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2024 DIGILAW 1543 (AP)

P. Janardhan Reddy v. Aswathamma

2024-11-15

V.GOPALA KRISHNA RAO

body2024
JUDGMENT : V. GOPALA KRISHNA RAO, J. 1. This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellants challenging the Decree and Judgment, dated 30.01.2004, in O.S. No. 3 of 2001 passed by the learned I Additional District Judge, Kurnool [for short 'the trial Court']. 2. The appellants herein are the plaintiffs and 1st Respondent herein is the defendant in O.S. No. 3 of 2001. During the pendency of the appeal, 1st respondent died and the 2nd respondent herein was brought on record as Legal Representative of 1st respondent and subsequently, the 2nd respondent died and the respondent Nos. 3 and 4 herein are brought on record as Legal Representatives of 2nd respondent. 3. The appellants/plaintiffs filed the suit for specific performance of agreement of sale, dated 09.05.2000 executed by the defendant in their favour and for delivery of vacant possession of the suit schedule property. 4. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court. 5. The brief averments of the plaint, in O.S. No. 3 of 2001, are as under: The defendant being the absolute owner of the suit schedule building agreed to sell the suit schedule building to the plaintiffs for a sum of Rs. 11,00,000/- and executed an agreement of sale on a stamped paper, dated 09.05.2000. On the date of agreement, the defendant received a sum of Rs. 10,00,000/- and the plaintiffs agreed to pay the balance sale consideration of Rs. 1,00,000/- on or before 10.09.2000. On receipt of balance of the sale consideration the defendant has to execute a registered sale deed in favour of the plaintiffs and agreed to deliver the vacant possession of the suit schedule house. As agreed under the agreement of sale, the plaintiffs paid balance of sale consideration of Rs. 1,00,000/- on 08.09.2000 and got endorsed the same on the reverse of stamped agreement of sale. Thus, the plaintiffs performed their part of contract. Despite of issuance of legal notice, the defendant did not execute the sale deed, but she issued a reply with false allegations and that the plaintiffs are constrained to file the suit. 6. 1,00,000/- on 08.09.2000 and got endorsed the same on the reverse of stamped agreement of sale. Thus, the plaintiffs performed their part of contract. Despite of issuance of legal notice, the defendant did not execute the sale deed, but she issued a reply with false allegations and that the plaintiffs are constrained to file the suit. 6. The defendant filed a written statement by denying all the averments mentioned in the plaint and further contended as under: - The defendant being aged 80 years, married to one Challa Ramaswamy of Madras in the year 1945 and her marriage broke in a couple of years and the defendant forced to come back to Kurnool to live with her parents as dependant. She had no issues. The husband of the defendant died in the year 1968. The father of the defendant late Pelala Kondaiah brought one T. Satyanarayana from Hyderabad to help him in his business. The said Satyanarayana was an orphan and no other than the son of the elder sister of the father of the defendant. The said Satyanarayana was under the protective wing of the father of the defendant, but unfortunately, the father of the defendant died in the year 1979 and mother also died in the year 1981. The plaint schedule house was the property of the father of the defendant and on his death, his wife and defendant's mother succeeded the property. When the property as divided amongst other members of the family of late Pelala Kondaiah, the plaint schedule house also partitioned and out of compassion, the defendant was allowed to have limited interest for life. Thus, the defendant is not an absolute owner of the suit house. The defendant further contends that the agreement of sale is the outcome of the fraud played by T. Satyanarayana in connivance with the plaintiffs and therefore it is not enforceable under law. The defendant further contends that she is not the absolute owner of the suit schedule property and she is having only limited rights in view of the family settlement-cum-Memorandum of partition. Therefore, she is incompetent to sell the property and even if she agreed to sell the property, she cannot convey title to the purchasers. 7. Based on the above pleadings, the trial Court framed the following issues: (1) Whether the defendant is the absolute owner of the property? Therefore, she is incompetent to sell the property and even if she agreed to sell the property, she cannot convey title to the purchasers. 