Telangana High Court
Gajjala Ramesh vs G. Venkatesh on 7 June, 2024
THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
A.S.No.111 OF 2020
JUDGMENT:
Aggrieved by the judgment and decree dated 17.12.2019
in O.S.No.1358 of 2013 (hereinafter will be referred as
'impugned judgment') passed by the learned III Additional
District Judge, Ranga Reddy District at L.B.Nagar (hereinafter
will be referred as 'trial Court'), the defendant No.3 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 that, the plaintiff Nos.1
and 2 filed suit for partition and rendition of rent accounts in
respect of suit schedule properties against the defendant Nos.1
to 3. The averments of the plaint in brief are as under:
a) The plaintiff No.1 purchased the plot bearing No.109
admeasuring 267 square yards in Sy.No.87 to 89 situated at
Gaddi Annaram (now Hanuman Nagar), Chaitanyapuri Colony
through registered document dated 07.05.1992 from K. Krishna
Reddy and thereafter with the financial assistance of himself
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and defendant No.1, he has constructed five shops and
thereafter obtained municipal door No.3-77/D. The defendant
Nos.2 and 3 are the parents of plaintiff No.1 and defendant
No.1. Thereafter, defendant No.1 filed O.S.No.429 of 2005 on
the file of learned I Additional Senior Civil Judge, R.R. District
against them and defendant Nos.2 and 3 seeking partition of
the said property knowing fully well that the same was exclusive
property of plaintiff and defendant Nos.2 and 3. The matter
ended in compromise and award passed on 05.04.2006 and in
terms of compromise the plaintiffs were allotted two rooms
towards southern side of the house, one mulgi towards western
side and one small mulgi existing under the steps, while
defendant No.1 retained big hall, one mulgi towards western
side, which is attached to hall and another room towards
northern side, which is also attached to the hall besides pooja
room, which is on northern side.
b) Defendant Nos.2 and 3 were jointly allotted two mulgies
towards northern side for life time interest and thereafter the
same shall be partitioned equally among the plaintiff No.1 and
defendant No.1. Their sisters relinquished their rights in the
said property, though he has purchased the plot with his own
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funds and even then does not want to challenge the award
passed.
c) After compromise decree in the year 2007, the defendant
No.1 made a proposal with plaintiff No.1 to jointly construct
first, second and third floors and a pent house on the fourth
floor on the said property with the funds contributed equally.
The plaintiff No.1 agreed for such proposal and accordingly
three residential portions each were constructed on the first,
second, third and on the pent house on fourth floor. Though
entire building was constructed by contributing the funds
jointly, the defendant No.1 was enjoying the rents unilaterally
by letting out the portions to the tenants. Defendant No.1
having collected rents from the shops allotted to the plaintiff in
the ground floor in the said compromise decree, has been
depositing only meagre amounts in the accounts of the plaintiff.
The defendant No.1 staying along with defendant Nos.2 and 3 in
a residential portion in the ground floor, including the portion
allotted to the plaintiff No.1 without paying any rents. Thus,
the plaintiff is entitled for 50% share in the first, second, third
floors and fourth floor pent house along with undivided share of
land to an extent of 40%, which comes to 106.8 square yards.
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The defendant No.1 did not come forward to partition the said
properties though several requests were made.
d) In the month of March, 2012 the defendant No.1 made a
proposal to sell the entire properties to him for a sum of
Rs.60,00,000/- and also entered into an agreement of sale on
21.03.2012 and in terms of agreement, a sum of Rs.5 lakhs has
been paid towards part sale consideration and thereafter,
balance sale consideration of Rs.55,00,000/- has to be paid
within sixty days and if failed to pay, then whatever amount
paid towards part sale consideration need not be refunded.
e) The defendant No.1 by virtue of compromise decree,
admitted that the plaintiff No.1 has got 40% in the said
property, but in fact, the said agreement itself is invalid, since
the same was executed by and between him and defendant No.1
without the consent of parents (defendant Nos.2 and 3) though
they were holding 20% of share. Then legal notice was issued
on 03.10.2013 to the defendant Nos.1 and 2 calling upon them
to effect partition entitling 50% and for rendition of accounts,
but even then the defendants did not come forward. Hence, the
suit.
