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2024 DIGILAW 472 (AP)

P. Nagaraju v. A. Sivaramakrishna Prasad

2024-04-19

V.GOPALA KRISHNA RAO

body2024
JUDGMENT : V. Gopala Krishna Rao, J. 1. The appeal is filed by the defendants 1 and 3 to 5 in O.S. No.177 of 1995 on the file of I Additional Senior Civil Judge's Court, Kakinada. Respondents 1 and 2 are the plaintiffs and the 3rd respondent is the 2nd defendant in the said suit. 2. The parties will hereinafter be referred to as arrayed before the trial Court. 3. The brief averments in the plaint are as follows: It is pleaded that defendants 2 to 5 are the sons of 1st defendant and they are Hindu joint family members of which the 1st defendant is the family Manager. The plaint schedule land fell to the branch of the 1st defendant in the partition that took place in between the 1st defendant and his brothers Kannayya and Pullayya. It is further pleaded that the plaint schedule land is offered for sale for acquiring other property with the sale consideration and for the benefit of the then minors and the plaintiffs negotiated for purchasing the same from the defendants 1 to 3 and the 1st defendant as guardian for the then minor defendants 4 and 5 and also as family Manager. Subsequently, the 4th defendant became major. The defendants agreed to sell away the plaint schedule land at the rate of Rs. 1,35,000/- per acre and the actual extent of the land has to be measured and the total consideration has to be paid after measurement. There are mango trees, casuarina trees, black berry trees, palmyra trees etc., in the schedule land. It is agreed that the defendants shall remove all the trees for themselves and then the land has to be got measured and the extent has to be ascertained in the presence of plaintiffs and the plaintiffs have to divide the said land into plots and layout plan has got to be prepared by the plaintiffs and the defendants have to sign it and the plaintiffs have to submit the said layout plan and take further steps for the approval of the same and all the incidental expenses therefor have to be borne by the plaintiffs and then the defendants have to execute sale deed or sale deeds for the total extent or for plots in favour of the plaintiffs or their nominees, as desired by the plaintiffs by 31-3-1991. It is further pleaded that after the negotiations and after agreeing to the above said terms, sale agreement was executed by the defendants in favour of the plaintiffs on 24-10-1990, having received a sum of Rs. 1,25,000/- as advance from out of the total sale consideration from the plaintiffs at the time of execution of the agreement of sale. Thereafter, the plaintiffs requested the defendants on several occasions to cut and removal of all the trees from the schedule land which can enable for measuring the plaint schedule land and to divide it into plots and for drawing a layout plan which has to be signed by the defendants for submitting the same for approval. Without removing the said trees, the defendants every year selling away the usufruct of the trees in the beginning of the year itself much in advance and realising more than Rs. 25,000/- per year and they requested the plaintiffs to wait saying that trees can be cut after the collection of usufruct but again they are selling the usufruct in advance and not removed any of the trees from the schedule land. The defendants requested the plaintiffs for part payments from out of the balance of sale consideration. The plaintiffs paid a sum of Rs. 20,000/- on 27-02-1991 from out of the balance of sale consideration to the 3rd defendant and obtained a receipt. On 03-7-1993 the plaintiffs paid an amount of Rs. 20,000/- to the 3rd defendant on behalf of all defendants and obtained a receipt. On 14-8-1993 the plaintiffs paid an amount of Rs. 4,000/- to the 1st defendant and obtained a receipt. On 04-10-1993 plaintiffs paid an amount of Rs. 40,000/- to the 1st defendant and the 1st defendant made an endorsement regarding the said payment as well as the previous payments also on the back of the sale agreement and affixed his thumb impression thereon. It is further pleaded that thus, the plaintiffs paid in all Rs. 2,19,000/- including the payment made on 04-10-1993 to the defendants out of the sale consideration. Again in that year the plaintiffs requested the defendants not to sell the usufruct and to take away the trees and enable them to get the land measured and divided them into plots, but the defendants postponing the same. 2,19,000/- including the payment made on 04-10-1993 to the defendants out of the sale consideration. Again in that year the plaintiffs requested the defendants not to sell the usufruct and to take away the trees and enable them to get the land measured and divided them into plots, but the defendants postponing the same. The plaintiffs having waited for a long period, got issued a registered notice dated 01-5-1995 to the defendants and for which the defendants evaded to receive the same and they did not issue any reply nor did they execute the sale deed. Hence the plaintiffs are compelled to file the suit for specific performance of agreement of sale. Hence