7. Based on the above pleadings, the trial Court framed the following issues: (1) Whether the defendant is the absolute owner of the property? (2) Whether the defendant executed any agreement of sale in favour of the plaintiffs by receiving sale consideration, if so the plaintiffs are entitled for specific performance of agreement of sale, dated 09.05.2000? (3) Whether the plaintiffs are entitled for recovery of possession of suit schedule property? (4) To what relief? 8. During the course of trial in the trial Court, on behalf of the Plaintiffs, PW1 and PW2 were examined and Ex.A1 to Ex.A5 were marked. On behalf of the Defendant, DW1 was examined and Ex.B1 to B10 were marked. 9. After completion of the trial and hearing the arguments of both sides, the trial Court dismissed the suit vide its judgment, dated 30.01.2004, against which the present appeal is preferred by the plaintiffs in the suit questioning the Decree and Judgment passed by the trial Court. 10. Heard Sri O. Manohar Reddy, learned counsel for the appellants and heard Sri P. Veera Reddy, learned Senior Counsel, representing Ms.Sodum Anvesha, learned counsel for the respondent Nos. 3 and 4. 11. Learned counsel for the appellants would contend that the judgment and decree of the trial Court is contrary to law, weight of evidence and probabilities of the case. He would further contend that the trial Court ought to have seen the evidence of P.W.1 coupled with the evidence of P.W.2 and Ex.A.1 and Ex.A.2 and the same proves the execution of agreement of sale. He would further contend that the trial Court erred in law in holding that Ex.B.1 is admissible in evidence even though the same was not produced from proper custody. 12. Per contra, the learned counsel for the respondents would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly dismissed the suit and there is no need to interfere with the findings given by the learned trial Judge. 13. Now the points for determination are: 1. Whether Ex.A.1 agreement of sale, dated 09.05.2000 is true, valid and binding on the 1st respondent/defendant? 2. Whether the trial Court is justified in dismissing the suit? 14. 13. Now the points for determination are: 1. Whether Ex.A.1 agreement of sale, dated 09.05.2000 is true, valid and binding on the 1st respondent/defendant? 2. Whether the trial Court is justified in dismissing the suit? 14. Point No. 1 : Whether Ex.A.1 agreement of sale, dated 09.05.2000 is true, valid and binding on the 1st respondent/defendant? The case of the plaintiffs is that the defendant being the absolute owner of the suit schedule building agreed to sell the suit schedule building to the plaintiffs for a sum of Rs. 11,00,000/- and executed an agreement of sale, dated 09.05.2000. The plaintiffs further pleaded that on the date of agreement, the defendant received a sum of Rs. 10,00,000/- and the plaintiffs agreed to pay the balance of the sale consideration of Rs. 1,00,000/- on or before 10.09.2000 and on receipt of balance of the sale consideration, the defendant has to execute a registered sale deed in favour of the plaintiffs and agreed to deliver the vacant possession of the suit schedule house. The plaintiffs further pleaded that the plaintiffs paid the balance sale consideration of Rs. 1,00,000/- on 08.09.2000 and got endorsed the same on the reverse of stamped agreement of sale and subsequently, despite of issuance of legal notice, the defendant did not execute the sale deed, but she issued a reply with false allegations and that the plaintiffs are constrained to file the suit. 15. The contention of the defendant is that the plaintiffs paid no consideration to the defendant and she never intended to execute an agreement of sale in respect of the suit schedule property either in favour of the plaintiffs or in favour of anybody, Ex.A.1 agreement of sale is only a fabricated document, which was fabricated by T. Satyanarayana and his two sons and Ex.A.1 is outcome of the fraud played by the said Satyanarayana in connivance with the plaintiffs and, therefore, the said agreement of sale is not enforceable under law. The defendant further contends that she is not the absolute owner of the property and she is having only limited rights in view of the family settlement-cum-Memorandum of partition under Ex.B.10. She further contends that she is incompetent to sell the property and even if she agreed to sell the property, she cannot convey title to the purchasers. 16. The defendant further contends that she is not the absolute owner of the property and she is having only limited rights in view of the family settlement-cum-Memorandum of partition under Ex.B.10. She further contends that she is incompetent to sell the property and even if she agreed to sell the property, she cannot convey title to the purchasers. 