IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE, KURNOOL.
PRESENT: Sri G. Sreenivasulu, M.A., L.L.M.,
Principal Senior Civil Judge, Kurnool.
THURSDAY the TWENTY FIFTH day of APRIL, 2013
ORIGINAL SUIT NO.499 OF 2010
Pothuraju Ramadas… Plaintiff
- Versus -
1. Pothuraju Ayyamma
2. Pothuraju Chinna Venkateswarlu… Defendants
This suit coming on 08-04-2013 for final hearing before me in the presence of Sri P. Sreenivasulu, Advocate for the Plaintiff and Sri
B.Jangam Reddy, Advocate for Defendants 1 & 2 and upon hearing the arguments and having stood over for consideration till this day, and this
Court delivered the following:
J U D G M E N T
This suit is filed directing the identification of property as per the terms of agreement dt.06-07-2006 (2) to pass a decree directing the defendants to execute the registered sale deed in favour of the plaintiff in respect of plaint schedule property at the plaintiff paid entire sale consideration on stamp papers. In case the defendant failed to execute the sale deed the court may execute the sale deed on behalf of the defendants and to put the plaintiff in possession.
2.The brief averments in the plaint are as follows:
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Defendants 1 & 2 are mother and son. The plaintiff entered into an agreement of sale pertained to the schedule mentioned property for
Rs.3,60,000/- and paid Rs.3,50,000/- on the date of agreement dt.06/07/2006. Both defendants undertaken to execute necessary sale deed in favour of the plaintiff as soon as the suit property was partitioned.
3.Subsequently both defendants colluded each other and first defendant executed a gift deed in favour of second defendant on 20/03/2009 with a view to defeat the rights of plaintiff. Both defendants concealed the fact of partition and executed the document. Subsequently plaintiff paid Rs.10,000/- on 03/05/2010 to the defendants under the agreement dt.06/07/2006. The same is endorsed on the reverse of agreement.
4.The factum of gift came to the knowledge of plaintiff only recently.
Then he demanded both defendants to execute the sale deed in favour of plaintiff however defendants postponed the same. Then the plaintiff issued legal notice to defendants on 03/11/2010. Both defendants managed to return the notices.
5.In spite of several oral as well as written demands defendants did not execute the document. Under the given circumstances the plaintiff was forced to file the present suit.
6.The plaint is amended as per orders in I.A.1643/2011 dt.21/02/2012. By virtue of agreement dt.6/7/2006 the defendants bound 3 themselves to execute sale deed in favour of the plaintiff to the land situated on southern side of the land that would be fallen to the first defendant in Sy.No.925. The second defendant obtained the property covered under agreement of sale dt.06-07-2006. Under section 13 of
Specific Relief Act. Second defendant having succeeded the property by virtue of Gift Deed dt.20/03/2009 and the rectification deed liable to
honour the agreement stands in the name of plaintiff. Both defendants are
relatives of the plaintiff as such the plaintiff never evinced doubt as to the identity of the property and he was under the impression that both defendants would show suitable site in Sy.No.925 by acting under the terms of agreement.
7.First defendant filed written statement, the same is adopted by second defendant.
8.The first defendant denied all the allegations that are mentioned in the plaint and submitted that the thumb impressions of the first defendant were forged. She never sell the plaint schedule property to the plaintiff.
She did not receive any consideration from the plaintiff. The suit schedule property along with some other properties were originally purchased by
Pothuraju Chowdary Gattaiah and his sister Chinna Ayyamma under a registered sale deed dt.30/06/1950.
9.It is further submitted that first defendant is the only daughter of
Pothuraju Chowdary Gattaiah and second defendant has nothing to do with the suit property. Gattaiah died on 20/05/1971 leaving behind the 4 first defendant as his sole heir. First defendant has got three more daughters apart from second defendant. Chinna Ayyamma sister of
Gattaiah died in or about 1989 or 1990 leaving behind five sons and four daughters. The properties that were purchased by Gattaiah and Chinna
Ayyamma are not divided between the heirs of Chinna Ayyamma and first defendant. So, the said survey number with its total extent is in joint possession and enjoyment of heirs of Chinna Ayyamma and first defendant along with other properties under the sale deed dt.30/06/1950.