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4. In reply to the plaint averments, the defendant No.1 filed
written statement contenting that the suit is not maintainable
as it is barred under the provisions of Section 11 of the Code of
Civil Procedure. It is further submitted that as per Lok Adalath
Award, defendant No.1 and plaintiff got 40% share each and
their parents (defendant Nos.2 and 3) have got 20% share in the
suit property and as such the plaintiff's claim of 50% share
does not arise. The plaintiff No.1 did not contribute any
amount towards construction of first, second and third floors
apart from pent house and that he has no means to contribute
any funds and that plaintiff No.1 is living separately along with
plaintiff No.2 (his wife) at Vanasthalipuram and that all the
floors were constructed by defendant No1 out of his own funds.
The rents have been distributing in terms of Lok Adalath award
and therefore, the very suit itself is not maintainable and liable
to be dismissed with costs.
5. Defendant No.2 reported died and the legal
representatives were already on record.
6. The defendant No.3 filed written statement by contending
that there is a compromise entered into between the plaintiffs
and defendant Nos.1 and 2 and himself in the presence of
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witnesses and the same was reduced into writing by way of
partition agreement dated 03.07.2016 signed by all the parties,
including her husband and defendant No.1 and a plan was
already prepared and includes to it and however, the defendant
No.1 has not signed the said document. After the death of her
husband, there is change in the attitude of defendant No.1 but
not only backed from the partition agreement and the plan
enclosed, but also started ill treating her and pressurized her to
support his case in this partition suit. Till this day, the
defendant has been collecting rents from the tenants, barring
negligible rents being paid to plaintiff No.1 and sought to decree
the suit in terms of partition agreement dated 03.07.2016.
7. Based on the pleadings of both the sides, the trial Court
has framed the following issues:
1. Whether the suit schedule property is joint family property
and liable for partition? If so, whether the plaintiffs are
entitled to seek the relief of partition with half share in the
schedule property, as prayed for?
2. Whether the plaintiffs are entitled to seek relief for
rendition of accounts in respect of the schedule property
from the defendant No.1 from October, 2010 till filing of the
suit?
3. Whether the plaintiffs are entitled to seek for their half
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share with metes and bounds?
4. To what relief?
8. On behalf of plaintiffs, PW1 was examined and got
marked Exs.A1 to A4. On behalf of defendants, DWs 1 and 2
were examined and got marked Exs.B1 to B63. The trial Court
on appreciating the evidence on record, has decreed the suit
preliminarily against the defendant entitling the plaintiffs 40%
share over the suit schedule property and further the defendant
No.1 is directed to render proper accounts in respect of monthly
rents.
9. Aggrieved by the above said judgment and decree, the
defendant No.1 filed the present appeal.
10. Heard both sides and perused the record including the
grounds of appeal.
11. The first and foremost contention of the learned counsel
for the defendant No.1 is that the trial Court committed grave
error in finding that the plaintiff No.1 also contributed for
construction of 1st, 2nd and 3rd floors and pent house, though
plaintiff No.1 admitted that there is no documentary proof with
him to prove that he also contributed for construction of upper
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floors and pent house. The defendant No.1, who is examined as
DW1, admitted in his cross examination that permission for
construction of G + 1 taken jointly i.e., in his name, in the name
of plaintiff No.1 and also in the name of his father. DW1 further
admitted that plaintiff No.1 sold his share in the ground floor as
well as three floors + pent house. It is pertinent to note that
mere execution of agreement of sale under Ex.B63 does not
amount to sale until and unless the defendant No.1 performs
his part of contract in depositing the balance sale consideration
of Rs.55 lakhs. If at all the plaintiff No.1 has not contributed
any amount for construction of G + 1, certainly there was no
necessity at all for the defendant No.1 to obtained permission
not only his name but also in the name of plaintiff No.1 and his
father. Furthermore, if at all the plaintiff No.1 has not
contributed any amount for construction of G + 1, the
defendant No.1 would not have admitted that plaintiff No.1 sold
his share in the ground floor as well as three floors +
penthouse. Even for the sake of arguments, if it is presumed
that the plaintiff No.1 has not contributed any money towards
construction, plaintiff No.1 would not get any share in such
property and thereby defendant No.1 would not have uttered
that plaintiff No.1 has got some share in the ground floor as
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well as three floors + penthouse. The defendant No.1 has not
adduced any evidence to substantiate that plaintiff No.1 has
not contributed any amount towards construction of ground
floor as well as three floors + penthouse.
