Research › Search › Judgment

Andhra High Court · body

2004 DIGILAW 1497 (AP)

Kunisetti Sambrajyam v. Sriram Chenchu Rama Rao

2004-12-13

C.Y.SOMAYAJULU

body2004
C. Y. SOMAYAJULU, J. ( 1 ) RESPONDENTS 1 and 2 instituted the suit seeking specific performance of the agreement of sale executed in their favour by the third respondent in respect of a building within the boundaries mentioned in the schedule appended to the plaint, which hereinafter would be referred to as the suit property. Their case, in brief, is that the suit property was the ancestral property of the third respondent and his father Nageswara Rao and after the death of Nageswara Rao, the widow and daughters of Nageswara Rao i. e. , mother and sisters of third respondent, executed a registered relinquishment deed relinquishing their rights in favour of third respondent, who offered to sell the suit property to them for Rs. 74,000/- and received rs. 15,000/- as earnest money. As per the agreement, the balance sale consideration has to be paid on or before 5-9-1983. Though they are ready and willing to perform their part of the contract, third respondent is trying to evade the contract. Hence, the suit for specific performance. ( 2 ) THIRD respondent filed his written statement admitting execution of agreement of sale of the suit property in favour of respondents 1 and 2 and contending that it is they i. e. , Respondents 1 and 2 that are not ready and willing to perform their part of the contract and so they are not entitled to the relief sought. ( 3 ) DURING the course of hearing, when it is stated that the only dispute between the parties relates to delivery of possession of the suit property, since third respondent offered to deliver possession of the suit property if Respondents 1 and 2 were to pay the amount due and payable under the agreement, after Respondents 1 and 2 deposited the amount payable by them as per the agreement into Court by way of a demand draft, the Trial Court deputed an amin to deliver the suit property to respondents 1 and 2, whereupon the appellant, who is the sister of third respondent, having resisted delivery of possession of the suit property filed I. A. No. 1360 of 1986 to implead her as second defendant in the suit, which was allowed and was added as second defendant in the suit. Then she filed a written statement contending that the agreement of sale relied on by Respondents 1 and 2 is a sham and nominal transaction entered into with a view to drive her out of the suit property, which was gifted to her by her father as pasupu kumkuma at the time of her betrothal in 1966 and was put in her possession from whence she has been in continuous possession and enjoyment thereof by paying taxes to the municipality. The relinquishment deed allegedly executed by her mother and sisters was obtained on misrepresentation, for income tax purpose and hence is void as no money was paid to anybody under the said document. Since third respondent has no title to possession over the suit property, respondents 1 and 2 are not entitled to any relief. ( 4 ) BASING on the above pleadings, the trial Court framed four issues and two additional issues for trial. In support of their case, Respondents 1 and 2 examined three witnesses as PWs. 1 to 3 including the first respondent as PW. 1 and marked Exs. Al to A14. On behalf of third respondent and appellant, twelve witnesses were examined as D. Ws. l to 12 and Exs. Bl to b. 104 were marked. (D. W1 is the third respondent and D. W. 2 is the appellant.) On the basis of the evidence adduced by the parties the Trial Court held on Issues 1 and 2, which relate to the question whether respondents 1 and 2 are entitled to the relief of specific performance and the consequent relief of possession, and on issue No. 3, which relates to the question whether time is the essence of contract, held against the third respondent. On additional Issues 1 and 2, which relate to the question whether the suit property was given to the appellant towards pasupu kumkuma and whether the suit agreement is enforceable against the appellant, held against the appellant, and consequently on issue No. 4 which relates to the relief directed Respondents I and 2 to pay the balance of sale consideration with interest at 18% p. a. from 5-9-1983 till the date of judgment within 15 days from the date of judgment, in default with future interest at 6% p. a. , from the date of judgment till the date of payment and on such deposit directed 3rd respondent to execute a sale deed and get it registered and directed the appellant to vacate and deliver possession of the suit property to Respondents 1 and 2 within one month from the date of judgment. Aggrieved by the findings against her, second defendant in the suit filed this appeal. Aggrieved by the direction of the Trial Court to deposit the balance amount with interest, respondents 1 and 2 are said to have preferred A. S. No. 795 of 1988 to this Court. It is stated that the said appeal was dismissed for default. ( 5 ) THE points for consideration are (1) whether the appellant became entitled to the suit property? and (2) Whether respondents 1 and 2 can recover possession of the suit property from the appellant? ( 6 ) THE main contention of the learned counsel for appellant is that third respondent in collusion with Respondents 1 and 2 brought the suit agreement into existence to defraud the appellant and that the Trial court without considering the question of collusion between the respondents, erroneously decreed the suit. ( 6 ) THE main contention of the learned counsel for appellant is that third respondent in collusion with Respondents 1 and 2 brought the suit agreement into existence to defraud the appellant and that the Trial court without considering the question