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2023 DIGILAW 1409 (AP)

Yembeti Vemaiah v. Kaluvayi Prabhakara Reddy

2023-10-20

T.MALLIKARJUNA RAO

body2023
JUDGMENT : T.Mallikarjuna Rao, J. The Appeal, under Section 96 of the Code of the Civil Procedure, is filed by the appellants/defendants 1 and 2 challenging the decree and Judgment dated 17.06.2010 in O.S.No.27 of 2004 passed by the learned Principal District Judge, Nellore (for short, 'trial court'). 2. Referring to the parties hereinafter as arrayed in the suit is expedient to mitigate potential confusion and better comprehend the case. 3. The 1st respondent is the plaintiff, who filed the suit in O.S.No.27 of 2004 seeking Specific Performance of an agreement of sale dated 14.09.2003 by directing the defendants to execute a regular registered sale deed in favour of the plaintiff after receiving a sum of Rs.8,93,500/- towards the balance of sale consideration. 4. The factual matrix, necessary and germane for adjudicating the contentious issues between the parties inter se, may be delineated as follows: (a) The defendants are the absolute owners of the plaint schedule property and have been in possession and enjoyment of the same. The defendants offered to sell the plaint schedule property @ Rs.2,70,000/- per acre to the plaintiff. On 14.09.2003, the defendants received a sum of Rs.2,00,000/- towards advance of sale consideration and executed a stamped sale agreement in plaintiff's favour. According to the terms of the agreement, the schedule land needed to be measured to determine its actual extent, and the plaintiff is expected to pay the outstanding sale consideration for the verified extent at the agreed rate. The plaintiff has to obtain a registered sale deed at his expense within five months from the date of agreement dated 14.09.2003. Despite the plaintiff's request for cooperation in measuring the land to ascertain the actual extent and to receive the balance of sale consideration and execute the registered sale deed, the defendants were postponing the same on one pretext or other. The plaintiff has always been ready and willing to perform his part of the contract. However, the defendants did not come forward to fulfil their part of the contract. As there was no response from the defendants, the plaintiff issued a notice dated 27.01.2004 requesting the defendants to complete their part of the contract. The defendants replied on 12.02.2004 confirming the execution of the sale agreement and receipt of Rs.2,00,000/- as advance for the sale consideration. Nevertheless, they made several false allegations concerning land ownership and other related matters. As there was no response from the defendants, the plaintiff issued a notice dated 27.01.2004 requesting the defendants to complete their part of the contract. The defendants replied on 12.02.2004 confirming the execution of the sale agreement and receipt of Rs.2,00,000/- as advance for the sale consideration. Nevertheless, they made several false allegations concerning land ownership and other related matters. (b) Within a short time, the defendants sent a mediator to the plaintiff stating that they had already measured the said land at the time of their purchase on 12.09.1980 and offered to execute a regular sale deed on payment of the balance of sale consideration for Ac.4.05 cents @ Rs.2,70,000/- per acre. The plaintiff agreed to pay the balance of the sale consideration to the defendants. Even after that, the defendants started prolonging the matter without performing their part of the contract. Now, it has become apparent that the defendants are attempting to sell the plaint schedule property to third parties at higher price, while concealing their existing sale agreement with the plaintiff. If they are successful in doing so, it would result in significant and irreparable losses for the plaintiff. 5. (a) The 2nd defendant adopted the 1st defendant's written statement, contended that the 1st defendant had received an advance payment of Rs.2,00,000/- from the plaintiff and signed the stamped agreement of sale dt.14.09.2003; he denied the plaintiff's claim of non-cooperation by the defendants in measuring the land and ascertaining its actual extent; the 2nd defendant also acknowledged the notice issued by the plaintiff and subsequent reply by the 1st defendant. According to the 2nd defendant, the plaintiff is involved in real estate business and as the schedule lands are located near Nellore City, the plaintiff approached the defendants expressing interest in purchasing the lands. The defendants informed the plaintiff that there were other co-sharers of the lands, and they were willing to consider their share subject to the agreement other co-owners. (b) The plaintiff allegedly took advantage of the defendants' illiteracy and prepared an agreement according to his own wishes. He got this agreement signed by the defendants at midnight and paid an amount of Rs.2,00,000, promising to obtain the signatures of the other co-sharers. However, the next day, the defendants noticed that the plaintiff had never approached the other