10.It is further submitted that unless the property is divided by metes and bounds among all the heirs, the share of the defendants cannot be demarcated and the plaint schedule and the boundaries is not in the suit agreement and it is only imaginary. The plaintiff also put an imaginary plaint plan locating the valuable and potential side of the land as if it is covered under the agreement of sale. In absence of division of property and in absence of demarcation of the land by first defendant the agreement became vague and unenforceable.
11.It is further submitted that the terms of agreement, in schedule it is specifically stated that as and when division takes place in the share of the first defendant it was agreed to be sold 3 cents to the plaintiff without boundaries. Such a vague agreement is unenforceable under law.
12.The suit agreement is said to be executed on 06-07-2006 and the suit is filed on 18-11-2010. It is clearly barred by limitation. The scribe and attestor of sale agreement as well as payment endorsement are one 5 and the same. They are the followers of the plaintiff. The suit framed is not maintainable. Denied all the allegations that are mentioned in the plaint. More so, the alleged gift deed of second defendant has no relationship to the suit and it is not true and the market value of the property is more than Rs.3,00,000/- per cent. The defendants never agreed to sell plaint schedule property to the plaintiff. Plaintiff is not always ready and willing as such the suit is not maintainable and it is liable to be dismissed.
13.There is an amendment to plaint as per orders in I.A.No.1643/2011 dt.21-02-2012 by adding para ‘2A’ in the plaint and also in the prayer as ‘A1’. Subsequently the matter is posted for additional written statement of defendants if any. The counsel for defendants reported no additional written statement.
14.Basing on the pleadings of both parties, this Court was pleased to settle the following issues for trial:
1. Whether the plaintiff is entitled for specific performance
of agreement of sale dt.06/07/2006 as prayed for?
2. Whether the plaintiff is entitled for the relief of cancellation of Gift Deed executed by D-1 in favour of
D-2 and for possession as prayed for?
3. Whether the alleged agreement of sale dt.06/07/2006 is true and valid?
4. Whether the plaintiff is always ready and willing to perform his part of contract from the date of agreement
till the filing of the suit into the court?
5. To what relief?
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15.During the trial, P.W.1 and P.W.2 were examined on behalf of the plaintiff and got marked Exs.A-1 to A-5 documents. On behalf of the defendants, first defendant herself is examined as D.W.1 and got marked
Ex.B-1 sale deed dt.30/06/1950.
16.Heard arguments on both sides. Perused the memorandum of written arguments.
17.ISSUE NOS.2 & 3: These two issues are clubbed together for the sake of convenience and brevity.
It is the case of the plaintiff that defendants 1 & 2 are mother and son and they are the owners of land in Sy.No.925 of Kallur village within
Municipal Corporation area. They entered into an agreement of sale with plaintiff on 06/07/2006. Both defendants agreed to sell Ac.0.03 cents of land in Sy.No.925 in favour of the plaintiffs for Rs.3,60,000/-. Out of the same the plaintiff paid Rs.3,50,000/- towards advance on 06/07/2006 and obtained Ex.A-1 sale agreement. Subsequently on demand he paid
Rs.10,000/- on 03/05/2010 and made an endorsement on the reverse of the agreement. The plaintiff paid entire sale consideration of
Rs.3,60,000/-.
18.Inspite of several demands made by the plaintiff, both defendants did not came forward to execute the sale deed in favour of plaintiff hence he got issued legal notice to defendants 1 & 2 and the defendants 1 & 2 managed to return the same.
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19.Whereas the contention of defendants are that the suit is a speculative one, more so the suit claim is barred by limitation and the alleged agreement shows that the defendants who are going to get a share of land in Sy.No.925 that would be fallen to them in their family division with the children of Chinna Ayyamma, out of the same a piece of land situated on the southern side of the land in Sy.No.925 that would be registered in favour of plaintiff. So the land in the agreement is not a fixed land and identification is problem. When the first defendant is going to get her share in Sy.No.925 is uncertain. Under the given circumstances, the agreement itself is a speculative one and it is unknown to law to enforce. More so, the learned counsel for the defendants strongly contended that the suit claim is barred by limitation.