12. It is the specific case of the defendant No.1 that plaintiff
No.1 intended to alienate his share of property to defendant
No.1 under Ex.B63 and in pursuance of the same the defendant
No.1 paid part consideration of Rs.5,00,000/- out of total sale
consideration of Rs.60,00,000/-. If at all the plaintiff No.1 has
not contributed any amount towards construction, the
defendant No.1 would not have been any transaction between
plaintiff No.1 and defendant No.1 under Ex.B63. In the cross
examination of plaintiff No.1, the learned counsel for the
defendant No.1 gave a suggestion that as PW1 suffered loss in
his shares business, he took Rs.3,00,000/- from his parents
and at that time he executed an agreement of sale in the year
1991 by agreeing to sell away southern portion of the schedule
house as per the Lok Adalath. But this fact was not stated by
the defendant No.1 in his written statement. It is settled law
that without pleadings, adducing any amount of evidence is a
futile exercise.
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13. The learned counsel for the defendant No.1 contended
that the trial Court ought to have seen that the defendant No.1
can pay the balance sale consideration even at the time of
registration of the sale deed and thus, the default clause does
not operate. Defendant No.1 in support of his contentions got
examined DW2, who alleged to have attended centering work for
construction of three floors and pent house in the suit schedule
property. DW2 is also alleged to be the attesting witness to
Ex.B63. DW2 pleaded ignorance as to whether Ex.B63 was
cancelled for non compliance of terms and conditions
mentioned therein. The learned counsel for the defendant No.1
relied upon an authority in Nannapaneni Subbayya Chowdary
and another v. Garikapati Veeraya and another 1, wherein the
High Court for the erstwhile State of Andhra Pradesh observed
that it is open to one of the parties to make time as the essence
of the contract by calling upon the other party who has been
guilty of unreasonable delay to perform the contract within a
stated time by giving him reasonable notice. He further relied
upon a decisions in Gomathinaraygam Pillai and others v.
Palaniswami Nadar 2 and Govind Prasad Chaturvedi v. Hari
1 AIR 1957 AP 307
2 AIR 1967 Supreme court 868
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Dutt Shastri and another 3, wherein the Honourable Supreme
Court observed that fixation of the period within which the
contract is to be performed does not make the stipulation as to
time is the essence of the contract. In Samineni
Venkateswarlu and another v. Nagubandi Venkata Narasaiah
(died) and other 4 the High Court for the erstwhile State of
Andhra Pradesh observed that though time was not the essence
of contract initially by issuing notice time cannot be made as
essence of the contract. In S. Indira and another v. Netyam
Venkataramana and others 5 the High Court for the erstwhile
State of Andhra Pradesh observed that in the absence of
stipulation to the contrary in the agreement, time is not the
essence of the contract. In G. Ramanamma v. P. Chiranjeevi
Rao 6 the High Court for the erstwhile State of Andhra Pradesh
observed that time fixed for performance not to be considered to
be essence of contract. The learned counsel for the defendant
No.1 relied upon an authority in Messrs. Sriram Cotton
Pressing Factory (P) Limited v. K.E.Narayana Swami Naidu 7
and contended that the question as to whether time was the
essence of contract is a question of law. The learned counsel
3 AIR 1977 Supreme Court 1005
4 AIR 1994 AP 220
5 1996 (3) ALT 1080 (DB)
6 2010 (4) ALD 799
7 AIR 1965 Madras 352
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for the defendant No.1 further relied upon decisions of High
Court for the erstwhile State of Andhra Pradesh in D.
