Judgment :- 1. Dammalapati Subba Rao, the plaintiff in O.S.No.127/84 on the file of Subordinate Judge, Machilipatnam, had preferred this Appeal being aggrieved of the relief of refund of consideration only in stead of ordering specific performance. 2. The said suit was filed praying for the relief of specific performance of contract of sale dated 25-7-1982 executed by 1st defendant for himself and as guardian of defendants 2 and 3 in favour of the plaintiff for Rs.28,350/- in respect of the plaint schedule land, or in the alternative to pay the plaintiff a sum of Rs.35,265/- towards principal and interest @ 12% per annum and for costs. The learned Subordinate Judge, Machilipatnam after settling the Issues and in the light of the respective pleadings of the parties, recorded the evidence of P.W.1 to P.W.3, D.W.1 to D.W.4, marked Exs.A-1 to A-7 and Exs.B-1 to B-7 and came to the conclusion that the relief of specific performance to be negatived, but however granted the decree for Rs.28,350/- with proportionate costs against the 1st defendant only and the rest of the plaintiff’s claim was dismissed without costs. The suit against defendants 2 and 3 was dismissed without costs. Aggrieved by the same, this appeal had been preferred. 3. The 1st respondent died and A.S.M.P.No.12027/2004 was filed to bring on the legal representatives of the 1st respondent as other legal representatives of the 1st respondent and the application was ordered on 8-12-2008 and respondents 4 to 6 were brought on record. It is needless to say that the sons of respondents 1, 2 and 3 had been already on record. 4. The letter dated 30-11-2004 addressed by the learned District Judge, Krishna, Machilipatnam would go to show that in view of the Judgment books being eaten away by white ants, the learned Judge instructed the staff concerned for reconstruction of the draft judgments which were eaten away by white ants with the available fair judgments. The said office had specified that the originals of Exs.A-2 to A-6 and Exs.B-2 to B-7 were already destroyed by the lower court and hence this Court directed to furnish photo copies or Xerox copies available to this Court. Accordingly, records of Exs.A-2 to A-6 and Exs.B-2 to B-7 called for from the respective Advocates of the court below and the same were sent by the learned District Judge on 30-11-2004 vide Dis.No.6826 dated 1-12-2004. Accordingly, records of Exs.A-2 to A-6 and Exs.B-2 to B-7 called for from the respective Advocates of the court below and the same were sent by the learned District Judge on 30-11-2004 vide Dis.No.6826 dated 1-12-2004. Even on verification it was noticed that those copies relating to Exs.A-2, A-7 and B-4 are not traceable. Hence on 22-12-2008 the respective Counsel had been directed to take steps to place the copies of the documents which are being relied upon by the parties before the Court and since the said copies had been placed before this Court, the Appeal had been taken up for final hearing and the same is being disposed of finally. 5. Pleadings of the parties: Averments made in the plaint: It was pleaded that the 1st defendant is the father of defendants 2 and 3. The 1st defendant for himself and as guardian of the defendants 2 and 3 and for the benefit of the joint family of the defendants 1 to 3 to discharge the debts payable to Sri Chinta Appa Rao and Sri Ravi Rambabu payable by the defendants 1 to 3, agreed to sell the extent of Acs.3-15 of land belonging to the defendants in the village of Ayyavari Rudravaram at the rate of Rs.9000/- per acre for a total sum of Rs.28,350/-. The 1st defendant for himself and as guardian of defendants 2 and 3 executed a contract of sale in favour of the plaintiff on 25-7-1982. Accordingly the plaintiff discharged the pronote debts payable to Sri Chinta Appa Rao and Ravi Rambabu to the tune of Rs.27,560/- and the balance of sale consideration of Rs.790/- was paid to the defendants as mentioned in the agreement of sale. Thus the plaintiff paid the entire sale consideration amount of Rs.28,350/- to the defendants as agreed. It was also pleaded that as the plaint schedule property written statement delivered to the plaintiff, the plaintiff had been in the peaceful possession and enjoyment of the same from the date of contract of sale. Further it was pleaded that as the plaintiff had no money to obtain the sale deed and as there was water in the plaint schedule land to get the same measured, the defendants agreed to get the plaint schedule land measured and to know the actual extent of the land after measurement in favour of the plaintiff in the month of January 1983. Even though the plaintiff was ready with necessary money the defendants did not cooperate to have the plaint schedule land measured and to get the sale deed executed and registered. In spite of several demands and requests the defendants did not co-operate and have the sale deed registered after measurement only with a view to cause loss to the plaintiff. Ultimately the plaintiff got a notice issued through his Advocate on 8-12-1983 to the 1st defendant and the 1st defendant got a reply notice issued through his Advocate with false and untenable allegations. Thus the defendants are not bent upon to co-operate with the plaintiff. The plaintiff is always ready and willing to perform his part of the contract but the defendants, having received the entire sale consideration amount of Rs.28,350/- are not willing and coming forward to perform their part of the contract and hence the suit or specific performance of the contract of sale dated 25-7-1982 and for other reliefs. Averments made in the written statement of 1st defendant : It is admitted that the signature of the 1st defendant was taken on the alleged contract of sale in respect of Acs.3-15 cents belonging to the 1st defendant and his family by one Chinta Appa Rao and the said Chinta Appa Rao obtained the signature of the 1st defendant when he was in the fields after making certain representations fraudulently and without proper consideration and the alleged agreement dated 25-7-1982 in favour of the plaintiff is neither true, correct, valid or enforceable and it had also not been acted upon and there was no agreement between the plaintiff and the 1st defendant either in respect of the suit property or otherwise. The said Chinta Appa Rao who is a money lender and into whose clutches the 1st defendant had fallen and the alleged agreement came into existence in the circumstances stated hereunder. The 1st defendant because of his ways in life and trusting the nature and on the evil advice of the companions got into the clutches of the said C.Appa Rao, resident of Chigurukota, Mandavilli Taluk who is a money lender well versed in fleecing debtors and accustomed to take undue advantage of them by unfair and illegal methods with the idea of getting at their property and obtaining wrongful gain for himself. The 1st defendant obtained two loans of Rs.500/- each, one on 6-5-1970 under a pronote and shortly thereafter the other loan under a hand loan. In about the year 1972, he borrowed six bags of paddy worth Rs.360/- only. The said Chinta Appa Rao is accustomed to charge compound interest at more than Rs.2/- upto Rs.3-50 per month with yearly rests. He was taking pronotes from time to time for double the amounts and also in the name of his friends and relatives. He used to give out and represent that the payments made were being appropriated towards excess interest and some times renewed pronotes were taken without reference to the earlier pronotes and some times referring to them according to his convenience and pleasure. The 1st defendant was afraid that his father and others will come to know of these dealings and gradually succumbed to the said Appa Rao. The 1st defendant returned six bags of paddy and also made various payments from time to time amounting to about Rs.17,000/- in his helpless conditions. He used to give out that certain amounts were due by particular time as he pleased. As the 1st defendant remembers, in 1972 he represented that an amount of Rs.2000/- was due and took pronote for Rs.4000/- and contrary to understanding the renewed pronotes the calculation was made at Rs.3/- and more amount as interest with yearly rests. In spite of various payments, the 1st defendant was forced to execute a pronote for Rs.9000/-in the year 1975 and as the 1st defendant remembers, adopting the same methods two pronotes were taken in the year 1978, one in favour of his friend and close relative, the plaintiff and another in the name of the said Appa Rao himself. As the 1sdt defendant remembers in the year 1981, the said Appa Rao obtained the signature of the 1st defendant on a pronote which is subsequently represented to be for about Rs.20,000/-. The 1st defendant believes that nothing is due to the said Appa Rao whether the pronotes were taken in the name of himself or in the name of his friends or relatives including the plaintiff. In the year 1982, he put pressure upon the defendant to execute a contract of sale in respect of Acs.3-15 cents of ancestral joint family land fixing a low rate of Rs.9000/- per acre. In the year 1982, he put pressure upon the defendant to execute a contract of sale in respect of Acs.3-15 cents of ancestral joint family land fixing a low rate of Rs.9000/- per acre. The 1st defendant had no other go and in a desperate attempt to get out of the clutches of the said Appa Rao, agreed to execute the agreement. The signature of the 1st defendant was obtained while he was in the fields and it appears that the agreement was got written in the name of the plaintiff. It was also represented to the 1st defendant that another pronote should be executed in favour of one Ravi Rambabu, his nephew and relation so that practically the entire alleged consideration could be for the discharge of the alleged debts to avoid any future dispute on the part of the sons and the members of the family with the understanding that the amount covered by the second pronote nominally taken will be paid to the 1st defendant, his signatures were taken. There is no debt in favour of the said Rambabu on the alleged pronote which is bogus, nominal and improvised in the circumstances stated above. The 1st defendant believes that there is nothing due under the said pronote in favour of the said Appa Rao or under the prior transactions and much less any subsisting amounts. The 1st defendant as a matter of fact does not remember whether in fact he executed the pronote for Rs.20,000/- in his favour. The 1st defendant believes that nothing is due to the said Appa Rao or to the plaintiff and in fact the plaintiff did not make any payment towards the alleged debt due to the said Appa Rao. Fraud had been played on the 1st defendant and he was throughout put under pressure and coerced into doing things which do not represent the correct state of facts. The 1st defendant further believes and asserts that in the alleged prior transactions, nothing will be due in fact or under law by the 1st defendant. The 1st defendant had no dealings with the plaintiff in reality at any time. There was no agreement with him even in respect of the suit land. The 1st defendant further believes and asserts that in the alleged prior transactions, nothing will be due in fact or under law by the 1st defendant. The 1st defendant had no dealings with the plaintiff in reality at any time. There was no agreement with him even in respect of the suit land. The document was obtained by the said Appa Rao fraudulently and in the circumstances aforesaid and for his own benefit and all these transactions in the names of his friends and relatives are bogus, nominal and make believe. Except the cash referred in the alleged agreement and some amounts subsequently at the instance of the mediators nothing had been received by the 1st defendant. There are no real debts. There is no real payment and there is no consideration. In fact there is no real necessity for the 1st defendant to sell away his family property, even his own share much less the shares of the undivided sons of the 1st defendant. Even a copy of the contract was not given to the 1st defendant and no account was shown and no amounts were calculated as promised. The property was not at all delivered and the 1st defendant continues to be in possession of the suit land. It was further pleaded that in respect of a portion of the consideration represented by the alleged pronote debt taken in the name of Ravi Rambabu some part payments by adjournments were made but he failed to pay the balance of about Rs.2000/- and the 1st defendant tried to have the matter settled with common acquaintances D.Panduranga Rao which is in fact associated with the said C.Appa Rao. Subsequently even in June 1983, the 1st defendant tried to have the matter settled through Sri Gudise Reddemma, son of Ramaiah but the said Appa Raop was postponing the matter and payment of the balance. A number of subsequent mediations also failed. It is given out that some pronotes and some papers representing the prior transaction s are shown to the mediators but the 1st defendant was never given a proper opportunity to verify anything. The 1st defendant has reason to believe that there is no pronote for Rs.20,000/- in favour of the said Apparao and much less any alleged payment said to have been made by the plaintiff. The 1st defendant has reason to believe that there is no pronote for Rs.20,000/- in favour of the said Apparao and much less any alleged payment said to have been made by the plaintiff. It was also further pleaded that the suit land was not delivered to the plaintiff or to anybody else either in pursuance of the alleged contract or otherwise. There was no separate passage and facility to this land and the plaintiff did not and could not cultivate the land at any time. It is at the insistence of the mediators that 1st defendant did not commence necessary agricultural operations in time and consequently the land was left fallow and uncultivated. Meanwhile it was learnt that the plaintiff and the said Appa Rao were making efforts to bring into existence evidence of alleged possession in pursuance and submit to the suit contract. The plaintiff might have paid some tax in one year purposely to create evidence of his alleged possession. The 1st defendant was paying taxes in respect of the suit land as usual on demand. The very fact that the land was kept fallow clearly negatives the untrue contention of the plaintiff of his being in possession. It is admitted that a notice was given on behalf of the plaintiff to which a proper reply was given by the Advocate on behalf of the 1st defendant and in spite of specific averments made in the reply notice the plaintiff did not perform his alleged part of the contract nor paid the balance of consideration even according to his contention nor even tried to send a copy of the contract as requested by the 1st defendant. Suspecting that the said Appa Rao or the plaintiff for his benefit might take undue advantage of various documents and papers obtained from the 1st defendant might rush to the Court and try to obtain some urgent orders, the 1st defendant filed a caveat in the Subordinate Judge’s Court, Machilipatnam. Suspecting that the said Appa Rao or the plaintiff for his benefit might take undue advantage of various documents and papers obtained from the 1st defendant might rush to the Court and try to obtain some urgent orders, the 1st defendant filed a caveat in the Subordinate Judge’s Court, Machilipatnam. The said Appa Rao and the plaintiff kept quiet and after expiry of the period during which the caveat was in force filed the suit and with untrue allegations and misrepresentations obtained an exparte interim injunction in respect of the land as if the plaintiff was put in possession of the suit property as a result of which in view of the order by the Court and even though the 1st defendant is actually in possession of the land till today, he desisted from commencing agricultural operations in the land. Unless the injunction order is set aside, it will result in great hardship to the 1st defendant who is in actual possession and enjoyment of the suit land. It was also further pleaded that the 1st defendant denies that he ever executed any contract in favour of the plaintiff nor had any dealings with the plaintiff in respect of the suit land. The 1st defendant did not voluntarily or consciously entered into any contract or agreement of sale in favour of the plaintiff and the circumstances under which the signatures of the 1st defendant were taken and he was made to write certain pronotes and documents etc., mentioned earlier. The alleged suit contract is neither true nor valid