1 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012)
IN THE COURT OF THE I ADDITIONAL DISTRICT JUDGE,
KARIMNAGAR
PRESENT:SMT. G. BHAVANI CHANDRA, I Additional District Judge,
K A R I M N A G A R.
Wednesday, this the 10th day of November, 2021
O . S . N o . 12 of 20 12 & O.S.No. 62 of 201 2
O . S . N o . 12 OF 20 12
Between:
1.Ram Kishore Mundada, S/o Ram Prasad Mundada, aged 42 Years, Occ: Business, R/o Ashirvad Complex, Kaman Road, Karimnagar.
2.Hari Kishan Mundada, S/o Ram Prasad Mundada, aged 38 Years, R/o H.No.4-5-39, Fathepura locality of Karimnagar town.
...Plaintiffs
and
1.Radha Bai Soni, (Died) per L.Rs
2.Lalith Kumar Soni, S/o Punnam Chand Soni, aged 30 Years, Occ: Private Employee, R/o H.No.3-9-51/B.C.D, Plot No.205, Murali’s Mansion West Maredpally, Secunderabad.
3.Punam Chand Soni, S/o Late Pusa Ram Soni, aged 64 Years, Occ: Retired Employee, R/o H.No.3-9-51/B.C.D, Plot No.205, Murali’s mansion West, Maredpally, Secunderabad.
4.Shyam Sunder Soni, S/o Late Pusa Ram Soni, aged 56 Years, Occ: Business, R/o H.No.1-4-40, Brahmin Street locality, Karimnagar.
5.Om Prakash Soni, S/o Late Pusa Ram Soni, aged 62 Years, R/o H.No.4-5- 57, Fathepura locality of Karimnagar.
6.Suresh Chand Soni, S/o Late Pusa Ram Soni, aged 58 Years, R/o H.No.4-5- 57, Fathepura locality of Karimnagar.
7.Smt. Shakunthala Jhawar, W/o Gulab Chand Jhawar, aged 68 Years, R/o H.No.4-5-70, Ahmedpura locality, Karimnagar town and district.
8.Smt. Premalatha Bahaiti, W/o Vishnudas Bhaiti, aged 54 Years, R/o H.No.1-94, Flat No.302, Sri Shesha Sai Nilayam, Prabhathnagar, Chaitanyapuri, Hyderabad.
(The defendants No.3 to 8 are impleaded as per order in I.A.No.579 of 2018,
dated 06-12-2018)
...Defendants
2 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012)
O.S. No. 62 OF 201 2
Between:
Shyam Sundar Soni, S/o Late Pusa Ram Soni, aged 54 Years, Occ: Business, R/o H.No.1-4-40, Brahmin Stree Locality of Karimnagar town and district.
...Plaintiff
And
1.Radha Bai Soni, W/o Late Pusa Ram Soni, aged 82 Years, Occ: Household, R/o H.No.4-5-57, Fathepura locality of Karimnagar town and district.
2.Punnam Chand Soni, S/o Late Pusa Ram Soni, aged 62 Years, Occ: Retired Employee, R/o H.No.3-9-51/B.C.D., Plot No.205, Murali’s Mansion, West Maredpalli locality of Secunderabad.
3.Om Prakash Soni, S/o Late Pusa Ram Soni, aged 60 Years, Occ: Business, R/o H.No.4-5-57, Fathepura locality of Karimnagar town and district.
4.Suresh Chand Soni, S/o Late Pusa Ram Soni, aged 56 Years, Occ: Business, R/o H.No.4-5-57, Fathepura locality of Karimnagar town and district.
5.Lalith Kumar Soni, S/o Punnam Chand Soni, aged 30 Years, Occ: Private Employee, R/o H.No.3-9-51/B.C.D, Plot No.205, Murali’s Mansion, West Maredpalli locality of Secunderabad.
6.Ram Kishore Mundada, S/o Ram Prasad Mundada, aged 42 Years, Occ: Business, R/o Ashirwad Complex, Kaman Road locality of Karimnagar town and district.
7.Kari Kishan Mundada, S/o Ram Prasad Mundada, aged 38 Years, Occ: Business, R/o H.No.4-5-39, Fathepura locality of Karimnagar town and district.
8.Shakunthala Jhawar, W/o Gulab Chand Jhawar, aged 62 Years, Occ: Household, R/o H.No. 4-5-75, Ahmedpura locality of Karimnagar town and district.
9.Premalatha Bahaiti, W/o Vishnudas Bahaiti, aged 52 Years, Occ: Household, R/o H.No.1-94, Flat No.302, Sri Shesha Sai Nilayam, Prabath Nagar, Chaitanyapuri, Hyderabad.
(The defendant No.8 and 9 added as per orders passed in I.A.No.665 of 2015,
dated 11-03-2016)
...Defendants
These suits are coming before me for final hearing in the presence of Sri R. Shyam Sunder Reddy, and Smt. R.V.Geetha Reddy, Advocates for Plaintiffs in
O.S.No.12 of 2012 and that of Sri M. Anil Kumar, Advocate for defendants No.2,
3, 5 to 8 in O.S.No.12 of 2012 and Sri A. Ashok Kumar, Advocate for defendant No.4 in O.S.No.12 of 2012 and Sri A. Ashok Kumar, Advocate for Plaintiff in
O.S.No.62 of 2012 and Sri R.Shyam Sunder Reddy, Advocate and Smt. R.V.
3 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012)
Geetha Reddy, Advocate for defendants No.6 and 7 in O.S.No.62 of 2012, Sri M.Anil Kumar, Advocate for defendants No.2 to 5, 8 and 9 in O.S.No.62 of 2012 and D-1 died in O.S.No.12 of 2012 and O.S.No.62 of 2012 and the matter having been heard and stood over for consideration to this day, the Court made the following:
COMMON JUDGMENT
S.NO.12 OF 2012 O.
