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2006 DIGILAW 834 (AP)

Regula Krishna v. Kondapally Sarnpath Kumar

2006-07-15

C.Y.SOMAYAJULU

body2006
JUDGMENT Since all these three appeals arise out of a common judgment they are being disposed of by a common judgment. The property covered by the plaint schedule in all the three suits is the same. 2. Kondapalli Sampath Kumar and Joga Rao, who are the younger brothers of Hemachander Rao, filed a suit on 24-81981 for redemption of the property covered by the mortgage deed dated 3-12-1979 executed by Hemachander for Rs.10,000/- in favour of Regula Krishna in respect of the plaint schedule property alleging that they agreed to purchase the said property and that Regula Krishna refused to receive Rs.10,000/- sent by them through a lawyer notice. Thereafter, probably after receiving summons in the said suit, Regula Krishna filed a suit for partition and specific performance of the agreement of sale dated 12-11-1980 executed by Hemachander Rao in his favour after receiving an advance of Rs.1,000/- alleging that Hemachander, who mortgaged the plaint schedule property to him earlier, had in collusion with his brothers Sampath Kumar and Joga Rao brought into existence another agreement of sale dated 28-10-1980 in respect of the same property, impleading the minor son of Hemachander Rao also as a party to the suit. Thereafter, the minor son of Hemachander Rao filed a suit, as an indigent person, to cancel the two agreements of sale and the mortgaged deed dated 4-12-1979 executed by his father in favour of Regula Krishna and his brothers. The suits, which were filed in different Courts, were transferred to the Court of the Subordinate Judge, Kothagudem for joint trial. Evidence was recorded in the suit filed by the minor son of Hemachander Rao, which was renumbered as O.S. No.34 of 1982. 3. In support of his case minor plaintiff examined three witnesses as P.Ws.1 to 3 but did not adduce any documentary evidence. In support of his case, Regula Krishna examined himself as DW - 1 and three other witnesses as D.Ws.2 to 4. Sampath Kumar examined himself as D.W.5 and Joga Rao examined himself as D.W.8. They examined two other witnesses as D.Ws.6 and 7. Exs.B1 and B2 were marked on behalf of Regula Krishna and Exs.B3 to B5 were marked on behalf of Sampath Kumar and Joga Rao. Sampath Kumar examined himself as D.W.5 and Joga Rao examined himself as D.W.8. They examined two other witnesses as D.Ws.6 and 7. Exs.B1 and B2 were marked on behalf of Regula Krishna and Exs.B3 to B5 were marked on behalf of Sampath Kumar and Joga Rao. Holding that the mortgage deed executed by Hemachander Rao in favour of Regula Krishna is true and is supported by consideration, and that his brothers Sampath Kumar and Joga Rao, who have an agreement of sale in their favour, are entitled to seek redemption of that mortgage. The trial Court held that Regula Krishna is not entitled to seek specific performance of the agreement in his favour and dismissed the suits filed by the minor son of Hemachander Rao and Regula Krishna and decreed the suit filed by Sampath Kumar and Joga Rao. Hence, these appeals by Regula Krishna and the minor son of Hemachander Rao. 4. Since Hemachander Rao admitted execution of the mortgage deed and also the agreement of sale in favour of Regula Krishna and also the agreement in favour of his brothers Joga Rao and Sam path Kumar, and since the evidence adduced on behalf of the minor son of Hemachander Rao does not disclose that any of the above three documents executed by Hemachander Rao are vitiated either by fraud or undue influence etc., question of cancelling any of those documents does not arise, and so I find no grounds to interfere with the judgment of the trial Court dismissing the suit of the minor son of Hemachander Rao. Therefore, Tr. AS No.1568 of 1991, i.e., AS No.39 of 1987 on the file of the Court of the District Judge, Khammam, is liable to be and hence is dismissed. 5. The points for consideration in other two appeals are: 1. Whether Sampath Kumar and Joga Rao can maintain a suit for redemption of the property mortgaged by Hemachander Rao on the basis that they have an agreement of sale in their favour in respect of the hypotheca? 2. Whether Regula Krishna is entitled to specific performance of the agreement of sale in his favour? 6. Whether Sampath Kumar and Joga Rao can maintain a suit for redemption of the property mortgaged by Hemachander Rao on the basis that they have an agreement of sale in their favour in respect of the hypotheca? 2. Whether Regula Krishna is entitled to specific performance of the agreement of sale in his favour? 6. The contention of the learned Counsel for Regula Krishna is that since the trial Court held that the mortgage executed by Hemachander Rao in favour of Regula Krishna binds his minor son also and since the evidence of D.Ws.1 to 4 clearly establishes the readiness and willingness on the part of Regula Krishna to perform his part of the contract and since a mere holder of an agreement to purchase hypothec a cannot maintain a suit for redemption of the hypotheca Regula Krishna is entitled to a decree for specific performance and the suit of Sampath Kumar and Joga Rao for redemption of the mortgage is liable to be dismissed. The contention of the learned Counsel for Sampath Kumar and Joga Rao is that Hemachander Rao and his brothers had, at the time of partition of their family properties, agreed that a brother who intends to alienate his share or part thereof has to offer it to his brothers in the first instance and can sell the same to outsiders only if any of the brothers are not inclined to purchase and since Hemachander Rao agreed to sell the plaint schedule property to his brothers for discharge of the mortgage debt due to Regula Krishna and had, in fact, sent Rs.10,000/- by way of Demand Draft to Regula Krishna, the said Regula Krishna who failed to encash it and filed a suit for specific performance of agreement obtained by him by fraud and by threatening Hemachander Rao, is not entitled to the relief of specific performance and since the trial Court gave cogent reasons for its conclusion, the findings arrived at by the Court below need no interference. Point No.1: 7. Except the agreement