co-owners for their consent. He got this agreement signed by the defendants at midnight and paid an amount of Rs.2,00,000, promising to obtain the signatures of the other co-sharers. However, the next day, the defendants noticed that the plaintiff had never approached the other co-owners for their consent. Upon consulting with the other co-owners, the defendants informed the plaintiff of their intention to return the Rs.2,00,000 advanced for the sale consideration. The plaintiff, realizing he could not deceive the defendants, remained silent for an extended period and avoided contact with the defendants, for reasons known only to him. The defendants have consistently expressed their readiness to refund the advance amount of Rs.2,00,000/- to the plaintiff. Even after the plaintiff sent a reply notice on February 12, 2004, the plaintiff remained silent for about five months and eventually filed a suit with unfounded and baseless claims. 6. During the pendency of the suit before the trial Court, the defendants 3 to 7 were brought on record as per the orders in I.A.No.342 of 2007, dated 12.09.2007. The 5th defendant adopted the written statement filed by defendants 3, 4, 6 and 7. Defendants 3 to 7 contended that defendants 1 and 2 are their parents; the property was purchased using joint family funds and for the benefit of the joint family; as defendants 1 and 2 are the elders of the family, the sale deeds for the suit property were executed in their names; they denied any knowledge of the execution of an agreement of sale by the defendants 1 and 2 in favour of the plaintiff. Furthermore, the defendants contended that as per the terms of the sale agreement, the land had to be measured, the actual extent had to be determined, and the plaintiff had to pay the remaining sale consideration; they refuted the plaintiff's claims of readiness and willingness to fulfill his obligations under the contract; they asserted that they are entitled to 5/7th share in the suit property; they never authorized the defendants 1 and 2 to execute any agreement of sale related to the schedule property. 7. The plaintiff filed a rejoinder denying most of the allegations made in the 5th defendant's written statement. Defendants 3 to 7 have no right over the plaint schedule property and they added the year 2007 in the suit only to protract the litigation and cause trial delays. 8. 7. The plaintiff filed a rejoinder denying most of the allegations made in the 5th defendant's written statement. Defendants 3 to 7 have no right over the plaint schedule property and they added the year 2007 in the suit only to protract the litigation and cause trial delays. 8. Based on the above pleadings, the trial Court framed the following issues: (1) Whether the contract of sale, dated 14.09.2003, vitiated for the reasons stated by the first defendant? (2) Whether the contract is not enforceable as the other sharers are not parties to the agreement? (3) Whether the plaintiff is not entitled to specific performance of the contract of sale? (4) To what relief? 9. The trial Court also framed the following additional issues: (1) Whether the defendants 3 to 7 are bound by the contract and enforceable against them? 10. During the trial, on behalf of the plaintiff, P.Ws.1 to 3 were examined, and Exs.A1 to A.5 were marked. On behalf of the defendants, D.Ws.1 to 3 were examined, and Ex.B.1 was marked. 11. After the trial's completion and hearing both sides' arguments, the trial Court decreed the suit with costs by granting specific performance of the contract. 12. Learned counsel representing the appellants/defendants contends that the trial Court erred in granting a decree in favour of the plaintiff without considering the well established principle that discretionary relief of specific performance should not be granted to a plaintiff, whose conduct is blame worthy; the plaintiff came to Court with a false claim, stating that after exchanging notices, the defendants 1 and 2 sent a mediator with a Xerox copy of the sale deed promising to receive the remaining sale consideration and execute a sale deed as per Ex.A.1; the trial Court failed to consider the delay in filing the suit after exchange of notices; In addition, it's pointed out that Ex.A.1 had issues with its formatting, which should have led the trial Court to conclude that it was written on stamp papers containing the signatures and thumb impressions of defendants 1 and 2. Moreover, given the evidence of PWs.1 to 3 and the property's value, Ex.A.1 is considered unconscionable and therefore unenforceable. The evidence of PWs.1 to 3 is criticized as unreliable, as they are close friends and interested witnesses. Moreover, given the evidence of PWs.1 to 3 and the property's value, Ex.A.1 is considered unconscionable and therefore unenforceable. The evidence of PWs.1 to 3 is criticized as unreliable, as they are close friends and interested witnesses. The plaintiff's readiness and willingness to perform his part of the contract within the stipulated time under Ex.A.1, as required by Section 16 of the Specific Relief Act, is also questioned. It is argued that the plaintiff did not demonstrate that he had the necessary funds or resources to pay the remaining sale consideration; the trial Court without considering the evidence erred in relying upon the Ex.A.1 contents to hold that the plaint schedule property is not the joint family property and it is self acquired property of defendants 1 and 2; the trial Court erred in holding that defendants 3 to 7 are bound by Ex.A.1 as it was executed by defendants 1 and 2 as managers of the joint family. 