1)This is a suit filed by the plaintiffs against the defendants seeking specific performance of agreement of sale executed by defendant No.1 in respect of schedule property in their favour and with costs.
2)The brief averments of plaint are that :-
a)The defendant No.1 is the owner of the land in Sy.No.148 measuring Ac.2- 06 guntas situated at Theegalaguttapalli h/o Arepalli village of Karimnagar mandal and the defendant No.1 purchased the suit land through a registered sale deed vide document No.2524/1980, dated 30-06-1980 and since then the defendant No.1 was the owner and possessor of the suit land and the suit land is the self acquired property of the defendant, thus, the defendant No.1 became absolute owner and possessor of the suit land. The defendant No.1 being the owner of the suit land, offered to sell the suit land to the plaintiff for a consideration of Rs.1,80,00,000/- and the plaintiff agreed to purchase the same. Accordingly, on 26-07-2011 the plaintiffs No.1 and 2 paid an amount of Rs.15,00,000/- to the defendant and the defendant No.1 having received said sum of Rs.15,00,000/- executed an agreement of sale, dated 26-07-2011 in favour of the plaintiff. Subsequently, the plaintiffs paid an amount of Rs.30,00,000/- to the defendant No.1 on 30-08-2011 towards second installment and the third installment of Rs.45,00,000/- is to be paid to the defendant No.1 on 30-09-2011 and the plaintiffs No.1 and 2 further promised to pay the remaining amount of Rs.90,00,000/- to the defendant on 30-11-2011, and the defendant No.1 agreed to receive the balance sale consideration amount of 4 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012)
Rs.90,00,000/- on 30-11-2011 and promised to execute a regular registered sale deed in favour of the plaintiffs. On 26-09-2011 the plaintiffs got issued a notice to the defendant No.1 to collect third installment of Rs.45,00,000/- on 30-09-2011 and to acknowledge the receipt, the defendant No.1 with a malafide intention did not receive the third installment of Rs.45,00,000/- from the plaintiffs and on the otherhand the defendant got issued a legal notice, dated 02-12-2011 through his counsel admitting the transaction and directed the plaintiffs to treat the agreement of sale is cancelled and directed the plaintiffs to receive back the money paid by them on the ground that one of his sons is not willing to sell the suit land.
b)While so after executing agreement of sale, dated 26-07-2011 and having received the advance amount of Rs.15,00,000/- on 26-07-2011 and Rs.30,00,000/- on 29-07-2011, and having promised to receive the balance consideration and to execute a registered sale deed in favour of the plaintiffs. The defendant No.1 executed a registered gift settlement deed vide document No.7293/2011, dated 02- 08-2011 in favour of the defendant No.2 who is her grand son namely Lalith
Kumar Soni, since the registered gift deed settlement is executed after executing the agreement of sale in favour of the plaintiffs, the registered gift deed settlement,
dated 02-08-2011 is null, void and not binding on the plaintiffs and that on 30-09-
2011 the plaintiff along with the elders approached the defendant No.1 and requested her to receive the third installment, but, the defendant No.1 refused to receive the same and asked the plaintiffs to treat the “agreement of sale” is cancelled. Hence, the suit.
3)The first defendant has filed written statement resisting this suit claim and the same has been adopted by defendant No.2 through a memo, by contending as under:- 5 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012)
a) One Poosa Ram Soni is the husband of this defendant and they have begot
Punnam Chand Soni, Om Prakash Soni, Suresh Chand Soni and Shyam Sunder
Soni four sons out of their wedlock and their family has been an undivided joint
Hindu Family and Poosa Ram Soni purchased the suit property fro one G.
Mallaiah on 30-06-1980 with the joint contribution of his four sons, nominally in the name of this defendant and thus, the suit property is not the self acquired property of this defendant and later Poosa Ram Soni passed away in the year 1982 leaving this defendant and his four sons as his legal heirs and they have been in joint possession and enjoyment of the suit property. That the defendant No.1 has been managing and looking after the affairs of joint family and as a manager of the joint family, after due consultation with the available joint family members, she has executed an agreement of sale on 29-07-2011 in favour of the plaintiffs and in respect of the suit land and in all received Rs.45,00,000/- towards advance sale consideration amount. The pleading that this defendant offered to sell the suit land to the plaintiff is not correct and in fact the plaintiffs have persuaded this defendant to alienate the suit property in their favour.
b)In fact, due to the joint family issues and complications attended there to, this defendant has executed the agreement of sale in favour of plaintiffs with the fond hope that all her sons would agree for execution of sale in favour of plaintiff but, surprisingly, one of her son namely Shyam Sunder Soni has objected for the said agreement of sale as such, this defendant could not execute the registered sale deed in favour of the plaintiffs. When a notice demanding for specific performance of contract of sale, dated 29-07-2011 was issued by plaintiffs, this defendant honestly and with a bonafide belief expressed her inability to execute the registered sale deed in their favour in view of the objection raised by her son namely Shyam Sunder Soni who is a member of joint family and who has 6 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012) contributed in purchasing the suit land in the name of defendant No.1 and the defendant No.1 also informed the plaintiffs about her willingness to return the advance sale amount of Rs.45,00,000/- paid by them in respect of the agreement of sale, dated 29-07-2011 and requested them to treat the said deed as terminated. It is not correct that this defendant No.1 has directed the plaintiffs to treat the agreement of sale as cancelled and directed the plaintiffs to receive the amount paid by them. The endeavor of this defendant was to inform about her helpless condition and bonafide belief to convince the plaintiffs her inability and the failure to execute the registered sale deed in favour of plaintiffs by this defendant was not willful and only on account of the objection raised by one of her son above name.
