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2013 DIGILAW 92 (AP)

Palamangalam Vendamma v. S. Saleem

2013-02-12

L.NARASIMHA REDDY

body2013
JUDGMENT :- This second appeal arises out of a bit complicated set of facts, which are stated below in the permissible limits of brevity. 2. OS No.47 of 1995 on the file of the Senior Civil Judge, Puttur, gave rise to this second appeal. 3. For the sake of convenience, the parties herein are referred to as arrayed in the suit. 4. The sole plaintiff is the appellant. One Sri Kuppam Govinda Reddy had two wives, namely Venkatamma and Sanjeevamma-1st defendant, who died during the pendency of the suit and represented by her daughter-Palamangalam Rajamma, the 8th defendant herein. Govinda Reddy had a son, by name, Elumalai Reddy, through Venkatamma. During the lifetime of Govinda Reddy, he had some disputes with one of his wives, the 1st defendant, and their daughter. He filed OS No.10 of 1965 in the Court of Additional Sub-ordinate Judge, Chittoor, for declaration to the effect that he is the absolute owner of the suit schedule property mentioned therein. Items 1, 2 and 3 of the present suit schedule were shown as items 2, 4 and 5 in that suit. A decree was passed in OS No.10 of 1965 to the effect that the 1st defendant shall have a right of maintenance against item No.2, and that Govinda Reddy is the actual owner in respect of the remaining property. The 1st defendant filed AS No.106 of 1971 in the Court of Additional District Judge, Chittoor. During the pendency of the suit and appeal, Govinda Reddy died and his son, Elumalai Reddy and the 1st defendant entered into compromise. The appeal was dismissed. 5. Elumalai Reddy sold items 2 and 3 in the present suit schedule in favour of one Mr. Markandeya Naidu and from him Sri B. Narayana Chetty, purchased those two items. 6. The 1st defendant filed OS No.98 of 1999 in the Court of District Munsif, Nagari, against Narayana Chetty, for the relief of perpetual injunction in respect of all the three items of property. That was, in turn, compromised. The 1st defendant executed two deeds of relinquishment, dated 16.8.1995, marked as Exs.A2 and A3, in respect of those three items of property. Narayana Chetty died and his legal representatives, defendants 2 to 6, in the present suit executed a sale deed dated 19.8.1995 (Ex.B1) in favour of the sole plaintiff that is the appellant herein. 7. The 1st defendant executed two deeds of relinquishment, dated 16.8.1995, marked as Exs.A2 and A3, in respect of those three items of property. Narayana Chetty died and his legal representatives, defendants 2 to 6, in the present suit executed a sale deed dated 19.8.1995 (Ex.B1) in favour of the sole plaintiff that is the appellant herein. 7. Alleging that the 1st defendant executed an agreement of sale, in her favour on 19.5.1990 (Ex.A1), the sole plaintiff filed the present suit i.e. as No.47 of 1995, for the relief of specific performance of an agreement of sale, in respect of all the items of property. She pleaded that having executed the agreement of sale, the 1st defendant agreed to sell the suit schedule property and received a total consideration of Rs.54,000/-, but declined the execution of the sale deed. 8. The 1st defendant filed a written statement. She denied the execution of Ex.A1. On the other hand, she stated the manner in which the litigation ensued between her family members and third parties, and ultimately, pleaded that the ownership of all the items has passed on to Narayana Chetty, and thereafter, to defendants 2 to 6, and that as on the date of filing of the written statement, the 7th defendant is the absolute owner of the properties. 9. The 7th defendant filed a written statement narrating the sequence of events, and ultimately, asserting his title. He pleaded that the so-called agreement of sale is either non-existent or is the result of collusion between the plaintiff and the 1st defendant. Defendants 2 to 6 adopted the written statement of the 7th defendant. 10. Through its judgment dated 27.7.2006, the trial Court decreed the suit as prayed for. Aggrieved by the decree, the 7th defendant i.e., the 1st respondent filed AS No.75 of 2006 in the Court of III Additional District Judge, Tirupathi. The appeal was partly allowed setting aside the decree passed by the trial Court, insofar as it relates to items 2 and 3 of the suit schedule. The decree, as regards item 1, was upheld. The plaintiff felt aggrieved by the judgment and decree passed by the lower Appellate Court and filed this second appeal. 