A Vijay Raj Soni vs Bedley Sujay Kumar
2024 Latest Caselaw 3288 Tel

Telangana High Court

A Vijay Raj Soni vs Bedley Sujay Kumar on 23 August, 2024

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

      CITY CIVIL COURT APPEAL Nos.41 & 131 OF 2014

COMMON JUDGMENT:

Heard Sri Vedula Srinivas, learned senior counsel

appearing for Sri Wasim Ahmed Khan, learned counsel on

record for the appellant in both the Appeals; Sri D.Prakash

Reddy, learned senior counsel appearing for Sri D.Madhava

Rao, learned counsel on record for respondent Nos.2 and 3 in

CCCA.No.41 of 2014 and respondent Nos.1 and 2 in CCCA

No.131 of 2014; and Sri V.Hariharan, learned counsel for

respondent No.4 in CCCA No.41 of 2014 and respondent No.4 in

CCCA No.131 of 2014.

2. The suits-O.S.Nos.50 and 67 of 2002 were heard together

and by common judgment, dated 11.02.2014, the trial Court

partly decreed the suit in O.S.No.50 of 2002 and dismissed the

suit in O.S.No.67 of 2002. Against the judgment in O.S.No.50 of

2002, CCCA.No.131 of 2014 is filed by the 2nd defendant

therein. Against the judgment in O.S.No.67 of 2002,

CCCA.No.41 of 2014 is filed by the plaintiff therein.

LNA,J CCCA Nos.41 & 131 of 2014

3. As the dispute relates to the same property, these two

Appeals are clubbed, heard together and are disposed of by

common judgment.

CCCA No.41 of 2014:

4. The appellant herein is the plaintiff and the respondents

herein are the defendants in O.S.No.67 of 2002 filed for specific

performance of agreement of sale, dated 17.04.2000, by

directing defendant No.1 to execute registered sale deed in his

favour in respect of the property bearing No.10-2-292 in Plot

No.179 (Part-B), admeasuring 300 square yards, situated at

West Marredpally, Secunderabad (hereinafter referred to as 'the

suit schedule property') or in alternative, to direct the

defendants to return the entire sale consideration of

Rs.21,03,500/- along with damages and interest from the date

of agreement of sale till the date of realization and to grant

perpetual injunction restraining the defendants and their men

from interfering with plaintiff's peaceful possession or

dispossessing the plaintiff from the schedule property.

5. It was averred that the plaintiff entered into agreement of

sale dated 17.04.2000 with defendant No.1 to purchase the suit

schedule property for a total sale consideration of LNA,J CCCA Nos.41 & 131 of 2014

Rs.21,00,000/- and by the date of agreement, he paid an

amount of Rs.4,25,000/- as advance and agreed to pay the

balance amount of Rs.16,75,000/- at the time of registration. It

was averred that by the date of agreement of sale, the plaintiff

was already in possession of the schedule property by running

business in the name and style of 'Raj Engineers and Raj

marketing' in partnership with his friend and that the plaintiff

paid a total sum of Rs.21,03,500/- to defendant No.1 on various

occasions under receipts and the same were endorsed by

defendant No.1 himself and even on the overleaf of the original

agreement of sale on 28.07.2001. It was further averred that the

said transactions were in the knowledge of defendant No.2.

Defendant No.2 is the wife and defendant No.3 is the son of

defendant No.1.

6. It was averred that though the plaintiff has paid more

than the agreed sale consideration and performed his part of

contract, defendant No.1 was deliberately avoiding and delaying

the execution of registered sale deed in his favour in spite of

repeated requests and demands on the pretext that he has

borrowed amount from Andhra Bank and that original

documents are lying with the Bank and he will execute the

registered sale deed after getting the documents from the Bank.

LNA,J CCCA Nos.41 & 131 of 2014

7. It was further averred that all of a sudden, on behalf of

defendant No.3, defendant No.2, in collusion with defendant

No.1, gave a paper publication in Deccan Chronicle English

Daily newspaper on 29.04.2002, by falsely contending that

defendant No.3 has got a share in the suit schedule property as

the said property is an ancestral property; that the plaintiff got

issued reply notice to the claim of defendant No.3 contending

that the schedule property is the absolute property of defendant

No.1 and that defendant No.1 and his mother, by name Bededy

Leela Bai, were the joint owners of 600 square yards of property

and that they have partitioned the same on 21.05.2001 through

registered partition deed bearing document No.1009/ 2001, as

per which, the suit schedule property absolutely fell to the share

of defendant No.1; that earlier, defendant No.1 and his mother

obtained registered conveyance deed dated 01.08.1997 executed

by the Government in their favour converting the leasehold

rights into freehold rights; that there is also a document of

Memorandum of Past Partition Deed, dated 20.11.1971, under

which, defendant No.1 was shown as owner of the suit

schedule property; and that contrary to these documents,

defendant Nos.2 and 3 cannot contend that the schedule LNA,J CCCA Nos.41 & 131 of 2014

property is an ancestral property and that defendant No.3 has

got a share in it.

8. It was averred that on coming to know the criminal

intention and collusion between defendants Nos.1 to 3 and the

fraud played by them, plaintiff issued a legal notice dated

06.05.2002 calling upon defendant No.1 to execute registered

sale deed, but he gave a vague reply dated 22.05.2002 stating

that he is not in a position to recollect the agreement of sale,

dated 17.04.2000, and asked the plaintiff to send a copy of the

same and further stated that he is not interested to execute the

registered sale deed in favour of plaintiff. Thus, defendant No.1,

with ulterior motive and mala fide intention, cheated the

plaintiff and thereby, committed the criminal acts.

9. It was averred that since the plaintiff is in physical

possession of the schedule property and the defendants are

trying to interfere with his peaceful possession, plaintiff filed a

complaint before the West Marredpally Police Station,

Secunderabad, on 09.05.2002; that plaintiff has made out a

prima facie case and has not committed any default and there

are no latches on his part in performing his part of contract.

Hence, the suit for specific performance of the aforesaid

agreement of sale.

LNA,J CCCA Nos.41 & 131 of 2014

10. Defendant No.1 remained ex parte.

11. Defendant Nos.2 and 3 filed written statement denying

the averments made in the plaint. However, they admitted that

plaintiff was in possession of schedule property, which stands in

the name of defendant No.1. They denied about execution of

agreement of sale dated 17.04.2000 and receiving of advance

sale consideration of Rs.4,25,000/- and the balance sale

consideration from the plaintiff. Defendant No.2 specifically

denied of any knowledge or notice about the alleged agreement

of sale or the receipts allegedly passed by defendant No.1 to

plaintiff.

12. It was contended that defendant No.1 is a mentally

affected person and he was never looking after the affairs of the

property and was incapable of doing so; that defendant No.1

was not enabled to negotiate or make any sale and there was no

personal, family or legal necessity for such alleged sale; and that

plaintiff seems to have taken advantage of the situation of

defendant No.1 and got fabricated the agreement of sale and the

receipts.

13. It was contended that the suit schedule property is an

ancestral property and that defendant No.3 and B.Sanmitha, LNA,J CCCA Nos.41 & 131 of 2014

who are the son and daughter of defendant Nos.1 and 2,

respectively, filed a suit for partition in O.S.No.50 of 2002 and

therefore, defendant No.1, who is mentally unsound and

addicted to alcohol and undergoing medical treatment, has no

right to deal with the suit schedule property; that in view of

partition suit, plaintiff is not entitled to seek the relief of specific

performance based on fraudulent agreement of sale. It was

further contended that a portion of the schedule property was

leased to one Smt. Vijaya, who is running a firm by name 'Raj

Engineering' and hence, the possession was not delivered to the

plaintiff at any point of time and finally, defendant nos.1 to 3

prayed to dismiss the suit-O.S.No.67 of 2002.