c)In fact, after the execution of agreement of sale by the defendant No.1 in favour of the plaintiffs on 29-07-2011, both the plaintiffs expressed their inability to pay the balance sale consideration amount on 01-08-2011 as such out of bonafide belief and out of mutual understanding between her joint family members and the plaintiffs, this defendant has executed a registered gift deed in favour of defendant No.2 on 02-08-2011 and the pleadings further that on 30-09- 2011 the plaintiffs along with elders approached the defendant No.1 and requested her to receive the 3rd installment and that she refused to receive the same and asked the plaintiffs to treat the agreement of sale as cancelled are all false and denied. In fact, the plaintiffs have connived and acquiesced for execution of the registered gift settlement deed in favour of defendant No.2 by their conduct. The both plaintiffs have due to escalation of market value of the suit property have came up with the plea that they were willing and ready to pay the balance sale consideration and filed this suit for enforcement of the agreement of sale. The plaintiffs were never ready and willing to pay the balance sale amount and they have facilitated the execution of the registered sale deed in favour of the defendant 7 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012)
No.2, as such they cannot seek the relief of specific performance of contract of sale dated 29-07-2011. The defendant No.1 submits that her son namely Shyam
Sunder Soni also filed a suit in O.S.No.62 of 2012 for partition of the suit property herein against this defendant as well as other joint family members and it is pending on the file of III Additional District Judge, Karimnagar pleading that the suit property is the joint family property.
4)The 4th defendant has filed the written statement by contending as under :-
a)It is false that the defendant No.1 is the owner of the suit schedule property, the father of the defendant No.4 by name P. Ram Soni during his life time conducted oil mill business and also various other business like food grain business, tent house business etc. The defendant No.4 to 6 have also jointly conducted the said businesses with their father and earned huge incomes and the contribution of defendant No.3 along with the income of father, the suit schedule property was purchased under registered sale deed in the name of defendant No.1 and they are all in joint possession of the said property but, she is not the owner of the property. The plaintiffs taking advantage of the old age of the defendant No.1 by colluding each other created agreement of sale. The plaintiffs being the close relatives to the family of defendant No.4 well aware that it is the joint family property. As the schedule property is undivided Hindu Family, the defendant No.4 is having 1/4th share. The plaintiffs in the absence of other legal heirs of defendant
No.1 obtained the agreement of sale. The defendant No.4 is having lawful ownership rights over the schedule property. Hence, the suit is liable to be dismissed.
5)The defendants No.3, 5 to 8 have filed the written statement by contending 8 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012) as under :-
a)It is incorrect to say the schedule property is self acquired property of defendant No.1, the husband of defendant No.1 by name P. Ram Soni purchased it under registered sale deed with joint contribution of his four brothers i.e., defendants No.3 to 6 nominally on the name of defendant No.1, on his death defendant No.1 along with her children have been in joint possession, enjoyment.
The marriages of the daughters were performed during the life time of the joint family, thereby she executed agreement of sale in favour of the plaintiffs, received
Rs.45,00,000/- towards advance sale consideration but, she did not consult the joint family members. After it is executed the plaintiffs and defendant No.4 objected thereby she could not complete the transaction. In the reply she categorically expressed her inability to execute registered sale deed. She also expressed her readiness and willingness to return the advance amount of
Rs.45,00,000/-. They also drawn three banker cheques dated 27-08-2018 each for
Rs.9,00,000/- and two cheques, dated 30-08-2018 each for Rs.9,00,000/- in favour of the plaintiffs and they were also ready to pay the interest. It is incorrect that the plaintiffs on 30-09-2011 approached the defendant No.1 with elders and requested to receive third installment. So, the defendant No.4 has also filed the suit in
O.S.No.62 of 2012 for partition of undivided property. It is liable for partition.
Knowing all these facts filed this suit, thereby not entitled. Hence, to be dismissed.
6)On the basis of the above pleadings, the following issues are settled for trial as under :- (1) Whether the plaintiffs are ready and willing to perform their part of the contract ?
(2) Whether the plaintiffs are entitled for specific performance of the agreement of sale ?
9 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012) (3) To what relief ?
O.S.NO.62 OF 2012 :-
7)This is a suit filed by plaintiff seeking partition and separate possession of suit schedule property against the defendant No.1 to 5 and further to declare the agreement of sale executed in favour of defendant No.6 and 7 as null and void and with costs.
8)The brief averments of plaint are that :-
a)The defendant No.1 is the mother of the plaintiff and the defendants No. 2 to 4 are the brothers of the plaintiff, the defendant No.5 is the son of the defendant
No.2 herein and defendant No.6 and 7 are the third parties. The father of the plaintiff i.e., Pusa Ram Soni was died on 26-02-1982 and during the life time of
Pusa Ram Soni, he conducted oil miss business and followed various businesses i.e., food grain business and tent house business. The plaintiff and the defendants
No.3 and 4 also jointly conducted the businesses along with their father and earned huge incomes. With their source of huge income earnings by their businesses, they had purchased house and other properties. The plaintiff and the defendants No.3 and 4 and contribution of the defendant No.2 along with their father Pusa Ram
Soni purchased the land bearing Sy.No.148, extent of Ac.02-06 guntas situated at
Theegalaguttapalli h/o Arepalli village of Karimnagar mandal on 30-06-1980 through registered sale deed on the name of the defendant No.1 and to show high regard on the defendant No.1, the sale deed was executed in favour of the defendant No.1, and since the date of purchase the plaintiff and the defendants
No.1 to 4 are in joint possession and enjoyment over the suit land and Pusa Ram
Soni performed his three daughter’s during his lifetime by declaring that they would not have any share over the properties left by him and the plaintiff, the 10 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012) defendants No.2 to 4 performed the younger sister marriage in the year 1991 declaring that she would not have any share over the properties of the plaintiff and the defendants No.1 to 4, unfortunately, the elder daughter and younger daughter were died.