the suit. 4. The 1st defendant filed a written statement, which was adopted by the 3rd defendant by filing a memo, stating that the suit is not maintainable under law for the reason that it is incomplete document. It is further contended that the defendants 2 and 4 never agreed for sale of the plaint schedule land and they did not join the execution of the agreement and the 1st defendant is not the manager of the joint family property and 1st defendant has no right or authority to enter into any agreement of sale on behalf of the defendants 2, 4 and 5. The 1st defendant submitted that he received Rs. 1,25,000/- on the date of agreement and Rs. 50,000/- on 04-10-1993 and Rs. 4,000/- on 14-8-1993. Thus, in all the 1st defendant received an amount of Rs. 1,79,000/-. The 3rd defendant received a sum of Rs. 20,000/-. Therefore, the total amount received by defendants 1 and 3 is of Rs. 1,99,000/-. Thus the plaintiffs have come forward with a false plea of payment of Rs. 20,000/-. This defendant never received any amount of Rs. 20,000/- from the plaintiff at any time after 03-7-1993, as such that the 1st defendant received Rs. 20,000/- after 03-7-1993 is absolutely false. It is further contended that no amount is also paid to the 3rd defendant on 27-02-1991 and the alleged receipt dated 27-02-1991 is a forged one and it was brought into existence by the plaintiff to make an illegal gain. The plea that an amount of Rs. 2,19,000/- paid is absolutely false and the amount paid to them is only Rs. 1,99,000/-. The plea that an amount of Rs. 2,19,000/- paid is absolutely false and the amount paid to them is only Rs. 1,99,000/-. The endorsement dated 04-10-1993 was not made by him and the same was brought into existence by the plaintiffs in collusion with the attestors and scribe. The amount of Rs. 40,000/- paid on 04-10-1993 is false. He denied the allegation that the plaintiffs requested the 1st defendant to sell the usufruct and take away the trees. In fact the plaintiffs could not pay the balance of sale consideration as per the terms of the agreement and could not obtain the sale deed by 31-5-1921. It is stated that admittedly the defendants have not paid the sale consideration as per the recitals in the agreement of sale. Thus the claim of the plaintiff for specific performance is also not maintainable under law. It is further pleaded that the plaintiffs could not get ready with the sale consideration and as the defendants 2, 4 and 5 did not agree for selling the property it was agreed between the plaintiffs and defendants and that the agreement shall be treated as cancelled and the plaintiffs are not entitled to claim any specific performance. They never refused to receive any notice and the alleged notice was not tendered to this defendant at any time. The plaintiffs did not act as per the terms of the agreement, as such the plaintiffs are not entitled to claim any relief of specific performance. They denied the allegation that these defendants are dragging on by stating that the trees will be removed is absolutely false. Therefore, they prayed to dismiss the suit with costs. 5. Defendants 2, 4 and 5 filed their written statement stating that they are not parties to the agreement and the alleged agreement was not signed by them and they did not affix their thumb marks. It is further contended that their family had no necessity to sell the property as their family getting an income of Rs. 30,000/- per year on the schedule property. There are no debts to their family by the date of alleged agreement. The 1st defendant is not the manager of the joint family. The 1st defendant has no need or necessity to sell the property as mentioned in the plaint. 30,000/- per year on the schedule property. There are no debts to their family by the date of alleged agreement. The 1st defendant is not the manager of the joint family. The 1st defendant has no need or necessity to sell the property as mentioned in the plaint. The 5th defendant submitted that when he was minor, the agreement is alleged to have been executed by the 1st defendant. They submitted that there is no need to sell the property and the alleged agreement which was executed during the minority of 5th defendant is not binding on him. Defendants 2 and 4 never consented for the property being sold and in fact they have not utilized any part of consideration and in fact they refused to execute the agreement as there is no necessity for the family to sell the property. The alleged agreement is an incomplete and inchoate document and the said document is not enforceable under law. It is further contended that there is no need or necessity for making an endorsement on 04-10-1993. They denied the alleged endorsement dated 04-10-1993. Plaintiffs might have played fraud on the 1st defendant, who is a thumb impressionist. The alleged agreement of sale is barred by limitation. Therefore, they prayed to dismiss the suit with costs. 