CCCA.No.131 of 2014:

14. Appellant herein is defendant No.2, respondent Nos.1 and

2 herein are the plaintiffs, respondent no.3 herein is defendant

no.1 in O.S.No.50 of 2002. Respondent No.4 herein is the wife

respondent no.3 herein. Plaintiffs filed the suit-O.S.No.50 of

2002 for preliminary decree in their favour and against the

defendants for partition of the suit schedule property as the

plaintiffs are entitled to 2/3rd share and separate possession of

the plaint schedule property and to restrain defendant No.1 LNA,J CCCA Nos.41 & 131 of 2014

from alienating the suit schedule property in favour of

defendant No.2 or any person or authority.

15. Brief facts of the case, as narrated in the plaint filed in

O.S.No.50 of 2002, are that plaintiff Nos.1 and 2 are the son

and daughter of defendant No.1, respectively; that originally, the

suit schedule property belongs to B.Jagadishwaraiah,

grandfather of defendant No.1, who died on 08.05.1973; that

after demise of the said B.Jagadishwaraiah, the properties were

partitioned by virtue of Memorandum of Partition, dated

20.11.1974, among the family members; that the properties

bearing H.Nos.10-2-291 and 10-2-292 in Plot No.179,

admeasuring 600 square yards, situated at West Marredpally,

Secunderabad, were partitioned equally between defendant No.1

and his mother-Leela Bai, W/o B.Chandramouli, by virtue of

partition deed, vide document No.1009/2001, dated

21.05.2001; thus, defendant No.1 inherited the property bearing

No.10-2-292, Plot No.179, Part-B, admeasuring 294 square

yards by virtue of the said partition deed and therefore, the suit

schedule property being an ancestral property of the plaintiffs,

they have right in the same.

16. It was averred that defendant No.1 had been addicted to

alcohol and was also mentally depressed since nearly five years;

LNA,J CCCA Nos.41 & 131 of 2014

that defendant No.2, being a friend of defendant No.1, taking

undue advantage of his mental condition, obtained the

signature of defendant No.1 on several stamp papers and

receipts and the same was converted into agreement of sale;

that on 25.04.2002, defendant No.2 threatened defendant No.1

and plaintiffs that he will forcibly take possession of the

schedule property; that the plaintiffs caused a public notice on

29.04.2002 in 'Deccan Chronicle' English Daily newspaper

stating that defendant No.1 is trying to alienate the suit

schedule property to defendant No.2 without the consent and

knowledge of the plaintiffs and without any right; that

defendant No.2 has given reply notice on 03.05.2002 through

his counsel in 'Deccan Chronicle' English Daily newspaper

claiming himself to be an agreement holder with defendant No.1

in respect of the schedule property; that plaintiffs again got

issued publication on 08.05.2002 by way of reply, to the reply

notice in Deccan Chronicle, claiming 2/3rd share in the

schedule property; and that defendant No.2 issued a legal notice

to defendant No.1 on 06.05.2002 and also filed a Caveat against

the plaintiffs and defendant No.1 on 10.05.2002.

17. It was averred that defendant No.1 being a drug addict,

neglected to look after his wife and children i.e. plaintiff Nos.1 LNA,J CCCA Nos.41 & 131 of 2014

and 2; that defendant No.2, trying to deprive the legitimate

share of the plaintiffs, hatched a plan to knock away the

schedule property taking undue advantage of the mental

depression of defendant No.1; that defendant No.1 has no

manner of right to alienate any part or portion of schedule

property exclusively, to the detriment of plaintiffs' interest as he

is not the exclusive owner of the suit schedule property; and

that the alleged agreement of sale set up by defendant No.2 is

unlawful, illegal and not binding on plaintiffs. The allegations

that defendant No.2 has paid defendant No.1 certain amount as

sale consideration is incorrect; that there was neither any family

necessity nor personal need for defendant No.1 or his family

members to sell the schedule property; that in order to protect

the plaintiffs from the vagaries of defendant No.1's activities,

temporarily the plaintiffs had been staying with their maternal

grandparents and that in spite of the same, defendant No.2 is

bent upon going ahead with his nefarious plans and threatening

plaintiffs in this regard. Hence, the aforesaid suit-O.S.No.50 of

2002 for partition of the suit schedule property.

18. Defendant No.1 remained ex parte.

19. Defendant No.2 filed written statement denying the

averments in the plaint and contended that the plaintiffs and LNA,J CCCA Nos.41 & 131 of 2014

defendant No.l have filed the collusive suit with a mala fide

intention in order to cause undue loss to him; that defendant

No.2 was the tenant of defendant No.1 in respect of the

schedule property from the last 12 years till the execution of

agreement of sale; that defendant No.1 is the absolute owner

and possessor of the suit schedule property by virtue of

registered Partition Deed bearing document No.1009/2001,

dated 21.05.2001; that, in fact, earlier to obtaining the suit

schedule property under the partition, defendant No.1 and his

mother obtained Registered Conveyance Deed, dated

01.08.1997, executed by the Government in their favour in

respect of the land admeasuring 600 square yards, converting

the leasehold rights into freehold rights; that there is also a

document of Memorandum of Past Partition Deed, dated

20.11.1971, under which, defendant No.1 was shown as owner

of the suit schedule property; and that in view of documentary

evidence, defendant no.1 is the absolute owner of the suit

schedule property under registered document and therefore, it

is not proper on the part of the plaintiffs to contend that the suit

schedule property is an ancestral property and that the

plaintiffs have got share in it. The contention that the property LNA,J CCCA Nos.41 & 131 of 2014

originally belongs to B.Jagadeshwaraiah, the grandfather of

defendant No.1, is not known to defendant No.2.

20. It was contended that under the registered Partition Deed,

dated 21.05.2001, defendant No.1 and his mother-Bededy Leela

Bai equally partitioned the entire 600 square yards of land and

defendant No.1 obtained the suit schedule property to his share.

Therefore, in view of the above allotment of specific share,

defendant No.1 became the absolute owner of the suit schedule

property and as such, the said property loses its significance as

the ancestral property. Therefore, plaintiffs do not have any

right or share in the suit schedule property.

21. It was further averred that the plaintiffs are not at all

entitled to any share, much less 2/3rd share in the suit

schedule property. The allegation that plaintiffs have leased out

the suit schedule property to one Mrs. Vijaya, Proprietor of Raj

Engineering, is not correct, and in fact, defendant No.2 is in

possession of suit schedule property by running the business in

the name of 'Raj Engineering and Raj Marketing' in partnership

with his friend. In any case, after execution of the agreement of

sale in favour of defendant No.2 on 17.04.2000, the relationship

of landlord and tenant ceased to exist.

LNA,J CCCA Nos.41 & 131 of 2014

22. It was further averred that defendant No.1, for want of

money and to meet other legal necessities, has requested

defendant No.2 to purchase the suit schedule property for a

total sale consideration of Rs.21,00,000/- and to that effect, an

agreement of sale was executed on 17.04.2000 and by the date

of above agreement of sale, defendant No.1 received an amount

of Rs.4,25,000/- towards advance sale consideration; that the

balance sale consideration of Rs.16,75,000/- was agreed to be

paid at the time of registration and defendant No.1 was

supposed to obtain necessary and requisite permission/

sanction and also the Certificates under the Income Tax Act,

Municipal Act and other enacted laws before execution of the

registered sale deed.