20.Perused the evidence of P.W.1 and P.W.2 on behalf of the plaintiff so much so the evidence of D.W.1 on behalf of defendants. Admittedly second defendant did not file any separate written statement. He adopted the written statement of first defendant. The second defendant did not evince any interest to give his evidence on oath and to allow the other side to cross-examine. For the reasons best known to him he became silent spectator so far the suit claim is concerned.
21.According to the case of the plaintiff the agreement of sale is entered into on 06/07/2006 and first defendant affixed her thumb mark and the second defendant signed on the agreement. The second defendant is working as a police constable in Excise Department. According to the plaintiff he paid advance of Rs.3,50,000/- on 06/07/2006. Having 8 received the same both defendants have signed, and first defendant affixed thumb marks on the agreement and handed over the same to the plaintiff. Subsequently, the plaintiff paid Rs.10,000/- on 03/05/2010 and endorsed the same on the reverse of the agreement. Later on 18/11/2010 the present suit is filed into the Court. Under article 54 of Limitation Act the period of limitation for enforcing the agreement is three years. In the present case on hand within three years of period the remaining balance of sale consideration of Rs.10,000/- is paid on 03/05/2010. The time is not essence of contract to enforce. The notice was given to defendants on 03-11-2010 and within 15 days the present suit is filed into the Court on 18/11/2010. Under the given circumstances, the suit claim is within the period of limitation as such the suit is maintainable.
22.The learned counsel for plaintiff vehemently contended that both defendants have executed Ex.A-1 agreement of sale in favour of the plaintiff on 06/07/2006 and concealed the fact of partition and first defendant executed Gift Deed in favour of second defendant under
Ex.A-2 dt.20-03-2009.
23.In the given circumstances, it is just and necessary to see Ex.A-2
Gift Deed in favour of second defendant. The property conveyed under the said document is Ac.0.31½ cents in Sy.No.269 of Kurnool near to the house of D.No.48/99 and Ac.0.20½ cents in Sy.No.955 and Ac.0.22½ cents in Sy.No.925 total Ac.0.74½ cents worth about Rs.54,10,000/- in which it is mentioned that she has mentioned the flow of title to the executant of the document namely the first defendant, that her father and 9 her maternal aunt Chinna Ayyamma purchased the property jointly under
Ex.B-1 (Perused Ex.B-1 sale deed) on 30/06/1950 under registered document No.1402/1950 in which they purchased Ac.0.45 cents in
Sy.No.925 in which half share i.e. Ac.0.22½ cents besides two more items and all the three items consisting of Ac.0.74½ cents fell to the share of her father. The remaining half share fell to the share of Chinna Ayyamma and first defendant is the only daughter of her father. After the death of
Gattaiah, first defendant got the property an extent of Ac.0.74½ cents out of Ac.1.49 cents purchased jointly. In which she settled Ac.0.74½ cents in favour of second defendant. It appears that first defendant executed a gift deed in favour of second defendant with specific metes and bounds.
Under the given circumstances, it is the contention of the defendants when there is no partition and when there is no specific property fell to the share of first defendant in a family division, under the given circumstances selling of the property under Ex.A-1 sale agreement in favour of plaintiff with unspecified area does not arise. In fact such an agreement has no legs to stand.
24.Since it is clearly recited in the Gift Deed executed by first defendant in favour of second defendant under Ex.A-2 dt.20/03/2009, it appears that after the property was purchased by Gattaiah and his sister
Chinna Ayyamma under a registered sale deed dt.30/06/1950 in document
No.1402/1950 the property was partitioned. The share of property fallen to the share of Gattaiah that was devolved on first defendant on survivorship after the death of Gattaiah. So the first defendant was in possession of Ac.0.74½ cents. Out of the same the present Ac.0.03 cents 10 was sold to plaintiff and plaintiff paid an amount of Rs.3,50,000/- towards advance and entered into an agreement of sale dt.06/07/2006.
