Research › Search › Judgment

Andhra High Court · body

2011 DIGILAW 1097 (AP)

Pothana Seshagiri Rao v. Maddipati Satyavathi

2011-12-03

L.NARASIMHA REDDY

body2011
Judgment : 1. The appellant is the owner of Acs.15.06 cents of land in R.S.No.310/2 of West Godavari District. The respondent filed O.S.No.293 of 1990 in the Court of I Additional District Munsiff, Kovvur, for the relief of perpetual injunction in respect of Acs.5.06 cents of land (hereinafter referred to as ‘the suit schedule property’) out of the said Acs.15.06 cents of land. It was pleaded that the appellant, who is the cousin of the husband of the respondent, offered to sell the land for a sum of Rs.45,000/- and the respondent agreed to purchase the property; and that an agreement of sale was entered into in the year 1978. Advance of Rs.20,000/- and subsequently, the sums of Rs.10,000/- and Rs.14,000/- were said to have been paid. She pleaded that the appellant executed two sale deeds dated 23.12.1981 covering an area of Acs.5.00 and another sale deed on 24.12.1981 covering another extent of Acs.5.00, but has refused to execute the sale deed in respect of the suit schedule property. It was her case that on the date of agreement itself, the possession of the entire extent of Acs.15.06 cents of land was delivered and she continued to be in possession thereof. 2. According to the respondent, the appellant demanded higher amount stating that there is escalation of prices and a sum of Rs.10,000/-, in addition to what was paid already was kept with one of the close relations of the appellant so that it can be paid, once the sale deed in respect of the suit schedule property is executed. She pleaded that the appellant did not execute the deed but tried to interfere with her possession over the suit schedule property. 3. The appellant filed a written statement disputing the existence of any agreement with the respondent. He stated that in the year 1981 when he was in need of money, the husband of the respondent came forward to purchase the land and since consideration was paid for an extent of Acs.10.00 sale deeds for that extent were executed. He stated that he never parted with the possession of the suit schedule property and that he is in enjoyment thereof. 4. The trial court dismissed the suit through judgment dated 31.10.1997. Thereupon, the respondent filed A.S.No.94 of 1997 in the Court of the Senior Civil Judge, Kovvur. The appeal was allowed on 24.09.2004. Hence, this second appeal. 5. He stated that he never parted with the possession of the suit schedule property and that he is in enjoyment thereof. 4. The trial court dismissed the suit through judgment dated 31.10.1997. Thereupon, the respondent filed A.S.No.94 of 1997 in the Court of the Senior Civil Judge, Kovvur. The appeal was allowed on 24.09.2004. Hence, this second appeal. 5. Sri K.Sarvabhouma Rao, learned counsel for the appellant submits that the lower appellate Court has reversed the decree passed by the trial Court on the basis of certain assumptions and conjectures. He contends that the respondent was so uncertain that she was not clear as to whether there existed oral or written agreement. He submits that the witnesses examined on behalf of the respondent stated that a written agreement was entered into, but it was not filed into the Court at all. He submits that a vital statement from P.W.1 to the effect that the respondent herein was not mentally sound and that she was not in a position to give instructions, as on the date of filing of the suit, was totally ignored by the lower appellate Court. Learned counsel submits that the suit filed by the respondent for the relief of permanent injunction by pleading agreement of sale was totally untenable and at the best the respondent could have filed a suit for specific performance and for any other ancillary reliefs. He contends that the so called refusal to execute the sale deed was in December, 1981, whereas the suit was filed in the year 1990. He raised several other contentions also. 6. Sri S.Sree Rama Chandra Murhty, learned counsel for the respondent, on the other hand, submits that no substantial question of law arises for consideration and the well considered judgment of the lower appellate Court does not warrant interference at the stage of second appeal. He submits that the consideration for three sale deeds executed by the appellant aggregates Rs.20,000/-, whereas the appellant clearly admitted that he received Rs.30,000/-. Learned counsel submits that the respondent has placed voluminous oral and documentary evidence in support of her case and to establish her possession over the property. 7. The suit was filed for the relief of injunction simplicitor. The trial court framed only one issue for its consideration, namely, whether the plaintiff is entitled to the relief of perpetual injunction as prayed for. 8. 7. The suit was filed for the relief of injunction simplicitor. The trial court framed only one issue for its consideration, namely, whether the plaintiff is entitled to the relief of perpetual injunction as prayed for. 8. On behalf of the respondent, as many as six witnesseswere examined and Exs.A.1 to A.9 were filed. Exs.A.1 to A.3 are the sale deeds executed by the appellant herein. Ex.A.4 is a draft sale deed. Exs.A.5 and A.6 are the land revenue receipts. Exs.A.7 and A.8 are said to be notices issued by Andhra Bank. Ex.A.9 is the copy of petition in A.T.C.No.36 of 1989. On behalf of the appellant, D.Ws.1 and 2 were examined. Ex.B.1 a report of Amin in E.P.No.68 of 1992 in A.T.C No.36 of 1989 and Ex.B.2 - land revenue receipt were filed. 