23. It was averred that defendant No.2 paid more than the

entire sale consideration and performed his part of contract, but

defendant No.1 was deliberately avoiding to execute the

registered sale deed in his favour, in spite of repeated requests

and demands; that defendant No.1 and his wife, who have

jointly received more than Rs.21,00,000/- from defendant No.2,

are guilty of committing acts of cheating and breach of promise,

etc; that the plaintiffs' mother, who is the wife of defendant

No.1, has also counter signed several receipts to show that she LNA,J CCCA Nos.41 & 131 of 2014

has taken active part in collecting the balance sale

consideration.

24. It was averred that defendant No.1 alone has lawful rights

over the suit schedule property and as such, he has legally and

rightfully executed the agreement of sale in favour of defendant

No.2 and on such, defendant No.2 is the lawful and bona fide

purchaser of the suit schedule property and in performance of

his part of contract, he paid the entire sale consideration.

25. It was further averred that defendant No.2 filed

O.S.No.67/2002 for specific performance of agreement of sale

dated 17.04.2000 and that the plaintiffs are not entitled to

equitable relief of injunction; that the suit-O.S.No.50 of 2002 is

filed in collusion with each other suppressing the execution of

the agreement of sale and collecting more than the sale

consideration.

26. Basing on the above pleadings of the parties in both the

suits, the trial Court framed the following issues for trial:

O.S.No.50 of 2002:

1) Whether the plaintiffs are entitled for the relief of partition of the suit schedule property and allotment of 2/3rd share in it to them?

LNA,J CCCA Nos.41 & 131 of 2014

2) Whether the plaintiffs are entitled for the permanent injunction prayed for?

3) To what relief?

O.S.No.67/2002:

1) Whether the suit agreement of sale, dated 17.04.2000 is true, valid and binding on the defendants ?

2) Whether the plaintiff is entitled for specific performance of the suit agreement of sale OR the alternative relief of refund of any sale consideration ?

3) Whether the plaintiff is entitled for perpetual injunction prayed for?

4) To what relief?

27. In O.S.No.50 of 2002, on behalf of the plaintiffs, P.Ws.1

and 2 were examined and Exs.A1 to A12 were marked.

28. In O.S.No.67 of 2002, the plaintiff got himself examined

as P.W.1 and got marked Exs.A1 to A63, subsequently, as per

orders dated 27.02.2012, P.W.1 in OS.No.67 of 2002 is treated

as DW.1 and Exs.A1 to A63 are treated as Exs.B1 to B63 in

O.S.No.50 of 2002.

29. On issue No.1 in O.S.No.50 of 2002, the trial Court

observed that one B.Jagadishwaraiah was the owner of the

entire properties bearing Nos.10-2-291 and 10-2-292 in Plot

No.179 admeasuring 600 square yards situated at West

Marredpally, Secunderabad, and after his demise; the properties LNA,J CCCA Nos.41 & 131 of 2014

were partitioned by virtue of memorandum of partition dated

20.11.1974 among the family members. The Government has

executed the conveyance deed on 01.11.1997 converting the

leasehold rights into freehold rights in favour of Sujay Kumar

and his mother and thus, they became joint owners of the

property admeasuring 600 square yards. Subsequently, Sujay

Kumar and his mother-Leela Bai entered into partition deed

dated 21.05.2001 vide registered document bearing

No.1009/2001 (marked as Ex.A1 in O.S.No.50 of 2002), by

which the house properties i.e., H.Nos.10-2-291 and 10-2-202

in Plot No.179, admeasuring 600 square yards, were partitioned

equally between them.

30. The trial court held that it is not at all safe to keep the

house property in the name of defendant No.1 as the manager

as he was addicted to alcohol and opium substances and it will

not serve the welfare of his two minor children. Thus, the trial

Court held that the plaintiffs have established their case for

partition of the suit property covered in O.S.No.50 of 2002 and

accordingly, issue No.1 was answered in favour of the plaintiffs

and against the defendants.

31. On Issue No.1 in OS No.67 of 2002, the trial Court

observed that it can be safely concluded that the property LNA,J CCCA Nos.41 & 131 of 2014

covered by sale agreement dated 17.04.2000 is the ancestral

property of B.Sujay Kumar, in which himself as well as plaintiffs

in OS.No.50 of 2002 are entitled for their respective shares in

the event of said property partitioned; and that both the minor

children of Sujay Kumar are not parties to the agreement of sale

dated 17.04.2000. The trial Court, taking into consideration the

entire oral and documentary evidence and the nature and

genesis of the suit schedule property, held that the suit

schedule property is the ancestral property and hence, Sujay

Kumar is not the absolute owner of the suit schedule property

as on the date of agreement of sale. Thus, Sujay Kumar has no

right to execute the sale agreement dated 17.04.2000 in favour

of any third parties, much less, Vijay Raj Soni and therefore, the

agreement of sale dated 17.04.2000 is unenforceable in the eye

of law and not valid and binding on the defendants in O.S.No.67

of 2002. Thus, the issue was answered accordingly against the

plaintiff in OS.No.67 of 2002.

32. On issue No.2 in O.S.No.67 of 2002, the trial Court

recorded that according to Vijay Raj Soni, he purchased the suit

property for total sale consideration of Rs.21,00,000/- from

Sujay Kumar, and he paid more than the sale consideration;

and that he purchased the said property in easy instalments by LNA,J CCCA Nos.41 & 131 of 2014

giving small amounts to Sujay Kumar. In the cross-examination

of Vijay Raj Soni as DW.1, he admitted that he has not given

any paper publication calling for objections, if any, before

entering into agreement of sale, dated 17.04.2000.

33. The trial Court observed that taking advantage of Sujay

Kumar's vices like addiction to alcohol, etc., Vijay Raj Soni got

obtained sale agreement dated 17.04.2000 by giving some small

amounts to Sujay Kumar in instalments now and then, may be,

to meet the expenses of his vices; and the acts of Vijay Raj Soni

in obtaining sale agreement in respect of the ancestral property

of Sujay Kumar, in which his two minor children are also having

rights, go to show that Vijay Raj Soni has not approached the

Court with clean hands; that apart, he had not taken steps to

implead the minor children of Sujay Kumar in the suit-

O.S.No.67 of 2002 filed by him for specific performance, though

the said objection was taken by the other side who filed the suit

in O.S.No.50 of 2002 for partition. By observing thus, the trial

Court held that the suit-O.S.No.67 of 2002 is bad for non-

joinder of necessary parties.

34. The trial Court further observed that admittedly, Vijay Raj

Soni is a tenant in respect of the suit schedule property, which

is the ancestral property of Sujay Kumar and his family; that LNA,J CCCA Nos.41 & 131 of 2014

Vijay Raj Soni used to advance amounts to Sujay Kumar now

and then. The other contention raised by Vijay Raj Soni was

that some of the payments alleged to have been made by him

were through cheques got issued by his wife, but she was not

examined as a witness to substantiate the due payments

covered by those cheques, the receipts covered by document

Nos.4 to 7, which were marked on behalf of Vijay Rai Soni; that

on some receipts, dated 08.02.2002 and 02.02.2002, which

appeared to have been received by Smt. Sashikala Soni, W/o

Vijay Raj Soni, the signatures of Smt. B.Sushmitha, W/o Sujay

Kumar, were affixed and the said B.Sushmitha, who was

examined as guardian of minor children of Sujay Kumar, has

not disputed her signatures on those receipts and that she

agreed to refund the sale consideration subject to proof and

relevancy.