6. Based on the above pleadings, the following issues are settled for trial by the trial Court: (1) Whether the plaintiffs paid Rs. 20,000/- to D.3 on 27-02-1991 and whether D.3 passed a receipt for the said amount on behalf of all the defendants ? (2) Whether the plaintiffs paid Rs. 20,000/- to D.3 on 03-7-1993 and whether D.3 passed a receipt for this amount on behalf of all the defendants ? (3) Whether the plaintiffs paid Rs. 4,000/- to D.1 on 14-8-1993 on behalf of all the defendants and whether payment endorsement dated 14-8-1993 is true, valid and binding on the defendants ? (4) Whether the plaintiffs paid Rs. 50,000/- to D.1 on 04-10-1993 on behalf of all the defendants and whether the payment endorsement dated 04-10-1993 is true, valid and binding on the defendants ? (5) Whether the suit agreement of sale is true, valid and binding on the defendants 2, 4 and 5 ? (6) Whether the plaintiffs are always ready and willing to perform their part of contract ? (5) Whether the suit agreement of sale is true, valid and binding on the defendants 2, 4 and 5 ? (6) Whether the plaintiffs are always ready and willing to perform their part of contract ? (7) Whether the plaintiffs are entitled to speak specific performance of the suit agreement of sale against the defendants ? (8) Whether the time is essence of the contract ? (9) Whether the plaintiffs are entitled for the alternative relief for recovery of Rs. 2,19,000/- from the defendants ? and (10) To what relief ? 7. During the course of trial, on behalf of the plaintiffs, P.Ws.1 to 5 were examined and Ex.A-1 to A-9 were marked. On behalf of the defendants, D.Ws.1 to 4 were examined and no documentary evidence was adduced on their behalf. Ex.X-1 was also marked. 8. After completion of trial and hearing arguments of both sides, the trial Court decreed the suit with costs directing the defendants to execute a regular sale deed in favour of the plaintiffs within two months from that date, failing which the plaintiffs are directed to obtain a regular sale deed through the trial Court and the defendants are directed to take the amount which was deposited by the plaintiffs in the trial Court. 9. Aggrieved against the said judgment and decree, the defendants 1 and 3 to 5 filed the present appeal questioning the finding given by the trial Court. 10. Heard Sri Mohammed Gayasuddin, learned counsel for appellants and Sri K.A. Narasimham, learned counsel appearing on behalf of Sri Ginjupalli Subba Rao, learned counsel for respondents. 11. The learned counsel for appellants would contend that the trial Court erred in decreeing the suit without perusing Ex.A-1 agreement of sale dated 24-10-1990. He would further contend that the trial Court failed to observe that there is no recital in Ex.A-1 agreement of sale that the 1st appellant entered into the agreement of sale with the respondents as a joint family manager. He would further contend that the trial Court came to wrong conclusion and decreed the suit for specific performance of agreement of sale and the appeal may be allowed by setting the aside the judgment and decree passed by the trial Court. 12. He would further contend that the trial Court came to wrong conclusion and decreed the suit for specific performance of agreement of sale and the appeal may be allowed by setting the aside the judgment and decree passed by the trial Court. 12. Per contra, the learned counsel for respondents would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly decreed the suit and there is no need to interfere with the finding given by the learned trial Judge and the appeal may be dismissed. 13. Now, the points for determination are: (1) Whether the plaintiffs are entitled to the relief of specific performance of agreement of sale dated 24-10-1990 ? (2) Whether the trial Court is justified in decreeing the suit for specific performance of agreement of sale dated 24-10-1990 ? (3) Whether the judgment and decree passed by the trial Court needs any interference ? and (4) To what extent ? 14. Points 1 to 3: Whether the plaintiffs are entitled to the relief of specific performance of agreement of sale dated 24-10-1990 ? Whether the trial Court is justified in decreeing the suit for specific performance of agreement of sale dated 24-10-1990 ? Whether the judgment and decree passed by the trial Court needs any interference ? The suit is based on Ex.A-1 agreement of sale said to have been executed by the defendants 1 and 3. Though it was averred in Ex.A-1 agreement of sale that the said agreement is executed by the defendants 1 to 5, Ex.A-1 contains the thumb mark of the 1st defendant and signature of the 3rd defendant only, the other defendants did not sign on Ex.A-1 agreement of sale or they did not affix their thumb marks on Ex.A-1 agreement of sale. By the date of Ex.A-1, the 5th defendant is a minor. The plaintiffs herein claiming the relief of specific performance of agreement of sale dated 24-10-1990. The contention of the plaintiffs is that the defendants agreed to sell away the plaint schedule land at the rate of Rs. 1,35,000/- per acre and the actual extent of land has to be measured and the total consideration has to be paid after taking measurements. The contention of the plaintiffs is that the defendants agreed to sell away the plaint schedule land at the rate of Rs. 1,35,000/- per acre and the actual extent of land has to be measured and the total consideration