16. Since the defendant is disputing the alleged Ex.A.1 agreement of sale and passing of consideration under Ex.A.1, the initial burden is lies on the plaintiffs to prove the execution of the alleged Ex.A.1 agreement of sale and passing of consideration under Ex.A.1. The plaintiffs relied on the evidence of P.W.1 and P.W.2. P.W.1 is the 2nd plaintiff and P.W.2 is no way connected to Ex.A.1 agreement of sale. The contention of the plaintiffs is that to prove Ex.A.1 agreement of sale and payment endorsement of Rs. 1,00,000/-, they are relying on the evidence of P.W.2. P.W.1 reiterated the contents of plaint in his evidence affidavit. The contention of the defendant from the beginning is that she is a close relative of T. Satyanarayana and his two sons T. Kulasekhar and T. Sudhakar on whom she is totally depending upon them, because she is not having male support. She further contends that the said Satyanarayana and his two sons obtained her signatures on blank stamp papers and in conspiracy with the plaintiffs, they created Ex.A.1 agreement of sale and also endorsement under Ex.A.2 on Ex.A.1. As stated supra, since the defendant is seriously disputing about the execution of Ex.A.1 agreement of sale and so also passing of consideration under Ex.A.1 agreement of sale, therefore, the burden is heavily rests on the plaintiffs to prove the same, since the plaintiffs approached the Court for seeking the relief of specific performance of agreement of sale, dated 09.05.2000. The suit is based on Ex.A.1 agreement of sale alleged to have been executed by the defendant in favour of the plaintiffs. 17. The defendant relied on Ex.B.1. Ex.B.1 is confronted to P.W.1 i.e., 2nd plaintiff, he admitted Ex.B.1 document. He admits in his evidence in cross examination that himself and 1st plaintiff as one party and Satyanarayana, Kulasekhar and Sudhakar as another party entered into agreement agreeing to pay Rs. 10,00,000/- on or before 10.09.2000. 17. The defendant relied on Ex.B.1. Ex.B.1 is confronted to P.W.1 i.e., 2nd plaintiff, he admitted Ex.B.1 document. He admits in his evidence in cross examination that himself and 1st plaintiff as one party and Satyanarayana, Kulasekhar and Sudhakar as another party entered into agreement agreeing to pay Rs. 10,00,000/- on or before 10.09.2000. The evidence of P.W.1 further goes to show that the plaintiffs as one party and Satyanarayana and his two sons as another party executed Ex.B.1 agreement. The recitals in Ex.B.1 goes to show that Satyanarayana and his two sons borrowed a sum of Rs. 10,00,000/- for their business purpose from the plaintiffs and executed Ex.B.1 in favour of the plaintiffs and got executed an agreement of sale said to have been executed by defendant for Rs. 11,00,000/- and they received Rs. 10,00,000/- towards loan from the plaintiffs and further agreed to repay the same with interest on or before 10th of September and later after repaying the same, they got cancelled Ex.A.1 agreement. P.W.1 himself admitted about Ex.B.1 agreement in the cross examination in his evidence itself. 18. I have perused Ex.B.1 along with Ex.A.1 agreement of sale. The recitals in Ex.A.1 together with Ex.B.1, goes to show that the defendant has not received any consideration under Ex.A.1. The recitals in Ex.B.1 clearly supports the defence of the defendant that Satyanarayana and his two sons obtained her signatures on stamp papers and brought into existence of Ex.A.1 agreement of sale. Ex.B.1 is drafted on a stamp paper purchased by one Janardhana Reddy, dated 09.05.2000 vide stamp bearing No. 14955 and Ex.A.1 is drafted on the same day i.e., on 09.05.2000. One stamp paper bearing No. 14957 is purchased in the name of 2nd plaintiff and another stamp paper bearing No. 14954 is purchased in the name of 1st plaintiff. Both the alleged Ex.A.1 and Ex.B.1 documents are said to have been executed on the same day i.e., 09.05.2000. Furthermore, the alleged Ex.A.1 agreement of sale is said to have been scribed by one Krishna Murthy and attested by T. Satyanarayana and P. Vedavathi. But, for the reasons best known to the plaintiffs, the plaintiffs did not choose to examine the attestors and scribe. Furthermore, the alleged Ex.A.1 agreement of sale is said to have been scribed by one Krishna Murthy and attested by T. Satyanarayana and P. Vedavathi. But, for the reasons best known to the plaintiffs, the plaintiffs did not choose to examine the attestors and scribe. The above circumstances as narrated clearly reveals that the execution of Ex.B.1 is an undisputed fact in between both the parties and the terms and conditions of the document are also not disputed by the plaintiffs either in the evidence or in the cross examination of D.W.1. In cross examination of D.W.1, nothing was elicited from her to disprove Ex.B.1 document. The contention of the plaintiffs is that prior to the institution of the suit, they got issued a legal notice to the defendant and the defendant issued a reply notice with false allegations. But, for the reasons best known to the plaintiffs, the said copy of the alleged registered notice and alleged reply notice is not at all filed and not at all marked as exhibits before the trial Court. 