9. The trial Court dismissed the suit observing that the respondent failed to prove her possession over the suit schedule property and that the suit itself was not maintainable. Reference was made to provisions of Transfer of Property Act, 1882 and other provisions of law. In A.S.No.94 of 1997 filed by the respondent herein, the lower appellate Court did not frame any point for consideration, proceeded to discuss the matter in general, and allowed the appeal. 10. This Court is of the view that the following substantial questions of law arise for consideration: (a) Whether a person claiming possession under an agreement of sale can file a suit for injunction simplicitor, without seeking a remedy of specific performance? (b) Whether the suit filed in the name of a person, who does not have the mental capacity, to give instructions for filing of the same, can be entertained and whether any relief can be granted therein, particularly, when such person does not enter the witness box nor any permission was accorded to any other, to pursue the proceedings on his behalf. 11. The respondent based her claim upon an agreement of sale in respect of Acs.15.06 cents of land. Exs.A.1 to A.3 are the sale deeds covering an extent of Acs.10.00. The dispute is in relation to remaining Acs.5.06 cents i.e., suit schedule property. The respondent did not enter the witness box. The case was in fact, presented by her husband as P.W.1 in the trial. Exs.A.1 to A.3 are the sale deeds covering an extent of Acs.10.00. The dispute is in relation to remaining Acs.5.06 cents i.e., suit schedule property. The respondent did not enter the witness box. The case was in fact, presented by her husband as P.W.1 in the trial. Validity or otherwise of Exs.A.1 to A.3 are not before this Court nor any suit is filed for specific performance in respect of the suit schedule property. Possession of the suit schedule property is said to have been delivered to the respondent way back in the year 1978. The question as to whether the suit for mere injunction in this scenario would be discussed at a bit later. The version of the respondent as to the manner in which she is said to have gained possession of the land, needs to be ascertained first. 12. In the plaint, neither the date of agreement is mentioned nor the manner in which possession was delivered is stated. P.W.1 elaborated the case in the course of his evidence. He stated that initially there was an oral agreement on 23.11.1978 for purchase of Acs.15.06 of land for a consideration of Rs.45,000/-. He also stated that one month later, he paid a sum of Rs.20,000/-as advance and on that day i.e., on 24.12.1978 a written agreement was executed. However, the possession is said to have been delivered on the date of oral agreement itself. He admitted that he has not filed the written agreement into the Court. 13. P.W.3 stated that himself and P.W.6 figured as scribe and witnesses respectively, in the agreement. However, while P.W.1 stated that an amount of Rs.44,000/- was paid, P.W.3 stated that entire consideration was paid. On the question of possession, though he stated that the respondent is in possession of the property, he feigned ignorance about further details. 14. P.W.4 stated that the respondent is in possession of Acs.10.00 of land out the said survey number, and that he owns six acres of land in the neighbourhood. While in the chief examination, P.W.1 stated that the agreement of sale was handed over to the respondent when Exs.A.1 to A.3 were executed, other witnesses, who were said to be present did not say a word about it. On the other hand, in his cross-examination, P.W.1 stated that he did not file the agreement into the Court. 15. While in the chief examination, P.W.1 stated that the agreement of sale was handed over to the respondent when Exs.A.1 to A.3 were executed, other witnesses, who were said to be present did not say a word about it. On the other hand, in his cross-examination, P.W.1 stated that he did not file the agreement into the Court. 15. Assuming that there existed an agreement of sale in favour of the respondent, possession of the suit schedule property was delivered to her and that the appellant was trying to invade her rights, the principal relief she ought to have pursued was the one for specific performance of agreement of sale; perpetual injunction, could have been sought for, as an ancillary relief. Once the respondent treated the appellant as the absolute owner of the property, which in fact must be recognised till he conveys his title, the question of seeking the relief of injunction against the true owner does not arise. In case the respondent is in possession and the appellant instituted any proceedings to recover possession, the former could have pressed Section 53 of the Transfer of Property Act, 1882 into service. As long as the respondent recognises the appellant as true owner of the property, the suit filed for mere injunction was totally untenable and the first substantial question is answered in favour of the appellant and in fact the trial court proceeded on the same lines. On facts also, the evidence on behalf of the respondent on the question of possession is shaky and unbelievable. 