has to be paid after taking measurements. They further pleaded that there are mango trees, casuarina trees, black berry trees and palmyra trees in the suit schedule land and it is further agreed that the defendants shall remove all the trees for themselves and then the land has to be got measured and the extent has to be ascertained in the presence of the plaintiffs and the plaintiffs have to divide the said land into plots and layout plan has to be prepared by the plaintiffs and the defendants have to sign on it. It was further pleaded that the defendants have to execute a sale deed for the total extent or for plots in favour of the plaintiffs or nominees, as desired by the plaintiffs by 31-3-1991. It was also further averred in the plaint that though the plaintiffs requested the defendants on several occasions to cut and removal of all the trees from the schedule land which can enable for measuring the plaint schedule land and to divide it into plots and for drawing a layout, the defendants did not fulfil their obligation. 15. The legal position in this regard is no more res integra. The law is well settled that the grant of decree of specific performance of agreement of sale is not an automatic and it is a discretionary relief, the same is required to be exercised judiciously sound and reasonably. 16. As stated supra, Ex.A-1 is a crucial document based on which the suit is filed. The execution of Ex.A-1 by the defendants 1 and 3 is not at all disputed by the defendants 1 and 3. It is not in dispute that the other defendants did not sign or did not affix their thumb marks on Ex.A-1 agreement of sale. As stated supra, Ex.A-1 is a crucial document based on which the suit is filed. The execution of Ex.A-1 by the defendants 1 and 3 is not at all disputed by the defendants 1 and 3. It is not in dispute that the other defendants did not sign or did not affix their thumb marks on Ex.A-1 agreement of sale. The contention of the appellants is that the defendants 2 and 4 never agreed for sale of the plaint schedule land and they did not join the execution of agreement and the 1st defendant is not manager of the joint family property and the 1st defendant has no right or authority to enter into any agreement of sale on behalf of the defendants 2, 4 and 5. It was admitted by the 1st defendant that he received Rs. 1,25,000/- on the date of agreement of sale and Rs. 50,000/- on 04-10-1993, in total the 1st defendant received an amount of Rs. 1,79,000/-. It was also admitted by the 3rd defendant in the written statement that he received a sum of Rs. 20,000/- and in total they received Rs. 1,99,000/-. It is the specific plea of the defendants that the 1st defendant did not enter into Ex.A-1 agreement of sale on behalf of all the defendants and the defendants 2 and 4 never agreed for sale of the plaint schedule land and the 1st defendant is not manager of the joint family of the defendants. Therefore, the burden casts on the plaintiffs to prove that the 1st defendant executed an agreement of sale as manager of the joint family on behalf of the defendants 2, 4 and 5 also. The date of Ex.A-1 agreement of sale is 24-10-1990. It was agreed by both the parties that a sale deed has to be obtained on or before 31-3-1991. It is an undisputed fact that the 4th defendant Penkey Ramana did not sign on Ex.A-1 agreement of sale. 4th son of the 1st defendant i.e. appellant No. 5 Penkey Krishna is a minor, by then the 1st defendant affixed his thumb mark on Ex.A-1 as a guardian. It is the case of the plaintiffs that the 3rd defendant received Rs. 20,000/- and issued Ex.A-2 receipt. It is also the case of the plaintiffs that the 3rd defendant received Rs. 20,000/- and issued Ex.A-3 receipt dated 03-7-1993. It is the case of the plaintiffs that the 3rd defendant received Rs. 20,000/- and issued Ex.A-2 receipt. It is also the case of the plaintiffs that the 3rd defendant received Rs. 20,000/- and issued Ex.A-3 receipt dated 03-7-1993. It is also the case of the plaintiffs that the 1st defendant issued a receipt for Rs. 4,000/- which is Ex.A-4 and Ex.A-5 is the endorsement made by the 1st defendant. It is not in dispute that the defendants 2 and 4 did not sign or they did not affix their thumb marks on Ex.A-1 agreement of sale. All the defendants have not signed on Ex.A-1 agreement of sale. It is an undisputed fact that the 5th defendant is a minor by the date of Ex.A-1 agreement of sale. The 4th defendant did not sign on Ex.A-1 agreement of sale. Likewise, the 2nd defendant also did not sign on Ex.A-1 agreement of sale. There is no recital in Ex.A-1 agreement of sale that the 1st appellant entered into an agreement of sale with the respondents as joint family manager. As per the case of the plaintiffs, the defendants 2 and 4 are having joint ownership rights in the plaint schedule property. Admittedly, the defendants 2 and 4 did not sign or did not affix their thumb marks on Ex.A-1 agreement of sale. The defendants 2 and 4 also did not sign or did not affix their thumb marks on the receipts Exs.A-2 to A-4. 