11. The appeal was partly allowed setting aside the decree passed by the trial Court, insofar as it relates to items 2 and 3 of the suit schedule. The decree, as regards item 1, was upheld. The plaintiff felt aggrieved by the judgment and decree passed by the lower Appellate Court and filed this second appeal. 11. Sri C.S.K.V. Ramana Murthy, learned Counsel for the appellant, submits that once the factum of execution of EX.A1 by the 1st defendant was proved and the plaintiff expressed his readiness and willingness to perform her part of the contract, there was no basis for the lower Appellate Court in setting aside the decree in respect of two substantial items of property. He contends that though the 1st defendant suffered a decree in as No.10 of 1965 in respect of 2 and 3 of the present schedule, the decree-holder in that suit, i.e., Elumalai Reddy, did not put the decree to execution, and thereby, the possession of the property continued to remain with the 1st defendant. He further submits that being in possession of the property, uninterruptedly for decades together, the 1st defendant was very much competent to execute Ex.X1. Learned Counsel also submits that various transactions that ensued among different parties, such as Elumalai Reddy, Narayana Chetty, Saleem (7th defendant) and the compromise entered into between the 1st defendant and Narayana Chetty only prove the sinister motive of the 1st defendant to defeat the rights of the plaintiff under EX.A1. 12. The principal contest of the suit filed by the appellant herein was by the 7th defendant i.e. the 1st respondent, since he purchased all the three items through Ex.B1, dated 19.9.1985. 13. On the basis of the pleadings before it, the trial Court framed as many as 10 issues for its consideration, viz., 1. Whether the agreement of sale dated 19.5.1990 executed in favour of the plaintiff by the 1st defendant are true and valid and binding on the defendant? 2. Whether the sale deed dated 19.8.1995 executed by the defendants 2 to 6 in favour of the 7th defendant is collusive and fraudulent? 3. Whether the civil litigation between 1st defendant and defendants 2 to 5 are collusive litigations and compromised for the purpose of registered sale deed dated 19.8.1995? 4. 2. Whether the sale deed dated 19.8.1995 executed by the defendants 2 to 6 in favour of the 7th defendant is collusive and fraudulent? 3. Whether the civil litigation between 1st defendant and defendants 2 to 5 are collusive litigations and compromised for the purpose of registered sale deed dated 19.8.1995? 4. Whether the deed of delivery of possession dated 16.8.1995 executed by the 1st defendant in favour of 2nd defendant is collusive and fraudulent one? 5. Whether the 1st defendant has executed registered maintenance relinquish deed dated 16.8.1995 in favour of the 2nd defendant for 0-71 cents in S.No.33/2 is true and correct? 6. Whether the 7th defendant is bona fide purchaser for valid consideration? 7. Whether the plaintiff is entitled for regular sale deed through the 8th defendant in pursuance of the agreement of sale executed by the 1st defendant? 8. Whether the suit is barred by res judicata? 9. Whether the suit agreement of sale is antedated, forged document and created for the purpose of this litigation? 10. Whether the plaintiff is entitled for relief of specific performance of contract against the defendants or not? 11. To what relief? 14. On behalf of the plaintiff, PWs.1 and 2 were examined and Exs.A1 to A4 were filed. On behalf of the defendants, DWs.1 to 6 were examined and Exs.B1 to B24 were filed. As observed earlier, the suit laws decreed as prayed for and the 7th defendant carried the matter in appeal. 15. The lower Appellate Court framed the following points for its consideration and ultimately partly allowed the appeal. 1. "Whether Ex.A1, agreement of sale was duly executed by 1st defendant in favour of plaintiff? 2. Whether limited right of 1st defendant over Item No.1 of plaint schedule property was enlarged into absolute right in view of Section 14(1) of Hindu Succession Act? 3. Whether Bachu Narayana Chetty, father of defendants 2 to 6 purchased the plaint schedule properties from Markondaiah Naidu, Muddukrishna and Raniamma who are vendees of Kuppam Elumalai Reddy under Ex.B8 and Ex.B7, respectively? 4. Whether the non-examination of plaintiff disentitle the plaintiff for the relief of specific performance? 5. Whether the plaintiff is always ready and willing to perform her part of contract? 6. Whether EX.B1 to Ex.B3 are sham, collusive and nominal documents? 