b)The defendant No.1 is residing in the house of the defendants No.3 and 4 and the defendant No.2 after his retirement is residing presently at Secunderabad and the plaintiff is residing separately along with his family members in
Karimnagar town and the plaintiff came to know that taking advantage of old age of the defendant No.1, the defendants No.3 and 4 colluding with each other are making efforts to sell the suit land in favour of the third parties. In the month of
December, 2011, the plaintiff came to know the intention of selling of the suit land by the defendant No.1,2,3 and 4 and asked the defendants No.1 to 4 to affect the partition towards his share and deliver the possession and the defendants No.1 to 4 instead of affecting the partition over the suit land postponed the matter on one or other pretext. That the plaintiff called the defendants No.1 to 4 on 10-01-2012 and finally requested them and demanded to effect the partition with malafide intention denied the share of the plaintiff with an intention to deprive of the plaintiff’s legitimate share over the suit land. In fact, the suit land was the joint, undivided
Hindu Family Property which was purchased with the income arrived at their joint businesses. To honour and give respect to the elder of their family members, the suit land purchased on the name of the defendant No.1 and entered her name in the revenue records. The defendants No.2 to 4 changed their attitude colluding with the defendant No.1 denied the effect of partition to create loss and hardship to the plaintiff. The defendants No.6 and 7 are the sons of the elder sister’s husband viz.,
Ram Prasad Mundada, who got second marriage after death of his first wife (elder sister of plaintiff). The defendants No.1 to 5 colluding with each other created an 11 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012) agreement of sale document in favour of the defendants No.6 and 7 and brought the notice of plaintiff. The agreement of sale document was created alleging that the land was sold for Rs.1,80,00,000/- on 26-07-2011 and the same was executed by the defendants No.1 to 5. In fact, the defendant No.5 is the son of the defendant No.2 and is not having any rights over the suit land. The defendants engineered a well plan colluding with each other with a malafide intention to avoid legitimate share of the plaintiff over the suit land and created simple agreement of sale deed, dated 26-07-2011, since there is no alternate remedy to the plaintiff, he filed the instant suit for partition and separate possession in respect of the suit land against the defendants No.1 to 4 and the plaintiff is not the party to the alleged agreement of sale deed which was executed by the defendants No.1 and 5 in favour of the defendants No.6 and 7 and the same is not enforceable and not binding on the plaintiff, it is null and void.
9)The first defendant has filed written statement resisting this suit claim and the same has been adopted by defendants No.2 to 5, 8 and 9 through a memo, by contending as under :-
a)That the plaintiff, defendants No.1 to 5 constitute undivided joint Hindu
Family and the suit property was purchased by the husband of this defendant with the joint contribution of defendants No.2 to 5, on 30-06-1980 by virtue of a registered sale deed from one Gopadi Mallaiah, nominally in the name of this defendant and later husband of this defendant, Poosa Ram Soni passed away in the year 1982 leaving defendants No.1 to 4 have been in join possession and enjoyment of the suit property. It is also further true and admitted that late Poosa
Ram Soni, during his life time only performed the marriages of his daughters and they never laid any claim, as they have been given sufficiently, at the time of their marriages. The defendants No.3 and 4 colluding with each other, by taking 12 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012) advantage of this defendant tried to sell away the suit to third parties and postponed the partition are all false and denied and the plaintiff is put to strict proof of the said pleadings. The defendant submits that she has been managing and looking after the affairs of joint family and as a manger of the joint family, after due consultation with the available joint family members, she has executed an agreement of sale on 29-07-2011, in favour of defendants No.6 and 7 in respect of the suit land and all received Rs.45,00,000/- towards advance sale consideration amount.
b)In fact, due to the joint family issues and complications attended thereto, this defendant has executed the agreement of sale in favour of the defendants No.6 and 7 with the fond hope that all her sons would agree for execution of sale in favour of the defendants No.6 and 7, but, surprisingly the plaintiff has objected for the said agreement of sale as such, this defendant could not execute the registered sale deed in favour of defendants No.6 and 7. When a notice demanding for specific performance of contract of sale, dated 29-07-2011 was issued by defendants No.6 and 7, this defendant expressed her inability to execute the registered sale deed in their favour in view of the objection raised by the plaintiff, who is a member of joint family and who has contributed in purchasing the suit land in the name of this defendant. The defendant also informed the defendants
No.6 and 7 about their willingness to return the advance sale amount of
Rs.45,00,000/- paid by them in respect of the agreement of sale, dated 29-07-2011 and requested them to treat the said deed as terminated. The failure to execute the registered sale deed in favour of defendants No.6 and 7, by this defendant was not willful and bonafide due to the objection raised by the plaintiff. Hence, the allegations contained in para No.5 of the plaint, the defendants No.1 to 4 have engineered a plan with a malafide intention to deprive the legitimate right of the 13 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012) plaintiff over the suit property is not correct. As a matter of fact, the suit property is liable to be partitioned between the plaintiff and defendants No.1 to 4. As a matter of fact, the defendants No.6 and 7 after execution of agreement of sale,
dated 29-07-2011, by this defendant, expressed their inability to pay the huge
balance sale consideration amount, on 01-08-2011, as such with a bonafide belief and out of mutual understanding between the joint family members, this defendant has executed a registered gift deed in favour of defendant No.5 on 02-08-2011 but, due to complications arisen subsequently, this defendant is taking steps to cancel the said registered gift deed. The plaintiff knowing fully well all these facts, has filed the suit only to suffer this defendant with an ulterior motive.