Suryanarayana and another v. I. Suryakanthamma and
another 8 and Movva Tirupathaiah and others v. Movva
Sivaji Rao and others 9 and contended that question of law can
be permitted to be raised in the appeal even though the said
plea was not raised before the trial Court. It is pertinent to note
that the defendant No.1 has filed I.A.No.2 of 2020 seeking
amendment i.e., incorporating in the written statement that
time was not essence of contract and this court has dismissed
the said application on 10.11.2022 on the ground that in a
partition suit such pleadings are irrelevant. It was further
observed by this Court in the order dated 10.11.2022 that the
agreement on which defendant No.1 is relying upon is an
unregistered one and that delivery of possession was also not
done. Admittedly, the defendant No.1 is depositing the rents
into the account of plaintiff No.1 so far as his share of 40% is
concerned. Thus, the defendant No.1 cannot claim that he is in
possession of entire suit schedule property.
14. In Ex.B63 at condition No.1 it was specifically mentioned
8 2003 (2) ALT 759
9 2007 (5) ALD 32
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that remaining amount of Rs.55 lakhs will be paid on or before
60 days or at the time of registration and in case the vendee
fails to pay the agreed amount on or before the stipulated time
this agreement of sale is null and void and the vendor need not
have to return the advance amount. It is not incorporated in
Ex.B63 that the balance sale consideration can be paid even
after registration and in fact it was specifically mentioned that
the balance consideration can be paid before 60 days or at the
time of registration. As seen from the clause and as stated
above, the balance sale consideration has to be paid before 60
days or at the time of registration. It is not the case of the
defendant No.1 that he got issued legal notice to the plaintiff
No.1 asking him to come forward to receive balance sale
consideration and execute registered sale deed. Ex.B63 is dated
21.03.2012 and whereas the plaintiff has filed the present suit
in the year 2013.
15. In the case on hand, in Ex.B63 it is clearly stipulated that
the vendee has to deposit balance consideration within 60 days
from Ex.B63 or at the time of registration. Moreover, the
vendee i.e., defendant No.1 clearly admitted that since he failed
to pay the balance sale consideration to the vendor i.e., plaintiff
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No.1 he has been depositing the rents to the account of plaintiff
No.1. Hence, the defendant No.1 in the case on hand is not
ready and willing to perform his part of contract and thereby,
the principle laid down in the above said decisions will not come
to the rescue of defendant No.1. It is also pertinent to note that
since the defendant No.1 failed to pay the balance sale
consideration, the plaintiff No.1 got issued legal notice dated
03.10.2013 seeking partition and rendition of rent accounts. As
rightly contended by the learned counsel for the plaintiff No.1,
the case on hand is a suit for partition and rendition of
accounts but not a suit for specific performance. We are here to
deal with a case for partition and separate possession, thus, the
above said decisions relied upon by the counsel for the
defendant No.1 will not be of any help to the defendant No.1.
16. Since the defendant No.1 has not paid the balance sale
consideration before 60 days from the date of Ex.B63 and since
he did not even issue any legal notice to the plaintiff to come
forward for registration in respect of suit schedule property, the
default clause in Ex.B63 came into operation and thus, the
defendant No.1 is not entitled for any refund of Rs.5,00,000/-
alleged to have been paid by defendant No.1 and that apart the
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agreement of sale under Ex.B63 also stands cancelled.
However, it is pertinent to note that based on Ex.B63 the
defendant No.1 alleged to have filed suit for specific
performance of agreement of sale. But defendant No.1 failed to
provide the case number, year of the case or at least the name
of the court, wherein the said case is pending. It is the specific
contention of the plaintiff No.1 that though defendant No.1
executed agreement of sale under Ex.B63 contending that he
has paid Rs.5,00,000/- as advance, plaintiff No.1 has not
received any amount much less Rs.5 lakhs and thus, the
agreement is void as it is without consideration. It is also to be
seen that the said agreement is void as it is executed without
adding the parents, who have their share to an extent of 20% in
plot No.109. Since the defendant No.1 neither paid the balance
sale consideration within 60 days from Ex.B63 nor issued any
legal notice to plaintiffs to register the suit schedule property in
his favour immediately after expiry of 60 days from Ex.B63 or
prior to the suit filed by the defendant No.1 against plaintiffs for
specific performance of agreement, defendant No.1 cannot
contend that the default clause in Ex.B63 does not operate.