of sale said to have been executed by their brother Hemachander Rao, Sampath Kumar and Joga Rao have no other document in their favour in respect of the plaint schedule property, which admittedly is in possession of Regula Krishna. Point No.1: 7. Except the agreement of sale said to have been executed by their brother Hemachander Rao, Sampath Kumar and Joga Rao have no other document in their favour in respect of the plaint schedule property, which admittedly is in possession of Regula Krishna. Mere agreement of sale, in view of Section· 54 of the Transfer of Property Act (for short the Act) does not create any interest in or charge over the plaint schedule property in their favour. Section 91 of the Act enumerates the persons who, in addition to the mortgagor, are entitled to redeem or institute a suit for redemption of the mortgage. Persons who have an agreement to purchase the mortgaged properly are not enumerated therein. So it is clear that persons whose interests are affected by the mortgage only can redeem the mortgage. Therefore, persons who hold a mere agreement to purchase cannot either redeem or institute a suit for redemption merely on the basis of that agreement. See A.V.K. Mayappa Chettiar v. N.KL. Kolandaivelu Chettiar and another, AIR 1926 Mad. 597 , where it was held that a person who merely has got an agreement to sell the property does not fall under any of the categories mentioned in Section 91 of the Transfer of Property Act. 8. For the above reasons, I hold that Sampath Kumar and Joga Rao cannot file a suit for redemption of the mortgage executed by their brother Hemachander Rao in favour of Regula Krishna in respect of the plaint schedule property. The point is answered accordingly. Point No.2: 9. In the suit filed by Regula Krishna· for specific performance the plea taken by Hemachander Rao is that the agreement was obtained by use of force. In their written statement, Sam path Kumar and Joga Rao alleged that by using undue influence and by playing fraud on their brother Hemachander Rao, Regula Krishna got executed a registered mortgage deed dated 4-12-1979 for Rs.10,000/- and the agreement of sale on 12-11-1980 for Rs.27,000/-. Yet they, surprisingly, filed a suit for redemption of the mortgage, which I held to be not maintainable under Point No.1 above. The finding of the trial Court that the mortgage deed dated 4-12-1977 in favour of Regula Krishna is supported by consideration is not challenged by the respondents in these appeals by filing cross-objections or otherwise. 10. Yet they, surprisingly, filed a suit for redemption of the mortgage, which I held to be not maintainable under Point No.1 above. The finding of the trial Court that the mortgage deed dated 4-12-1977 in favour of Regula Krishna is supported by consideration is not challenged by the respondents in these appeals by filing cross-objections or otherwise. 10. Details of mud played by Regula Krishna in getting the agreement of sale in his favour from Hemachander Rao are not stated by Sampath Kumar and Joga Rao in their written statements. The plea in the written statement of Hemachander Rao is that Regula Krishna obtained the agreement by using force. But, Hemachander Rao did not go into the witness box to state the circumstances in which he executed the agreement in favour of Regula Krishna and what force was used by Regula Krishna against him while obtaining EX.B2 agreement of sale from him. So the contention that EX.B2 is vitiated by fraud or undue influence cannot be accepted. 11. The next contention is that in view of Ex.B5, agreement of sale executed by Hemachander Rao in favour of Sampath Kumar and Joga Rao, Regula Krishna cannot enforce his agreement. Ex.B5, though it bears a date anterior to that of EX.B2 it has no effect on the suit for specific performance filed by Regula Krishna because no suit to enforce EX.B5 is filed within the period of limitation it ceases to be enforceable, even assuming that it is true. 12. The contention of the learned Counsel for Sampath Kumar and Joga Rao is that the failure of Regula Krishna to send a reply to Ex.B3 notice is fatal to his case. I am not able to agree with the said contention because, he explained the reasons for not sending the reply in Para 9 of the plaint and since Hemachander Rao in his written statement did not dispute the allegations in Para 9 of the plaint. In view of Rule 5 of Order 8 CPC allegation in the plaint which are not specifically denied in the written statement should be deemed to have been admitted. In view thereof, no inference can be drawn against Regula Krishna for his not sending a reply to Ex.B3, notice. In view of Rule 5 of Order 8 CPC allegation in the plaint which are not specifically denied in the written statement should be deemed to have been admitted. In view thereof, no inference can be drawn against Regula Krishna for his not sending a reply to Ex.B3, notice. Being brothers of Hemachander Rao, Sam path Kumar and Joga Rao in collusion with him, to enable him to wriggle out of Ex.B2, must have brought EX.B5 into existence, because if EX.B5 was really in existence by the date of Ex.B2, there is no earthly reason for Hemachander Rao executing EX.B2 in favour of Regula Krishna. 13. The evidence adduced by Regula Krishna shows that he is always ready and willing to perform his part of the contract. Since father of a minor, as Manager of the Hindu Joint Family has a right to sell the property for discharge of antecedent debts and since the debt covered by EX.B I has to be discharged, Hemachander Rao has a right to enter into an agreement to sell the joint family property. Such agreement is binding on the share of minor son also. Therefore I hold that Regula Krishna is entitled to the relief of specific performance sought by him. The point is answered accordingly. 14. In the result, AS No.1450 of 1987 is allowed. Appellant shall deposit the balance sale consideration if any, payable under EX.B2 into the trial Court within a period of six weeks from today along with interest at the rate of 15% p.a. from the due date till the date of deposit. In default, the appeal stands dismissed. Tr.AS Nos.1568 of 1991 and AS No.1283 of 1990 are dismissed. Parties are directed to bear their own costs in these appeals.