10)The defendants No.6 and 7 have filed the written statement by contending as under :-
a)It is wrong and denied that the suit land in Sy.No.148 to an extent of
Ac.2.06 guntas situated at Theegalaguttapally H/o Arepalli village of Karimnagar
Mandal and District is the ancestral property of the plaintiff and defendants No.1 to 5. The relationship as mentioned in para 3 of the plaint is true. But, it is wrong and denied the father of the plaintiff namely Pusa Ram Soni during his life time conducted oil mill business and the defendants No.3 and 4 also jointly conducted the business along with their father Pusa Ram Soni and with the joint family fund the plaintiff, defendants No.3 and 4, their father purchased the suit land through a registered sale deed on 30-06-1980. It is wrong and denied that since the date of purchase, the plaintiff and the defendants No.1 to 4 are in joint possession and enjoyment over the suit land. It is wrong and denied that Pusa Ram Soni performed the marriage of his three daughters and during his life time the said
Pusa Ram Soni performed the marriage of his three daughters and during his life time the said Pusa Ram Soni by declaring that his daughters would not have any 14 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012) share over the properties left by him and the plaintiff and defendants No.2 to 4 performed the marriage of their younger sister in the year 1991 declaring that she would not have any share over the suit properties. It is also wrong and denied that the plaintiff is residing separately along with his family members at Karimnagar.
It is also wrong and denied that on coming to know and taking advantage of old age of defendant No.1 and that the respondents by colluding with each other and they are trying to alienate the suit schedule property. It is wrong and denied that the suit properties are joint undivided Hindu Family Property which was purchased with the income of the joint family business. It is also wrong and denied that to honour and to give respect of the elder of their family member the suit land was purchased in the name of defendant No.1 and entered her name in the revenue records.
b)The suit land is the self acquired property of the defendant No.1 and the defendant No.1 purchased the suit land through a registered sale deed vide document No.2524 of 1980 dated 30-06-1980 and since then the defendant No.1 is in possession and enjoyment of the suit land. The defendant No.1 being the owner of the suit land offered to sell the suit land to the defendants No.6 and 7 to meet her family necessities, which making such offer, the defendant No.1 had shown her title deed, made the defendants No.6 and 7 to be believed that she along has got absolute rights over the property. Believing the same having satisfied with the title and possession of defendant No.1 and the defendants No.6 and 7 have accepted to purchase the suit property. Accordingly, the defendant No.1 entered into an agreement of sale on 26-07-2011 in favour of defendant No.6 and 7 for a consideration of Rs.1,80,00,000/-. The defendants No.6 and 7 paid an amount of
Rs.15,00,000/- to the defendant No.1 and subsequently the defendants No.6 and 7 paid Rs.30,00,000/- to the defendant No.1 on 30-08-2011 towards second 15 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012) installment. The third installment of Rs.45,00,000/- had to be paid on 30-09-2011 to the defendant No.1. The defendants No.6 and 7 herein were ready to pay the remaining balance of Rs.90,00,000/- to the defendant No.1 on 30-11-2011, the defendant No.1 was also ready to receive the balance consideration and was ready to execute a regular registered sale deed in favour of defendants No.6 and 7. The entire transaction is within the knowledge and consent of her family members including the plaintiff. But, subsequently the defendant No.1 in collusion with the defendants No.2 to 5 in order to deceive the defendants No.6 and 7 refused to execute a registered sale deed by receiving the balance consideration amount. It seems that as the property value is increased the plaintiff and defendant No.1 developed malafide intention to sell the suit property to others at higher rates in order to avoid performance of sale only, they hatched a plan and filed the suit with a false plea of jointness. The defendants No.6 and 7 also issued a legal notice to the defendant No.1 on 26-09-2011 directing her to receive the balance consideration amount and to execute a registered sale deed. But, the defendant
No.1 did not respond. Therefore, the defendants No.6 and 7 filed a suit for specific performance of agreement of sale before the Hon’ble I Additional District
Judge, Karimnagar vide O.S.No.12 of 2012 after filing the suit in O.S.No.12 of
2012 by the defendants No.6 and 7, the defendant No.1 in collusion with her sons filed the present suit in O.S.No. 62 of 2012 which is an after thought, as such the same deserves to be dismissed. Since, the defendants No.6 and 7 are bonafide purchasers, their interest shall be protected as they have already invested huge amount for purchasing the property from the real owner on good faith and belief.
The defendant No.1 gifted the property to one Likith Kumar Soni, S/o Punam
Chand Soni after executing the agreement of sale to defendants No.6 and 7, it clearly shows that the plaintiff is only the owner and possessor of land, only to deceive and not registered the suit land in favour of defendants No.6 and 7, they 16 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012) filed present suit and gift the property to one Lalith Kumar Soni.
11)On the basis of the above pleadings the following issues are settled for trial :- (1) Whether the properties shown in schedule are joint, undivided Hindu Family properties with the income arrived in joint business and D-1 to D-4 ?
(2) Whether the plaintiff is entitled for partition and separate possession of 1/5th share over the suit schedule properties ?
(3) Whether the unregistered simple agreement of sale deed,
dated 26-07-2011 executed by D-1 to D-5 in favour of D-6
and D-7 is liable to be declared as null and void ?
(4) To what relief ?
12)O.S.No.12 of 2012 and O.S.No.62 of 2012 are clubbed together by order
dated 07-06-2018 passed by this Court in I.A.No.185 of 2018 and common
evidence is ordered to be recorded in O.S.No.62 of 2012. To substantiate the case of the plaintiffs in O.S.No.62 of 2012, on their behalf PW-1 and PW-2 are examined and got marked Ex. A-1 to A-3. On behalf of the contesting defendants
DW-1 to DW-5 are examined and Ex.B-1 to Ex.B-5 are marked.