17. The learned counsel for the defendant No.1 contended
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that the trial Court erred in directing him to render an account
for the rents, though he has been depositing Rs.11,00,00/- per
month into the account of plaintiff No.1. It is the specific
contention of the plaintiffs that defendant No.1 has been
collecting rents from the shops allotted to the plaintiff No.1 in
the ground floor in the said compromise decree and depositing
meagre amount into the account of plaintiff No.1. DW1 deposed
that the schedule property is situated to the main road in
Chaitanyapuri Colony and that he has let out nine portions to
the tenants and getting Rs.50,0000/- and that the watchman is
residing in the penthouse. DW1 denied the suggestion that he
is getting monthly rent of Rs.1,00,000/- for all the nine
portions. Defendant No.3, who is the mother of plaintiff No.1
and defendant No.1 contended in her written statement that
after the death of her husband, there is change in the attitude
of defendant No.1 but not only backed from the partition
agreement and the plan enclosed, but also started ill treating
her and pressurized her to support his case in this partition
suit. It is further stated in the written statement by defendant
No.3 that the defendant No.1 has been collecting rents from the
tenants, barring negligible rents being paid to plaintiff No.1 and
sought to decree the suit in terms of partition agreement dated
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03.07.2016. Though defendant No.1 contending that he has
been paying rents to the plaintiffs in the ratio specified in
Ex.A2, as per the contention of defendant No.3, defendant No.1
has been paying negligible rents to plaintiffs. Even as per the
contention of defendant No.1, he has been paying rents to
plaintiff No.1 to his extent of 40% share in the property. As per
the contention of the defendant No.1 he is getting Rs.50,000/-
towards rents and in such case, there is no explanation from
the defendant No.1 as to in what proportion Rs.11,000/- is
equal to 40% of Rs.50,000/-. Thus, there is an ambiguity as to
whether the defendant No.1 has been paying proper rents into
the account of plaintiff No.1 or not and thereby the trial Court
has directed for rendition of accounts. Hence, the trial Court
has not committed any error in granting relief of rendition of
accounts.
18. Though DW1 deposed that he has constructed three
floors and penthouse in the year 2007-08, he pleaded ignorance
as to how much he spent for construction of those three floors
and penthouse. DW1 deposed that he used to earn
Rs.3,00,000/- per annum on his rice business and that he is an
income tax assessee but he has no idea how much income he
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has shown during the period 2005-2008. It is quite astonishing
to note that DW1, who is earning Rs.3,00,000/- per annum can
construct three floors and a penthouse in 2007-2008 over plot
No.109, which is admeasuring 267 square yards, more
particularly, when he does not have any idea as to how much
income he has shown during the period 2005-2008 in the
income tax returns. It is not the case of the defendant No.1
that he has obtained loan from some financial institutions or
friends for pooling funds for construction of three floors and
penthouse over plot No.109.
19. The defendant No.1 in one of the appeal grounds
contended that the trial court ought to have seen that as
plaintiff No.1 is entitled to the ground floor only and as the
defendant No.1 did not pay the balance sale consideration and
obtain the sale deed, he continued to deposit the rent on the
share of plaintiff No.1 into his account. If at all the plaintiff
No.1 has not contributed any amount towards construction of
three floors and penthouse, then there is no explanation as to
what is the necessity for the defendant No.1 to deposit rents
into the account of plaintiff No.1. Since the defendant No.1 did
not come forward to pay the balance sale consideration and as
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the defendant No.1 is not paying proper rents into the account
of plaintiff No.1, a suit for partition was filed by the plaintiffs to
get their respective shares in the newly constructed three floors
and penthouse constructed subsequent to Ex.A2.
20. It is also to be borne in mind that DW1 admitted that suit
schedule property is in the name of plaintiff No.1 under Ex.A1
and in Ex.A1 sale deed there is no specific mention that the suit
schedule property was purchased from joint family funds. It is
not the case of the defendant No.1 that he has constructed
three floors and penthouse over the share of property that was
allotted to him under Ex.A2. It is an admitted fact that the
three floors and penthouse were constructed over 267 square
yards, over which not only the plaintiffs but also the defendants
have rights as per Ex.A2. In such circumstances, even if it is
presumed for the sake of arguments that plaintiff No.1 has not
contributed any amount for construction of three floors and
penthouse, defendant No.1 cannot deny the rights to the
plaintiff No.1 over the newly constructed three floors and
penthouse, more particularly, when the defendant No.1 alleged
to have constructed three floors and penthouse not only over
his share but also over the shares of plaintiff No.1 and their
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parents i.e., defendant Nos.2 and 3. Merely because defendant
No.1 is paying paltry rents to plaintiff no.1 and defendant No.3,
he cannot claim ownership over the entire house constructed
over plot No.109 admeasuring 267 square yards, over which the
plaintiffs as well as defendants have common and joint rights as
per Ex.A2.