25.As can be seen from the recitals mentioned in Ex.A-2 Gift Deed executed by first defendant in favour of second defendant shows that there was an earlier partition and the property was fallen to the share of first defendant as such she is having right, title, possession and saleable interest over the property. Obviously it is the reason that defendants 1 & 2 have entered into an agreement of sale in favour of plaintiff.
26.It is the contention of plaintiff that both defendants concealed the fact of partition and suppressed the fact and entered into agreement of sale with false recitals that there is no partition and entire property is joint, after partition the property that would be fallen to the share of first defendant, out of the same the southern side site in which Ac.0.03 cents will be executed a sale deed in favour of plaintiff is not true and correct.
There was an earlier partition as per the recitals in Ex.A-2 document.
There is no dispute in execution of Ex.A-2 Gift Deed by first defendant in favour of her son second defendant and both defendants have executed the sale agreement in favour of plaintiff. So far, the execution of sale agreement in favour of plaintiff, it is pleaded by defendants 1 & 2 that they did not execute the documents. The oral evidence of plaintiff as P.W.1 and the attestor of Ex.A-1 Agreement and part payment dt.03-05-2010 at
Rs.10,000/- and the evidence of P.W.2 is consisting and corroborating with the evidence of plaintiff. Nothing is attributed to disbelieve the testimony of P.W.2 who is an independent witness. In the given circumstances, it 11 can be said that the evidence of P.W.2 is trustworthy to believe. As such the agreement of sale under Ex.A-1 is true, valid and binding on the defendant.
27.The property that was gifted to second defendant under Ex.A-2 document is Ac.0.74½ cents whereas the property sold under Ex.A-1 is
Ac.0.03 cents. Under the given circumstances there is no need or necessity to cancel the Gift Deed, more so second defendant who got the property under Ex.A-2 is also one of the executant of agreement of sale under Ex.A-1. So defendants 1 & 2 have to execute sale deed in favour of plaintiff. Under the given circumstances, a direction can be given to second defendant who got the property shall execute a regular sale deed in favour of plaintiff. Under the given circumstances there is no need or necessity to cancel the Gift Deed that was executed under Ex.A-2 dt.20/03/2009. Accordingly issue Nos.2 and 3 are answered.
28.ISSUE NOS.1 & 4:-
The learned counsel for the plaintiff submitted that on 06/07/2006 both defendants who are mother and son executed Ex.A-1 sale agreement agreed to sell Ac.0.03 cents in Sy.No.925 in favour of plaintiff for Rs.3,60,000/- out of which Rs.3,50,000/- was paid and remaining balance is agreed to pay as and when the defendants partitioned the property from the remaining shareholders and the property that would be fell to the share of first defendant in which she agreed to sell Ac.0.03 cents and to register the same in favour of plaintiff. Both plaintiff and defendants 12 are relatives, there is no dispute. Subsequently without the knowledge of plaintiff first defendant gifted the property to second defendant on 20/03/2009 under the original of Ex.A-2.
29.It is the case of defendants that they did not execute the sale agreement in favour of plaintiff and it is a forged document. Under the given circumstances the burden of proof is on the plaintiff to establish that both defendants having received the advance amount executed the sale agreement in favour of plaintiff. To substantiate the contention of plaintiff, the plaintiff himself examined as P.W.1 and also examined the attestor of
Ex.A-1. Perused the contents in Ex.A-1 sale agreement dt.06/07/2006 one B.C.Maddilety/P.W.2 is one of the attestor of agreement of sale besides another attestor.
30.As can be seen from the pleadings of first defendant who filed the written statement that she denied the thumb mark on agreement of sale.
It is not the case of first defendant that second defendant signature was forged. Second defendant did not file any separate written statement and he did not give his evidence. As can be seen from the pleadings and evidence on record first defendant alone stated that her thumb marks are forged. If at all it is the plea of second defendant he would have filed a separate written statement by contending that the signature on Ex.A-1 is not his signature. No such plea is putfourth by second defendant who contested the matter. The reasons are best known to second defendant for non-contesting the matter and he became silent spectator observing the proceedings from the beginning till end. It is no doubt true by the time 13 of evidence first defendant has no interest over the property as it was already alienated to second defendant. Second defendant is proper and necessary party to oppose suit claim however he became silent.