13)Heard the learned counsels for the plaintiffs and the contesting defendants in both the suits. Written arguments are filed on behalf of the plaintiffs in
O.S.No.62 of 2012.
14)Now the point for consideration is
“Whether the parties established their respective contentions issue wise by
all probabilities” ?
15)ISSUE NOS.1 TO 3 IN O.S.NO. 62 OF 201 2 :- (1) Whether the properties shown in schedule are joint, 17 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012) undivided Hindu Family properties with the income arrived in joint business and D-1 to D-4 ?
(2) Whether the plaintiff is entitled for partition and separate possession of 1/5th share over the suit schedule properties ?
(3) Whether the unregistered simple agreement of sale deed,
dated 26-07-2011 executed by D-1 to D-5 in favour of D-6
and D-7 is liable to be declared as null and void ?
16)The case of the plaintiff is that the plaintiff and defendant No.2 to 4, his brothers along with their father purchased schedule property, but on the name of the defendant No.1, their mother, it is a joint family property having purchased with the income arrived from their joint business, but, defendants No.1 to 5 in collusion created an agreement of sale in favour of defendant No.6 and 7 to deprive his share, hence, entitled for partition.
17)The defendants No.1 to 5 are admitting that the suit property was purchased by father with contribution of plaintiff and defendants but, nominally on the name of defendant No.1 and, he executed an agreement of sale with a hope that her sons will agree but, it is objected by the plaintiff, thereby required to treat the agreement of sale as terminated and they also expressed inability to pay balance sale consideration, hence, liable for partition.
18)On the otherhand, it is the case of the defendants No.6 and 7 who are the contesting parties that the suit schedule property is the self acquired property of defendant No.1 having purchased under registered sale deed, she entered into agreement of sale, received part of sale consideration, they are ready to pay balance sale consideration but, with malafide intention she failed to execute the registered sale deed, so they filed the suit for specific performance in O.S.No.12 of 2012, subsequent to the filing of said suit, the plaintiff came up with this suit, 18 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012) thereby not entitled for partition.
19)To prove the case of plaintiff, he himself examined as PW-1 and his evidence is in tune with his pleadings. In his evidence, he got marked registered sale deed, pattedar pass book and title deed as Ex.A-1 to Ex.A-3. Ex.A-1 shows that the schedule property is purchased by defendant No.1. Ex.A-2 and Ex.A-3 show pattedar pass book and title deeds were issued for the schedule property on her name. Further, he also examined one T. Anandam as PW-2, whose evidence is that the plaintiff, defendants No.3 and 4 did business along with their father, their father purchased the schedule property with the contribution of his sons on the name of defendant No.1
20) Defendants No.2 to 4 are also examined themselves as DW-1 to DW-3.
They are supporting the version of plaintiff that it is the property purchased by the father with their contribution and defendant No.1, their mother has no right to execute the agreement of sale etc.
21)Coming to the evidence of defendants No.6 and 7, contesting defendants they also themselves examined as DW-4 and DW-5 and their evidence is also in the similar lines of their written statement. In the evidence of DW-4 the copy of the gift settlement deed, registered sale deed, intimation letter, notice are marked under Ex.B-2 to Ex.B-5. Ex.B-1, agreement of sale which is marked in cross examination of PW-1 shows that the defendant No.1 executed the agreement of sale in favour of defendants No.6 and 7. Ex.B-2 shows that the defendant No.1 executed the gift settlement deed in favour of defendant No.5, grand son, Ex.B-3 is the certified copy of the registered sale deed which is nothing but, Ex.A-1 which shows the schedule property was purchased by defendant No.1, Ex.B-5 shows that 19 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012) the defendants No.6 and 7 requested the defendant No.1 to receive the balance sale consideration, Ex.B-4 shows that defendant No.1 issued notice to the plaintiffs expressing her inability to execute the registered sale deed.
22)Admittedly, the defendants No.6 and 7 are not the family members of the plaintiff and defendants No.1 to 5, but, they were made as parties in this partition suit having executed an agreement of sale in their favour agreeing to sell and received part of sale consideration. Merely, because the other family members of the plaintiff i.e., defendant No.2 to 5, his brothers and subsequently, the defendants
No.8 and 9 who were brought on record as L.R’s of deceased/defendant No.1 (sisters of plaintiff) not disputing the claim of the plaintiff that itself will not make entitle the plaintiff for relief of partition as the issue or dispute is not among themselves only but, mainly with defendants No.6 and 7 in whose favour the property was sold away under agreement of sale by the defendant No.1.
23)As the suit is filed by the plaintiff stating that the schedule property is joint family property, the initial burden lies on him to prove it. Admittedly, the defendant No.1 who executed the agreement of sale in favour of defendants No.6 and 7 is the owner of the suit property having purchased under registered sale deed
Ex.A1, Ex.B-3. The registered sale deed, Ex.A-1 pertaining to suit property clearly shows it is the property purchased by defendant No.1 mother. Whereas it is the plea of the plaintiff that the said registered sale deed was obtained nominally on the name of defendant No.1, but, actually it was purchased by his father with their contribution etc., then it is for him to prove.
24)He categorically admitted in his cross examination that the suit property i.e., Ac.2-06 guntas was on the name of her mother defendant No.1 till her death, 20 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012) she was having pattdear pass book and title deed on her name. Further, he deposed her mother was I.T.Assessee till her death and filing her I.T.Returns individually.
He further deposed that their family is not a Hindu undivided family, they have not filed any I.T.Returns to show that the schedule property was purchased jointly by himself and his brothers. He also further admitted that they have not filed any document to show that they are in joint possession of the suit property.