35. By observing thus, trial Court held that it is just and

reasonable on the part of B.Sushmitha to refund the entire

amounts to Vijay Raj Soni. Accordingly, considering the said

evidence of Sushmitha and other documents placed on record,

the trial Court directed the defendants in O.S.No.67 of 2002 to

refund the amount of Rs.21,03,500/- to the plaintiff therein LNA,J CCCA Nos.41 & 131 of 2014

within a period of three months from the date of the order and

accordingly, the issue was answered.

36. On Issue No.2 in O.S.No.50/2002 and Issue No.3 in

O.S.No.67 of 2002, the trial Court observed that the suit

schedule property was originally acquired by the grandfather of

Sujay Kumar by name Jagadishwaraiah and after his death, the

said property was partitioned among B.Sujay Kumar and his

mother-Leela Bai vide partition deed dated 21.05.2001, which is

marked as Ex.A1 in OS.No.50 of 2002 and the said property

continued to be the joint family property of B.Sujay Kumar for

himself and on behalf of his minor children. Therefore, Sujay

Kumar has no absolute right to enter into agreement of sale

with Vijay Raj Soni to alienate the suit schedule property at the

cost of the rights, interest and welfare of his minor children,

particularly, when Sujay Kumar was said to be addicted to vices

like liquor, drugs, etc. That in case of alienation, permission

from the competent Court of law has to be obtained by the Head

of the family to dispose of the property of the minors to third

parties, however, no such attempt was made in the present

case. Therefore, the alleged agreement of sale between Vijay Raj

Soni and Sujay Kumar cannot have the necessary legal sanction

and thus, Vijay Raj Soni is not entitled to the relief of specific LNA,J CCCA Nos.41 & 131 of 2014

performance and also for injunction. Since, Vijay Raj Soni is

said to be a tenant in occupation of the suit schedule property,

injunction cannot be granted in favour of plaintiffs in OS.No.50

of 2002. Therefore, the relief of permanent injunction sought in

both the suits cannot be granted to either of the parties and

accordingly, these issues are answered.

37. In view of the above findings on issues in O.S.No.50 of

2002, the trial Court partly allowed the suit, granting a

preliminary decree partitioning the suit schedule property into

three equal shares and by allotting 2/3rd share to the plaintiffs

and also separate possession of the same to them.

38. In view of the above findings on issues in O.S.No.67 of

2002, the trial Court dismissed the suit. However, the trial

Court observed that the plaintiff is entitled for refund of the

amount of Rs.21,03,500/- from the defendants within three

months from the date of the order, failing which, he is at liberty

to recover the same with subsequent interest @ 6% per annum

from the date of default till realization.

39. Challenging the impugned common judgment, Vijay Raj

Soni preferred the aforesaid two Appeals raising the grounds

mentioned in the memorandum of grounds of Appeals.

LNA,J CCCA Nos.41 & 131 of 2014

40. During the course of hearing of both the Appeals, learned

senior counsel for the appellant submitted as under:

(i) That the trial Court has erred is dismissing the suit of the

appellant i.e., O.S.No.67 of 2002, for specific performance, even

though the appellant has made out a prima facie case and

discharged the burden upon him and also established that he

was always ready and willing to perform his part of contract.

(ii) That the trial Court also erred in allowing the suit filed by

the respondents for partition of the suit schedule property even

though the respondents did not make out a prima facie case nor

discharged the burden upon them.

(iii) That the trial Court has failed to see that suit schedule

property is not the ancestral property, but it is self acquired

property of Sujay Kumar in view of the registered Partition Deed

dated 21.05.2001; that if really, the suit schedule property

belonged to the grandfather of Sujay Kumar, by name

B.Jagadishwaraiah and he died intestate, the same would

naturally devolve upon his son and wife, since it was his self

acquired property; that because it was the self acquired

property of B.Jagadishwaraiah, it was accordingly divided

between his daughter and grandson-Sujay Kumar under LNA,J CCCA Nos.41 & 131 of 2014

registered partition deed dated 21.05.2001 and earlier to that,

both of them also obtained Registered Conveyance Deed dated

01.08.1997 from the Estate Officer, Secunderabad, after

converting the Leasehold Rights into freehold rights, besides

entering into separate Memorandum of Partition.

(iv) That if really the suit schedule property was the ancestral

property of Sujay Kumar, then his wife and children would have

laid claim even in respect of 300 square yards which Leela Bai,

daughter of late B.Jagadishwaraiah, received under registered

partition deed dated 21.05.2001, but admittedly, the children of

Sujay Kumar did not ask for partition of their grandmother's

share, who already constructed a building on it and sold it to

third parties. Hence, the present claim of the minor children of

Sujay Kumar was speculative and collusive one; that if really

Sujay Kumar was a drug addict and abnormal person, his

mother would not have partitioned the 600 square yards of

property between herself and her son under Registered Partition

Deed dated 21.05.2001 and that itself shows that B.Sujay

Kumar was a normal person.

(v) That the trial Court failed to see that whoever lays claim

on the basis of joint family property, the burden of proof lies

upon him/her to establish under what joint family business, the LNA,J CCCA Nos.41 & 131 of 2014

said joint family property was purchased or about the nucleus,

but, in the present case, the said burden was not discharged.

(vi) That the trial Court failed to see that when Sujay Kumar

and his mother have obtained conveyance deed from the

Government in their joint names and when they partitioned the

suit schedule property between them under registered partition

deed, the legal presumption would be that it is the self acquired

property of Sujay Kumar and not his ancestral property. Hence,

the question of treating the suit schedule property as co-

parcenary property does not arise.

(vii) That the trial Court erred in relying upon some

admissions of PW.1 in the cross examination, wherein it is

stated that 600 square yards was the ancestral property of

B.Sujay Kumar, when, in fact, it is a settled law that the

plaintiff has to succeed on the basis of his own pleadings and

documents, and not on the admissions of the other side, since

the burden to prove that the property is a joint family property

or ancestral property lies on the plaintiff.

(viii) That Sujay Kumar in collusion with his wife and son

deliberately remained ex parte in the suit filed for specific

performance and only wife and son of Sujay Kumar contested LNA,J CCCA Nos.41 & 131 of 2014

the case in order to defeat the agreement of sale and the rights

of Vijay Raj Soni; that Sujay Kumar was hale and healthy and

was not addicted to vices, as falsely projected by his wife and

son, and even assuming, without admitting, Sujay Kumar was

addicted to some bad vices, it will not disentitle him from

entering into agreements; that before filing the suit, Vijay Raj

Soni had got issued legal notice dated 06.05.2002 under Ex.B35

to Sujay Kumar and after receiving the same, Sujay Kumar got

issued a reply notice dated 22.05.2005 through a lawyer under

Ex.B38 asking Vijay Raj Soni to send a copy of agreement of

sale and thereafter, he has also filed a Caveat; that if really,

Sujay Kumar was unfit and unstable, as projected by his wife

and son, how could he approach a lawyer and instruct him to

issue reply notice.

(ix) That the appellant has already paid the entire sale

consideration to Sujay Kumar, which was collected by him from

time to time and the same was acknowledged by endorsing and

signing on the overleaf of the original agreement of sale (Ex.B2);

that even the wife of Sujay Kumar also passed some receipts

while receiving the balance sale consideration and in spite of the

same, she stated that her husband has no right to execute the

agreement and that she is unaware about it.