or binding on the 1st defendant or the members of the family particularly the shares of minor sons – defendants 2 and 3 also. There is no debt in favour of the said Appa Rao or liability in favour of the plaintiff and there is no payment as alleged in discharge of any debt and muchless legally due from the 1st defendant. There is in fact no consideration for the alleged contract and the plaintiff is not entitled to any relief in respect of the same. The 1st defendant believes that the suit had been filed speculatively for the purpose of getting at the property and alternatively for obtaining a decree for some amount which is not due at all. The plaintiff is not entitled to the alternative relief prayed or any of the reliefs prayed for. The 1st defendant believes that the suit had been filed speculatively for the purpose of getting at the property and alternatively for obtaining a decree for some amount which is not due at all. The plaintiff is not entitled to the alternative relief prayed or any of the reliefs prayed for. It was also further pleaded that it is not clear how the 1st defendant is liable for damages claimed nor for the interest claimed in the alternative relief particularly in the face of the untrue allegation regarding possession of the suit land. The alleged liability under the suit contract or for damages or for the alternative amount to any extent or for the interest claimed had been denied. The 1st defendant reserved his right to state his objections in full as and when the particulars and the basis of the claim of the plaintiff are made known. Further, all the allegations made in the plaint in support of the false claim of the plaintiff had been denied. The 1st defendant further denied the suit transaction or that the plaintiff was ready and willing to perform his part of the alleged contract or that he had taken all necessary steps to specify the requirements of the completion of the contract. It is significant that the plaintiff kept quiet after the notice on behalf of the stated that defendant and did not even care to send a copy of the contract and at the last minute rushed to the Court with untrue allegations for putting pressure on the 1st defendant and obtain wrongful gain at his expense. The 1st defendant denied that the alleged suit contract is binding on him or the consideration or the adequacy of the consideration or the alleged purpose for which the transaction had been entered into or the binding nature against the shares of the defendants and even in respect of the share of the 1st defendant in the suit land. It was further pleaded that the 1st defendant does not admit any of the allegations in the plaint that are not specifically traversed in the written statement and prayed for dismissal of the suit with costs. It was further pleaded that the 1st defendant does not admit any of the allegations in the plaint that are not specifically traversed in the written statement and prayed for dismissal of the suit with costs. Averments made in the written statement of defendants 2 and 3 : In the written statement filed on behalf of defendants 2 and 3 it was pleaded that the material allegations in the plaint are not true and the suit is not maintainable according to law. It was further pleaded that the plaintiff is not entitled to any of the reliefs prayed for against defendants 2 and 3 or in respect of their shares in the suit property or any part of the joint family property either in equity or under law. The plaintiff is not entitled to specific performance of the alleged suit contract dated 25-7-1982 or damages or any amount as alternative relief or interest claimed thereunder. It was also further pleaded that the 1st defendant is a weak minded and gullible person and addicted to bad ways and was under the influence of evil companions and unscrupulous persons taking undue advantage of him. The defendants 2 and 3 learnt that he had fallen into the clutches of evil companions and advisers and one C.Appa Rao, a money lender, accustomed to fleece others and obtain wrongful and illegal gain for himself at their expenses. The 1st defendant had absolutely no necessity to contract any debt and much less for the purpose and benefit of the family. It was further pleaded that the suit property is ancestral joint Hindu family property obtained by the 1st defendant in a division with his father and in which these defendants have a right by birth. There is no necessity to sell the joint family property and no debts were and could have been contracted and much less for the purpose of the family. The defendants 2 and 3 and the other members of the family had obtained no benefit from any of the suit transactions or alleged debts said to have been incurred for the purpose of the family. The defendants 2 and 3 are not aware of the alleged suit contract dated 25-7-1982 and they deny the truth, validity and binding nature of the same. The defendants 2 and 3 are not aware of the alleged suit contract dated 25-7-1982 and they deny the truth, validity and binding nature of the same. It was further denied that there were any dealings between the plaintiff and others on the one hand and the 1st defendant on the other. It was categorically denied that the alleged debts in discharge of which valuable joint family property is said to have been agreed to be sold to the plaintiff. There was in fact no sale in favour of the plaintiff or any other person in respect of the suit land and the suit property continues to be in peaceful and lawful possession of the members of the joint family including the defendants 2 and 3 and there is no delivery of the same to the plaintiff or any third party. The alleged suit contract even if true is a collusive, nominal and fraudulent transaction devoid of any consideration or purpose and is not valid to any extent including the share of the 1st defendant. The recitals if any to the said effect in the alleged suit contract are false and are improvised solely for the purpose of buttressing false claim of the plaintiff and that of the said C.Appa Rao who is the real beneficiary in the matter. The defendants 2 and 3 are not aware of the various transactions mentioned in the plaint or in the alleged contract and crave the leave to take their objections in full as and when they are disclosed. The defendants 2 and 3 believe that they are bogus and make believe transactions brought into existence taking undue advantage of the helplessness and trusting nature of the 1st defendant who must have also acted under false prestige. It was also further pleaded that the defendants 2 and 3 do not admit any of the allegations in the plaint made in support of the suit claim as the defendants 2 and 3 also denied that the plaintiff had performed his part of the contract or ready and willing to perform his part of the contract and is otherwise entitled to specific performance. It was further denied that the alleged debts or the alleged payment by the plaintiff towards discharge of the debts and any payment to the 1st defendant. It was further denied that the alleged debts or the alleged payment by the plaintiff towards discharge of the debts and any payment to the 1st defendant. It was also further denied that any amounts are due much less legally due either to the plaintiff or others who are mere money lenders of C.Appa Rao or any amount due to Appa Rao himself either in fact or under law. The documents if any that might have been brought into existence might have been the result of fraud, collusion and bogus with a view to support the false claim. The plaintiff is not entitled to any amount claimed in the alternative and is not entitled to any damages muchless without any reason. The plaintiff is not entitled to any interest much less 12% per annum. It was further specifically pleaded that the plaintiff is not in possession and is not entitled to any relief of possession. The defendants 2 and 3 as joint family members are entitled to maintain the lawful Section of the joint family to the entire extent and the plaintiff is not entitled to interfere with their possession and enjoyment of the same. Further it was pleaded that the family had incurred loss by reason of the acts of the plaintiff and his supporters and practically C.Appa Rao and the defendants 2 and 3 reserve their right to claim compensation or damages from them. It was further pleaded that the defendants 2 and 3 do not admit any of the allegations in the plaint that are not specifically traversed in the written statement and hence prayed that the suit may be dismissed with costs. 6. Issues settled by the trial Court: 1. Whether the plaintiff is entitled to the relief of specific performance of the contract of sale dated 25-7-1982 ? 2. Whether the plaintiff is entitled to the alternative relief of refund of the amount of Rs.35,267-00 as claimed in the suit ? 3. Whether the contract for sale dated 25-7-1982 is true, valid and enforceable ? 4. Whether the agreement for sale dated 25-7-1982 came into existence in the circumstances mentioned in the written statement of the 1st defendant ? 5. Whether the possession of the plaint schedule property was delivered to the plaintiff by the defendant in pursuance of the alleged contract for sale ? 6. 4. Whether the agreement for sale dated 25-7-1982 came into existence in the circumstances mentioned in the written statement of the 1st defendant ? 5. Whether the possession of the plaint schedule property was delivered to the plaintiff by the defendant in pursuance of the alleged contract for sale ? 6. Whether the plaintiff is entitled to the damages of Rs.2000/- as claimed in the suit ? 7. Whether there is any legal necessity for the 1st defendant to sell the plaint schedule property to the plaintiff ? 8. Whether the agreement for sale dated 25-7-1982 is enforceable against the defendants 2 and 3 ? 9. To what relief ? 7. Evidence adduced by the parties: Witnesses examined for plaintiff : PW-1 – Dammalapati Subba Rao PW-2 – Adavi Veera Raghava Rao PW-3 – Gummadi Ratna Mohana Rao Witnesses examined for defendants : DW-1 – Bobuli Peda Nanchara Prasad DW-2 – Gudisava Reddamma DW-3 – Bobbili Somasekhara DW-4 – Nalajala Subhaschandra Bose Documents marked on behalf of plaintiff : Ex.A-1/25-7-1982 – Contract of sale executed by the defendants in favour of the plaintiff Ex.A-2/20-1-1982 – Pronote executed by 1st defendant in favour of Ravi Ram Babu Ex.A-3/8-12-1983 – Office copy of the registered notice issued by the plaintiff to the defendants Ex.A-4/26-12-1983 – Reply registered notice issued by 1st defendant’s Advocate to the plaintiff Ex.A-5/21-1-1983 – Land revenue receipt Ex.A-6/23-5-1983 - -do- Ex.A-7/25-7-1982 – Payment endorsement on Ex.A-2 written by PW-2 Documents marked on behalf of defendants : Ex.B-1/24-8-1972 – Pronote executed by DW-1 in favour of Chinta Appa Rao Ex.B-2/15-8-1975 – Pronote executed by DW-1 in favour of Chinta Appa Rao Ex.B-3/9-8-1978 - -do- Ex.B-4/9-8-1978 - -do- Ex.B-5/- Ryot Pass Book Ex.B-6/9-8-1981 Endorsement on Ex.B-4 Ex.B-7/1-8-1991 Endorsement on Ex.B-4 8. Findings recorded by the trial Court in nutshell: The learned Subordinate Judge, Machilipatnam, in the light of the respective pleadings of the parties, having settled the Issues as specified supra, recorded the evidence of PW-1 to PW-3, DW-1 to DW-4, marked Exs.A-1 to A-7 and Exs.B-1 to B-7 and ultimately came to the conclusion that on the ground of equity and justice in stead of ordering specific performance, the order of refund to be made and accordingly refund of an amount of Rs.28,000/- had been ordered. The learned Judge had referred to the recitals of Ex.A-1 and also appreciated the evidence of PW-1, PW-2 and PW-3 and also the evidence of DW-1, DW-2, DW-3 and DW-4 in detail at paras 7 to 13 while answering Issues 3 and 4 and ultimately came to the conclusion that for the reasons recorded by the learned Judge it was held that Ex.A.1 was executed as pointed out by the 1st defendant in his written statement but not as alleged in the plaint and hence answered these Issues against the plaintiff and in favour of the 1st defendant. The learned Judge further recorded reasons at para-14 while answering Issue No.5 and came to the conclusion that the plaintiff is not entitled to any injunction. While answering Issues 7 and 8 at para-15 the learned Judge came to the conclusion that Ex.A.1 is not binding on defendants 2 and 3 as permission was not obtained from the competent court as they had questioned the alienations. Further, the learned Judge recorded reasons in detail at para-16 while answering Issues 1 and 2 and ultimately came to the conclusion that the plaintiff is not entitled for the relief of specific performance, but equity requires that the amount of Rs.28,000/- which was paid by him to Ravi Rambabu and Chinta Appa Rao discharging the pronotes should be refunded to him and further observed that the plaintiff is not entitled for any interest because he is enjoying the usufruct of the land for all these years though no possession had been delivered to him by virtue of the order of injunction obtained by him and accordingly decreed the suit for refund of an amount of Rs.28,000/- with proportionate costs only. 9. 9. Contentions of Sri Movva Chandra Sekhar Rao: Sri Movva Chandra Sekhar Rao, the learned Counsel representing the appellant/plaintiff had taken this Court through the contents of Ex.A.1 and also the attempts made by DW-1 and further pointed out to the evidence of P.W.2 and P.W.3 apart from the evidence of P.W.1 and would maintain that in the light of the clear admission made by the 1st defendant relating to the execution of the agreement of sale Ex.A.1, the other aspects being immaterial, the findings recorded by the trial Court relating to the trivial discrepancies since would not seriously alter the situation, such findings cannot be sustained and in the facts and circumstances, the trial Court totally erred in negativing the relief of specific performance and in just granting the relief of refund only. The learned Counsel also pointed out to Exs.B-1, A-7 and A-2 and further pointed out to the relevant portions of the Judgment and the findings recorded by the trial Court and would maintain that the learned Judge totally erred in placing heavy reliance on the evidence of DW-2 in the absence of a plea in this regard. The Counsel also would maintain that it cannot be said that there was any material alteration of the agreement of sale. No specific plea in this regard had been taken in the written statement of the 1st defendant to the effect that the attestors and the scribe did not sign Ex.A.1 on the date of the execution. When that being so, in the absence of a plea any amount of evidence let in would be of no consequence. The Counsel also would maintain that on an irrelevant ground the relief of specific performance was negatived. The learned Counsel also would further maintain that the refund which had been ordered that portion of the decree had not been challenged since the 1st defendant had not chosen to prefer any Appeal whatsoever. The recitals of Ex.A.1 is to discharge earlier pronote debts. The learned Counsel also would further maintain that the refund which had been ordered that portion of the decree had not been challenged since the 1st defendant had not chosen to prefer any Appeal whatsoever. The recitals of Ex.A.1 is to discharge earlier pronote debts. When that being so, dismissal of the suit as against defendants 2 and 3 also cannot be sustained since they were minors at that time and since the father entered into Ex.A.1 transaction on behalf of the minors also, as father-cum-Manager of the joint family, inasmuch as the sons also are liable to discharge the debts of the father which are not tainted with illegality or immorality, negativing the relief of specific performance definitely cannot be sustained. The learned Counsel also would maintain that relating to the aspect of bona fide enquiries relating to the shares of the minors, there was no cross-examination and submissions made in this regard need no consideration by this Court. The Counsel also would maintain that the findings recorded in relation to the delivery of possession also cannot be sustained. Even if the consideration to be taken into consideration, the same being reasonable, there is no undue gain gained by the plaintiff and there is no undue hardship caused to the family of the 1st defendant. Even otherwise the 1st defendant’s family is left with substantial properties and hence in any view of the matter, the relief of specific performance to be granted. The learned Counsel also relied upon several decisions to substantiate his submissions. 