of collusion between the respondents, erroneously decreed the suit. It is his contention that a bare reading of Para 5 of the judgment of Trial Court would disclose that the Trial Court was prejudiced against the appellant because of her filing an application to come on record hindering disposal of the case, which was ripe for disposal, and that the Trial Court did not consider the evidence on record in the proper perspective or with an open mind and so the findings of the Trial Court on various issues are vitiated and hence are liable to be set aside, because those findings are given without keeping in view the fact that third respondent did not file a rejoinder in respect of the pleas raised by the appellant in her written statement. Relying on bhagat Singh v. Jaswant Singh, AIR 1966 sc 1861 , he contended that the Trial Court failed to note that no amount of evidence can be looked into on a plea not taken in the pleadings and since their respondent did not file a rejoinder on the plea of adverse possession taken by the appellant the Trial court was in error in not accepting the plea of the appellant that she perfected her title to the suit property by adverse possession. It is his contention that Ex. B2 relinquishment deed, said to have been executed by the appellant, mother and sisters of the third respondent, was brought into existence by the third respondent for the purpose of income tax and the same is evident form Ex. B. 18 letter addressed to the husband of the appellant by third respondent. It is his contention that appellant who could not produce certain important documents when the suit was pending in the Trial Court could secure those documents, and so he filed CMP No. 6482 of 1996 to receive those documents as additional evidence, and if those documents are taken into consideration, Respondents 1 and 2 will have to be non-suited and as such appellant may be permitted to adduce additional evidence in the appeal. It is his contention that in any event since Respondents 1 and 2 failed to deposit the amount as ordered by the Trial Court, third respondent filed ia. No. 117 of 1985 to rescind the agreement and that fact also shows that Respondents 1 and 2 are not ready and willing to perform their part of the contract and so the decree of the Trial Court is liable to bet set aside. There is no representation on behalf of the Respondents 1 and 2. The contention of the learned Counsel for third respondent is that there is no collusion between third respondent and the respondents 1 and 2, findings of the Trial court cannot be found fault with. Point No. 1 ( 7 ) IN the suit for specific performance filed by Respondents 1 and 2 against the third respondent, appellant came on record claiming title to the suit property on the ground that the same was given to her towards pasupu kumkuma by her father. Her alternate plea is that she perfected her title to the suit property by adverse possession, and so Respondents 1 and 2 are not entitled to the relief of specific performance. In my considered opinion, appellant s claim to title over the suit property would be in the nature of a counterclaim which can be adjudicated in the suit only on her paying the Court fees as per Section 8 of A. P. Court Fees and Suits valuation Act, because in a suit for specific performance of an agreement to sell by the vendee against the vendor, the vendor cannot set up a plea of lack of title. (See muni Samappa v. Gurunanjappa, AIR 1950 Mad. 90 ). So, third respondent could not have resisted the claim of Respondents 1 and 2 on the ground that he has no title to the suit property. Cause of action for resisting the claim for possession of the suit property would have arisen to the appellant when Respondents 1 and 2, in pursuance of the decree had obtained a registered sale deed and sought delivery of the suit property. So, till such time as Respondents 1 and 2 sought delivery of possession of the suit property, appellant cannot be said to be aggrieved by the claim of Respondents 1 and 2 in the suit. So, till such time as Respondents 1 and 2 sought delivery of possession of the suit property, appellant cannot be said to be aggrieved by the claim of Respondents 1 and 2 in the suit. From the judgment under appeal, it is seen that since there was a dispute with regard to delivery of possession of the suit property and since third respondent agreed to deliver possession of the suit property to Respondents 1 and 2, as and when they pay the balance amount payable by them under the agreement, and after Respondents 1 and 2 deposited the amount due from them into Court, the Trial court deputed an Amin to deliver possession of the suit property to Respondents 1 and 2. At that time appellant, while resisting delivery of possession of the suit property setting up title in herself, got herself impleaded as a defendant in the suit and filed her written statement claiming title to the suit property. ( 8 ) BEFORE proceeding further it is necessary to dispose of CMP No. 6482 of 1996 filed by the appellant to receive additional evidence in this appeal. CMP No. 6482 of 1996: the contention of the learned Counsel for appellant is that Ex. B2 is a sham and nominal document, brought into existence for purpose of income tax, at the instance of the third respondent, because third respondent did not pay any consideration to the executants of Ex. B2. To substantiate his contention he wanted to rely on the documents produced with this CMP i. e. , copies of the returns of income tax filed by the third respondent, extracts of accounts, etc. , of the third respondent. The allegations in the affidavit of the appellant filed in support of the application show that third respondent gave false evidence stating that neither he nor his father was an