LNA,J CCCA Nos.41 & 131 of 2014

(x) That filing of O.S.No.50 of 2002 for partition and claiming

2/3rd share in the suit schedule property was done in collusion

with Sujay Kumar to avoid sale of the suit schedule property to

Vijay Raj Soni and despite receiving the entire sale

consideration, Sujay Kumar was not interested to execute the

registered sale deed in favour of Vijay Raj Soni.

(xi) That Vijay Raj Soni has paid a total sale consideration of

Rs.21,03,500/- and that by the date of the agreement of sale, he

has already paid an amount of Rs.4,25,000/- to Sujay Kumar

i.e., on 25.09.1999 he paid Rs.1,00,000/-; on 13.11.1999 he

paid Rs. 2,00,000/-; on 04.03.2000 he paid Rs.60,000/-; and

on the date of the agreement he paid Rs.65,000/-. That Sujay

Kumar was regularly collecting the balance sale consideration in

pursuance of the above agreement of sale in instalments from

time to time and passing the receipts and that at one time, he

collected Rs.5,00,000/- through cheque; that, in all, Sujay

Kumar collected Rs.21,03,500/- under various receipts; that

despite paying more than the agreed sale consideration, Sujay

Kumar was avoiding execution of registered Sale Deed in spite of

his repeated requests and demands and went on taking time by

saying that he borrowed certain amount from Andhra Bank and

that he will execute the registered Sale Deed after clearing the LNA,J CCCA Nos.41 & 131 of 2014

loan and after obtaining the Partition Deed with his mother and

after getting back the original documents of the above property.

(xii) That the trial Court failed to see that Vijay Raj Soni never

failed to perform his part of contract and that in good faith, he

paid the entire sale consideration to Sujay Kumar; that there

are some receipts passed and counter signed by the wife of

Sujay Kumar, which show that she has also got knowledge of

agreement of sale entered into by her husband with Vijay Raj

Soni; and that the said receipts are marked as Exs.B4 to B7

showing the payment of Rs.1,75,000/-, Rs.75,000/-,

Rs.1,50,000/- and Rs.1,00,000/- respectively.

41. The learned counsel for the appellant finally submitted

that the trial Court has erred in not considering the pleadings,

the legal aspects involved in the case and the documents filed

by the appellant, and erroneously dismissed the suit filed by

him in a mechanical manner without proper findings and at the

same time, the trial Court erroneously decreed the suit filed for

partition and that the suit in O.S.No.50 of 2002 is a vexatious

and false suit filed in collusion with B.Sujay Kumar by

contending that the suit schedule property is their ancestral

property and they went to the extent of falsely contending that

wife of B.Sujay Kumar is not aware about the agreement of sale, LNA,J CCCA Nos.41 & 131 of 2014

when in fact, she has also countersigned the receipts under

Exs.B4 to B7 in favour of the appellant.

42. Learned counsel for appellant placed reliance on the

following decisions in support of his contentions:

(i) Hotel Queen Road P. Ltd., vs. UOI and others 1; and

(ii) Arshnoor Singh vs. Harpal Kaur and others 2

43. Per contra, the learned senior counsel appearing for

respondents submitted that on due consideration of the oral

and documentary evidence and the material placed on record,

the trial Court had rightly came to a conclusion that the suit

schedule property is the ancestral property, in which the

respondents are having equal shares, and therefore, the trial

Court rightly declined to grant the relief of permanent injunction

sought in respect of the suit schedule property; that the trial

Court rightly held that Vijay Raj Soni is entitled to refund of the

amount of Rs.21,03,500/- from the respondents; that the

impugned common judgment is a well reasoned one and was

passed on proper appreciation of pleadings and evidence on

record; and that therefore, the impugned common judgment

needs no interference by this Court and prayed to dismiss the

Appeals.

MANU/DE/1715/2015

AIR 2019 SC 3098 LNA,J CCCA Nos.41 & 131 of 2014

44. Learned senior counsel for respondents further submitted

that the suit schedule property is ancestral property and

therefore, Section 6 of Hindu Succession Act, 1956, would

apply, but not Section 8 thereof. He further submitted that

originally, B.Jagadishwaraiah was the owner of the suit

schedule property and he expired on 08.05.1973. After his

demise, the properties bearing house Nos.10-2-291 and 10-2-

292 in Plot No.179, admeasuring 600 square yards were

partitioned equally between B.Leela Bai and Sujay Kumar, who

are the daughter and grandson of said Jagadishwaraiah

respectively; that the Government executed conveyance deed

dated 01.08.1997 in favour of Leela Bai and Sujay Kumar

converting the leasehold rights into freehold rights.

45. Learned senior counsel further submitted that since the

property devolved upon Sujay Kumar from his grandfather, i.e.

Jagadishwaraiah, the same is the ancestral property and not a

self acquired property or absolute property of Sujay Kumar, as

has been contended by the appellant. Learned senior counsel

further submitted that the alleged sale consideration was paid

by appellant by way of small instalments over a period of time,

ranging as small as Rs.2,500/- upwards, except two

considerable amounts, which clearly shows that agreement of LNA,J CCCA Nos.41 & 131 of 2014

sale was manipulated taking advantage of the mental condition

of the Sujay Kumar, who was addicted to alcohol, opium, vices,

etc., and who was also under psychiatric treatment, which is

evident from the deposition of P.W.2, who treated Sujay Kumar.

Thus, the Agreement of Sale dated 17.04.2000, is sham and

manipulated document and therefore, the same is not

enforceable.

46. Learned senior counsel for respondents placed reliance on

the following decisions:

(i) Parakunnan Veetill Joseph's Son Mathew v.

Nedumbara Kuruvila's Son and others 3

(ii) Sardar Singh v. Krishna Devi (Smt) and another 4;

(iii) Dalip Kumar v. Om Prakash and others 5;

(iv) Smt. Katta Sujatha Reddy and another v.

Siddamsetty Infra Projects Pvt. Ltd., & others 6

Consideration :

47. Considering the grounds, pleadings and the contentions

raised by the learned senior counsel appearing for both the

parties, the following issues arise for consideration in these

Appeals:

1987 AIR SC 2328

1995 AIR SC 491

2015 SCC Online Del 11768

(2023) 1 SC 355 LNA,J CCCA Nos.41 & 131 of 2014

1) Whether the suit schedule property is the ancestral or self-acquired property of Sujay Kumar?

2) Whether the minor children of Sujay Kumar are entitled to the relief of partition of the suit schedule property and allotment of 2/3rd share in it to them?

3) Whether the agreement of sale, dated 17.04.2000 is valid and binding on respondents?

4) Whether the appellant is entitled for specific performance of the agreement of sale, dated 17.04.2000, OR in the alternative, the relief of refund of sale consideration?

5) Whether the common judgment and decree, dated 11.02.2014, passed by the Additional Chief Judge, Secunderabad in O.SNos.50 and 67 of 2002, is sustainable or requires interference by this Court?

6) To What Relief?

48. For convenience, the parties are hereinafter referred to

as they are arrayed in O.S.No.67 of 2002 before the trial Court.

Issue Nos.1 & 2:-

49. Defendant No.3 and one Sanmita, being son and daughter

of defendant No.1, respectively, represented by their natural

mother and guardian - Smt. Sushmitha, filed the suit-O.S.No.50

of 2002 for partition of the suit schedule property claiming 2/3rd

share in it and for separate possession. They contended that LNA,J CCCA Nos.41 & 131 of 2014

the suit schedule property was the ancestral property and

therefore, they are entitled to share in the said property. Though

the said fact was known to the plaintiff, he entered into

agreement of sale with defendant No.1 taking undue advantage

of his mental and physical condition, who was addicted to

alcohol and vices and was also mentally depressed. Thus,

defendant No.1 has no manner of exclusive right to alienate any

part of the suit schedule property to the detriment of his minor

children's interest in the ancestral property.