10. Contentions of Sri M.V.S. Suresh Kumar: Sri M.V.S. Suresh Kumar, the learned Counsel representing respondents 4 to 6, the other legal representatives of the 1st defendant who were brought on record by virtue of the death of the 1st defendant made the following submissions. The learned Counsel pointed out to the contents of Exs.A-3 and A-4 and also further pointed out to the cause of action para of the plaint and further specifically pointed out to the averments made in the plaint and would maintain that the contents of the exchange of notices had not been properly explained in the pleading. The learned Counsel also pointed out to the discrepancies relating to the place of execution of Ex.A.1 and also the discrepancy relating to the dates, the date of purchase of the stamp and the date of the alleged execution. The learned Counsel also pointed out to the discrepancies relating to the place of execution of Ex.A.1 and also the discrepancy relating to the dates, the date of purchase of the stamp and the date of the alleged execution. The learned Counsel also pointed out to the conduct of the parties to be taken into consideration and further would maintain that there was no consensus ad idem between the parties. The non-furnishing of the copy of agreement of sale, though an attempt had been made, also is a doubtful circumstance. The learned Counsel also pointed out to the admission made by P.W.2, the scribe, to the effect that at the instance of Chinta Appa Rao, Ex.A.1 was written. For the reasons best known, the said Chinta Appa Rao was not examined. The learned Counsel also in all fairness had taken through the evidence of DW-2, the mediator which had been spoken to by DW-2 in detail and this aspect of mediation had been totally suppressed by the plaintiff. However, the learned Counsel pointed out to certain admissions made by P.W.1 relating to the attempts in the context of mediation, but in all fairness, would submit that a different version was given by P.W.1 in this regard. The learned Counsel also pointed out that the aspect of attestors not signing at the time of the alleged execution of the alleged agreement of sale which was deposed by DW-2, the same had not been seriously controverted in the cross-examination and hence it has to be taken as material alteration of Ex.A.1 and it is to be taken that the plaintiff did not approach the Court with clean hands and came to the Court with a false plea and hence on the strength of such document Ex.A.1, the relief of specific performance cannot be granted and hence the findings cannot be found fault. The Counsel also pointed out to the relevant portions of the evidence of D.W.1 and would maintain that Chinta Appa Rao, one of the attestors being behind the litigation, the non-examination of this Chinta Appa Rao, be taken serious note of. Ravi Rambabu, the other creditor, also was not examined. Several contradictions in the evidence of these witnesses also had been pointed out. Ravi Rambabu, the other creditor, also was not examined. Several contradictions in the evidence of these witnesses also had been pointed out. The learned Counsel in all thoroughness had taken this Court through the findings recorded by the trial Court and would maintain that it is no doubt true that the judicial discretion while ordering or negativing the relief of specific performance to be exercised judiciously, but however, in the light of the convincing reasons recorded by the trial Court, it cannot be said that the said discretion was exercised arbitrarily or capriciously and hence the said findings are to be confirmed. The Counsel in all fairness would maintain that no doubt as far as the refund is concerned, since on the ground of equity, the refund had been ordered, the same was not challenged by any independent Appeal by the 1st defendant and hence the present legal representatives cannot challenge the same in this Appeal. The learned Counsel also placed reliance on certain decisions to substantiate his submissions. 11. Contentions of Sri V.L.N.G.K. Murthy: Sri V.L.N.G.K. Murthy, the learned Counsel representing respondents 2 and 3, the then minor sons of the 1st defendant who had attained majority subsequent thereto, made several submissions relating to the power of the father-Manager of the joint family to make alienations. The learned Counsel also would maintain that these are pre-partition untainted personal debts of the father and the discretion conferred on the father in relation thereto had been elaborated and the concept of benefit of family and the concept of tainted debts or avyaharika debts also had been elaborated. The learned Counsel would maintain that this is not for the benefit of the estate and apart from it, relating to the bonafide enquiries to be made by a purchaser, the burden had not been discharged. The learned Counsel would maintain that this is not for the benefit of the estate and apart from it, relating to the bonafide enquiries to be made by a purchaser, the burden had not been discharged. The existence of legal necessity and the benefit of the family being sine qua non since care had not been taken to make bonafide enquiries and inasmuch as no acceptable evidence had been placed relating to the nature of debts and since the creditors Chinta Appa Rao and Ravi Rambabu were not examined, in the absence of acceptable evidence relating to the existence of legal necessity and the plaintiff being only the name lender of Chinta Appa Rao, not being the real purchaser, especially in the absence of non-examination of the said Chinta Appa Rao, the real person behind the whole episode, the findings recorded by the trial Court cannot be found fault and hence the said findings are to be confirmed. The learned Counsel also placed strong reliance on several decisions to substantiate his submissions. 12. Heard the Counsel, perused the oral and documentary evidence, the respective pleadings of the parties, the Issues settled, the evidence available on record and also the findings recorded by the trial Court. 13. Points for consideration: In the light of the submissions made by the Counsel on record, the following Points arise for consideration in this Appeal: 1. Whether the findings recorded by the trial Court relating to the negativing of the relief of specific performance prayed for on the strength of Ex.A-1 to be confirmed or to be disturbed or to be modified in the facts and circumstances of the case ? 2. Whether the findings recorded by the trial Court in relation to the negativing of the relief of injunction to be confirmed or to be disturbed in the facts and circumstances of the case ? 3. Whether the findings recorded by the trial Court ordering the relief of refund of the consideration to be disturbed or to be confirmed in the facts and circumstances of the case ?’ 4. If so to what relief the parties would be entitled to ? 14. Point Nos.1 to 3 : For the purpose of convenience, these Points are to be discussed together and the parties hereinafter would be referred to as arrayed before the original Court. If so to what relief the parties would be entitled to ? 14. Point Nos.1 to 3 : For the purpose of convenience, these Points are to be discussed together and the parties hereinafter would be referred to as arrayed before the original Court. It is needless to say that the unsuccessful plaintiff being aggrieved of the negativing of the relief of specific performance had preferred the present Appeal. 15. The pleadings of the parties, the evidence available on record and also the findings recorded by the trial Court in brief, already had been specified supra. The missing of certain of the documents also had been referred to above. P.W.1 deposed in detail relating to the averments made in the plaint. P.W.2, the scribe of Ex.A.1 and also the scribe of Ex.A-7, supported the version of P.W.1. P.W.3, the attestor of Ex.A.1 and also Ex.A-7, substantially supported the version of P.W.1. The 1st defendant examined himself as DW-1 who had deposed in detail in relation to the stand taken by him in his written statement. D.W.1, the mediator, deposed about the mediation and also Chinta Appa Rao, bringing the agreement and showing it to him at the time of mediation and non obtaining of signatures of attestors and the Chinta Appa Rao challenging him that he will obtain the signatures subsequently. DW-3 is the 2nd defendant in the suit who deposed on behalf of the 3rd defendant, his younger brother also, who no doubt deposed that his father had no vices and again deposed that his father had vices. DW-4 deposed about Chinta Appa Rao entering into possession of the land under the guise of an order of injunction. Ex.A.1 is the contract of sale dated 25-7-1982, Ex.A.2 is the promissory note executed by 1st defendant in favour of Ravi Rambabu dated 20-1-1982, Ex.A.3 is the office copy of registered notice issued by the plaintiff to the defendant dated 8-12-1983, Ex.A-4 is the reply notice issued by the Counsel for 1st defendant dated 26-12-1983, Ex.A-5 and A-6 are land revenue receipts, Ex.A-7 is the payment endorsement of Ex.A-2 written by PW-2, dated 25-7-1982. Likewise, Exs.B-1, B-2, B-3 and B-4 are pronotes dated 24-8-1972, 15-8-1975, 9-8-1975 and 9-8-1978 respectively. Ex.B-5 is the ryot passbook, Ex.B-6 is endorsement on Ex.B-4, Ex.B-7 is yet another endorsement on Ex.B-4. This is the oral and documentary evidence available on record. 16. Likewise, Exs.B-1, B-2, B-3 and B-4 are pronotes dated 24-8-1972, 15-8-1975, 9-8-1975 and 9-8-1978 respectively. Ex.B-5 is the ryot passbook, Ex.B-6 is endorsement on Ex.B-4, Ex.B-7 is yet another endorsement on Ex.B-4. This is the oral and documentary evidence available on record. 16. The trial Court while appreciating Ex.A.1 and also Ex.A-7 in the light of the evidence of P.W.1 and P.W.2 in particular, apart from the evidence of P.W.3, recorded reasons in detail, pointed out the discrepancies in the dates of purchase of stamps and the date of alleged execution and also the difference of ink. No doubt, there is an admission relating to the execution of Ex.A.1 by D.W.1. However, this admission to be appreciated in the light of the whole evidence of D.W.1 and a stray sentence cannot be taken into consideration. His specific case is that his signatures had been obtained when he was at fields and it is also his case that in relation to the monetary transactions Chinta Appa Rao obtained his signatures. 17. P.W.1 deposed that P.W.1 purchased Acs.3-15 cents from the 1st defendant and the 1st defendant sold the land to discharge his debts and also he was in need of the amount. Ex.A.1 is the agreement of sale executed by the 1st defendant on his behalf and also on behalf of defendants 2 and 3 as guardian. Rate of one acre was settled at Rs.9000/- and he discharged pronote debts of Chinta Appa Rao and Raavi Rambabu and obtained the discharged pronotes and vouchers. Ex.A.2 is the discharge pronote given to him by Ravi Rambabu as a voucher. The discharged pronote of Chinta Appa Rao is misplaced by him. He paid cash of Rs.790/- on the date of Ex.A.1. Ex.A.1 was written and executed at the house of Chinta Appa Rao in Chigurukota village. Veera Raghava Rao is the scribe of Ex.A.1. Gummadi Ratnamohana Rao and Chinta Appa Rao had attested Ex.A.1. Possession was delivered to him on the date of Ex.A.1 and he is continuing in possession. He raised paddy and sugarcane crops. His income will be Rs.40,000/- per year. The 1st defendant is having another Acs.20-00 of land. PW-1 got issued a notice through his Advocate to the 1st defendant demanding him to execute the sale deed. Ex.A-3 is the office copy of the said notice. The 1st defendant got issued a reply notice marked as Ex.A-4. His income will be Rs.40,000/- per year. The 1st defendant is having another Acs.20-00 of land. PW-1 got issued a notice through his Advocate to the 1st defendant demanding him to execute the sale deed. Ex.A-3 is the office copy of the said notice. The 1st defendant got issued a reply notice marked as Ex.A-4. PW-1 also deposed that he does not know anything about the dealings in between Appa Rao and the 1st defendant. This witness no doubt denied the suggestion to the effect that it is not true to suggest that possession of land was not delivered to him and he obtained signatures on blank papers. Exs.A-5 and A-6 are the cist receipts. Hence the suit for specific performance was filed. In the cross-examination for the 1st defendant, this witness – PW-1 deposed that he did not enquire as to what is the exact amount due by the 1st defendant to others on the date of Ex.A-1 and he does not know whether all the debts of the 1st defendant would be fully discharged by the sale consideration paid by him. PW-1 further deposed that except Chinta Appa Rao and Ravi Rambabu he does not know other creditors of the 1st defendant. The sale talks had taken place 10 or 15 days prior to the date of Ex.A-1 and he had not seen the title deed of the 1st defendant showing his title in respect of the suit Schedule property. He did not try to enquire whether the 1st defendant had got any right, title or interest in the Schedule land. He did not try to obtain encumbrance certificate from the Registrar’s office. PW-1 further deposed that he believed the word of the 1st defendant and he purchased the land. The scribe told him the survey number. At the time of execution of Ex.A-1 the scribe perused some document relating to the 1st defendant and he does not know what is that document and he had not seen the same. PW-1 further deposed that the sale talks were finalized through Chinta Appa Rao. He purchased stamps two years prior to Ex.A-1 because he wanted to purchase lands in those days. PW-1 deposed that the lands he proposed to purchase were not known to him and since then those stamp papers were with him. PW-1 further deposed that the sale talks were finalized through Chinta Appa Rao. He purchased stamps two years prior to Ex.A-1 because he wanted to purchase lands in those days. PW-1 deposed that the lands he proposed to purchase were not known to him and since then those stamp papers were with him. He further deposed that there is no term that the 1st defendant should obtain permission to alienate his minors lands from competent Court. The pronote debt of Ravi Rambabu was discharged on the date of Ex.A-1 itself. The debt of Chinta Appa Rao also was discharged on the same day. PW-1 did not try to know the arrears of land revenue for the suit land by the date of Ex.A-1. Even thereafter he did not try to know the arrears of land revenue. He paid the amounts to his elder brother who in turn paid the amounts under Exs.A-5 and A-6. PW-1 further deposed that he purchased the stamps used for drafting Ex.A-1 at Gudivada. Chinta Appa Rao is closely related to him. PW-1 also deposed that he does knot know whether he is doing money lending business. It is pertinent to note that this witness deposed that he dies not know Gudivada Reddemma s/o.Ramaiah and Goppallapudi Panduranga Rao and he did not send the Photostat copy of the agreement as demanded by the 1st defendant in Ex.A-4. He filed the suit five or six months after the receipt of Ex.A-4 reply. The land was not measured on the date of contract. The land was fallow on that day. There are no field channels on the Northern and Southern side of the land to irrigate this land. PW-1 also deposed about certain other further particulars relating to these lands. It was also recited in the contract that after taking the measurements of the land the amount to be adjusted. If the extent is more PW-1 should pay the balance amount and if the extent is less the 1st defendant should return the amount. Ravi Rambabu is the son of Chinta Appa Rao’s sister. Ravi Rambabu is also his cousin sister’s son. PW-1 did not file the suit immediately after receipt of Ex.A-4 reply as he was engaged otherwise and also there were attempts for settlement. The attestors of Ex.A-1 had tried to settle the matter. Ravi Rambabu is the son of Chinta Appa Rao’s sister. Ravi Rambabu is also his cousin sister’s son. PW-1 did not file the suit immediately after receipt of Ex.A-4 reply as he was engaged otherwise and also there were attempts for settlement. The attestors of Ex.A-1 had tried to settle the matter. The 2nd attestor is not known to him as he had no acquaintance as he was brought by Chinta Appa Rao. PW-1 also deposed that he does not know the amount of Court fee paid by him in the suit. PW-1 and Chinta Appa Rao had given instructions for drafting the plaint. PW-1’s brother Chinta Radha Krishna is cultivating the suit land on his behalf and he is a resident of Chigurukota. PW-1 also deposed about the obstruction caused and no doubt denied the suggestion that the 1st defendant never delivered possession of the suit land to him and that after obtaining exparte injunction only he entered into the land. PW-1 also denied the suggestion that when the 1st defendant put his signature in Ex.A-1, the attestors had not seen and these signatures were obtained subsequently. The other suggestions also had been denied. In the cross-examination for defendants 2 and 3, no doubt this witness PW-1 deposed that it is not true to suggest that he is not in possession of the suit land. He further deposed that personally he is not aware why the 1st defendant borrowed the amounts and that he (PW-1) personally do not know that the amounts borrowed by him was for joint family or not. Certain other suggestions also had been denied and no doubt this witness deposed that it is not true to suggest that the 1st defendant had no necessity of selling the joint family lands. 