21. It is to be seen that initially the plot No.109 was
purchased in the name of plaintiff No.1 alone vide Ex.A1 and a
house along with five shops were constructed with funds
contributed by plaintiff and defendant No.1, however, defendant
No.1 filed a suit for partition, which ended in compromise under
Ex.A2. Even though the plot No.109 was exclusively standing
in the name of plaintiff No.1, merely because constructions were
made with joint funds of plaintiff and defendant No.1, the
defendant No.1 has filed suit for partition. In the same manner,
when the plaintiff No. 1 has filed the suit for partition on the
same ground that he has contributed amounts for construction
of three floors and penthouse, the defendant No.1 is refusing
the same on the ground that the plaintiff No.1 has not
contributed any amount and that he has not source of income.
In the cross examination of PW1, the learned counsel for the
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defendant No.1 gave a suggestion that PW1 has not done any
business and he used to be like vagabond and he has incurred
many loans. If at all plaintiff No.1 used to be like a vagabond,
certainly the property vide Plot No.109 would not have been in
the name of plaintiff No.1 under Ex.A1. Plaintiff No.1 in his
cross examination deposed that he was doing shares and stokc
broking business in the name and style of Sri Venkateshwara
Consultancy at Hiamayathnagar since 1982. On the other
hand, except stating that he is doing rice business, the
defendant No.1 could not even mention the name of his rice
business. A person, who is unable to establish his earning
capacity, cannot question the earning capacity of others.
22. It is the contention of the defendant No.1 that trial Court
ought to have seen that there was a partition by metes and
bounds between the family members as long as back on
05.04.2006 and that the plaintiff can file a suit for specific
performance of the contract but the suit for partition of the
property is not maintainable. The learned counsel for the
defendant No.1 relied upon a decision of the Honourable
Supreme Court in K. Armuga Velaiah v. P.R. Ramaswamy 10
10 2022 (2) ALD P1 (SC)
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and contended that once there is a partition, no suit for
partition again is maintainable. In this regard, a suggestion
was given to PW1 by the learned counsel for the defendant No.1
that suit schedule property in this suit and the schedule
property in Ex.A2 award are one and the same. DW1 admitted
that when O.S.No.429 of 2005 was filed it was only ground floor
in the suit schedule property and that Ex.A2 compromise was
in respect of portions partitioned in the ground floor. DW1
deposed that subsequent to Ex.A2 three floors + penthouse was
constructed on the ground floor. Even as per the appeal ground
No.3, as per Ex.A2 in O.S.No.429 of 2005 on the file of I
Additional Senior Civil Judge, Ranga Reddy District there was a
ground floor only and the plaintiff No.1 got two rooms and two
mulgies only in the partition.
23. Thus, it is clear from the own admission of DW1 that
whatever the partition that took place between the parties in
O.S.No.429 of 2005 was with regard to ground floor and the
said partition is no way connected to the partition sought for by
the plaintiffs in this suit in respect of three floors and
penthouse that were constructed subsequent to Ex.A2. As per
the written statement of defendant No.1, the suit is barred
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under the provisions of Section 11 of the CPC - resjudicata. In
order to attract Section 11 of the CPC - resjudicata, the dispute
between the parties, the cause of action, the property for which
both the suits are filed shall be one and the same. In the case
on hand, the schedule of property in O.S.No.429 of 2005 is only
ground floor of plot No.109 and whereas the schedule of
property in O.S.No.1358 of 2013 is three floors and a penthouse
constructed on plot No.109 subsequent to Ex.A2. Thus, the
question of attracting Section 11 of the CPC - resjudicata does
not arise. Hence, the above contentions of defendant No.1 are
untenable.