13. Per contra, the learned counsel appearing for the respondent/plaintiff would contend that the trial Court correctly appreciated the facts of the case and reached a correct conclusion. The reasons given by the trial Court do not require any modifications. 14. Concerning the pleadings in the suit, the findings recorded by the Trial Court and in light of the rival contentions and submissions made on either side before this Court, the following points would arise for determination: 1. Is the trial Court justified in granting relief of specific Performance of the sale agreement dated 14.09.2003? 2. Does the Judgment passed by the trial Court need any interference? Point Nos.1 & 2: 15. To prove the plaintiff's case, the plaintiff himself was examined as P.W.1; the attestor and scribe of (Ex.A1) agreement of sale were examined as P.Ws 2 and 3. It is the version of P.Ws.1 to 3 that the defendants 1 and 2 agreed to sell the schedule property at Rs.2,70,000/- per acre, and they received a sum of Rs.2,00,000/- towards advance of sale consideration and executed (Ex.A1) agreement of sale in favour of the plaintiff on 14.09.2003. The 1st defendant, in his written statement, admitted that he received Rs.2,00,000/- from the plaintiff and signed the stamped agreement. The 2nd defendant/Y. Meeramma was examined as D.W.1. She subscribed her signature, and her husband put his thumb impression on (Ex.A1) agreement of sale. The 1st defendant, in his written statement, admitted that he received Rs.2,00,000/- from the plaintiff and signed the stamped agreement. The 2nd defendant/Y. Meeramma was examined as D.W.1. She subscribed her signature, and her husband put his thumb impression on (Ex.A1) agreement of sale. She and her husband received a sum of Rs.2,00,000/- from the plaintiff. 16. On behalf of the defendants, the 5th defendant was examined as D.W.2. It can be seen from the record that the children of defendants 1 and 2 are brought on record as D.3 to D.7 as per the orders in I.A.No.342 of 2007 dated 12.09.2007. D.5 filed a written statement, which was adopted by D.3, D.4, D.6 and D.7. According to the version of D.3 to D.5, D.1 and D.2 are not the absolute owners of the suit schedule property. D.1, D.3, to D.5 are the members of the Hindu joint family. D.1 is their father, and D.2 is their mother. The suit schedule property was purchased with joint family funds and for the benefits thereof. As rightly held by the trial Court that it is not in dispute that D.1 and D.2 agreed to sell the scheduled property at Rs.2,70,000/- per acre and entered into an agreement of sale on 14.09.2003 after receiving Rs.2,00,000/- towards advance of sale consideration. D.1 and D.2 have taken a plea in the written statement that the plaintiff has taken undue advantage of illiteracy and prepared an agreement and got it signed, promising to get the signatures of other co-sharers. As seen from the said plea taken in the written statement, the defendants are not disputing the terms and conditions of the agreement. Still, their contest is that the plaintiff persuaded them to sign an (Ex.A1) agreement on the pretext that he would get the signature of other co-sharers. It is their stand that as the co-sharers did not come forward to execute the registered sale deed, they are helpless. Ex.A1 agreement does not show that the plaintiff has assured D.1 and D.2 that he would convince the children of D.1 and D.2 to get the signatures of other co-sharers. 17. In examining the nature of the suit schedule property, it's essential to determine whether it belongs to defendants 1 and 2 individually or whether it is part of the joint family property involving defendants 1 to 7. 17. In examining the nature of the suit schedule property, it's essential to determine whether it belongs to defendants 1 and 2 individually or whether it is part of the joint family property involving defendants 1 to 7. Ex.A1, the agreement, does not explicitly state that the property is ancestral or joint family property of the defendants. The agreement indicates that defendants 1 and 2 purchased the property on 12.09.1980 from P. Chenchuramaiah. The defendants also produced (Ex.B1) a registered sale deed dated 12.09.1980, which confirms the purchase of the schedule property by defendants 1 and 2. Notably, there is no mention in the agreement that the property was acquired by defendants 1 and 2 using income from the joint family nucleus or joint family funds. It also lacks a statement that the property was acquired by defendants 1 and 2 for the benefit of the joint family and that the children of defendants 1 and 2 have rights over it. The defendants have not presented any evidence to demonstrate that the property was acquired by defendants 1 and 2 using joint family income or joint family funds. 