18. PW-2, the scribe of Exs.A-1 and A-7, deposed about the execution of Ex.A-1 and also scribing of the discharge endorsement Ex.A-7. The 1st defendant belongs to Ayyavari Rudravaram which is one mile away from the village of PW-2. The 1st defendant had given him the survey numbers and other particulars and the same were written by him in Ex.A-1. Gummadi Ratnamohan Rao and Chinta Appa Rao attested Ex.A-1. In the cross-examination this witness deposed that at the instance of Chinta Appa Rao he wrote Ex.A-1. He had not seen the land. PW-1 also deposed that PW-1 gave stamp papers for writing the agreement. Gummadi Ratnamohan Rao and Chinta Appa Rao attested Ex.A-1. In the cross-examination this witness deposed that at the instance of Chinta Appa Rao he wrote Ex.A-1. He had not seen the land. PW-1 also deposed that PW-1 gave stamp papers for writing the agreement. PW-1 is the brother of Chinta Appa Rao. Ex.A-1 was written about 12 noon on that day. PW-2 was working as village Karanam on the date of Ex.A-1. This witness scribed the entire Ex.A-1 with his own pen. This witness also deposed that he is not aware of the obtaining of permission of Court for minors property to be sold. After completion of writing the 1st defendant signed on Ex.A-1 and after the attestors had signed, he had put his signature as the scribe immediately. PW-2 further deposed that no time was fixed for registering sale deed. The 1st defendant did not show him any encumbrance certificate. He further deposed that usually he would not put his signature as scribe of a document unless the executant and the attestors sign on the document. After completion of Ex.A-1, PW-2 scribed Ex.A-7. The ink used for scribing Ex.A-1 and Ex.A-7 is one and the same. No doubt the suggestions put this witness relating to the genuineness of Ex.A-1 was specifically denied. This witness deposed that the 1st defendant, the plaintiff and both the attestors and PW-2 alone were present at the time of scribing of Ex.A-1. PW-2 used to maintain register for scribing documents only but not agreements. He was having licence till 1983. He also deposed that there is no mention in Ex.A-1 that there is no necessity to execute a registered sale deed and Ex.A-1 can be also treated as a regular document. He further deposed that only to discharge the debts of Chinta Appa Rao and Ravi Rambabu the 1st defendant had to sell the land. He does not know whether the 1st defendant is indebted to others. He further deposed that it is not true to suggest that the 1st defendant did not sign Ex.A-1 in his presence and this witness also deposed that it is not true to suggest that the 1st defendant did not sign in Ex.A-1 and he did not put his signature on that day on Ex.A-1. 19. PW-3 is the attestor of Ex.A-1. He deposed that he is the attestor of Ex.A-1 and Appa Rao is the other attestor. 19. PW-3 is the attestor of Ex.A-1. He deposed that he is the attestor of Ex.A-1 and Appa Rao is the other attestor. He further deposed that the 1st defendant signed in Ex.A-1 in his presence on behalf of himself and also on behalf of the minors. After they attested, PW-2 put his signature as scribe. Ex.A-1 was written at the house of Appa Rao. PW-3 attested Ex.A-7 also. In the cross examination, PW-3 deposed that adjacent to Schedule land, the 1st defendant is having Acs.10.00 of land. He had attested Ex.A-1 at the instance and immediately attested Ex.A-7. After execution of Ex.A-1, PW-3, the 1st defendant, Chinta Appa Rao and the plaintiff went to the Schedule land in a tractor. No measurements were taken of the Schedule land and the land was not measured. They had seen the plaint Schedule land in two plots and the land was ready for transplantation. It was agreed that the measurement should be taken subsequently. PW-3 further deposed that Chinta Appa Rao is not doing money lending business except giving hand loans of Rs.50/- or Rs.100/- to his near relations. Ravi Rambabu is the sister’s son of Chinta Appa Rao. Chinta Appa Rao is not doing money lending business in the name of Ravi Rambabu and others. Ravi Rambabu is also not doing money business. Chinta Appa Rao is closely related to the plaintiff and the plaintiff will be coming occasionally to his house. PW-3 further deposed that there is difference in ink in his signature in Exs.A-1 and A-7. PW-2 signed on Ex.A-1 immediately after they signed on it. He further deposed that it is not true to suggest that he did not sign immediately on the day of execution of Ex.A-1 and the ink was spread in his signature as he signed it subsequently. He signed with ink pen in Ex.A-1 and with ball pen on Ex.A-7 since he could not write properly with ink. Appa Rao signed with pen in Ex.A-1. Appa Rao used only one pen to sign in Exs.A-1 and A-7. This witness further deposed that he does not know whether PW-2 changed his pen to put his signature in Ex.A-1. He signed with ink pen in Ex.A-1 and with ball pen on Ex.A-7 since he could not write properly with ink. Appa Rao signed with pen in Ex.A-1. Appa Rao used only one pen to sign in Exs.A-1 and A-7. This witness further deposed that he does not know whether PW-2 changed his pen to put his signature in Ex.A-1. No doubt he deposed that it is not true to suggest that in his presence nothing happened and he signed as attestor in both Exs.A-1 and A-7 just before filing the suit and that he was deposing falsely. The other suggestions also had been denied. In the cross-examination for defendants 2 and 3 he deposed that he knows that the 1st defendant got lands from his father and these are ancestral properties. This witness is not related to Chinta Appa Rao and several suggestions no doubt had been denied. 20. The 1st defendant as DW-1, as already aforesaid, deposed in detail the stand taken by him in the written statement. He deposed about Exs.B-1 to B-4, the discharge pronote dated 22-4-1972, 15-8-1975, 9-8-1975 and 9-8-1975 respectively. In the year 1972 Chinta Appa Rao obtained twopronotes one in his name and the other in the name of Ravi Rambabu. Ex.A-2 is the pronote executed by DW-1 in favour of Ravi Rambabu. Doppalapudi Ranga Rao and Doppalapudi Satyanarayana are the attestors of Exs.B-1 and B-4. DW-1 had written all the pronotes in his hand. Ex.B-4 stood in the name of the plaintiff and Chinta Appa Rao endorsed that he received the amount paid by DW-1. The plaintiff also signed on the reverse of Ex.A-4 without any endorsement or writings. Ex.B-5 is the ryot pass book issued to him by the Government in the year 1983. DW-1 put his signature on the agreement in his hand and he does not know why it was got executed by Chinta Appa Rao. When he put his signature on Ex.A-1, PW-2 and PW-3 were not present. No amount was paid to him under Ex.A-1. The land was in his possession till the suit was filed. The plaintiff obtained possession under the guise of injunction orders obtained from the court. D.Pandu Ranga Rao and Gudise Reddemma acted as mediators to settle the dispute before filing of the suit but the matter could not be settled. No amount was paid to him under Ex.A-1. The land was in his possession till the suit was filed. The plaintiff obtained possession under the guise of injunction orders obtained from the court. D.Pandu Ranga Rao and Gudise Reddemma acted as mediators to settle the dispute before filing of the suit but the matter could not be settled. Ex.A-1 is not beneficial to DW-1 and his sons defendants 2 and 3. DW-1 got issued a reply to a notice given by the plaintiff prior to the filing of the suit. In the cross-examination of defendants 2 and 3, this witness DW-1 deposed that all his properties are ancestral properties and the amounts borrowed by him were not spent for his family and he did not receive any amount under Ex.A-1 towards consideration and his sons do not know about Ex.A-1. In the cross-examination by the plaintiff DW-1 deposed about the partition and this witness got Acs.20-00 of land to his share. He further deposed that he had acquaintance with Chinta Appa Rao for about 35 years since he got land adjacent to his land and he personally cultivates his land. DW-1 also deposed about Exs.B-1, B-2, B-3 and B-4. Ex.B-4 shows that Chinta Appa Rao has something to do with it. The endorsement made on the reverse of Ex.B-4 by Chinta Appa Rao that he received the amount is not correct. Ex.B-6 is the endorsement made on the reverse of Ex.B-4 by Chinta Appa Rao. This witness no doubt added that towards the endorsement he executed two pronotes. Exs.B-1 to B-4 are in his possession eversince they were returned by him. Ex.B-6 is dated 9-8-1981. Ex.B-7 was written by DW-1 on 1-8-1981. Ex.B-4 was given to him on 1-8-1981. He does not remember the dates in his pronotes obtained by Appa Rao, but one pronote was obtained in his name for Rs.20,000/- and another pronote in the name of Ravi Rambabu. DW-1 further deposed that he knows the contents of Exs.B-1 to B-4, B-6 and B-7. Some cross-examination was done relating to renewal, maintenance of accounts and other aspects. This witness no doubt deposed that it is true that agreement was obtained by Appa Rao for discharge of the two pronote debts. DW-1 further deposed that PW-2 is a resident of Chigurukota which is two miles from his village. This witness does not know PW-2 till about 1988. This witness no doubt deposed that it is true that agreement was obtained by Appa Rao for discharge of the two pronote debts. DW-1 further deposed that PW-2 is a resident of Chigurukota which is two miles from his village. This witness does not know PW-2 till about 1988. Appa Rao owns a house in Chigurukota village. He knows that Chinta Appa Rao obtained Ex.A-1 in the name of Dammalapati Subba Rao. DW-1 further deposed that two years after obtaining Ex.A-1 as security Chinta Appa Rao reminded him to repay the amount and he told him that he will discharge the debt. Chinta Appa Rao told DW-1 that if he failed to pay the debt he will take possession of the land. DW-1 told Chinta Appa Rao that he will not give the land but he will pay the amount somehow. When this witness demanded Appa Rao to bring the agreement Appa Rao refused to show it to him. One day prior to Ex.A-1 there were talks between DW-1 and Appa Rao and Appa Rao told DW-1 that he will obtain a contract of sale and after discharging the amount he will cancel the contract of sale. DW-1 executed Ex.A-1 only on the assurance given by Appa Rao as aforesaid. This witness does not remember whether the above facts were not mentioned by him in Ex.A-4. By the date of Ex.A-1 he was due Rs.28,000/- to Appa Rao. He does not know the contents of Ex.A-4 issued by his Advocate. The first attestor of Ex.A-1 i.e., PW-3, is the son in law of somebody from Chigurukota village. This witness further deposed that he borrowed Rs.500/- for his vices. He also borrowed six bags of paddy from Chinta Appa Rao and repaid it. He lost the previous pronotes in cyclone. He further deposed that except the crop loan with the Bank he is not indebted to any others. The other suggestions had been denied. 21. DW-2 no doubt is an important witness who deposed about the mediation. He deposed that the 1st defendant had no necessity to sell his land in the year 1982 and Chinta Appa Rao showed DW-2 one agreement and also told that he obtained the agreement towards discharge of pronote debt and if the 1st defendant pays the amount due under the pronote then the agreement will be cancelled. He deposed that the 1st defendant had no necessity to sell his land in the year 1982 and Chinta Appa Rao showed DW-2 one agreement and also told that he obtained the agreement towards discharge of pronote debt and if the 1st defendant pays the amount due under the pronote then the agreement will be cancelled. DW-2 specifically deposed that Chinta Appa Rao showed him the agreement at the time of mediation and at that time only the signature of the 1st defendant put his signature on it. When he asked Chinta Appa Rao why he did not obtain signatures of attestors, he told that he will obtain the signatures subsequently. The matter could not be settled and as such Chinta Appa Rao got filed the suit. In the cross-examination this witness DW-2 no doubt deposed that at present the suit land is in the possession of Appa Rao and it is not true to say that the market value of the land is only Rs.9000/- per acre but not Rs.12,000/- and it is not true to suggest that he never acted as mediator and at the instance of the 1st defendant he is speaking falsehood. This witness no doubt deposed that the efforts for settlement failed. This witness no doubt deposed that he settled disputes in Chigurukota village and relating to calculation of interest and other aspects certain questions were put this witness. 22. DW-3 is the 2nd defendant in the suit who deposed that he was studying Law and he was not married by that time. His father was not looking after him. No doubt this witness deposed that as his father was addicted to vices pronotes were obtained from him for higher amounts. 23. DW-4 deposed that he owns Acs.20-00 of land and he knows DW-1 and also Chinta Appa Rao. Appa Rao got lands and he also does money lending business. He further deposed that the Schedule land is in possession of Appa Rao since the first crop of 1984. Appa Rao entered into possession of the land under the guise of injunction order. Prior to that DW-1 was in possession of the land. This witness was cross-examined and certain of the suggestions put to him were denied. 24. He further deposed that the Schedule land is in possession of Appa Rao since the first crop of 1984. Appa Rao entered into possession of the land under the guise of injunction order. Prior to that DW-1 was in possession of the land. This witness was cross-examined and certain of the suggestions put to him were denied. 24. As already aforesaid, on appreciation of the evidence, several discrepancies in relation to Ex.A-1 and Ex.A-7 in particular and also the documents Exs.B-1 to B-7 had been taken into consideration and the contradictions in the evidence of PW-1, PW-2 and PW-3, especially in the context of the evidence of DW-1 and DW-2 and DW-4 in particular, had been discussed in elaboration and findings had been recorded by the trial Court that Ex.A-1 came into existence in the circumstances explained by the 1st defendant and this is the only conclusion which can be arrived at in the light of several attending circumstances and also the conduct of the parties and ultimately only refund of Rs.28,000/- simplicitor had been ordered without even granting interest in view of the fact that by virtue of the interim injunction the plaintiff had been continuing in possession. 25. The Counsel on record also relied upon several decisions and the copies of the missing documents also had been placed before this Court. In the light of the submissions made in elaboration, inasmuch as the principal question to be decided is whether the principal relief of specific performance to be granted in lieu of refund which had been ordered by the trial Court, it has to be seen whether the discretion exercised by the trial Court in ordering refund only can be said to have been judicially exercised or whether the same had been exercised in an arbitrary and capricious fashion so as to warrant interference by the appellate Court. The oral and documentary evidence available on record already had been discussed supra. 26. The oral and documentary evidence available on record already had been discussed supra. 