25)The defendant No.4 who is examined as DW-1 the brother of plaintiff deposed in his cross examination that the suit property was registered on the name of defendant No.1, their mother as she was elder of the family but, she is not the elder member but, their father. The same is also admitted by him in his further cross examination done by defendants No.6 and 7 that at the time of the purchase of the property, their father was alive and he was the head of the family. So no force in his evidence that the property was purchased on the name of mother being elder member. In similar way, the defendant No.2 who is examined as DW-2 admitted in his cross examination that there is no mention about the contribution of each member of the joint family and further deposed he has not filed any document to show that the property is in joint possession. In similar way, DW-3 also deposed in his cross examination that he has not mentioned the details of the amount invested by each of the family member for purchase of the suit property.
26) Further, it is admitted by plaintiff in his cross examination that after the death of the their father, they have partitioned their properties except the suit property. If really, the suit schedule property is also the joint family property, it would also have been partitioned but, it was not done. No reason is explained for non partition of the suit property alone.DW-3 admitted in his cross examination that the defendant No.1, their mother got other properties apart from the suit 21 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012) property. It is also brought on record that the defendant No.1 herself executed the gift settlement deed under Ex.B-2 in favour of defendant No.5, her grand son. In the said document it is clearly mentioned that the suit schedule property is her absolute property. The said gift settlement deed is executed subsequent to the execution of agreement of sale under Ex.B-1 in favour of the defendants No.6 and
7. If she is not the absolute owner she could not have executed the gift settlement deed.
27)Furthermore, Ex.B-1 agreement of sale was attested by defendants No.3 and 4, who are sons of defendant No.1 and brothers of plaintiff, which shows it is her property otherwise they would not have signed for the said transaction. If really, it is not the property of the mother, defendant No.1 they would not attested.
It is nobody’s case they raised such objection as now pleading, at the time of execution of Ex.B-1. Thus, the oral and documentary evidence brought on record and further the circumstances discussed above, shows that the plaintiff failed to prove that his father, brothers and himself contributed for purchase of schedule property, it is a joint family property etc., but, on the otherhand, clearly shows it is the exclusive property of the defendant No.1, mother and thereby not entitled for partition and separate possession. As the suit schedule property is not the joint family property, but exclusive property of defendant No.1, she can execute the agreement of sale Ex.B-1, thereby not liable to be declared as null and void.
Thus, these issues No.1 to 3 are decided against the plaintiff.
28)ISSUE NOS. 1 AND 2 IN O.S.NO.12 OF 2012 :- (1) Whether the plaintiffs are ready and willing to perform their part of the contract ?
(2) Whether the plaintiffs are entitled for specific performance of the agreement of sale ?
22 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012)
29)As discussed in earlier part of the judgment, the contention of plaintiffs of this suit who are defendants No.6 and 7 in O.S.No.62 of 2012 is that the defendant
No.1 executed the agreement of sale Ex.B-1, received part of consideration but, subsequently as failed to execute the registered sale deed inspite of their readiness to pay the balance sale consideration as agreed, they filed this suit for specific performance and thereby they are entitled for the said relief.
30)It is the submission of the learned counsels for the plaintiff and defendants
No.2 to 4 in O.S.No.62 of 2012 and defendants of this suit O.S.No.12 of 2012 that the agreement of sale does not contain about absolute ownership of defendant
No.1 who executed the agreement of sale, another name was also shown as vendor along with defendant No.1 (i.e., defendant No.5 in O.S.No.12 of 2012 and defendant No.2 in O.S.No.12 of 2012) and the evidence of defendants No.6 and 7 with regard to passing of consideration is different with that of contents of Ex.B-1 and there are several discrepancies etc.
31) It is to be noted here that Ex.A-1 to Ex.A-3 clearly show it is the property purchased by defendant No.1 and her name is mutated and pattedar pass books and title deeds were issued. In earlier part of discussion of the judgment, it is held that it is not the property purchased with the funds of joint family business by her husband and sons but, it is her exclusive property. Further, it is not the case of the defendant No.1 that no consideration was received by heras per the legal notice under Ex.B-4 or in the written statement filed by her.
32)It is categorically admitted that she executed Ex.B-1 in favour of defendants
No.6 and 7 for a consideration of Rs.1,80,00,000/-, she received Rs.15,00,000/- on the date of execution of Ex.B-1 and also further Rs.30,00,000/- on 29-07-2011. As 23 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012) per the agreement of sale, the next installment to be paid is before 30-09-2011.
Before that date only the defendants No.6 and 7 informed that they are ready and
willing to pay that amount. In response to that she has issued Ex.B-4 notice stating that she executed the agreement of sale and received Rs.45,00,000/- but, one of her sons i.e., the plaintiff in O.S.No.62 of 2012 is not agreeing for execution of the sale deed, thereby she is unable to execute the registered sale deed and agreement of sale to be treated as cancelled and terminated etc. No other reason is given by her for non execution of the registered sale deed except one of her sons is not accepting. Though it is pleaded in the written statement that defendants No.6 and 7 expressed their inability to pay the balance sale consideration, it is not the plea at all in the legal notice under Ex.B-4 which was issued at earlier point of time. So no credence can be attached as it is an after thought.
33)It is another submission of the learned counsel for the defendants that no plea at all about the readiness and willingness to perform their part of contract, but, it is not so. It is categorically mentioned that plaintiffs are ready to perform their part of agreement of sale as they are ready to pay the balance sale consideration amount but, it is the defendant No.1 who expressed non-willing to register the sale deed etc. It is to be noted that as stated earlier the third installment to be paid is before 30-09-2011. The defendants No.6 and 7 intimated about their readiness and willingness on 26-09-2011 under Ex.B-4. As defendant
No.1 failed to receive balance sale consideration and expressed inability to execute the registered sale deed, they filed the suit for specific performance and it is not with a delay but, only within two months. No material on record to show that the defendants No.6 and 7 are not ready and willing to pay the balance sale consideration etc.