income tax assessee, and that after coming to know from K. Tirumala Rao, Auditor of the third respondent, that third respondent is an income tax assessee, and that payment of the amount under Ex. B2 is a make believe affair, she requested Tirumala rao to give an affidavit swearing to those facts, and that he, while refusing to give such affidavit, handed over the income tax file of the third respondent and that copies of accounts of third respondent available in that file would belie payment of amount under Ex. B2 is a make believe affair, she requested Tirumala rao to give an affidavit swearing to those facts, and that he, while refusing to give such affidavit, handed over the income tax file of the third respondent and that copies of accounts of third respondent available in that file would belie payment of amount under Ex. B2 to her, her mother and sisters by the third respondent, and so those documents may be received as additional evidence in the appeal. ( 9 ) WHETHER a person is assessed to income tax or not can be ascertained from the Income Tax Department. Appellant could have sought for and obtained copies of the returns and assessment orders by filing an application under Section 138 (l) (b) of income Tax Act, 1961, read with Rule 113 of Income Tax Rules, or could have filed an application to summon the returns of income tax etc. , because in P. Surya Appa rao v. P. Seetayamma, 1975 (2) APLJ 10 (NRC), a Division Bench of this Court held that Court can summon the Income Tax officials for production of income tax returns etc. , of any person from 1-4-1964 onwards. The reasons for the appellant not taking steps to approach the Commissioner of income Tax for furnishing copies of income tax assessment orders, etc. , of the third respondent, and the reasons for her not filing an application to summon those documents, are not mentioned in the affidavit filed in support of this CMP. Whether consideration mentioned in Ex. B. 2 was actually paid to its executants or not may not be of importance to test the validity of ex. B2 4 because even if the amount mentioned in Ex. B2 was not paid to its executants Ex. B2 would take effect immediately after it is registered as per the provisions of the Registration Act, and the remedy, if any, of the executants thereof is to sue the releasee for recovery of the amount mentioned therein or to set aside the said document. It is not the case of the appellant that she sued the third respondent for recovery of the amount, or filed a suit to set aside Ex. B2. So, Ex. B2 does not lose its force, even if the amount mentioned therein was not paid to its executants. It is not the case of the appellant that she sued the third respondent for recovery of the amount, or filed a suit to set aside Ex. B2. So, Ex. B2 does not lose its force, even if the amount mentioned therein was not paid to its executants. ( 10 ) COPIES of two accounts filed along with the petition relate to the investment account and the debts due and payable of third respondent. In the copy of the account relating to investments, debit entry dated 30-3-1977 shows that an amount of rs. 205/- was spent for registration of relinquishment deed and that each of nagasarapu Subbaratnam, Kunisetti samrajyam (appellant), Devaki Santa kumari, Pragallapati Ratnakumari and nagasarapu Sayi being minor through guardian Subbaratnam were paid Rs. 6,000/ - on that day. In the copy of the account relating to the debts due and payable by third respondent names of all the creditors and debtors including the names of the mother and sisters of third respondent are shown. Since in double entry accounting system, there would be corresponding debit and credit entries, the said copies of account would not be of any help to the Court to decide this case. ( 11 ) THE other documents filed with the petition are Form-7 notice, acknowledgement, and a letter purported to have been written by third respondent to K. Timmala Rao. The reason for not producing the above documents befppe the Trial Court are not properly explained. The body of the letter addressed to Tirumala Rao, which is in telugu is in one ink and the signature of nagasarapu Satnbasiva Rao in English is in another ink. None of those documents have any relevance for a decision in this case and moreover many of them are copies and not originals and so they cannot be admitted in evidence. Therefore, I find no grounds to allow this petition and so this cmp is dismissed. ( 12 ) I am unable to agree with the contention of the learned Counsel for appellant that failure of the respondents to file a rejoinder is a point in favour of the appellant. As far as Respondents 1 and 2 are concerned since they entered into the agreement with third respondent and in view of Ex. ( 12 ) I am unable to agree with the contention of the learned Counsel for appellant that failure of the respondents to file a rejoinder is a point in favour of the appellant. As far as Respondents 1 and 2 are concerned since they entered into the agreement with third respondent and in view of Ex. B2 he can presume that third respondent is the owner of the suit property and since appellant is claiming title thereto it is for her to prove her case irrespective of the contentions of the respondents 1 and 2. Since third respondent and appellant are defendants in the suit filed by Respondents 1 and 2 for specific performance of an agreement executed by third respondent, third respondent need not file a rejoinder in respect of the claim made by a co-defendant and such failure of third respondent in filing a rejoinder can have no impact on the relief to be granted to Respondents 1 and 2 who are the plaintiffs more so because it is for the appellant to prove her case and since she cannot depend on the weakness of the case