26. Before discussing the decisions which had been strongly relied upon by the Counsel on record, certain of the essentials which had been pointed out in the evidence available on record may have to be noted and the said essentials are as hereunder: Ø No specific plea relating to the alleged settlement deposed by DW-2 and another had been pleaded in the written statement of the 1st defendant Ø No doubt the evidence of DW-2 is available on record Ø PW-1 deposed that he did not file the suit immediately after receipt of Ex.A-4 reply as he was engaged otherwise and also as there were attempts for settlement. The attestors of Ex.A-1 tried to settle the matter. Hence attempts made to settle the matter in a way had been admitted by PW-1, but in a different tone and in a different fashion Ø 1st defendant – the father, executed Ex.A-1 on behalf of defendants 2 and 3, the sons who were then minors Ø Plaintiff/PW-1 belongs to Sasanenivaripalem. Defendants belong to Ayyavari Rudravaram. Ø Chigurukota village is at a distance of two miles from Ayyavari Rudravaram Ø Chinta Appa Rao belongs to Chigurukota village Ø Recitals of Ex.A-1 already had been specified supra and no doubt the same was obtained for discharge of debts of Chinta Appa Rao and Ravi Rambabu Ø Chinta Appa Rao was not examined Ø Exs.B-1 to B-4 also are available on record Ø Admission of PW-1 is that Ex.A-1 was executed at the house of Chinta Appa Rao Ø PW-1, though a close relative of Chinta Appa Rao, does not know anything about the dealings between Appa Rao and the 1st defendant Ø PW-1 did not see even the title deeds of the 1st defendant Ø PW-1 did not obtain encumbrance certificate Ø Chinta Appa Rao and the scribe told PW-1 that PW-1 can purchase the land Ø PW-1 purchased stamps two years prior to Ex.A-1 since he wanted to purchase the lands inthose days Ø PW-1 deposed that he does not know Reddemma and Pandu Ranga Rao Ø PW-1 and Appa Rao gave instructions to draft the plaint Ø PW-1 is not aware of even the quantum of Court fee paid on the plaint Ø PW-2 deposed that Ex.A-1 was executed at the house of Appa Rao. He is the scribe of Exs.A-1 and A-7. PW-2 deposed that himself and Appa Rao attested. At the instance of Appa Rao PW-2 wrote Ex.A-1. There are certain admissions made by PW-2 relating to ink for scribing of Exs.A-1 and A-7. PW-2 deposed that the 1st defendant, plaintiff, both the attestors and the scribe alone were present at the time of scribing of Ex.A-1. Ø PW-3, the attestor of Exs.A-1 and A-7 also deposed that Ex.A-1 was executed at the house of Appa Rao. After the marriage, PW-3 settled at Chigurukota. Ø Ravi Rambabu is the sister’s son of Chinta Appa Rao Ø DW-1 deposed that the properties are ancestral properties and the signature was admitted Ø DW-1 deposed that PW-2 and PW-3 were not present at that time Ø The land was in the possession of DW-1 till the filing of the suit. After obtaining injunction possession had been taken. DW-1 also deposed that DW-1 was due Rs.28,000/- to Appa Rao. It is true that agreement was obtained by Appa Rao for discharge of two pronote debts Ø DW-4 deposed that Appa Rao does money lending business. Ø DW-4 deposed that land was in the possession of Appa Rao and how Appa Rao came into possession of this land. 27. In the light of the aforesaid essentials, the conduct of the parties and whether there was consensus ad idem and whether Ex.A-1 had been materially altered and whether this alteration had caused any prejudice so as to negative the relief of specific performance also may have to be decided. 28. The motive which had paved the way to Ex.A-1 originate from the monetary transactions of Appa Rao and another, is not in serious controversy. No doubt there are two versions – one by the 1st defendant/DW-1 and another by the plaintiff/PW-1. While balancing the exercise of discretion the trial Court in stead of ordering the relief of specific performance, the principal relief, preferred to order refund of the amount in the light of the admission made by DW-1 in this regard. Whether this ordering of refund in stead of ordering specific performance can be found fault by this Court is the crucial question. Sound judicial discretion to be one to answer reason. Reasonableness to be favoured to unreasonableness and just to be favoured to unjust. Whether this ordering of refund in stead of ordering specific performance can be found fault by this Court is the crucial question. Sound judicial discretion to be one to answer reason. Reasonableness to be favoured to unreasonableness and just to be favoured to unjust. The discretion to be exercised to be judicious and not to be arbitrary and capricious. The factors to be considered already had been specified supra and while evaluating the balancing factors, it has to be seen whether the exercise of judicial discretion had been exercised by the trial Court properly or not. 29. Sri Movva Chandrasekhar Rao placed strong reliance on Subramanyam Vs. Subba Rao (AIR 1948 P.C. 95), Suryaprakasam Vs. Gangaraju (AIR 1956 Andhra 33 (FB)) and Faqir Chand Vs.Sardarni Harnam Kaur (dead) represented by her Lrs. and others ( AIR 1967 S.C. 727 ) wherein the Apex Court at paras 4, 5 and 6 held : “The second proposition laid down in Brij Narain's case 51 Ind App 129: (AIR 1024 PC 50) is founded upon the pious obligation of a Hindu son limited to his interest in the joint family property to pay the debt contracted by the father for his own benefit and not for any immoral or illegal purpose. By incurring the debt, the father enables the creditor to sell the property in execution of a decree against him for payment of the debt. The son is under a pious obligation to pay all debts of the father, whether secured or unsecured. We think that the second proposition applies not only to an unsecured debt but also to a mortgage debt which the father is personally liable to pay. This conclusion is supported by the opinion of Sulaiman, A. C. J. in Jagdish Prasad v. Hoshyar Singh, ILR 51 All 136 at pp. 136, 138-140: (AIR 1928 All.596 at pp. 596-597) (FB) and the opinions expressed in Bharmappa Murdeppa v. Hanmantappa Tippanna, ILR (1943) Bom 568 at p. 572: (AIR 1943 Bom 451 at p. 452), Hira Lal v. Puran Chand , AIR 1949 All 685 at p. 687 (FB); Abdul Hameed Sait v. Provident Investment Co. Ltd., ILR (1954) Mad 939 at p. 954: ( AIR 1954 Mad 961 at p. 977). Ltd., ILR (1954) Mad 939 at p. 954: ( AIR 1954 Mad 961 at p. 977). In Hira Lal's case, AIR 1949 All 685, Misra, J. observed: "A debt secured by a mortgage, it seems almost aximotic is as much a debt of the father as an unsecured debt and considered in the light of the spiritual need which the doctrine of pious obligation was designed to meet, there would, in principle, be scarcely any difference between the two transactions. The security would merely provide a means of recovery, and if the payment of a debt is obligatory on the debtor, and therefore on his sons, the payment of a mortgage debt is also morally and religiously obligatory.", In Jagdish Prasad's case ILR 51 All 136 (AIR 1928 All 596) (FB) Mukerji and Boys, JJ. took the view that the second proposition did not apply to a mortgage debt, but we are unable to agree with this opinion. In ILR (1943) Bom 568: (AIR 1943 Bom 451), Beaumont, C. J. said that the second proposition in Brij Narain's case, 51 Ind App 129: (AIR 1924 PC 50) did not apply to the recovery of a debt in its character as a mortgage debt, and a decree for payment of the debt by sale of the property could not be enforced by sale of the son's interest in it, but if a personal decree is obtained against the father then that decree might be so enforced. He, however, pointed out that this view would compel the creditor to recover the debt in two stages. A similar opinion was expressed in Ganpati v. Rameshwar ILR 1946 Nag 741 at p. 749: (AIR 1947 Nag 69). We are not inclined to confine the second proposition within such narrow limits. It is the existence of the father's debt that enables the creditor to sell the property in execution of a money decree against the father. Likewise, if a mortgage decree against the father directs the sale of the property for the payment of his debt, the creditor may sell the property in execution of the decree. It is true that the procedure for the execution of a money decree is different from that for the enforcement of a mortgage decree. A money decree is executed by attachment and sale of the debtor's property. It is true that the procedure for the execution of a money decree is different from that for the enforcement of a mortgage decree. A money decree is executed by attachment and sale of the debtor's property. For the execution of the mortgage decree, an attachment of the property is not necessary and the property is sold by force of the decree. But this distinction in procedure does not affect the pious obligation of a Hindu son to pay his father's debt. As in the case of a money decree, under a mortgage decree also the property is sold for payment of the father's debt. The father could voluntarily sell the property for payment of his debt. If there is no voluntary sale by the father, the creditor can ask the Court to do compulsorily what the father could have done voluntarily. The theory is that as the father may, in order to pay a just debt, legally sell the whole estate without suit; so his creditor may bring about such a sale by the intervention of a suit. See Ramasamayyan v. Virasami Ayyar, (1898) ILR 21 Mad 222). Even where the mortgage is not for legal necessity or for payment of an antecedent debt, the creditor can, in execution of a mortgage decree for the realisation of a debt which the father is personally liable to repay, sell the estate without obtaining a personal decree against him. After the sale has taken place, the son is bound by the sale, unless he shows that the debt was non-existent or was tainted with immorality or illegality; see Bhagbut Pershad v. Mt. Girja Koer (1888) ILR 15 Cal 717 (PC). After the sale has taken place, the son is bound by the sale, unless he shows that the debt was non-existent or was tainted with immorality or illegality; see Bhagbut Pershad v. Mt. Girja Koer (1888) ILR 15 Cal 717 (PC). In the earlier case of Suraj Bunsi Koer v. Sheo Proshad Singh, (1878) ILR 5 Cal 148 (PC) also, the Judicial Committee had clearly laid down: "That where joint ancestral property has passed out of a joint family either under a conveyance executed by a father in consideration of an antecedent debt, or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father's debt, his sons, by reason of their duty to pay their father's debts, cannot recover that property, unless they show that the debts were contracted for immoral purposes, and that the purchasers had notice that they were so contracted." In Jagdish Prasad's case, ILR 51 All 136: (AIR 1928 All 596) (FB), Sulaiman, A. C. J. took the view that the second proposition in Brij Narain's case, 51 Ind App 129: (AIR 1924 PC 50) did not apply where the sale had not taken place and the property had not yet passed out of the family. In Abdul Hameed Sait's case, ILR (1954) Mad 939: ( AIR 1954 Mad 961 ) (FB), Subba Rao, J. (as he then was), said at p. 955 (of ILR Mad): (at p. 977 of AIR): "I would, therefore, confine the operation of the second proposition only to a case where joint family property is sold in execution of a decree, whether it is a mortgage decree or a simple decree." We are unable to accept this view. The second proposition applies not only after but also before the sale is held. It is well settled that the second proposition applies in the case of a money decree for payment of the debt before the sale is held, and we see no reason why it should not so apply in the case of a mortgage decree for payment of the debt by the sale of the property. If there is a just debt owing by the father, it is open to the creditor to realise the debt by the sale of the property in execution of the mortgage decree. If there is a just debt owing by the father, it is open to the creditor to realise the debt by the sale of the property in execution of the mortgage decree. The son has no right to interfere with the execution of the decree or with the sale of the property in execration proceedings, unless he can show that the debt for which the property is sold is either non-existent or is tainted with immorality or illegality. It follows that the appellant is not entitled to restrain the sale of his interest in the property in execution of the mortgage decree for sale.” 30. In the decision referred (2) supra it was held at paras 19 and 59 as hereunder:- “Pausing here for a moment let me restate the principles. A minor has no legal competency to enter into a contract or authorize another to do so on his behalf. A guardian therefore steps in to supplement the minor’s defective capacity. Capacity is the creation of law whereas authority is derived from the act of parties. The limit and extent of his capacity are conditioned by Hindu law. He can only function within the doctrine of legal necessity or benefit. The validity of the transaction is judged with reference to the scope of his power to enter into a contract on behalf of the minor. Even the personal liability arising out of the guardian’s contract is the liability of the minor’s estate only. …… …….. Before concluding it is as well that I should express my opinion on a question that might incidentally arise. The question is whether the transaction should stand the test of the doctrine of necessity and benefit even on the date when the Court seeks to enforce it. To put differently, is it necessary that the validity of the transaction should depend upon the facts and circumstances existing on the date of the Court’s decree as if the sale deed was executed on that date ? I have held that if the contract of sale was for necessity or for the benefit of the minor, it would be valid and enforceable. The competency of the guardian to enter into a valid contract is conditioned by the existence of facts attracting the aforesaid doctrine. Once the condition is fulfilled, the competency to execute it is complete. I have held that if the contract of sale was for necessity or for the benefit of the minor, it would be valid and enforceable. The competency of the guardian to enter into a valid contract is conditioned by the existence of facts attracting the aforesaid doctrine. Once the condition is fulfilled, the competency to execute it is complete. If that is conceded, it becomes enforceable and the supervening circumstances cannot invalidate it. But the existence of a valid and enforceable contract cannot in itself deprive the Court of its discretionary power to refuse to enforce the contract. If the supervening circumstances obviously affect the interests of the minor. In all transactions affecting a minor, a paramount duty rests upon a Court not to put its seal on transactions affecting his interests. Therefore, though the contract might be valid and otherwise enforceable, if at the time the Court was asked to enforce it transpires that the circumstances have so changed that it would obviously be unjust and detrimental to the interests of the minor to enforce it the Court may well in the exercise of its discretion refuse to give a decree for specific performance. For the aforesaid reasons, I would answer the question in the affirmative”. 31. Sri V.L.N.G.K.Murthy placed strong reliance on Kalivarapu Kamayya Vs. Adapaka Appalanaidu ( 1975(2) APLJ 34 ) wherein at para-19 it was held : “But in the case of an agreement of sale, the possession of the property does not pass to the purchaser. The purchaser does not get any right or interest in the schedule property by virtue of that contract. Moreover the right of a father to sell the joint family properties, including the shares of the sons, for the discharge of his antecedent debts, contracted for his own personal benefit, which are not tainted with immorality or illegality, is a special privilege conferred upon the father under Hindu law, due to his position as father. It is left to his entire discretion whether he would exercise that right or not If he fails or refuses to exercise that right it is not open to any other person or even to the court to exercise that right on his behalf. He cannot also be compelled to exercise that power.” 32. In Peri Bhaskararao Vs. It is left to his entire discretion whether he would exercise that right or not If he fails or refuses to exercise that right it is not open to any other person or even to the court to exercise that right on his behalf. He cannot also be compelled to exercise that power.” 