16. Now, the second question: 17. The relief of injunction claimed in a suit is almost personal to the plaintiff. In case the plaintiff has authorised any one to protect his or her interest in accordance with law, such authorised representative can also maintain the suit, but in the name of the same plaintiff. Definite procedure to be followed, whenever proceedings on behalf of an individual, who is not in a position to take independent decision, are to be initiated. Order XXXII of C.P.C prescribes the procedure to be followed for filing of suits by or against minors and persons of unsound mind. Several precautions are required to be taken for protecting the interests of the minors or persons who are not in a position to take their independent decisions. In its application to the State of A.P the procedure is more stringent. Several precautions are required to be taken for protecting the interests of the minors or persons who are not in a position to take their independent decisions. In its application to the State of A.P the procedure is more stringent. A person known as ‘next friend’ is appointed and he is required to file affidavit connoting lack of interest and furnishing security etc. The procedure prescribed in respect of the suits to be filed by or against minors, is made applicable for the proceedings by or against persons of unsound mind, by Rule 15. The respondent in this case presented the suit by herself and it was not through any next friend, much less the person appointed by a Court. In the course of cross examination of P.W.1, he stated that his wife is suffering from mental weakness for a prolonged period, including the one during which, the suit was filed. The relevant portion of the evidence reads as under: “My wife is suffering from mental weakness since 10 years. It is true the plaintiff is unable to give instructions by date of filing of the suit as well as prior to the filing of the suit.” This statement was made in the year 1977 and the suit was filed in the year 1990. If the plaintiff was not mentally sound, P.W.1 ought to have taken steps prescribed under Order XXXII C.P.C. However, the suit was filed straight away. The provision does not by itself render the suits filed in violation thereof void. However, if one takes into account the fact that the principle behind it is the one pertaining to the capacity to contract, it would not be difficult to predict the consequences. Section 10 of the Indian Contract Act, 1872 (for short ‘the Act’) defines agreements that are contracts; and it reads as under: “10. What agreements are contracts.- All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. What agreements are contracts.- All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in India and not hereby expressly repealed by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents.” Section 11 of the Act deals with the persons who are competent to contract and it reads as under: “11. Who are competent to contract.- Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject.” Section 12 defines the expression "sound mind” in the context of a contract; and it reads as under: “12. What is a sound mind for the purposes of contracting.- A person is said to be of sound mind for the purpose of making a contract if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests. A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind. A person who is usually of sound mind, but occasionally of un- sound mind, may not make a contract when he is of unsound mind. Illustrations (a) A patient in a lunatic asylum, who is at intervals of sound mind, may contract during those intervals. (b) A sane man, who is delirious from fever or who is so drunk that he cannot understand the terms of a contract or form a rational judgment as to its effect on his interests, cannot contract whilst such delirium or drunkenness lasts.” In case a person, who is a party to contract, is found to be not of unsound mind, the very contract becomes unenforceable. Information that is elicited from P.W.1 in this case, about the mental capacity or soundness of the respondent herein, discloses that the so called contract with the appellant was contrary to law. Information that is elicited from P.W.1 in this case, about the mental capacity or soundness of the respondent herein, discloses that the so called contract with the appellant was contrary to law. The result would be that even if there existed contract between her and the appellant, it is unenforceable in law. Hence, the institution of the proceedings itself becomes untenable. It is no doubt true that this point was not raised either in the suit or at the stage of appeal. However, since it happens to be a pure question of law that can be decided on admitted facts and goes to the root of the matter, this Court cannot blink at the same. Once it emerges that a suit in the name of a person of unsound mind was filed, the Court cannot permit the adjudication thereof notwithstanding the failure on the part of the appellant to raise the plea. Whatever may have been the circumstances under which the suit was numbered, atleast when P.W.1 stated that the respondent i.e., sole plaintiff is of unsound mind and was not in a position to give instructions at the time of filing of the suit, the trial Court ought to have insisted of compliance with Order XXXII C.P.C. Since such an important step was not taken, the very suit becomes untenable. Hence, the second appeal is allowed and the decree passed by the lower court is set aside. Suit shall stand dismissed. No costs.