50. Perusal of the evidence and the material placed on record

would show that originally, B.Jagadishwaraiah, grandfather of

defendant No.1, was the owner of the entire properties bearing

H.Nos.10-2-291 and 10-2-292 in Plot No.179 admeasuring 600

square yards and after his demise on 08.05.1973, the properties

were partitioned between defendant No.1 and his mother-Leela

Bai by partition deed vide document No.1009/2001 dated

21.05.2001, which is marked as Ex.A1. In Ex.A1-registered

partition deed, it was mentioned that 'A' and 'B' schedule

properties allotted to Leela Bai and Sujay Kumar, respectively,

were originally acquired through a Conveyance Deed bearing

document No.1269/1997, dated 01.11.1997 by virtue of a sub-

division sanction vide file No.9/SD/Layout/ SD/2001; and the LNA,J CCCA Nos.41 & 131 of 2014

said description shows that the properties that were partitioned

between them were in their joint possession prior to Ex.A1.

Thus, the recitals of Ex.A1-partition deed is strengthening the

evidence of the wife of defendant No.1, namely Sushmitha, who

was examined as P.W.1, that both the properties covered by

Ex.A1 were acquired from their ancestor i.e., B.Jagadishwaraiah

and that defendant No.1 had not purchased the property from

any third parties.

51. The above said fact was admitted by the plaintiff in his

evidence as D.W.1 in O.S.No.50 of 2002, which is reproduced as

hereunder:

"In the beginning, the entire property belonged to the grand-father of Sujay Kumar i.e., B.Jagadishwariah, who died on 08.05.1973. It is true that the entire properties were partitioned by the family members of B. Sujay Kumar. It is true that the 600 sq. yards of the property at Maredpally is allotted to the mother of Sujay Kumar when he was at the age of 18 years. It is true that prior to the sale agreement, dated. 17.04.2000, the total 600 sq. yards was the joint property of Sujay Kumar and his mother. Earlier, the said 600 sq. yards was the ancestral property of Sujay Kumar.

...

I know the defendant No.1 and their family since more than 30 years, even prior to the marriage of D1 we have family relationship with defendant No.1 parents etc. I have not obtained legal opinion from any advocate that is agreement of sale dated 17.04.2000. I have not given any paper publication calling the objection if any. I obtained the schedule property on rent 12 years prior to exhibit B2 (Agreement of Sale).

LNA,J CCCA Nos.41 & 131 of 2014

...

I have not filed any document to show defendant No.1 is the owner as on the date of exhibit B2. It is true as on the date of exhibit B2, total 600 sq. yards is in the name of mother and defendant No.1, out of which schedule property is 300. In the beginning the entire property belonged to grandfather of defendant No.1. It is true earlier the property allotted by Government as leasehold rights to the grandfather of D1, who died on 08.05.1973. It is true the entire properties were partitioned by their family members of defendant No.1. It is true that 600 sq yards of property at Maredpally bearing plot No.179 was allotted to the mother of defendant No.1 and defendant No.1 when he was minor of 8 years age. It is true both defendant No.1 and his mother obtained registered conveyance deed dated 01.08.1997 converted leasehold rights into freehold one. It is true prior to exhibit B2, total 600 sq. yards was the joint property of defendant No.1 and his mother. Earlier the said 600 sq. yards was the ancestral property of defendant No.1. Prior to exhibit B2, defendant No.1 was working with me and the same not pleaded by me in the plaint. I have not filed any document to show that defendant No.1 was working with me..."

52. From the cross-examination of D.W.1-A.Vijay Raj Soni, it

is clear that he was aware of the nature of the suit schedule

property and that the same was devolved upon defendant No.1

from his grandfather. It is also evident that DW.1 has neither

taken any legal opinion nor given any paper publication before

entering into agreement of sale with defendant No.1. Therefore,

the plaintiff cannot be termed as a bona fide purchaser.

53. The principal contention advanced by the learned senior

counsel for respondents is that subject property is ancestral LNA,J CCCA Nos.41 & 131 of 2014

property and the same devolved upon defendant No.1 from his

grandfather under Section 6 of the Hindu Succession Act and

therefore, Section 8 thereof has no application.

54. It is relevant to refer to the judgment of the Hon'ble Apex

Court in Bhubaneshwar Prasad Narain Singh v. Sidheswar

Mukherjee 7 wherein it was held as under:-

"The appellants who were not in actual possession were deemed to be in constructive possession through the plaintiff in view of their status as co-sharers."

Furthermore, in paragraph-14 of the judgment, it was

held as follows:-

"...merely because a manager or coparcener was found in actual possession of the property, the rights of other coparceners cannot be defeated under the law of succession..."

55. The Hon'ble Apex Court in N.Padmamma & Ors. v.

S.Ramakrishna Reddy & Ors. 8, held that merely because a

coparcener was found in actual possession of property, rights of

other coparceners cannot be defeated under law of succession.

The Hon'ble Apex Court in paragraph-11 of the judgment

further held as under:-

"...when an occupancy right is granted is granted in the name of the manager of the joint family, it would enure for the benefit of the entire family. The lands vested in the state, but as soon as the occupancy right is granted,

(1971) 1 SCC 556

(2008) 15 SCC 517 LNA,J CCCA Nos.41 & 131 of 2014

in the event it is held that the same enured to the benefit of the entire family, it becomes partible."

56. It is also relevant to refer to the judgment of erstwhile

High Court of Andhra Pradesh in Govind Rao v. Joint

Collector, Adilabad and others 9, wherein the High Court by

placing reliance on the decision of the Hon'ble Supreme Court in

Bhubaneshwar Prasad Narain Singh (7th cited supra) and

N.Padmamma's case (8th cited supra) and referring to Section

2(d) of the A.P. (Telangana Area) Abolition of Inams Act, 1955,

held that where an Inamdar is a joint Hindu family, granting

ORC (Occupancy Rights Certificate) in favour of a coparcener on

the ground that he was found in personal cultivation cannot be

sustained in law.

57. In Hotel Queen Road Pvt. Ltd., (supra) relied upon by

the learned counsel for the appellant, the issue is completely

different, wherein, the petitioner sought direction to Union of

India to execute conveyance deed converting leasehold rights

into freehold rights. Therefore, observation made in paragraphs

13 and 14 are not applicable to the issue in the present case.

58. In Arshnoor Singh (supra), the Hon'ble Supreme Court

held as under:

(2010) SCC Online AP 600 LNA,J CCCA Nos.41 & 131 of 2014

"7.5. After the Hindu Succession Act, 1995 came into force, this position has undergone a change. Post-1956, if a person inherits a self-acquired property from his parental ancestors, the said property becomes his self-acquired property and does not remain coparcenary property."

59. However, it is relevant to refer to the judgment of the

Hon'ble Apex Court in Rohit Chauhan vs. Surinder Singh and

others 10, wherein the Hon'ble Apex Court at paragraph-11 held

as under:

"11. We have bestowed our consideration to the rival submissions and we find substance in the submission of Mr Rao. In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener."