7. Whether 7th defendant/appellant is a bona fide purchaser for valuable sale consideration? 8. 4. Whether the non-examination of plaintiff disentitle the plaintiff for the relief of specific performance? 5. Whether the plaintiff is always ready and willing to perform her part of contract? 6. Whether EX.B1 to Ex.B3 are sham, collusive and nominal documents? 7. Whether 7th defendant/appellant is a bona fide purchaser for valuable sale consideration? 8. Whether the plaintiff is entitled for the relief of specific performance? 9. To what relief?" 16. The narrative of the facts in the preceding paragraphs discloses that the 1st defendant, one of the wives of Govinda Reddy, suffered a decree for recovery of possession of items 2 and 3 herein, whereas she was conferred with the right in respect of item 1 towards maintenance. Though she made an attempt to dispute the execution of EX.A1 in favour of the plaintiff, a finding was recorded to the effect that EX.A1 is proved. As regards the title of the 1st defendant, vis-a-vis the suit schedule property, the trial Court took the view that in respect of item 1, her limited right conferred under the decree in OS No.10 of 1965 marked as Ex.A4, enlarged into an absolute right by operation of Section 14(1) of the Hindu Succession Act. That finding is valid and obviously for that reason, it was not disturbed by the lower Appellate Court. However, regarding items 2 and 3 of the suit schedule, the trial Court held that though the decree for recovery of possession of the same became final against the 1st defendant, she acquired absolute rights vis-a-vis two items, since no execution was taken out by the decree-holder, under EX.B4. It is difficult to sustain this part of the finding. 17. A person would acquire legal right to convey title in respect of an item of property to another, if only he has the title in respect of that property. The maxim "Nemo dat quod non habet", gets attracted. The existence of title is Sine qua non, for one to convey it to another. This is so, even if the concerned individual is not in possession of the property. However, the converse is not true. Irrespective of the nature and length of possession, a person does not acquire the right to convey the title in respect of such property to another, unless he had it. This is so, even if the concerned individual is not in possession of the property. However, the converse is not true. Irrespective of the nature and length of possession, a person does not acquire the right to convey the title in respect of such property to another, unless he had it. The occasion for a person with long-standing possession to convey the property to another would arise, if only title has accrued to him either by operation of any provision of law or through a declaration by a Court to that effect. In the absence of such developments, a person cannot assume to himself, the title on the basis of possession, much less convey the title, that too, another. 18. In the instant case, the lower Appellate Court maintained this subtle distinction and differentiated the legal regime that governs item 1 of the suit schedule, on the one hand, and items 2 and 3, on the other. Learned Counsel for the appellant is not able to point out any legal or factual defect, in this regard. 19. Much of the discussion was undertaken by the lower Appellate Court on the principles of evidence, namely whether it was competent for the husband of the plaintiff to depose on her behalf, and whether in the absence of the evidence of the plaintiff herself, the suit could have been decreed. After referring to the relevant precedents, the lower Appellate Court answered it in favour of the plaintiff. 20. Though the second appeal presents a question of law, the facts of the case and evidence on record are such that no oilier view than what is expressed by the lower Appellate Court is possible. Having been divested of all her rights vis-a-vis items 2 and 30f suit schedule property, under Ex.B4, the 1st defendant made an attempt, not only to offer those items for sale to plaintiff, but also had entered into clandestine understanding or compromise with Narayana Chetty. The facts borne out by record disclose that the 1st defendant did not have the legal standing or right to undertake any transactions vis-a-vis items 2 and 3 of the suit schedule. 21. For the foregoing reasons, the second appeal is dismissed. There shall be no order as to costs. 22. The miscellaneous petition filed in this second appeal shall also stand disposed of.