17. The case of the plaintiffs is that the defendants 2 to 5 are the sons of 1st defendant and the 1st defendant is manager of the joint family and the plaint schedule land fell to the branch of 1st defendant in the partition that taken place in between the 1st defendant and his brothers Kannayya and Pullayya. It is also the specific case of the plaintiffs that the plaint schedule land is offered for sale by the defendants and they agreed to sell away the plaint schedule land at the rate of Rs. 1,35,000/- per acre and the actual extent of land has to be measured and total consideration has to be paid after taking measurements. As stated supra, the defendants 2 and 4 did not sign or they did not affix thumb marks on Ex.A-1 agreement of sale. 1,35,000/- per acre and the actual extent of land has to be measured and total consideration has to be paid after taking measurements. As stated supra, the defendants 2 and 4 did not sign or they did not affix thumb marks on Ex.A-1 agreement of sale. As per the case of the plaintiffs, the defendants have to execute a regular sale deed by 31-3-1991. It is also not in dispute that the plaintiffs got issued a legal notice on 01-7-1995 subsequent to 4 years from the date of Ex.A-1 agreement of sale. 18. The 1st plaintiff is examined as P.W.1. He reiterated the contents of plaint in his evidence affidavit as P.W.1. In his evidence in cross-examination, he admits that the 2nd defendant did not put his signature or thumb mark on Ex.A-1 or any other document. He further admits that as per the settlement before Kakarapalli Krishna, he has to be paid the balance sale consideration on or before 31-3-1991 and he has to obtain a regular sale deed. He further admits that they did not give any notice to the 1st defendant by informing him that they are ready with cash and to take steps to cut and remove the mango trees and to measure the site with a view to execute a regular registered sale deed in their favour after receipt of balance sale consideration. He further admits that as per the terms of the settlement between them, the 1st defendant has to cut and remove the mango trees which are situate in the plaint schedule land, after measuring the same he has to obtain a regular sale deed by 31-3-1991 by paying the balance sale consideration and it is an important condition in Ex.A-1. He further admits that he is not having any document to show that he is ready with cash by 31-3-1991. He also further admits that they have not taken any steps to prepare a layout with regard to the schedule property because mango trees were not removed from the schedule property. He also further admits that they have not taken any steps personally to measure the schedule property without the assistance of the 1st defendant. The above admissions of P.W.1 clearly reveal that there are several laches on the part of the plaintiffs for not obtaining a regular registered sale deed. He also further admits that they have not taken any steps personally to measure the schedule property without the assistance of the 1st defendant. The above admissions of P.W.1 clearly reveal that there are several laches on the part of the plaintiffs for not obtaining a regular registered sale deed. Ex.A-1 goes to show that though the names of defendants 2 and 4 are referred as executants in Ex.A-1, they did not sign or they did not affix their thumb marks on Ex.A-1. Therefore, the same is not binding on the defendants 2 and 4. As stated supra, by the date of Ex.A-1 agreement of sale, the 5th defendant is a minor. 19. P.W.2 is an attestor of the endorsement dated 04-10-1993 on the back of Ex.A-1 agreement of sale. 20. P.W.3 is a third party to Ex.A-1 agreement of sale. In cross- examination, P.W.3 admits that he was not present at the time of transaction and he does not know with regard to the actual conversation which took place with regard to the sale transaction and he does not remember whether it was mentioned in Ex.A-1 to the effect that the 1st defendant executed agreement on behalf of the joint family. He further admits that if all the executants put their signatures on Ex.A-1 then only it is enforceable under law. As per his own admissions, he is not having personal knowledge about Ex.A-1 agreement transaction. Therefore, his evidence is no way helpful to the plaintiffs to prove their pleadings in the plaint. 21. P.W.4 is the scribe of the endorsement dated 04-10-1993. As per his evidence, he is a document writer and he is the scribe of the endorsement dated 04-10-1993 on the back of Ex.A-1 agreement of sale. 22. P.W.5 is the scribe of Ex.A-1 agreement of sale. As per his evidence also, the defendants 2 and 4 did not affix their thumb marks or they did not sign on Ex.A-1 agreement of sale. As stated supra, the execution of Ex.A-1 agreement of sale by the defendants 1 and 3 is not in dispute by the defendants 1 and 3. 23. In order to prove the defence, the 1st defendant is examined as D.W.1. As stated supra, the execution of Ex.A-1 agreement of sale by the defendants 1 and 3 is not in dispute by the defendants 1 and 3. 