32. In Peri Bhaskararao Vs. Sathi Adilakshmi ( AIR 2006 A.P. 212 ) it was held at para-19 as hereunder:- “POINT No. 2 : Submissions were made that even if defendants 4 to 6 and 24th defendant, non-parties to Ex. A-1, are not bound by the agreement of sale ex. A-1, at least to the respective shares of the other sharers the suit can be decreed especially in view of the fact that the respective natural fathers representing the minors had entered into Ex. A-1 for legal necessity of the family and in view of the fact that they represent the major sharers and the non-parties to the agreement are only negligible sharers or minor sharers. In hindu Law and Usage by Mayne, 14th Edition, at page 747, on Legal necessity it was stated : "Necessity is not to be understood in the sense of what is absolutely indispensable but what according to the notions of a Hindu family would be regarded as reasonable and proper. On the whole it would be seen that a managing member has authority to do all acts which are clearly reasonable and proper for the realization, protection or benefit of the joint estate and for the protection and support of all the members of the joint family as well as what is required for indispensable acts of duty. The difficulty is not so much one of principle, as of its application to the varying nature of circumstances as they present themselves to different minds. It is perfectly clear that the preservtion of the estate for extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundation are circumstances which would justify an alienation, whether they are regarded from the point of view of legal necessity or benefit to the estate. " Section 8 of the Hindu Minority and Guardianship Act 1956 deals with powers of natural guardian. In Sunil Kumar Vs. " Section 8 of the Hindu Minority and Guardianship Act 1956 deals with powers of natural guardian. In Sunil Kumar Vs. Ram Prakash 11 while dealing with alienation by father or karta of joint family Jagannadha Shetty, J in concurring judgment observed at para-26 : "I do not think that these submissions are sound. It is true that a coparcener takes by birth an interest in the ancestral property, but he is not entitled to separate possession of the coparcenary estate. His rights are not independent of the control of the karta. It would be for the karta to consider the actual pressure on the joint family estate. It would be for him to foresee the danger to be averted. And it would be for him to examine as to how best the joint family estate could be beneficially put into use to subserve the interests of the family. A coparcener cannot interfere in these acts of management. Apart from that, a father - karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality. If there is no such need or benefit, the purchaser takes risk and the right had interest of coparcener will remain unimpaired in the alienated property. No doubt the law confers a right on the coparcener to challenge the alienation made by karta, but that right is not inclusive of the right to obstruct alienation. Nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latte right and indeed, he is not entitled for it. Therefore, he cannot move the court to grant relief by injunction restraining the karta from alienating the coparcenary property." A Full Bench of Madras High Court in Lingayya Vs. The coparcener cannot claim the latte right and indeed, he is not entitled for it. Therefore, he cannot move the court to grant relief by injunction restraining the karta from alienating the coparcenary property." A Full Bench of Madras High Court in Lingayya Vs. Punnayya (AIR 1942 Madras 183) observed : "When a father sells family property without the needs of the family requiring the transaction to be entered into he becomes liable to return to the vendee a proportionate part of the purchase consideration should the other coparceners insist, as they have the right to do, on the sale being set aside so far as they are concerned. On this event happening the vendee can compel the father to make the refund. The position then is that until the transaction is set aside at the instance of one or more of the other coparceners the father's liability is contingent, but when the event has happened the liability becomes a present one. The basis of the pious obligation rule is to the benefit which will accrue to the soul of the father by the discharge of his earthly obligations. This being the case it is difficult to see what difference the nature of the father's liability in the law can make, provided that it is a liability which the law recognizes and is prepared to enforce in terms of money. When an unlawful sale of family property is set aside during the father's life time the vendee has an enforceable claim against the father for the return of a proportionate part of the purchase consideration and a liability of this nature must come within the rule, if it is to be applied in accordance with the wording of the texts and the underlying idea. If the transaction is set aside after his death the vendee has a claim against his estate and the situation is the same. The redemption of the father cannot depend upon the state of mind of the son who pays the debt but on the fact of its discharge whatever the reason behind.” In Vanimisatti Anil kumar Vs. If the transaction is set aside after his death the vendee has a claim against his estate and the situation is the same. The redemption of the father cannot depend upon the state of mind of the son who pays the debt but on the fact of its discharge whatever the reason behind.” In Vanimisatti Anil kumar Vs. Jayavarapu Krishna Murty ( AIR 1995 A.P. 105 ) it was held that in the A. P. Amendment to Hindu Succession Act came into force during the pendency of the suit for specific performance, the rights of daughters of vendor getting share in suit property according to amendment would depend upon the result of the suit and their right is subject to the agreement of sale. It was also held that the karta selling the property for migrating to a different place for better living is for legal necessity. In Muniyappa Vs. Ramaiah (AIR 1996 Kant.321) while dealing with the aspect of right of the manager of the joint family to make alienation of the joint family property it was held : "The Manager of a joint Hindu family is entitled to alienate the joint family property for joint family necessity or for the benefit of the estate, in certain circumstances. Whether the manager is the father or not, will not make any difference. If such an alienation is made by the manager of the Joint Hindu family of joint family property, the sale would bind not only his share in the property but the share of the other coparceners as well. No doubt, the other coparceners may be entitled to file a suit for partition and recover their share if the alienation was not for family necessity or for the benefit of the estate. The burden in such cases will also lie on the alienee to prove family necessity or the benefit to the estate to uphold the alienation by the manager. But that right of a coparcener does not affect competency of the manager to alienate the joint family property. When once such alienation is made, the alienee is entitled to be in possession of the property and right of any other coparcener is to sue for partition and recover possession of his share in the joint family properties. The sale being only voidable unless it is avoided by an action, the alienee is entitled to continue in possession. When once such alienation is made, the alienee is entitled to be in possession of the property and right of any other coparcener is to sue for partition and recover possession of his share in the joint family properties. The sale being only voidable unless it is avoided by an action, the alienee is entitled to continue in possession. The position may be different if one co-parcener alienates his share alone, but once the alienation is made by the manager of the property, it will be effective until it is properly avoided by the non-alienating coparcener by filing a suit for partition. " In Punyamurtula Satyanarayana Krishnamraju Vs. Satyavolu Apparao and another (1995) 1 An.W.R.367) while dealing with the question whether alienation of a particular item of property made by the widow in favour of a third party under a sale deed is a valid transaction supported by legal necessity it was held that it is not proved that the widow had executed the sale deed for the purpose of discharging the debt due on promissory note for expenses incurred in connection with the pilgrimage for attaining of the spiritual salvation of her deceased husband and for her spiritual salvation and happiness or for discharging debt due on another promissory note borrowed for expenses in connection with the Laksha Vattula vratam performed by her for attainment of spiritual salvation. In Kalivarapu komayya Vss. Adapaka Appalanaidu and others 16 while dealing with the question whether an agreement of sale of joint family properties by father for discharge of his antecedent debts can be enforced against minors even though legal necessity and benefit to the minors had not been established, held : "In the case of agreement of sale, the possession of the property does not pass to the purchaser. The purchaser does not get any right or interest in the schedule property by virtue of that contract. Moreover the right of a father to sell the joint family properties, including the shares of the sons, for the discharge of his antecedent debts contracted for his own personal benefit, which are not tainted with immorality or illegality, is a special privilege conferred upon the father under Hindu law, due to his position as father. It is left to his entire discretion whether he, would exercise that right or not. It is left to his entire discretion whether he, would exercise that right or not. If he fails or refuses to exercise that the right, it is not open to any other person or even to the court to exercise that right on his behalf. He cannot also be compelled to exercise that right on his behalf. He cannot also be compelled to exercise that power. In the case of an agreement of sale, where specific performance is sought for, where the father filed a written statement and contested the claim of the plaintiff on various grounds, including the ground that it is not for the benefit of the minor sons and that the alienation was not for the legal necessity, it would be opposed to the principles of Hindu law for the court to enforce specific performance by such an unwilling vendor in respect of such properties, merely to protect the rights of the alienee." In Mohamed Asgar Mohamed mazhar and another Vs. Arvind Raghunath Sawant and another (2001(5) ALD 30(S.C.) while dealing with an agreement of sale of the property belonging to hindu Undivided Family where the minor members of the family are not parties to the agreement and legal necessity for the sale had not been established, it was held that the Courts below are justified in refusing the relief of specific performance. In K. S. Vidyanandam and others Vs. Vairavan ( 1997(2) J.T. 375 = AIR 1997 S.C. 1751 ) it was held that it was not necessary that every suit for specific performance to be decreed provided it is within the period of limitation notwithstanding the time limits stipulated in the agreement and the Court may have to look into the relevant circumstances into consideration, the time limits specified in the agreement and determine whether this discretion to grant specific relief would be existing or not and on facts it was held that the appellant's story of repeatedly asking defendants to get the tenant vacated is to be rejected and that rise in prices of Madurai property induced the appellant to wake up after two and half years and demand specific performance and it was a case of total inaction for two and half years and it is inequitable to give the relief of specific performance. The Counsel representing the plaintiff while making elaborate submissions no doubt made an attempt to convince the Court that in the facts and circumstances of the case, the suit can be decreed so far as Ex. A-1 would relate to the respective shares of the parties to Ex. A-1. The 24th defendant was impleaded as a party and there is no specific order saving limitation and hence it is needless to say that the relief as against such a party cannot be sustained. Not only that this party is a non-party to Ex. A-1, but also on the ground of limitation. Apart from this aspect of the matter, the contention of the ratification or implied ratification had been specifically negatived by this court and hence it is needless to say that the sisters defendants 4 to 6 are not bound by the agreement of sale Ex. A-1. Strong reliance was placed on Kartar singh Vs. Harjinder Singh and others ( 1990(3) SCC 517 =AIR 1990 S.C. 84) wherein an agreement to sell the property was entered into by a joint holder both on his own behalf as well as on behalf of his sister holding equal share and where the brother agreed to sell the whole of his share and also that of his sister but his sister refused to sell it was held that the decree for specific performance in respect of half share to be granted. The Apex Court also held that the difficulties in granting a decree by partitioning the property or where the property was scattered at different places, cannot be taken as legal difficulties and when the joint holders are having half share in the property there is no difficulty in apportionment of consideration also. On the strength of this principle, submissions in elaboration had been made in this regard. On facts the said decision is distinguishable. Here is a case where several parties entered into Ex.A-1 and several of them were minors said to be represented by the natural fathers. Except some recital in Ex. A-1, reference to certain debts, and except the formal and casual evidence of PW-1 on the aspect of legal necessity no serious attempt had been made on the part of the plaintiff to establish the legal necessity for the purpose of entering into Ex. A-1 so as to bind the other minors too. Except some recital in Ex. A-1, reference to certain debts, and except the formal and casual evidence of PW-1 on the aspect of legal necessity no serious attempt had been made on the part of the plaintiff to establish the legal necessity for the purpose of entering into Ex. A-1 so as to bind the other minors too. There cannot be any doubt or controversy that subject to certain limitations the power of alienation can be exercised by a natural father. Clear evidence of both DW-1 and DW-3 is available and specific stand had been taken that there was absolutely no necessity to enter into this transaction for the purpose of education or maintenance of minors. Obviously, there was no necessity, much less, legal necessity, and it appears from the facts that PW-1 in the light of the situation in which the property was placed at the relevant point of time intended to take advantage and having entered into a transaction ex. A-7, he thought of entering into this transaction also with these defendants. This Court cannot arrive at any other conclusion in the light of the peculiar facts and circumstances that the plaintiff was unable to establish the legal necessity on the part of the natural fathers to enter into this transaction on behalf of the minors so as to bind the minors also. The mere casual recital is not sufficient. Some more evidence is needed. As already referred to supra, no attempt had been made to let in any convincing or acceptable evidence in this direction. Hence, this Court is of the considered opinion that the relief of specific performance in relation to the respective shares also cannot be granted in view of the fact that the relief is a discretionary relief and also in view of the fact that absolutely there is no evidence in relation to the legal necessity so as to bind the minors shown in Ex. A-1 at the relevant point of time who had attained majority subsequent thereto and had elected to dispute Ex. A-1 transaction.” 33. In Dharman and others Vs. Marimuthu (1996(2) Madras Law Weekly) it was observed : “In Sayyaparaju Surayya Vs. Koiurs Kondamma (AIR 1950 Madras 239) a Division Bench of this Court held that an admission by the executant of a document of having affixed his or her thumb impression does not amount to admission of execution. A-1 transaction.” 