19. The learned Senior Counsel, Sri O. Manohar Reddy, on behalf of the appellants, would contend that both the attestors are close relatives of the defendant, therefore, the plaintiffs are unable to examine both the attestors as witnesses and since both the attestors are kith and kin of the defendant, the plaintiffs have not examined the attestors. The plaintiffs failed to examine the attestors and scribe of Ex.A.1 alleged agreement of sale. The suit is based on Ex.A.1 agreement of sale. The plaintiffs are claiming the relief of specific performance of agreement of sale, dated 09.05.2000. But for the reasons best known to the plaintiffs, none of the attestors or scribe relates to alleged Ex.A.1 agreement of sale are not at all examined. I am also unable to accept the contention taken by the learned Senior Counsel for the appellants, as stated supra, since from the beginning itself the contention of the defendant is that her close relatives Satyanarayana and his two sons obtained her signatures on blank stamp papers and got created Ex.A.1 agreement of sale. The same is well supported with the contents narrated in Ex.B.1 as noticed supra, Ex.B.1 is not at all disputed by the plaintiffs. The same is well supported with the contents narrated in Ex.B.1 as noticed supra, Ex.B.1 is not at all disputed by the plaintiffs. Therefore, the plaintiffs ought to take steps to examine the attestors or scribe of Ex.A.1 agreement of sale before the trial Court to prove that the consideration under Ex.A.1 is received by the defendant from the plaintiffs. The appellants contended that they relied on the evidence of P.W.2. P.W.2 is attestor in Ex.A.2 endorsement on Ex.A.1. The appellants contended that the evidence of P.W.2 itself is suffice to prove Ex.A.1 transaction. Admittedly, P.W.2 is no way connected to Ex.A.1 transaction. It is not the case of the plaintiffs that Ex.A.1 transaction was happened in the presence of P.W.2. P.W.2 admits in his evidence in cross examination that P.W.1 called him to sign on a document as an attestor on the date of second payment. In cross examination it was suggested to P.W.2 by the learned counsel for defendant that he is the relative of P.W.1 and Ex.A.2 is created with the help of Satyanarayana due to subsisting relationship with P.W.2. The said suggestion was denied by P.W.2. As seen from Ex.A.2 endorsement, the attestors V. Vedavathi and Satyanarayana in Ex.A.1 alleged document are also signed as family members on Ex.A.2. In addition to the above two persons V. Vedavathi and Satyanarayana, one Sudhakar and one P. Venkata Ramana also signed as family members on Ex.A.2 alleged endorsement, but for the reasons best known to the plaintiffs, none of the said family members were examined. Ex.A.2 clearly goes to show that the signature of attestor at serial No. 2 on Ex.A.2 is kept blank. Furthermore, in view of the defence taken by the defendant in written statement itself, it is clear that Ex.A.1 is created document which is well supported by the document of Ex.B.1 as noticed supra and no consideration is passed under Ex.A.1. Therefore, no importance will be given to Ex.A.2 alleged endorsement. Since Ex.A.1 agreement of sale itself is not at all proved by the plaintiffs, therefore, the evidence of P.W.2 is no way helpful to prove the suit agreement transaction. For the aforesaid reasons, I am of the considered view that Ex.A.1 agreement of sale, dated 09.05.2000 is not true and not valid and also not binding on the defendant. Accordingly, point No. 1 is answered. 20. For the aforesaid reasons, I am of the considered view that Ex.A.1 agreement of sale, dated 09.05.2000 is not true and not valid and also not binding on the defendant. Accordingly, point No. 1 is answered. 20. Point No. 2: Whether the trial Court is justified in dismissing the suit? In view of my findings on point No. 1, the trial Court is justified in dismissing the suit and there is no need to interfere in the findings given by the learned trial Judge and the decree and judgment passed by the trail Judge is perfectly sustainable under law and it requires no interference. 21. In the result, the Appeal Suit is dismissed confirming the decree and Judgment, dated 30.01.2004 in O.S. No. 3 of 2001 passed by the learned I Additional District Judge, Kurnool. Each party do bear their own costs in the appeal. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.