23. In order to prove the defence, the 1st defendant is examined as D.W.1. As per his evidence, himself and his father only offered the plaint schedule property for sale to the plaintiffs and his brothers i.e. the defendants 2 and 4 did not agree to sell the plaint schedule property and they refused to sell the schedule property and they were not present at the time of Ex.A-1 agreement of sale. 24. D.W.2 is the 4th defendant in the suit. As per his evidence, he is the 4th defendant. He never agreed to sell the plaint schedule property to the plaintiffs. 25. D.W.3 is the 5th defendant. As per his evidence, his father has no need or necessity to sell the plaint schedule property and he is minor by the date of sale agreement and he is not interested to sell the schedule property. 26. D.W.4 deposed in his evidence that one Allu Sambasiva Rao on behalf of the plaintiffs came to him and requested him to bargain for purchase of the land, at that time himself, Nagaraju, Suryanarayana, Allu Sambasiva Rao and Sivaramakrishna Prasad were present and the bargain was settled at Rs. 1,35,000/- per acre. 27. It is the case of the plaintiffs that the defendants have to execute a regular registered sale deed by 31-3-1991. The date of Ex.A-1 agreement of sale is 24-10-1990, the plaintiffs issued a legal notice on 01-7-1995 and the suit is filed in the year 1995. P.W.1/the 1st plaintiff himself admitted in his evidence in cross-examination that the 2nd defendant did not put his signature or thumb mark on Ex.A-1, the 4th defendant also did not affix his thumb mark or did not sign on Ex.A-1. He categorically admits in his evidence in cross- examination that the defendants 2 and 4 were not present at the time of Ex.A-1 agreement of sale. He categorically admits in his evidence in cross- examination that the defendants 2 and 4 were not present at the time of Ex.A-1 agreement of sale. The admissions of P.W.1 clearly go to show that the plaintiffs have to pay the balance sale consideration on or before 31-3-1991 and they have to obtain a regular registered sale deed and as per the terms of settlement between them, the 1st defendant has to cut and remove the mango trees which are situate in the plaint schedule land and after measuring the same he has to obtain a sale deed by paying the balance sale consideration. The material on record clearly reveals that the plaintiffs have not issued any legal notice to the 1st defendant by informing them that they are ready with cash and to take steps to cut and remove the mango trees and to measure the site with a view to obtain a regular registered sale deed. The own admissions of P.W.1 clearly goes to show that they have not taken any steps to prepare a layout with regard to the suit schedule property. As stated supra, the above admissions of P.W.1 clearly goes to show that there are several laches on the part of the plaintiffs only in not obtaining the sale deed. The admissions of P.W.1 clearly go to show that the defendants 2 and 4 did not present at the time of Ex.A-1 agreement of sale and they did not affix their thumb marks or they did not sign on Ex.A-1 agreement of sale though their names are referred in Ex.A-1 agreement of sale as executants. 28. As per the admissions of P.W.1, the plaintiffs have not evinced any interest to perform their part of the contract till the date of filing of the suit. Admittedly, the defendants 2 and 4 did not make their signatures or they did not affix their thumb marks on Ex.A-1 agreement of sale. The 5th defendant is a minor by the date of Ex.A-1. It was not mentioned in Ex.A-1 that the 1st defendant executed agreement of sale on behalf of all the sons as a joint family manager. It was mentioned in Ex.A-1 that "Penkey Satyanarayana Nishani", but he did not sign or did not affix his thumb mark on Ex.A-1. The 4th signatory in Ex.A-1 is kept blank in Ex.A-1. It was not mentioned in Ex.A-1 that the 1st defendant executed agreement of sale on behalf of all the sons as a joint family manager. It was mentioned in Ex.A-1 that "Penkey Satyanarayana Nishani", but he did not sign or did not affix his thumb mark on Ex.A-1. The 4th signatory in Ex.A-1 is kept blank in Ex.A-1. It was recited in Ex.A-1 that the defendants 1 to 5 entered Ex.A-1 agreement of sale with the plaintiffs. As per the own admissions of 1st plaintiff, the defendants 2 and 4 were not present at the time of Ex.A-1 agreement of sale and they also did not present and they did not sign or they did not affix their thumb marks on Ex.A-1 and the 5th defendant is a minor by the date of Ex.A-1. Therefore, Ex.A-1 agreement of sale could not have been enforced against the defendants 2 and 4. It is the case of the plaintiffs that the defendants 2 to 5 are the sons of the 1st defendant and the defendants are the joint family members and the 1st defendant is the manager of the joint family. Admittedly, there is no recital in Ex.A-1 agreement of sale that the 1st defendant executed Ex.A-1 agreement of sale on behalf of all the defendants as manager of the joint family. Ex.A-1 is executed by the defendants 1 and 3 alone, the defendants 2 and 4, who have got equal shares in the suit schedule property, have not executed Ex.A-1 agreement of sale. Therefore, "the defendants 1 and 3, who have no absolute rights to the property in question, cannot confer any right whatsoever upon the plaintiffs for grant of decree of specific performance of agreement of sale in their favour". Ex.A-1 agreement of sale is not enforceable in law in view of Section 17 of the Specific Relief Act, in view of the right accrued in favour of the defendants 2 and 4 under the Hindu Succession Act. The provisions of Section 17 of the Specific Relief Act expressly state that a contract to sell any immoveable property cannot be specifically enforced in favour of the vendor who does not have absolute title and right upon a party. It is an undisputed fact that the plaintiffs have not approached the trial Court with clean hands. 