33. In Dharman and others Vs. Marimuthu (1996(2) Madras Law Weekly) it was observed : “In Sayyaparaju Surayya Vs. Koiurs Kondamma (AIR 1950 Madras 239) a Division Bench of this Court held that an admission by the executant of a document of having affixed his or her thumb impression does not amount to admission of execution. It was held therein by the Division Bench as hereunder:- “The admission required, therefore, is admission of the execution of the document. It may be a sale deed, it may be a mortgage deed. It is not enough for the person, who is the ostensible executant, to admit his signature on a paper on which, it may be, the document is ultimately engrossed. The identity of the papers on which the signature occurs is not sufficient. If a man says that he signed a blank paper on the representation that it was required for presenting a petition, as in the present case or if a man signs a completed document on the representation that his signature or thumb impression is required as an attesting witness, that admission of the signature or thumb impression in those circumstances cannot be construed to be an admission of the execution of the document. Far from its being an admission, it is a clear and unambiguous denial of the execution of the document. He must admit, in order to attract the provisions of S.35(1), that he signed the document, viz., a sale deed or a mortgage deed or a lease deed, as the case may be. Some light is thrown on this question by the observations of the Privy Council in Purnachand Nahatta Vs. Monmothonath Mukherji, 55 Cal.532 : AIR (15) 1928 P.C. 38. No doubt the question which their Lordships of the Judicial Committee were considering was different from the question now before us. But their Lordships were defining the expression “person executing” in the Act, and it is pointed out that the expression is not identical with the “person signing”. “They mean” to quote the words of their Lordships at p.537 “something more, namely, the person who by a valid execution enters into obligation under the instrument”. But their Lordships were defining the expression “person executing” in the Act, and it is pointed out that the expression is not identical with the “person signing”. “They mean” to quote the words of their Lordships at p.537 “something more, namely, the person who by a valid execution enters into obligation under the instrument”. The admission of execution, therefore, must amount to an admission that the person admitting entered into an obligation under the instrument; in other words, that he had executed the document, signed it as a sale deed, mortgage deed or a lease deed, as the case may be”. It was reiterated further therein by adverting to an earlier Full Bench judgment reported in Guruviah Vs. Venkatarathinam, ILR 1947 Madras 833, that the mere fact that the signature on the document was admitted is not to be treated as execution of the document so as to make it the imperative duty on the part of the Registrar to register the same and the admission of signature cannot be taken to be either conclusive or as constituting admission of execution of the document.” 34. Reliance also was placed on Ramji Dayawala And Sons Private Limited Vs. Invest Import ( 1981(1) S.C.C. 80 ) wherein it was held by the Apex Court at para-16 as hereunder: “Incidentally it was urged by Mr. Majumdar that even if the court proceeds on the assumption that the letter and the cable were received, it is not open to this court to look into the contents of the letter and the cable because the contents are not proved as the Managing Director of the appellant company who is supposed to have signed the letter and the cable has neither entered the witness box nor filed his affidavit proving the contents thereof. Reliance was placed on Judah v. Isolyne Bose, AIR 1945 PC 174. In that case a letter and two telegrams were tendered in evidence and it was observed that the contents of the letter and the telegram were not the evidence of the facts stated therein. The question in that case was whether the testatrix was so seriously ill as would result in impairment of her testamentary capacity. To substantiate the degree of illness, a letter and two telegrams written by a nurse were tendered in evidence. The question in that case was whether the testatrix was so seriously ill as would result in impairment of her testamentary capacity. To substantiate the degree of illness, a letter and two telegrams written by a nurse were tendered in evidence. The question was whether in the absence of any independent evidence about the testamentary capacity of the testatrix the contents of the letter could be utilised to prove want of testamentary capacity. Obviously, in these circumstances the Privy Council observed that the fact that a letter and two telegrams were sent by itself would not prove the truth of the contents of the letter and, therefore, the contents of the letter bearing on the question of lack of testamentary capacity would not be substantive evidence. Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i. e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue. But in this case Bhikhubhai Gourishankar Joshi who filed an affidavit on behalf of the, appellant has referred to the averments in the letter and the cable. He is a principal officer and constituted attorney of the appellant company. Once the receipt of the letter and the cable are admitted or proved coupled with the fact that even after the dispute arose and before the suit was filed, in the correspondence that ensued between the parties, the respondent did not make any overt or covert reference to the arbitration agreement and utter failure of the respondent to reply to the letter and the cable controverting the averments made therein would unmistakably establish the truth of the averments made in the letter. What is the effect of averments is a different question altogether but the averments contained in the letter and the cable are satisfactorily proved.” 35. What is the effect of averments is a different question altogether but the averments contained in the letter and the cable are satisfactorily proved.” 35. It is no doubt true that certain of the findings recorded in relation to the binding nature of Ex.A-1 on the then minors, defendants 2 and 3, are not satisfactory. The father, being the manager of the family, has a right to enter into an agreement of sale on behalf of the minor children also so as to bind the minor children even in case of ancestral property, provided such debts are not tainted with any illegality or immorality and except some stray sentences neither in the written statement nor in the evidence any serious attempt had been made in this regard and hence to hold that the agreement of sale is not binding on the minors for the reasons recorded by the trial Court as such cannot be sustained. However, on the aspect of material alteration of the agreement of sale strong reliance was placed on S.K.Panchaksharam Vs. T V Kanniah (AIR 1986 Madras 156). On the aspect of granting or negativing the equitable relief of specific performance of an agreement of sale, strong reliance was placed on Ramesh Chandra Chandiok and another, Appellants v. Chuni Lal Sabharwal (dead) by his legal representatives and others ( AIR 1971 S.C. 1238 ) wherein at para-8 it was observed : “Coming to the last point the High Court has held that the appellants were disentitled to a decree for specific performance because a statement was made at the Bar that during the pendency of the appeal they had executed the decree of the trial Court and an amount at Rs. 7,500/- had been deposited by the respondents pursuant to the execution proceedings. It is true that the appellant could not accept satisfaction of the decree of the trial Court and yet prefer an appeal against that decree. That may well have brought them within the principle that when the plaintiff has elected to proceed in some other manner than for specific performance he cannot ask for the latter relief. This is what Scrutton, L. J. said in Dexters, Limited v. Hill Crest Oil Com. Bradford Ltd., (1926) 1 KB 348 at p. 358. That may well have brought them within the principle that when the plaintiff has elected to proceed in some other manner than for specific performance he cannot ask for the latter relief. This is what Scrutton, L. J. said in Dexters, Limited v. Hill Crest Oil Com. Bradford Ltd., (1926) 1 KB 348 at p. 358. “So, in my opinion, you cannot take the benefit of a judgment as being good and then appeal against it as being bad." It was further observed: "It startles me to hear it argued that a person can say the judgment is wrong and at the same time accept payment under the judgment as being right." This illustrates the rule that a party cannot approbate and reprobate at the same time. These propositions are so well known that no possible exception can be taken to them. In the present case, however, the above rule cannot apply because the appellants had by consistent and unequivocal conduct, made it clear that they were not willing to accept the judgment of the trial Court as correct. It has already been mentioned at a previous stage that after the decision of the trial court the appellants had even applied on March 31, 1958 for an injunction restraining the respondents from selling or otherwise disposing of the plot as it was apprehended that they were trying to do so. It was stated in this application that the plaintiffs would be preferring an appeal but it would take time to secure certified copies. An appeal was in fact preferred and seriously pressed before the High Court on the relief relating to specific performance. This relief is discretionary but not arbitrary and discretion must be exercised in accordance with the sound and reasonable judicial principles. We are unable to hold that the conduct of the appellants, which is always an important element for consideration, was such that it precluded them from obtaining a decree for specific performance.” 36. In P.Dsouza Vs. Shondrilo Naidu ( 2004(6) S.C.C. 649 ) it was held at paras 38, 43 and 44 as hereunder:- “The third contention of the learned counsel to the effect that this Court should not exercise its discretionary jurisdiction in view of hardship which would be faced by the defendant is stated to be rejected. Such a plea was not raised before the High Court. ….. Such a plea was not raised before the High Court. ….. …… Bhan, J. , however, while expressing his dissention in part observed: "38. It is well-settled that in cases of contract for sale of immovable property the grant of relief of specific performance is a rule and its refusal an exception based on valid and cogent grounds. Further, the defendant cannot take advantage of his own wrong and then plead that decree for specific performance would be an unfair advantage to the plaintiff. 40. Escalation of price during the period may be a relevant consideration under certain circumstances for either refusing to grant the decree of specific performance or for decreeing the specific performance with a direction to the plaintiff to pay an additional amount to the defendant and compensate him. It would depend on the facts and circumstances of each case. " The learned judge further observed that delay in performance of the contract due to pendency of proceedings in court cannot by itself be a ground to refuse relief of specific performance in absence of any compelling circumstances to take a contrary view. However, the learned Judge noticed the events which occurred subsequent to the passing of the decree and held: "45. The appellant has always been ready and willing to perform her part of the contract at all stages. She has not taken any advantage of her own wrong. The appellant is in no way responsible for the delay at any stage of the proceeding. It is the respondents who have always been and are trying to wriggle out of the contract. The respondents cannot take advantage of their own wrong and then plead that the grant of decree of specific performance would amount to an unfair advantage to the appellant. Requiring the appellant to pay further sum of Rs. 40 lacs would/may amount to frustrating the agreement itself as the appellant may not be in a position to pay the sum of Rs. 40 lacs. Respective counsel for the parties had quoted the figure of a particular sum which could be paid to the appellant in lieu of avoiding the decree of specific performance. The appellant had not made an offer to pay any additional sum over and above the quoted price to sell by way of compensation. It does not indicate the financial position of the appellant to pay the additional sum of Rs. The appellant had not made an offer to pay any additional sum over and above the quoted price to sell by way of compensation. It does not indicate the financial position of the appellant to pay the additional sum of Rs. 40 lacs. With due respect, in my view, it would be unfair to grant the decree of specific performance by one hand and take it back by the other. For the reasons stated above, I am of the view that the appellant is entitled to the specific performance of agreement to sell the flat No. 71 on the 7th floor of Divya Prabha building on the price mentioned in the agreement to sell which would be subject to the terms (iii), (iv), (v) and (vi) of the last paragraph of the judgment of my learned Brother. There would be no order as to costs. " 37. In Alluri Narayanamma Vs. Chitturi Venkanna (died) by L.Rs. (2008(2) S.C.J. 705) it was held at para-5 : “No doubt under Section 20 of the Specific Relief Act the power of the Court is discretionary. It is, however, clear from the language employed therein that a discretion of the Court is not to be arbitrary but based on sound and reasonable, guided by Judicial principles and capable of correction by a Court of appeal. If the reason is assigned by the trial Court as to why the decree of specific performance cannot be granted it will be capable of correction by a Court of appeal. One of the reasons based on public policy as to why the Court should given reason is to enable the Appellate Court to consider the reason of the lower Court and to find out as to why the reason assigned in particular facts of the case is a reasonable or not. In the instant case we have already quoted the concluding part of the decree passed by the trial Court with regard to the discretionary relief under Section 20 of the Specific Relief Act. We are unable to find out any reasons assigned by the trial Court as to why the discretionary relief of specific performance cannot be granted to the plaintiff. We are unable to find out any reasons assigned by the trial Court as to why the discretionary relief of specific performance cannot be granted to the plaintiff. In our view, therefore, the exercise of the power of discretionary relief under Section 20 of the Specific Relief Act is arbitrary but not based on any sound and reasonable, or neither guided by the judicial principles and capable of correction of a Court of appeal”. 38. Strong reliance was placed on Vemula Shanker Vs. Nakod Pandarinath ( 1998(6) ALT 133 ) wherein this Court at paras 10 and 11 held : “The learned Counsel for the appellant laid great emphasis on clause (b) of sub-section (2) of Section 20 of the Act wherein it is observed that the Court need not exercise discretion and grant specific performance of agreement of sale where the performance of such contract of sale would involve some hardship on the defendant and its non-performance would involve no such hardship on the plaintiff. Relying on this provision, the learned counsel Sri P. S. Murthy appearing on behalf of the appellant submits that the defendant has got the suit house only and in case the relief of specific performance is granted to the plaintiff, the defendant will be thrown out of the house into the streets and this causes great hardship to him and, therefore, the alternative relief as prayed for by the plaintiff may be granted to him. It is significant to note that the hardship referred to in clause (b) of sub-section (2) of Section 20 of the Act is the hardship which the defendant did not foresee at the time of entering into the agreement of sale. Further, under explanation-2 the question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in case where the hardship has resulted from any act of the plaintiff, subsequent to the contract, be determined with reference to the circumstances existing at the time of contract. In the instant case, it has been held by both the Courts below that the defendant failed to establish that he executed the suit agreement by way of security for the amount of Rs. 9,500/- due by him to the plaintiff, and that the agreement of sale is true, valid and binding on the defendant. In the instant case, it has been held by both the Courts below that the defendant failed to establish that he executed the suit agreement by way of security for the amount of Rs. 9,500/- due by him to the plaintiff, and that the agreement of sale is true, valid and binding on the defendant. Thus, it follows that the defendant had agreed to sell the suit house to the plaintiff for a valid consideration of Rs. 14,500/- and after receiving Rs. 9,500/- as earnest money he executed the suit agreement. Thus, the defendant knew about the consequences in entering into the said agreement of sale that he had to vacate the suit house after executing the registered sale deed in favour of the plaintiff. Thus, the hardship which the learned Counsel for the appellant now pleads is not a hardship which the defendant did not foresee at the time when he entered into the agreement of sale. There is also no substance in the contention of the learned Counsel for the appellant, that the defendant never intended to sell the suit house to anybody including the plaintiff. On the other hand, the defendant admitted in his evidence as D. W. I that he handed over the title deeds, Exs. A-2 to A-4, to the plaintiff some time after he executed the agreement of sale (Ex.A-l) when the plaintiff brought a prospective purchaser for the suit house. This very admission made by the defendant discloses his intention to sell the suit house. Therefore, the defendant was fully conscious of the hardship that he may have to undergo if the agreement of sale is acted upon. The evidence and other circumstances in this case do not indicate that the plaintiff is interested only in getting back the earnest money which he paid to the defendant under the agreement of sale (Ex. A-l ). On the other hand, the plaintiff is more particular for the relief of specific performance. In a given case merely because the plaintiff has prayed for alternative relief of damages, in the event of not granting the relief of specific performance, it does not mean that the alternative prayer alone can be granted in order to maintain the balance of convenience even though the plaintiff had successfully proved that he did not violate any of the conditions of the agreement of sale (Ex. A-l ). A-l ). It has been held by the Supreme Court in Prakash Chandra's case (1979) 4 SCC 393 ) (supra) that "the ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief". The same view was also taken by the learned single Judge of this Court in Sha Peerchand's case (1994)(1) ALT 140) (supra) stating that "granting the relief of specific performance is the ordinary rule, unless there is any compelling reason to deny the same". In the instant case, the defendant failed to establish his plea that the agreement of sale (Ex. A-1) was executed as a security for the amount due by him to the plaintiff. It has also come on record that the plaintiff did not violate any of the conditions of the agreement of sale (Ex. A-1) and that he was always willing and ready to perform his part of the contract. Hence, i do not find any reason not to exercise the discretion of granting the relief of specific performance of agreement of sale in favour of the plaintiff.” 