18. Defendants 1 and 2 have not disputed the rate fixed per acre and extent of land covered under Ex.A1. Defendants 3 to 7 have not placed any material before the Court to show they have a 5/7th share in the schedule property. Though, D.W.1 stated in her evidence that her sons purchased the schedule property in her name and her husband's name, no plea is taken in the written statement filed by D.5 that the schedule property was purchased by D.3 to D.7 in the name of their parents (D.1 and D.2). In the absence of such plea in the written statement of D.5, it is difficult to accept the evidence of D.W.1 in this regard. It is also the plaintiff's case that D.3 was present and signed on Ex.A1. D.3 has not come forward to dispute the signature on Ex.A1, as contended by the plaintiff. 19. It is not the case of D.1 and D.2 that the signature of D.3 was forged in Ex.A1. It shows that D.3 knows the terms of the Ex.A1 agreement. D.W.1 admitted that they had not filed documents showing that her sons purchased the schedule property with their earnings in her and her husband's names. 20. 19. It is not the case of D.1 and D.2 that the signature of D.3 was forged in Ex.A1. It shows that D.3 knows the terms of the Ex.A1 agreement. D.W.1 admitted that they had not filed documents showing that her sons purchased the schedule property with their earnings in her and her husband's names. 20. Coming to the evidence of D.W.2- Yembeti Yeshaiah, he also stated that D.3 to D.5 purchased the schedule property in the name of D.1 and D.2. As seen from the written statement filed by D.5, such plea has not been taken. It is contended in the written statement of D.5 that D.3 to D.7 are entitled to a 5/7th share in the suit schedule property. D.5 has not taken a plea regarding the purchase of schedule property by D.3 to D.7 in the name of D.1 and D.2. 21. The defendants also got examined D.W.3-Kayala Muddukrishna. His evidence shows that D.1 and D.2 are his grandparents. He also stated that the plaintiff paid Rs.2,00,000/- to defendants 1 and 2 and obtained their signatures on (Ex.A1) agreement; as the plaintiff has not got the consent of other sharers to purchase the schedule land, his grand-parents have sent him and their son Vasantha Rao to return the amount paid by the plaintiff, but, he did not receive the amount. 22. The evidence of D.W.3 in the cross-examination shows that on 15.09.2003, he was asked to go to the plaintiff's house, and there are no disputes among the defendants. The evidence of D.W.2 shows that D.1 to D.7 lives under one roof. It is somewhat difficult to believe that D.1 and D.2 entered into an agreement of sale with the plaintiff without consent of D.3 to D.7. The evidence of D.W.3 in the cross-examination shows that he does not know the street in which the plaintiff is residing. He does not know on which floor the plaintiff resides. It creates doubt about his evidence concerning going to the plaintiff's house. 23. After considering the oral and documentary evidence adduced on behalf of both sides, the trial Court has correctly conclusion that the defendants failed to produce any evidence to substantiate their contention that the property covered under Ex.A1 is not the self-acquired property of D.1 and it is the joint family property consisting of all the defendants. The defendants have not disputed the terms of the agreement. The defendants have not disputed the terms of the agreement. As per Ex.A1 agreement, the schedule property has to be measured, and the actual extent has to be ascertained, and the plaintiff has to pay the balance of sale consideration for the said extent at the fixed rate, as stated above. Though the plaintiff contends that the defendants engaged a mediator, who informed the plaintiff that the defendants had already measured the land, but no cogent material is placed to establish the contention. After considering the material on record, this Court views that the plaintiff failed to furnish the details of the measurement of the schedule property on the initiative by the defendants. 24. The plaintiff indeed sent a legal notice, (Ex.A2) dated 27.01.2004, to defendants 1 and 2, as is undisputed. In this notice, the plaintiff stated that he had been requesting the defendants to cooperate for the measurement and determination of the actual extent of the land, but they consistently postponed these actions on various pretexts. The plaintiff expressed his readiness and willingness to fulfill his part of the contract as stipulated in the Ex.A1 agreement. However, the defendants had not taken steps to fulfill their obligations under the agreement. It's worth noting that D.1 and D.2 received the legal notice, as confirmed by postal acknowledgment. In response, the defendants sent a reply notice (Ex.A5) to the plaintiff, contending that the plaintiff had taken advantage of their illiteracy by preparing an agreement and paying an advance of Rs.2,00,000/-. The plaintiff had promised to obtain the signatures of the other co-owners but, after consulting their children, but the plaintiff had never approached them. However, the (Ex.A5) reply notice did not provide a clear explanation regarding the issue of property measurements. The evidence on record indicates that the defendants 1 and 2 had not taken steps to measure the scheduled property, as stipulated in the Ex.A1 agreement, due to the non-cooperation of their children. It appears that defendants 3 to 7 were not willing to sell the schedule property though defendants 1 and 2 had agreed to sell to the plaintiff and received the advance amount, and as such, they did not proceed with the property measurements, as per the agreement's terms. 