29. The provisions of Section 17 of the Specific Relief Act expressly state that a contract to sell any immoveable property cannot be specifically enforced in favour of the vendor who does not have absolute title and right upon a party. It is an undisputed fact that the plaintiffs have not approached the trial Court with clean hands. 29. Admittedly, the names of defendants 2 to 5 are mentioned in Ex.A-1 agreement of sale as executants, but the 1st defendant made his thumb mark on Ex.A-1 and the 3rd defendant made his signature on Ex.A-1, the other defendants did not sign or they did not affix their thumb marks on Ex.A-1. Ex.A-1 is not at all executed by all the co-sharers of the property which fact is evident from the recitals of Ex.A-1 agreement of sale itself. It is evident from the recitals of Ex.A-1 which is produced for decree of specific performance of agreement of sale that the plaintiffs did not obtain the signatures or thumb marks of defendants 2 and 4 who are the co-sharers, therefore Ex.A-1 is unenforceable under law. 30. The learned counsel for respondents placed reliance on the judgments of the Apex Court in Motilal Jain v. Ramdasi Devi 2000 (5) ALD 33 (SC) and in Silvey v. Arun Varghese 2008:INSC:256 : AIR 2008 SC 1568 . In the case on hand, as stated supra, there are several laches on the part of the plaintiffs in not getting ready to perform their part of the contract. Admittedly, no notice is issued by the plaintiffs to the defendants to inform that they are ready with the balance sale consideration by 31-3-1991 and the 1st defendant has to remove the trees in the schedule property. The evidence on record reveals that the plaintiffs also not issued any legal notice within the stipulated time to demand the defendants to remove the trees in the plaint schedule property to comply with their obligation. As stated supra, there are several laches on the part of the plaintiffs in obtaining a regular registered sale deed from the defendants. Therefore, the facts and circumstances in the cited decision are different to the instant case. 31. The learned counsel for respondents also placed reliance in V.X. Joseph v. T. Pasupathi AIR 1994 MADRAS 193 and Mettapalli Venkata Rao v. Kotla Alivelu Mangatayaramma 1997 (2) ALT 753 (D.B.). Therefore, the facts and circumstances in the cited decision are different to the instant case. 31. The learned counsel for respondents also placed reliance in V.X. Joseph v. T. Pasupathi AIR 1994 MADRAS 193 and Mettapalli Venkata Rao v. Kotla Alivelu Mangatayaramma 1997 (2) ALT 753 (D.B.). In the case on hand, though the names of defendants 2 to 5 are referred in Ex.A-1 agreement of sale as executants, the defendants 2 and 4 did not sign on Ex.A-1 agreement of sale and they did not affix their thumb marks on Ex.A-1 agreement of sale. As per the own admissions of 1st plaintiff, they were not present at the time of Ex.A-1 agreement of sale. Absolutely there is no mention in Ex.A-1 agreement of sale that the 1st defendant executed Ex.A-1 agreement of sale on behalf of all his sons i.e. defendants 2 to 5 as manager of the joint family. Admittedly, the defendants 2 to 4 did not issue any part payment receipts. The date of Ex.A-1 agreement of sale is on 24-10-1990. The plaintiffs issued legal notice on 01-7-1995 and they filed the present suit for specific performance of agreement of sale in the year 1995. 32. The learned counsel for respondents relied on a decision in Kolasani Sivakumari v. Kolasani Sambasiva Rao 2000 (1) ALD 750 . In that decision, it was held as follows: "21. The position is thus clear. The sons who assailed the debts or the alienations of the father in order to succeed must prove that the transactions are tainted with illegality or immorality and the creditors or the purchasers as the case may be had notice of the tainted nature earlier thereto. Therefore, the contention of the learned Counsel for the plaintiffs that the alienations made by the first defendant in favour of the defendants 2 to 11 and 13 must be shown to have been made for legal necessity or for family benefit merits no consideration in view of the settled position of law." It is not the case of the plaintiffs in the case on hand that the 1st defendant heavily indebted to several creditors. There is no specific recital in Ex.A-1 that the 1st defendant as manager of the joint family executed Ex.A-1 agreement of sale. There is no specific recital in Ex.A-1 that the 1st defendant as manager of the joint family executed Ex.A-1 agreement of sale. Admittedly, the defendants 2 and 4, who are the major sons of 1st defendant