inspect the original
documents of the seller and read all the documents carefully
before signing them. In the case on hand, when DW1 enquired
with defendant No.1 about original link documents, he was
replied that the documents were lost. In such circumstances,
the defendant No.2 ought to have issued a public notice about
purchasing the property in the local newspaper. If the vendor
states that the original documents were missing or stolen or
lost, then it is better to know the full facts relating to missing of
documents and it has to be ascertain as to whether the vendor
has filed a complaint in the concerned police station and got the
copy of FIR with regard to missing of documents and what are
the other steps he had taken to trace them as a prudent person.
So it is better to get full information regarding original
documents that are missing. And it is always better to give a
public notice with regard to purchase of the property on the
basis of certified copies of the title deeds instead of original
documents which were lost. In the case on hand, though
defendant No.2 and her husband were aware about missing of
original link documents, it was elicited in the cross examination
of DW1 that no public notice was issued in newspapers calling
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for claims in respect of the property being purchased. Issuing
public notice helps in proving that the purchaser has purchased
the property with bona fide intention and in good faith. This will
prove that the purchaser has taken all measures that can be
expected from bona fide and prudent purchaser thereby. A
search of the records at the sub-registrar's office may be carried
out for documents that may affect the property and may have
been registered. Section 57 of Registration Act, 1908 allows
citizens to get certified copies and encumbrance certificates
from the Registrar/Sub Registrar Offices. Any person can verify
personally the registered document entries in the books of the
Registrar/Sub Registrar Offices by paying prescribed fee.
23. In the case on hand, defendant No.1 has shown copies of
the original link document. When copies of the documents are
given for perusal, the purchaser shall not rely only on them, but
rather can apply for certified copies too. The certified copies of
the link documents should also be obtained. In the case on
hand, except stating that he has made discrete enquiry, the
husband of defendant No.2, who was examined as DW1, has not
taken any of the above precautions before purchase of the suit
schedule properties. Since the vendor of defendant No.2 has
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purchased the suit schedule properties from the defendant
No.1, who has already given authority to plaintiff to deal with
the suit schedule property under Ex.A1, the defendant No.2 is
not supposed to enter into a contract of sale with defendant
No.1. It is not the case of Defendant No.1 that he has informed
defendant No.2 about execution of Ex.A1 by him in favour of
plaintiff. However, as per the contention of defendant No.2, she
is aware of Ex.B2 i.e., a document in relation to purchase of suit
schedule property by plaintiff. A perusal of Ex.A2 discloses
that there is no reference of any agreement between defendant
No.1 and defendant No.2 in respect of purchase of suit schedule
property. Ex.A2 also does not disclose as to when the sale
consideration of Rs.13,80,000/- was paid by the defendant No.2
in favour of defendant No.1. Thus, without any agreement and
without any reference of specific date of payment of
consideration, execution of sale deed by defendant No.1 in
favour of defendant No.2 creates any amount of suspicion over
validity of Ex.A2.
24. As per Section 20 of Specific Relief Act, granting of specific
performance of a contract is a discretionary relief and the court is
not bound to grant such relief merely because it is lawful to do so;
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but the discretion of the court is not arbitrary but sound and
reasonable, guided by judicial principles and capable of correction by
a court of appeal. The trial Court while exercising its discretion has
rightly decreed the suit in favour of the plaintiff by considering the
oral and documentary evidence adduced on behalf of either sides
and there are no reasons to interfere with the well reasoned
judgment passed by the trial Court. The defendant No.1 failed to
establish any of the grounds urged in the memorandum of appeal
and thereby the appeal is devoid of merits and liable to be dismissed.
25. 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: 16.04.2024
Note: LR Copy to be marked.
B/o. AS