25. It appears that defendants 3 to 7 were not willing to sell the schedule property though defendants 1 and 2 had agreed to sell to the plaintiff and received the advance amount, and as such, they did not proceed with the property measurements, as per the agreement's terms. 25. After considering the entire material on record, this Court views that the trial Court has come to the correct conclusion that the plaintiff has always been ready and willing to perform his part of the contract. 26. In Nirmala Anand v. Advent Corporation Private Limited, 2002 (0) AIR(SC) 3396, the Hon'ble Apex Court held that: 6) It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the consideration besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the consideration to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing the specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen. 27. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing the specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen. 27. In light of the law laid down by the Apex Court, now I consider whether the additional amount can be awarded to the D.1 and D.2. As seen from the record, due to the non-cooperation of D.3 to D.7, D.1 and D.2 could not execute the registered sale deed, and they have yet to receive the balance of the sale consideration amount. Had they received the sale consideration amount as per the terms of (Ex.A1) agreement, they could have purchased the property by utilizing the said amount; this Court views that an additional amount is to be awarded to the defendants because the defendants are the agriculturists and they are eking out their livelihood on agriculture. Considering the escalation of prices and with the amounts deposited, they may not able to purchase considerable extent of property, this Court views that an additional amount of Rs.2,00,000/- will be awarded to the defendants to meet the ends of justice. 28. After careful consideration, the trial Court had adequately appreciated the evidence. There is no reason for this Court to arrive at a different conclusion than the one arrived at by the trial Court except directing to pay additional payment of Rs.2,00,000/-. I am of the opinion that the findings arrived at by the trial Court are correct, and no justifiable reasons have been shown by the appellants/defendants for arriving at different conclusions. I agree with the conclusion reached by the trial Court. 29. I am of the opinion that the findings arrived at by the trial Court are correct, and no justifiable reasons have been shown by the appellants/defendants for arriving at different conclusions. I agree with the conclusion reached by the trial Court. 29. As a result, i) The Appeal is partly allowed without costs by modifying the decree and judgment dated 17.06.2010 in O.S.No.27 of 2004, passed by the learned Principal District Judge, Nellore, to the extent, as mentioned below; (i) Both parties are directed to take steps to measure the suit schedule property with a qualified surveyor within two (2) months from the date of receipt of Judgment, otherwise, the plaintiff can work out his remedies by approaching the Court in accordance with the procedure; (ii) The respondent/plaintiff is directed to deposit the balance sale consideration amount with interest @ 12% per annum from 14.09.2003 till the date of deposit of the balance sale consideration amount (if he has not already deposited) as per the terms and conditions of (Ex.A1) agreement as per the extent of the land measured within two (2) month from the date of determination of the actual extent of the land; (iii) The plaintiff is further directed to deposit an additional amount of Rs.2,00,000/- (Rupees two lakhs only) within two months from the date of Judgment in addition to the balance sale consideration amount; (iv) On such deposits, D.1 and D.2 are directed to execute the registered sale deed in favour of the plaintiff within one month, failing which, the Court shall execute the sale deed in favour of the plaintiff in respect of the plaint schedule property; (v) After execution of the sale deed, D.1 and D.2 are entitled to withdraw the balance of sale consideration with interest and additional amount deposited in the Court; (vi) In the facts and circumstances, the parties have to bear their costs in the Appeal. Miscellaneous petitions pending, if any, in this Appeal, shall stand closed.