31.It can be seen from the evidence of P.W.1 and P.W.2 coupled with
Exs.A-1 to A-5 documents positively established that defendants 1 & 2 executed Ex.A-1 agreement of sale and received amount on the date of agreement, subsequently on 03/05/2010 received the remaining
Rs.10,000/- in the presence of P.W.2, subsequently they did not came forward in spite of legal notice that was given by plaintiff under Ex.A-3.
Ex.A-4 is the postal receipt and Ex.A-5 are the returned postal covers.
32.The pleadings on both sides shows the time is not essence of contract. From the date of denial the cause of action will arose to enforce the agreement of sale. But in the present case on hand within the period of limitation the balance amount is paid and filed the present suit into the
Court as such the suit is maintainable since the defendants failed to execute the regular sale deed in favour of the plaintiff and defendants did not give any legal notice to the plaintiff thereby called upon the plaintiff to intimate that there was a partition in which first defendant got the property with specific metes and bounds and to get regular sale deed from the defendants. No such notice is sent by the defendants. Under the given circumstances, I am of the considered opinion that plaintiff is always ready and willing to perform his part of contract and the defendants are the persons who postponed the registration on some pretext or other.
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Meantime first defendant alienated the property to second defendant with a view to defeat the rights of plaintiff.
33.The learned counsel for the defendant filed memorandum of written arguments and contended that the recitals in the document under Ex.A-1 is most unnatural and it cannot be enforceable by saying so he relied upon a decision reported in 2012 (2) ALT page 618. Therein his Lordship said that:
"In a suit for specific performance of agreement of sale,
there cannot be a pleading contrary to very agreement
of sale or as to character of property and the purpose of
sale by kartha of the joint family."
It is further held by his Lordships that:
"In evidence, plaintiff made an effort to show that though
property is described as an ancestral one, it is in fact the self
acquired property of defendant. Thus, there is a dispute as to
the very character of the property and variation in purpose of
sale. Oral evidence cannot be adduced contrary to agreement
of sale."
34.In the agreement of sale under Ex.A-1 it can be seen that the agreement of sale itself recited that the property sold is joint family property. The shareholders can sell away the property without any partition the unspecified joint property that would be fell to the share of vendor. Obviously it is the reason that vendors who are no other than defendants 1 & 2 sold the property to plaintiff unspecified undivided
Ac.0.03 cents in Sy.No.925 of Kurnool Municipal Corporation area and the 15 same was agreed and purchased by the plaintiff. It is not the case of the defendants that no such property was possessed or entitled by defendants 1 & 2. Subsequently the document under Ex.A-2 clearly and categorically established that first defendant has got 74½ cents in Sy.No.925 of Kurnool town. Under the given circumstances, nothing can be attributed to plaintiff to create the document. To establish that the document is executed by defendants 1 & 2, the attestor of the agreement was examined as P.W.2 and his evidence is consisting and corroborating to establish the execution of agreement and part payment. More so, the character of property is not doubtful in the present case on hand. Under the given circumstances, with great respect and honour the facts on hand and the facts in the referred decision or not one and the same and it has no application.
35.Further he relied upon another decision reported in 2000 (3) Law
Summary page 291. Therein his Lordships held that:
"The facts in the said case are that the suit is filed for
the specific performance of agreement of sale.
Appreciation of oral evidence and the agreement is
entered by D1 and D2 and also on behalf of D3.
Admittedly D3 is having equal share on par with D1 and
D1. Agreement is not executed by D3 and it is executed
by D1 and D2 themselves and also on behalf of D3.
Under the given circumstances, agreement cannot be
enforced against D3 as he is not a party thereto. In fact,
D1 and D2 have no right to convey the share of D3.