of respondents. ( 13 ) WITH regard to the plea of gift of suit property as pasupu kumkuma to the appellant, from the evidence adduced by the appellant it is seen that there is no written or registered document evidencing gift of the suit property in her favour. In gandevalla Jayaram Reddy v. Mokkala padmavathamma and others, 2001 (5) ald 402 , a Full Bench of this Court held that gift of immovable property towards pasupu kunkuma can be made only through a registered document. Since there, admittedly, is no registered gift deed in respect of the suit property in favour of the appellant, her claim to the suit property on the basis of gift cannot be countenanced, more so because Ex. B2, registered relinquishment deed dated 29-3-1977 executed by the appellant, her sisters and mother in favour of the third respondent, shows that they having received Rs. 30,000/- from the 3rd respondent had relinquished their right, title and interest they acquired in the property consequent on the death of the father of appellant and 3rd respondent. Therefore, it is clear that even on 29-3-1977 appellant acknowledged the right of third respondent in the suit property on that date. 30,000/- from the 3rd respondent had relinquished their right, title and interest they acquired in the property consequent on the death of the father of appellant and 3rd respondent. Therefore, it is clear that even on 29-3-1977 appellant acknowledged the right of third respondent in the suit property on that date. If really, the suit property was gifted by her father to the appellant towards pasupu kumkuma there was no need or necessity for her to execute Ex. B2. ( 14 ) SINCE execution of Ex. B2 is admitted by the appellant, appellant, in order to acquire title to the suit property by adverse possession, has to establish 12 years hostile possession after 29-3-1977 the date of Ex. B2. On 6-7-1983 third respondent executed Ex. A1 agreement in favour of respondents 1 and 2, claiming to be the owner of the suit property. Respondents 1 and 2 filed this suit on 9-11-1983, seeking specific performance of Ex. Al agreement. Within three years thereafter appellant filed IA No. 1360 of 1986 to implead herself as second defendant in the suit and that petition was allowed on 25-1-1986. So, by 1986, which is less than 12 years from 1977 appellant cannot perfect her title to the suit property by adverse possession. ( 15 ) THE contention of the learned counsel for appellant that the Trial Court was prejudiced against the appellant for her filing a petition to come on record, resulting in delay in disposal of the case, has no force, because appellant filed LA No. 1360 of 1986 in the middle of 1986 and the suit was disposed of towards the end of 1987. So, it is clear that appellant was given full opportunity to adduce evidence and the case was not disposed of in a hurry. ( 16 ) THE fact that no specific issue with regard to the title of the appellant to suit property is framed is of no consequence, since appellant adduced evidence in respect of the pleas taken by her, and since it is well known that if parties go to trial knowing the case of the other side and adduce evidence in respect of the pleas taken, non-framing of specific issues in respect of those pleas is of little consequence. (See Md Umarsaheb v. Kadalaskar, AIR 1970 SC 61 at Page 65 and Bhairab chandra v. Ranadhir Chandra, AIR 1988 sc 396 at Page 400 ). ( 17 ) SINCE appellant acknowledged the title of third respondent in the suit property under Ex. B2, she being the sister of the 3rd respondent, her possession over the suit property would, at best, be in the nature of a licensee of third respondent, and so she cannot be said to be in possession of the property in her own independent title. As licensee appellant cannot resist the suit for possession except on the ground available to third respondent and so I hold that the appellant did not acquire title to the suit property either as a gift towards pasupu kumkuma or by adverse possession and that her status is that of a licensee from the third respondent. The point is answered accordingly. Point No. 2: ( 18 ) THERE is any amount of force in the contention of the learned Counsel for the appellant that Trial Court was in error in directing the appellant to deliver possession of the suit property to Respondents 1 and 2 even before a sale deed is executed and registered in their favour. Till such time as they become owners of the suit property, respondents 1 and 2 are not entitled to possession of the suit property. Respondents 1 and 2 should have first complied with the direction of the Trial Court with regard to deposit of the balance sale consideration, for them to seek execution and registration of a sale deed in their favour in respect of the suit property, and after a sale deed is executed and registered in their favour in respect of the suit property only can the respondent seek delivery of possession of the suit property from the appellant. So, the direction of the Trial Court to the appellant to deliver the possession of the suit property even before a sale deed is executed and registered in respect of the suit property is not sustainable and hence is set aside. The point is answered accordingly. ( 19 ) IN the result, while confirming the decree for specific performance of Ex. The point is answered accordingly. ( 19 ) IN the result, while confirming the decree for specific performance of Ex. A1 agreement passed by the Trial Court, clause (e) in the decree under appeal is modified, and appellant shall vacate and deliver possession of the suit property to respondents 1 and 2 after obtaining a sale deed in their favour in respect of the suit property. Appeal is ordered accordingly. Parties are directed to bear their own costs in the appeal.