24. The learned counsel for the defendant No.1 in support of
his contention that the right of possession of the purchaser
under the agreement of sale by Section 53-A of Transfer of
Property Act shall be protected, has relied upon decisions in
Hamazabi and others v. Syed Kareemuddin and others 11,
Gaddam Raju v. Gotikala Mary Kamala 12, Parasa Ranga Rao
v. MAthe Sanjeeva Rao 13, Mahadeva and others v. Thana
Bai 14 and Mohammed Masthan v. Abdul Rehman 15. However,
11 2001 (1) AlD 44 (SC)
12 2020 (6) ALD 404 (AP)
13 2006 (5) ALD 237
14 AIR 2004 SC 3954
15 2007 (5) ALD 274
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as stated supra, when the defendant No.1 himself admitted in
one of the appeal grounds that as he failed to deposit the
balance sale consideration within the stipulated time, he has
been depositing the rents into the account of plaintiff No.1.
Since the defendant No.1 was not ready and willing to perform
his part of contract, he is not entitled for protection under
Section 53-A of the Transfer of Property Act. Moreover, as stated
supra, the parties to Ex.B63 have not made the other parties
i.e., defendant Nos.2 and 3, who are having 20% legitimate
share in the schedule property, as parties to the said agreement
and thereby the agreement between plaintiff No.1 and
defendant No.1 is to be considered as void, more particularly,
when their consent is not obtained either by plaintiff No.1 or
defendant No.1. Hence, the defendant No.1 cannot take shelter
under the principle laid down in the above said decisions.
25. In the chief examination affidavit, DW1 deposed that once
plaintiff No.1 admitted that he has executed agreement of sale
in favour of defendant No.1 the question of claiming share again
does not arise. On one hand defendant No.1 is contending that
the plaintiff No.1 has 40% instead of 50% and on the other
hand contends that the plaintiff No.1 has no share at all in the
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schedule property as he executed agreement of sale. Merely
because the plaintiff No.1 has executed agreement of sale in
favour of defendant No.1 in respect of his share in the suit
schedule property, it cannot preclude plaintiff No.1 from
claiming his share out of the joint property, more particularly,
when defendant No.1 did not come forward to deposit the
balance sale consideration as per the terms and conditions of
Ex.B63.
26. The learned counsel for the defendant No.1 relied upon a
decision in K.V.Narayana Swamy Iyer v. K.V. Ramakrishna
Iyer 16 wherein the Honourable Supreme Court observed that
there was no liability on the karta as managing member to
render any account of any kind. In Mst.Nepur Kuer v.
Sheochand Sahu and others 17 the High Court of Patna
observed that no member of joint family can ask for an account
as against the Kartha of the family of a preceding period, except
for the purpose of determining the properties, including cash, in
the hand of the kartha as to be available for partition. As can
be seen from the chief examination affidavit of DW1, it is the
defendant No.1 and defendant No.2, who have alienated their
16 AIR 1965 SC 289
17 AIR 1961 Patna 57
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earlier agricultural land and purchased the Plot No.109. It is to
be seen that defendant No.1 is not the kartha of the joint family
of plaintiffs and defendants and in fact defendant No.1 is only a
coparcener. The father of plaintiff No.1 and defendant No.1 i.e.,
defendant No.2 is very much alive as on the date of filing of the
suit and he is the kartha of the joint family of defendant Nos.1,
3 and plaintiff No.1. As stated supra, there is substantial
ambiguity with regard to the quantum of rents being collected
by the defendant No.1 from the tenants and being deposited
into the account of plaintiff No.1 and defendant No.3. Thus, the
defendant No.1, who is one of the coparcener of the joint family,
is liable for rendition of accounts.
27. Though the plaintiffs have claimed 50% share in the suit
schedule property by way of partition, the trial Court has rightly
awarded 40% share by adhering to the award passed under
Ex.A2.
28. In view of the above facts and circumstances, this Court
is of the considered view that the trial Court has elaborately
considered all the aspects meticulously and arrived to an
appropriate conclusion and thereby there are no merits in the
appeal to set aside the impugned Judgment. Thus, the appeal is
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devoid of merits and liable to be dismissed.
29. 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: 07.06.2024
Note: LR copy to be marked.
B/o. AS