by the date of Ex.A-1 agreement of sale, did not sign or they did not affix their thumb marks on Ex.A-1, though their names are mentioned in Ex.A-1 as executants. Therefore, the facts and circumstances in the cited decision are different to the instant case. 33. The learned counsel for respondents relied on Shankerappa v. Sushilabai AIR 1984 KARNATAKA 112. In that decision, it was held that: "Silence to amount to conduct must be what may be styled 'positive silence' and in the context of a clear duty to speak. The conduct indicated by silence must be assessed with all other relevant circumstances. In the instant case the defendant did not reply to suit notice which asserted that the plaintiff was lawfully wedded wife of defendant and proceeded to narrate subsequent events in their married life, etc. Having regard to normal course of human conduct and reaction in such a situation, this was a case in which a reply could be said to be properly expected from defendant. His silence does amount to a piece of conduct susceptible of an adverse inference against defendant and to afford some, though not a decisive, corroboration of plaintiff's case." As stated supra, in the case on hand, there are several laches on the part of the plaintiffs in not getting ready to perform their part of the contract. The own admissions of P.W.1 clearly reveal that they have not issued any legal notice to demand the defendants to remove the trees in the plaint schedule land as mentioned in Ex.A-1 agreement of sale and they did not issue any legal notice to the defendants within the time mentioned in Ex.A-1 to show that they are ready with the remaining balance sale consideration. Therefore, the facts and circumstances in the cited decision are different to the instant case. 34. The material on record reveals that though the names of all the defendants referred in Ex.A-1 as executants of Ex.A-1 agreement of sale, the defendants 2 and 4, who are the co-owners in the plaint schedule property, did not make their signatures or did not affix their thumb marks on Ex.A-1. 34. The material on record reveals that though the names of all the defendants referred in Ex.A-1 as executants of Ex.A-1 agreement of sale, the defendants 2 and 4, who are the co-owners in the plaint schedule property, did not make their signatures or did not affix their thumb marks on Ex.A-1. Therefore, Ex.A-1 agreement of sale is not enforceable against the defendants 2 and 4 under law. It is admitted by the defendants 1 and 3 about the execution of Ex.A-1 agreement of sale. As stated supra, there are several laches on the part of the plaintiffs in getting ready to perform their part of the contract. The defendants 1 and 3, who have no absolute right to the property in question, cannot confer any right whatsoever upon the plaintiffs for grant of decree of specific performance of agreement of sale in favour of the plaintiffs. Therefore, the plaintiffs are not entitled to the main relief of specific performance of agreement of sale, and they are entitled to the refund of advance sale consideration from the defendants 1 and 3. The 1st appellant i.e. the 1st defendant died during the pendency of the appeal. 35. For the foregoing reasons, the plaintiffs are not entitled to the main relief of specific performance of agreement of sale dated 24-10-1990, but the plaintiffs are entitled to the alternative relief of refund of advance amount of Rs. 2,19,000/- with interest of 12% per annum from the date of suit till the date of decree and thereafter at 6% per annum on Rs. 2,19,000/- from the date of decree till the date of realisation. The defendants 2 to 5 are liable to pay the said amount with interest from out of the assets of the deceased 1st defendant and the 3rd defendant is also personally liable to pay the said amount to the plaintiffs. In view of the above findings, the trial Court is not justified in decreeing the suit for specific performance of agreement of sale dated 24-10-1990 and the plaintiffs are entitled to the alternative relief of refund of advance amount of Rs. 2,19,000/-. With these observations, the appeal is to be allowed in part. 36. Point No. 4: To what extent ? 2,19,000/-. With these observations, the appeal is to be allowed in part. 36. Point No. 4: To what extent ? In the result, the appeal is partly allowed by modifying the judgment and decree passed by the trial Court as the plaintiffs are entitled to the alternative relief of refund of Rs. 2,19,000/- (Rupees two lakhs and nineteen thousand only) with interest of 12% per annum from the date of suit till the date of decree and with subsequent interest of 6% per annum from the date of decree till the date of realisation on Rs. 2,19,000/. The defendants 2 to 5 are liable to pay the said amount from out of the assets of the deceased 1st defendant and the 3rd defendant is personally liable to pay the above amount to the plaintiffs. The relief of specific performance of agreement of sale dated 24-10-1990 claimed by the plaintiffs is dismissed. Considering the circumstances of the case, I order each party do bear their own costs in the suit and appeal. Pending applications, if any, shall stand closed.