60. Thus, it is clear that, on partition, an ancestral property if

it remains in the hand of a single coparcener, it has to be treated

as a separate property and such a person shall be entitled to

(2013) 9 SCC 419 LNA,J CCCA Nos.41 & 131 of 2014

dispose of the coparcenary property, however, the moment a son

is born, the property becomes a coparcenary property and the

son would acquire interest in that and become a coparcener.

The said legal proposition is approved by the Hon'ble Apex Court

in Revanasiddappa vs. Mallikarjun 11.

61. In the instant case, admittedly, originally the property

was given on lease to Jagadishwaraiah i.e., grandfather of

defendant No.1 and after his demise, the Government executed

conveyance deed in favour of defendant No.1 and his mother,

Leela Bai, converting the leasehold rights into freehold rights.

Therefore, applying the analogy of Govind Rao's case (supra)

and N.Padmamma's case (supra), the suit schedule property

has to be considered as Hindu joint family property and the

same is governed by Section 6 of the Hindu Succession Act.

62. Similarly, in the present case, after the death of

B.Jagadishwaraiah, the suit property was devolved upon Leela

Bai and defendant No.1, through conveyance deed, dated

01.11.1997. Even though the conveyance deed was executed in

favour of defendant No.1 and his mother, applying the analogy

of the aforementioned cases to the present case, it can be

(2023) 10 SCC 1 LNA,J CCCA Nos.41 & 131 of 2014

considered that the suit schedule property is enured for the

benefit of the whole family and accordingly, minor children of

defendant No.1 being a part of the joint family, have a vested

right in the ancestral property i.e., suit schedule property in

terms of the provisions of the Hindu Succession Act.

63. Defendant No.1 has one son and one daughter through

defendant No.2. Even though the said children were minors at

the time of the execution of partition deed and the agreement of

sale, they are still entitled to share in the ancestral property as

they are deemed to be in constructive possession through

defendant No.1, and their rights cannot be defeated solely on

the ground that defendant No.1 was in possession of the suit

schedule property.

64. Therefore, in the light of the above, the genesis and

nature of the suit schedule property has to be treated as

ancestral property of defendant No.1, who admittedly has one

son and one daughter through his wife i.e., defendant No.2.

65. In O.S.No.50 of 2002, on behalf of Plaintiffs, P.W.2-

Dr.Prabhakar Korada, Psychiatrist, was examined to

substantiate their claim that defendant No.1 was addicted to

alcohol, opium, vices, etc. P.W.2 deposed that defendant No.1, LNA,J CCCA Nos.41 & 131 of 2014

who was suffering from alcoholic addiction and buprenorphine

(synthetic opioid) addiction, was admitted in J.S.Hospital and

that he treated him. PW.2 further deposed that defendant No.1

was habituated to the above addictions and time and again, it

has relapsed. P.W.2 further deposed that memory of defendant

No.1 will be badly affected by the above addictions and his mood

will be fluctuating; Ex.A6 is the discharge summary issued by

J.S.hospital; Ex.A7 is the medical prescription issued by the

duty doctor under PW.2's instructions; Ex.A8 contains five

sheets of investigation reports of defendant No.1; Ex.A9 is the

final bill issued by the hospital authority, in which PW.2's fee is

shown; Ex.A10 is the medical certificate issued by PW.2; and

Exs.A11 & 12 are the medical prescriptions issued by P.W.2,

wherein he advised defendant No.1 to be admitted in

J.S. Hospital.

66. From the above evidence of PW.2, it is clear that

defendant No.1 was addicted to alcohol and vices and therefore,

the agreement of sale entered by defendant No.1 with the

plaintiff cannot be considered as for the benefit and legal

necessities of his children. Thus, defendant No.1 being the

Manager of ancestral property, failed to safeguard the interest of

the minor children and no material is placed on record to show LNA,J CCCA Nos.41 & 131 of 2014

that the defendant no.1 entered into agreement of sale with

plaintiff for the benefit or necessities or welfare of his minor

children.

67. In view of the above discussion and also in the light of the

admissions of the plaintiff in his evidence as D.W.1 in O.S.No.50

of 2002, this Court is of the considered opinion that the trial

Court was justified in allowing O.S.No.50 of 2002 by observing

that defendant No.1 was not the absolute owner of the suit

schedule property as on the date of agreement of sale dated

17.04.2000 and the said property is the ancestral property

having the claim of the minors in the ancestral nucleus besides

the mother of defendant No.1 as joint owner and therefore, the

plaintiffs in O.S.No.50 of 2002 are entitled to their respective

shares in the event of the suit schedule property being

partitioned.

68. Hence, issue Nos.1 and 2 are answered in favour of the

respondents and against the appellant.

Issue Nos.3 & 4:

69. Admittedly, the appellant is a tenant of the suit schedule

property which is the ancestral property of defendant No.1 and LNA,J CCCA Nos.41 & 131 of 2014

his family and that plaintiff used to advance certain amounts to

defendant No.1 now and then to meet his expenses.

70. According to the plaintiff, he agreed to purchase the suit

schedule property from defendant No.1 for a sale consideration

of Rs.21,00,000/- and entered into an agreement of sale dated

17.04.2000 and has paid more than the sale consideration from

time to time, which is evident from the endorsements on the

sale agreement and also through the receipts got filed by him,

which were marked as Exs.B4 to B32. Therefore, he filed suit-

O.S.No.67 of 2002 for specific performance of agreement of sale

dated 17.04.2000 by directing defendant No.1 to execute the

registered sale deed in his favour in respect of the suit schedule

property.

71. According to defendant Nos.2 and 3, the suit schedule

property being an ancestral property, they filed suit for partition

vide O.S.No.50 of 2002. It was further averred that the plaintiff,

taking undue advantage of defendant No.1's medical condition,

was trying to grab the suit schedule property.

72. As answered by this Court on issue Nos.1 and 2, the

property covered by agreement of sale dated 17.04.2000 is an

ancestral property, in which defendant No.1 as well as his son LNA,J CCCA Nos.41 & 131 of 2014

and daughter are entitled to their respective shares in the event

of said property being partitioned; that both the minor children

of defendant No.1 are not parties to the agreement of sale, dated

17.04.2000.

73. When the entire oral and documentary evidence and the

nature and genesis of the suit schedule property is considered,

it is to be held that the same is an ancestral property and

defendant No.1 is not the absolute owner of the same as on the

date of agreement of sale. Thus, defendant No.1 has no

exclusive right to execute the agreement of sale dated

17.04.2000 in favour of any third parties, much less, the

plaintiff.

74. In view of the foregoing reasons, this Court is of the

considered view that once the nature of the suit schedule

property is ancestral, defendant No.1 alone does not have the

absolute right to enter into sale agreement with third parties in

respect of the said property. As the son and daughter of

defendant No.1 are minors by the date of entering into

agreement of sale with the plaintiff, defendant No.1 has to

obtain permission from a competent Court to sell the property of

the minors. As seen from the record, no such permission was

obtained by defendant No.1 from the competent Court.

LNA,J CCCA Nos.41 & 131 of 2014

Therefore, the agreement of sale dated 17.04.2000 is not valid

and therefore, unenforceable in the eye of law.

75. Further, according to defendant Nos.2 and 3, the plaintiff

taking advantage of defendant No.1's vices like addiction to

alcohol, etc., got obtained sale agreement, dated 17.04.2000, by

giving some small amounts to defendant No.1 in instalments

now and then to meet the expenses of his vices; and the acts of

plaintiff in obtaining a sale agreement in respect of the ancestral

property of defendant No.1, in which his two minor children are

also having rights, go to show that plaintiff has not approached

the Court with clean hands and further, he did not take steps to

implead the minor children of defendant No.1 in the suit filed by

him for specific performance. As already held, the agreement of

sale has not been entered for the benefit, welfare and legal

necessities of minor children.