39. In Mohd.Abdul Razak Vs. Venkatesh @ Venkataiah (2006(4) ALD 118) it was held at paras 25 and 26 : “We may reiterate that the relief of specific performance is discretionary and it is not given merely because it is lawful to do so, but it is governed by sound judicial principles. The grant of this relief is the discretion of the court, and cannot be claimed as a matter of right. But, however, the discretion shall not be arbitrary; it should be governed by rules and principles. The discretion exercised by the trial court will not be interfered with in appeal unless it has been exercised perversely, arbitrarily, capriciously, unreasonably or against judicial principles. It is not possible or desirable to lay down the circumstances under which the court can exercise its discretion against the plaintiff.” 40. In Motilal Jain Vs. Ramdasi Devi ( AIR 2000 S.C. 2408 ) it was held at para-6 as hereunder:- “The first ground which the High Court took note of is the delay in filing the suit. It is not possible or desirable to lay down the circumstances under which the court can exercise its discretion against the plaintiff.” 40. In Motilal Jain Vs. Ramdasi Devi ( AIR 2000 S.C. 2408 ) it was held at para-6 as hereunder:- “The first ground which the High Court took note of is the delay in filing the suit. It may be apt to bear in mind the following aspects of delay which are relevant in a case of specific performance of contract for sale of immovable property : (i) Delay running beyond the period prescribed under the Limitation Act; (ii) Delay in cases where though the suit is within the period of limitation, yet : (a) due to delay the third parties have acquired rights in the subject-matter of suit; (b) in the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable to grant a discretionary relief. Here none of the above mentioned aspects applies. That apart faculty also, the High Court proceeded on an incorrect assumption with regard to cause of action. Ext. 2 was executed on 20/02/1977 and under it the sale deed was to be executed on or before 19/07/1977. The last notice was issued on 26/11/1978 and from that date the suit was filed only after nine months and not after more than a year as noted by the High Court. Therefore, on the facts of this case the ground of delay cannot be invoked to deny relief to the plaintiff.” 41. Further reliance was placed on A.C.Arulappan Vs. Ahalya Naik ( 2001(6) ALT 26 ( S.C.)) wherein at paras 9 and 10 it was held : “In Parakunnan Veetill Joseph's Son Mathew v. Nedubara Kuruvila's Son, AIR 1987 SC 2328 , this Court cautioned and observed as under (Para 14) : "Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to 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 in 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 to the plaintiff. 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 in 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 to the plaintiff. " In Lourdu Mari David v. Louis Chinnaya Arogiaswamy, AIR 1996 SC 2814 : (1996 AIR SCW 3603), the plaintiff, who sought for specific performance of an agreement to purchase immovable property, filed a suit with incorrect and false facts. In the plaint, it was alleged that the plaintiff was already given possession of Door No. 2/53 as a lessee and he was given possession of Door No. 1/53 on the date of the agreement itself. But he did not give any evidence that he had got possession of Door No. 1/53 on the date of the agreement. It was found that his case as regards Door No. 1/53 was false. He also alleged that he had paid Rs. 400. 00 in addition to the sum of Rs. 4,000. 00 paid as advance, but this was proved to be an incorrect statement. He alleged that the third defendant had inspected the house during the course of negotiations, but this also was found to be false. This Court held that it is settled law that the party who seeks to avail of the jurisdiction of a Court and specific performance being equitable relief, must come to the Court with clean hands. In other words, the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief.” 42. Further strong reliance was placed on Chandabolu Bhaskara Rao Vs. Betha Saidi Reddy (2006(4) ALD 572) wherein the learned Judge of this Court while dealing with Xerox copy and a suit on the strength of a promissory note and admission of execution, presence of executants at the time of execution wherein execution had been denied held at para-6 as hereunder:- “Xerox copy of a document need not necessarily be an exact and true replica of the original document, because some portions or parts of the writings in the original may be screened or shadowed by placing a paper thereon. Therefore a Xerox copy of a document may not contain all the details available in the original. Therefore a Xerox copy of a document may not contain all the details available in the original. By that mode of placing a paper on the signatures, signatures in the original can be made to disappear in its Xerox copy. Likewise subsequent signatures of persons which do not appear in the original, can be made to appear in a Xerox copy. In view thereof, merely because the Xerox copy of the suit promissory note produced by the revision petitioners may not be containing the signatures of the attestors, it cannot positively be said that the signatures of the attestors were obtained therein subsequently, so unless the person who took the Xerox copy is examined and is subjected to cross-examination by the other side or unless the other side admits that the Xerox copy of a document is the exact replica of the original, it cannot positively be said that a Xerox copy of a document is the exact replica of the original document”. 43. The document Ex.A-1 was typed on two stamp papers and one white paper and the letters on these papers had been carefully examined by the trial Court and certain findings had been recorded. It is no doubt true that specific plea relating to the absence of signatures of the attestors at the time when DW-1 signed Ex.A-1 had not been specifically pleaded and the mediation by DW-2 and another also had not been specifically pleaded. PW-1 no doubt admitted relating to some terms of settlement who had deposed about a different episode altogether. The details of evidence which had been adduced by the parties totally cannot be ignored though the same to be carefully scrutinized merely on the ground that such plea was not putforth. Whether by virtue of such signatures of the attestors being obtained at a later point of time, no serious prejudice as such was caused to the first defendant or not, that is something different from some other fact whether the attestors signed at the time of execution of Ex.A.1 as such. Whether by virtue of such signatures of the attestors being obtained at a later point of time, no serious prejudice as such was caused to the first defendant or not, that is something different from some other fact whether the attestors signed at the time of execution of Ex.A.1 as such. It may be that serious prejudice as such had not caused to DW-1, all these aspects also may have to be taken into consideration for the limited extent of appreciating whether the plaintiff – PW-1 is only a name-lender or whether the real beneficiary is Chinta Appa Rao, one of the attestors of Ex.A.1 and one of the creditors who had not chosen to enter into the witness box at all. The origin of the transaction being monitory is not in serious dispute. Ex.B-1 to Ex.B-4 also to be taken into consideration while evaluating the evidence of DW-1 in particular in the light of the stand taken by him in the written statement. Apart from this aspect of the matter, the version of PW-2 relating to inks in the context of Ex.A.1 and Ex.A.7 also may have to be considered. Incidentally, the dates appearing on the stamp papers also may have to be considered. It may be that DW-1 deposed at a particular point of time that his signature had been obtained and further made an admission that Chinta Appa Rao obtained Ex.A.1 in discharge of the pronote debts. Even if it is to be taken that this would amount to admission of execution of Ex.A.1, always necessarily the relief of specific performance need not be granted. It is true that as far as the binding nature of Ex.A.1 on the then minors defendants 2 and 3 is concerned, the doctrine of pious obligation may come in and such sons also are bound to discharge the debts of the father incurred for the sake of the family. The evidence available on record in this direction appears to be very limited. No doubt, certain submissions were made relating to discharge of burden of proof on whom the burden lies. It is also pertinent to note that in the pleading itself it was a specified that the land need not be measured on the date of Ex.A.1 because there was water. There is an admission of PW-1 also that the land need not be measured. It is also pertinent to note that in the pleading itself it was a specified that the land need not be measured on the date of Ex.A.1 because there was water. There is an admission of PW-1 also that the land need not be measured. PW-3 no doubt deposed that immediately after execution of Ex.A.1, this witness PW-1 and Chinta Appa Rao and DW-1 had gone to the schedule land on a tractor and the schedule land was ready for transplantation. Ex.A.5 and Ex.A.6, land revenue receipts, had been heavily relied upon. The trial Court appreciated the evidence of PW-1 and DW-1 carefully and further commented that the admissions would go to show that Chinta Appa Rao or Radha Krishna Rao were cultivating the land but none had been examined. In the light of the same, the stand taken by DW-1 that by virtue of interim injunction possession had been taken was believed and findings had been recorded by the trial Court. The evidence of D.W.4, and independent witness, also had been relied upon in relation thereto. Hence, this Court is thoroughly satisfied that the findings recorded on the aspect of possession by the trial Court also since based on proper appreciation of whole evidence available on record, cannot be found fault. But however the present suit is filed for the relief of specific performance on the strength of Ex.A.1 or in alternative for the relief of refund of the amount. There is an admission of DW-1 relating to the execution of Ex.A.1 for discharge of pronote debts. The discharge of the said pronote debts, this aspect is not in serious controversy. As already aforesaid, since no acceptable evidence as such had been placed on behalf of defendants 2 and 3 by virtue of which it can be held that such debts not tainted by illegality can be avoided by the then minors, it may have to be taken that under the doctrine of pious obligation though subsequent thereto they had attained majority, they are also liable to discharge the suit amount. To the said extent, the dismissal of this suit as against defendants 2 and 3 holding that they are not liable for such debts, in the considered opinion of this Court, cannot be sustained. To the said extent, the dismissal of this suit as against defendants 2 and 3 holding that they are not liable for such debts, in the considered opinion of this Court, cannot be sustained. However, in the light of several of the essentials which had been specified supra, this Court is satisfied that the trial Court arrived at the correct conclusion in ordering refund and in negativing the relief of specific performance, the principal relief. Though the said findings are being confirmed, this Court is making it clear that inasmuch as the father, the then Manager of joint family, entered into Ex.A.1 transaction for the purpose of discharging the binding debts of the family, defendants 2 and 3 – the then minors, also are liable to discharge such debts of the family in the light of the doctrine of pious obligation and hence defendants 2 and 3 also are liable to pay the suit amount. 44. Apart from this aspect of the matter, interest had been negatived on the ground that by virtue of injunction, plaintiff – PW-1 or Chinta Appa Rao have been in possession of the plaint schedule property. It is pertinent to note that the plaintiff approached the Court after sufficient lapse of time and no doubt obtained the interim injunction. Hence, from the date of Ex.A.1 till the date of obtaining interim injunction, the plaintiff is entitled to interest @ 12% per annum on the refund of the amount which had been ordered. Apart from this aspect of the matter, in the light of the admission made by DW-1 and also in the light of the evidence of PW-1, and further the recitals in Ex.A.1, it may have to be taken that even Rs.350/- had been paid and hence ordering refund of Rs.28,000/- only instead of ordering Rs.28,350/- may not be sustainable. Accordingly, the decree made by the trial Court is hereby modified and refund of an amount of Rs.28,350/- with interest at 12% per annum from the date of Ex.A.1 till the date of obtaining the interim injunction and subsequent thereto interest at 6% per annum till the date of realization of the said amount is hereby ordered as against the assets of the 1st respondent in the hands of respondents 4 to 6 and also as against respondents 2 and 3. For the purpose of realization of the said amount, a charge is hereby created as against the plaint schedule property. It is stated that some deposit had been made and in the event of any such deposit being made, interest of 6% per annum to be calculated on the additional amount granted by this Court excluding the period of such amount being in deposit. Accordingly, the appeal is partly allowed to the extent indicated above. 45. Point No.4:- In the result, the Appeal is partly allowed modifying the decree of the trial Court to the extent of granting Rs.28,350/- as against respondents 2 and 3 and also the assets of 1st respondent in the hands of respondents 4 to 6 with interest thereon at 12% per annum from the date of Ex.A.1 till the date of obtaining the interim injunction by the plaintiff and subsequent thereto interest at 6% per annum till the date of realization excluding the period during which the amount if any is lying in deposit. For the purpose of realization of the said amount, a charge is hereby created as against the plaint schedule property. Inasmuch as this Court is partly modifying the decree as indicated above, parties do bear their own costs.