24 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012)
34)When the defendant No.1 herself admitting about the execution of Ex.B-1 agreement of sale and receiving of sale consideration, her heirs i.e., sons and daughters cannot question the same by showing the discrepancies. It is the submission of the learned counsel for the defendants that they are ready to return the amount that was received, that itself also will not make plaintiffs of this suit not entitle for seeking specific performance when more particularly they are ready and willing to purchase and no circumstances existed for non performance of specific performance by vendor. The only ground raised by the vendor defendant
No.1 is one of her son is disputing which is not a valid ground to deny, when her heirs have no right over the property as it is her exclusive property. Further, to add here that, either her sons or she never made any attempt to return the said amount.
They could have transferred the received amount into the account or atleast they could have deposited the amount in the Court immediately after filing of the suit in the year 2011 itself to show their bonafides. Till this period, no such amount was deposited or transferred/paid.
35)With regard to the other submission of the learned counsel that if the suit for specific performance is decreed, it would lead to multiplicity of proceedings as defendant No.1 is no more and her legal heirs are litigating etc. It is already held in earlier part of judgment that it is the exclusive property of defendant No.1 and her legal heirs i.e., the plaintiff and defendants No.1 to 5, 8 and 9 of O.S.No.62 of 2012 etc, are not entitled for partition and separate possession. The defendant
No.2 of this suit who is defendant No.5 in the suit for partition in O.S.No.62 of 2012 is made as a party as the defendant No.1 executed the gift settlement deed in his favour and it was also sought to be declared as null and void. As the defendant
No.1 executed the agreement of sale, admittedly prior to execution of the gift deed in favour of defendant No.5 (defendant No.2 in O.S.No.12 of 2012) the same is 25 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012) liable to be declared as null and void, thereby they have to execute the registered sale deed in favour of plaintiffs.
36)This is not a case where the plaintiffs failed to pay the balance sale consideration as agreed. This also not a case where some more activity is to be done by them with regard to the performance of agreement. The vendor cannot set up defective in his own title as a defence in a suit for specific performance.
Hence, for the reasons discussed above, this Court is of the view that the defendants No.6 and 7 who are the plaintiffs in O.S.No.12 of 2012 are ready and willing to perform their part of contract and it is the defendant No.1 who failed to execute the registered sale deed without any valid ground to deny. Hence, the plaintiffs are entitled for specific performance.
37)Since the plaintiffs are ready and willing to perform their part of contract by paying consideration and since there is no other obligation to be performed by them, I find no reasons to non suit the plaintiffs for relief of specific performance.
But, it is to be noted here that the date of agreement is for the year 2011, admittedly 10 years is lapsed. From the due date of payment of balance sale consideration, the value of the property certainly might have been increased. The said balance sale consideration is with them only since then. Thereby it would be unjust to make them entitle for the same sale consideration as the said amount is with them since all these years and the defendants have been deprived of the said amount thereby, this Court is of the view that they can be directed to pay the said balance amount with interest @ 18% per annum from the date of due of payment as per agreement.
Thus, these two issues are decided in favour of plaintiffs in O.S.No.12 of 2012.
26 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012)
38)ISSUE NO. 4 IN O.S.NO. 62 OF 1 2 and ISSUE NO.3 IN O.S.NO.12 OF 2012 :-
To what relief ? (common in O.S.No.62 of 2012 and O.S.No.12 of 2012)
a)As it is held in issue No.2 of O.S.No.62 of 2012 that the plaintiff is not entitled for partition and separate possession, and in issue No.3 of O.S.No.62 of 2012 that agreement of sale is not liable to be declared as null and void, the suit in
O.S.No.62 of 2012 is dismissed.
b)As it is held in issue No.2 of O.S.No.12 of 2012 that the plaintiffs are entitled for specific performance of agreement of sale, the suit is decreed.
39)In the result, O.S.No.62 of 2012 is dismissed without costs and the suit
O.S.No.12 of 2012 is decreed for specific performance of agreement of sale, dated
26-07-2011 directing the defendants to execute a registered sale deed in favour of the plaintiffs for the schedule property within two (02) months from the date of payment of balance sale consideration, failing which the plaintiffs are entitled to obtain the registered sale deed through process of law.
The plaintiffs have to pay the balance sale consideration of Rs.1,35,00,000/- to defendants with interest @ 18% per annum from the due date of payment as per agreement. No order as to costs.
Dictated to Stenographer partly, transcribed by him, partly typed, corrected
and pronounced by me in the open Court on this the 10 th day of November, 2021.
I Additional District Judge, Karimnagar.
27 (F)(O.S.No.12 of 2012 & O.S.No.62 of 2012)
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
IN
O.S.NO.62 OF 2012
FOR THE PLAINTIFF S : FOR THE DEFENDANT S :
PW-1 Shyam Sunder SoniDW-1Suresh Chand Soni PW-2 T. AnandamDW-2Punnam Chand Soni DW-3Om Prakash Soni DW-4Ram Kishore Mundada DW-5Hari Kishan Mundada
EXHIBITS MARKED
FOR THE PLAINTIFFS :
Ex.A1Original Registered Sale Deed No.2524/1980, dated 30-06-1980
Ex.A2Original Pattedar Pass Book
Ex.A3Original Title Deed Rythu Pass Book
FOR THE DEFENDANT S :
Ex.B1Agreement of Sale
Ex.B2Copy of Gift Settlement Deed, dated 02-08-2011
Ex.B3Certified Copy of Registered Sale Deed, dated 20-06-1980
Ex.B4Office Copy of Legal Notice, dated 02-12-2011 issued by defendant
Ex.B5Intimation letter, dated 26-09-2011
I Additional District Judge, Karimnagar.