76. According to the plaintiff, some of the payments alleged to

have been made by him to defendant No.1 were through

cheques got issued by his wife through her account, however,

she was not examined as a witness to substantiate the said

payments covered by Exs.B4 to B7-receipts, marked on behalf

of the plaintiff. On those receipts, the signatures of P.W.1-

Smt. B.Sushmita, wife of defendant No.1 were affixed and when LNA,J CCCA Nos.41 & 131 of 2014

she is examined as P.W.1, being guardian of the minor children

of defendant No.1, she has not disputed her signatures on those

receipts and admitted to refund the sale consideration paid by

the plaintiff, subject to proof and relevancy.

77. Here, it is apt to refer to Section 20 of the Specific Relief

Act, 1963 (for short, 'the Act, 1963'). Section 20 of the Act, 1963

was amended by the Act 18 of 2018 w.e.f. 01.10.2018. Prior to

the amendment, specific performance of agreement is a

discretionary relief. Section 20 of the Act, 1963, prior to

amendment reads as under:

"S.20. Discretion as to decreeing specific performance.--

(1) The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; 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. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance -

(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas is non-performance would involve no such hardship on the plaintiff; or

(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance."

LNA,J CCCA Nos.41 & 131 of 2014

78. It is relevant to note that in O.S.No.67 of 2000 filed by

A.Vijay Raj Soni, he has sought the relief of specific performance

of agreement of sale dated 17.04.2000 or in alternative, for

refund of entire sale consideration of Rs.21,03,500/- along with

damages and interest. Therefore, un-amended Section 20 of the

Act, 1963 is applicable to the present case.

79. In Parakunnan Veetill Joseph's Son Mathew's case

(cited supra), the Hon'ble Supreme Court held as under:

"14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of Courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage of the plaintiff...."

80. In Sardar Singh (supra), the Hon'ble Supreme Court held

as under:

"14. The next question is whether the courts below were justified in decreeing the suit for specific performance. Section 20(1) of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief, merely because it is lawful to do so; 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 grant of relief of specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract."

LNA,J CCCA Nos.41 & 131 of 2014

81. In Dalip Kumar's case (cited supra), the issue involved is

with regard to partition of tenancy rights. Therefore, the same is

not applicable to the facts of the present case.

82. In the present case, the schedule property was devolved

upon defendant No.1 from his grandfather and in view of birth

of son and daughter, the schedule property became coparcenary

property and minor son and daughter have became

coparceners.

83. In Katta Sujatha Reddy's case (supra), the Hon'ble

Supreme Court observed that the purchaser breached the

essential condition of the contract, which altogether disentitles

him to claim specific performance and that the claim of

purchaser is hit by delay and laches and appropriate measures

were not taken within the stipulated time and filing of the suit

was also delayed by almost five years and thus, purchaser was

not entitled to the relief of specific performance of agreement.

However, the Hon'ble Apex Court held that with a view to render

complete justice, deemed it appropriate to direct the vendors to

repay the amount received by them with interest @ 7.5% per

annum to the purchaser.

LNA,J CCCA Nos.41 & 131 of 2014

84. In Kamal Kumar vs. Premlata Joshi 12, the Hon'ble

Supreme Court held as under:

"It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance are:

7.1. First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property.

7.2. Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract.

7.3. Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract.

7.4. Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff.

7.5. Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money, etc. and, if so, on what grounds."

85. In P.Daivasigamani vs. S.Sambandan 13, the Hon'ble

Supreme Court held as under:

"26. Sub-section (2) of Section 20 of the Specific Relief Act (pre-amendment) lists some of the principles that the court should take into consideration while exercising discretion. The factors to be considered while exercising discretion include hardship to the defendant seller which

(2019) 3 SCC 704

(2022) 14 SCC 793 LNA,J CCCA Nos.41 & 131 of 2014

he did not foresee, hardship to the plaintiff purchaser in case of non-performance, or whether the contract, even when not void, was entered under the circumstances that make the enforcement of specific performance inequitable, or whether the plaintiff has done substantial acts or suffered losses as a consequence of the contract, and the conduct of the parties, including that of the defendant seller and other circumstances under which the contract was entered are such that they give an unfair advantage over the defendant seller."

86. A careful examination of judgments mentioned supra

would show that the Hon'ble Apex Court consistently held that

grant of relief of specific performance of agreements prior to

amendment of Section 20(2) of Specific Relief Act is a

discretionary and equitable relief and while granting relief of

specific performance, Courts have to examine whether an

agreement is valid and concluded contract and that the plaintiff

was ready and willing to perform his part of contract and

whether grant of relief of specific performance will cause any

kind of hardship to the defendant. It is also equally pertinent to

examine whether the plaintiff is gaining an unfair advantage

and that whether the plaintiff is entitled to alternative relief, like

refund of earnest money, etc.

87. According to the plaintiff, he purchased the property from

defendant No.1 by way of agreement of sale, dated 17.04.2000

for a total sale consideration Rs.21,00,000/- and paid an

advance sale amount of Rs.4,25,000/- by the date of agreement LNA,J CCCA Nos.41 & 131 of 2014

of sale, dated 17.04.2000, and the rest of the amount was paid

on various occasions. In all, plaintiff paid an amount of

Rs.21,03,500/-. To corroborate the same, plaintiff filed receipts

and the same were marked as Exs.B4 to B32.

88. Once the nature of the suit schedule property is held to be

ancestral property, defendant No.1 alone does not have absolute

right over the same and he is only a coparcener, and as such,

he is not entitled to enter into sale agreement with third parties.

Hence, the sale agreement, dated. 17.04.2000 is not valid and

binding on defendant No.2 and daughter of defendant No.1 and

therefore, unenforceable in the eye of law.

89. As the agreement of sale itself is not enforceable, the

question of granting the relief of specific performance does not

arise. However, as it is admitted by P.W-1-B.Sushmitha, that

she was agreeing to refund the amount paid by the plaintiff, this

Court deems it just and reasonable to grant the relief of refund

of sale consideration paid by the plaintiff. However, in view of

peculiar facts and circumstances of this case and also by relying

upon the decision of Hon'ble Supreme Court in Katta Sujatha

Reddy (supra), this Court is of the considered view that plaintiff LNA,J CCCA Nos.41 & 131 of 2014

is entitled to interest @ 7.5% per annum. Issue Nos.3 & 4 are

answered accordingly.

Issue No.5:

90. In the light of the foregoing discussion on Issue Nos.1 to

4, this Court is of the considered opinion that the trial Court

was justified in partly allowing the O.A.No.50 of 2002, granting

a preliminary decree partitioning the suit schedule property into

three equal shares and by allotting 2/3rd share to the plaintiffs

in O.S.No.50 of 2002 and also separate possession of the same

to them and dismissing the suit - OS NO.67 of 2002 filed for

specific performance. However, defendants are directed to

refund the amount of Rs.21,03,500/- to the plaintiff together

with interest @ 7.5% per annum from the date of payment till

realization. This issue is answered accordingly.

Issue No.6:

91. For the foregoing discussion and reasons, both the

Appeals are dismissed. There shall be no order as to costs.

92. Miscellaneous Petitions pending, if any, shall stand closed.

___________________________________ LAXMI NARAYANA ALISHETTY,J Date: 23.08.2024 Kkm/dr