Either D3 or his LRs are not bound by terms of sale
agreement and as such plaintiffs have no right to ask for
any partition or separation of share of D3 in the plaint
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schedule property. Since the property is undivided,
agreement cannot be specifically enforced as against
D1 and D2.”
36.For the proposition that property is undivided, agreement cannot be specifically enforced against the non-executant of the agreement. By relying upon said decision it is contended by the learned counsel for the defendants that in the present case on hand defendants 1 & 2 are the persons entitled a share in the undivided property that was conveyed under the agreement of sale as such the agreement cannot be enforced.
I do not think that the facts on hand and the facts in the referred decision are not one and the same and it has no application for the reason that the recitals under Ex.A-2 the Gift Deed executed by first defendant in favour of second defendant shows that the property was purchased by the father of first defendant by name Gattaiah under the registered sale deed dt.30/06/1950 under Ex.B-1 along with his sister Chinna Ayyamma.
Later during their lifetime partitioned the same in which 74½ cents of land fell to the share of Gattaiah. First defendant being the only daughter of
Gattaiah she got the property. Though the recitals in Ex.A-1 is mentioned the property is not divided however in Ex.A-2 document executed by first defendant in favour of second defendant shows that property was already divided. Under the given circumstances, the decision has no application to the present facts on hand.
37.The learned counsel for the defendants relied upon another decision reported in 2012 (1) L.W. page 231 (SC). Therein his Lordships held that:
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"For a specific performance of contract of sale of
immovable property there must be certainty with
respect to the property to be sold.
At para No.18 it is elaborately held by their Lordships that:
“That apart, for a specific performance of a contract of
sale of immovable property, there must be certainty with
respect to the property to be sold.”
As held in a decision reported in 1990 (3) SCC Page 1. It is held in the said decision that:
“The specific performance of a contract is the actual
execution of the contract according to its stipulations
and terms, and the courts direct the party in default to
do the very thing which he contracted to do. The
stipulations and terms of the contract have, therefore, to
be certain and the parties must have been consensus ad
idem. The burden of showing the stipulations and terms
of the contract and that the minds were ad idem is, of
course, on the plaintiff. If the stipulations and terms are
uncertain, and the parties are not ad item, there can be
no specific performance, for there was no contract at
all.”
38.Perused the said decision. With great respect and honour the facts on hand and the facts in the referred decision are not one and the same for the reason that the immovable property that was involved in the present case is certain and it is situated in Sy.No.925 and the first defendant is entitled to get a share of land in the said survey number.
After partition the share that would be fell to the share of first defendant, 18 out of the same she agreed to sell Ac.0.03 cents to plaintiff. Under the given circumstances, with great respect the decision has no application to the facts on hand.
39.The learned counsel for the plaintiff relied upon a decision reported in AIR 2005 SUPREME COURT Page 1940. Therein his Lordships held that:
“In a suit for specific performance of agreement of sale
it is entered between the plaintiff and first defendant,
first defendant did not execute sale deed after receipt of
balance of consideration and defendant No.1 executed
another agreement in favour of defendant No.2 during
subsistence of first agreement with plaintiff. Defendant
No.2 was aware of earlier agreement. Plaintiff was a
bonafide purchases and was ready and willing to
perform his part of contract and he purchased stamp
paper, went along with defendant No.1 to Sub-
Registrar’s Office for registration. However defendant
No.1 sneaked away at last moment. On same day
defendants filed collusive suit and obtained
compromise decree. The conduct of defendants shows
that there was a pre-conceived agreement between them
to defraud and cheat the plaintiff.”
40.Perused the said decision. The facts on hand and the facts in the referred decision is almost all similar in nature for the reason that both defendants have executed an agreement of sale in favour of the plaintiff by saying that there is no partition between first defendant along with the
L.Rs of Chinna Ayyamma. However after some time of Ex.A-1 first 19 defendant executed Gift Deed in favour of second defendant alleging that there was earlier partition in which the father of first defendant got 74½ cents of land and the same was settled in favour of the second defendant shows that both defendants are colluded each other with a view to defeat the legitimate rights of plaintiff. Under the said circumstances, the plaintiff is entitled for the relief as prayed for in the main suit. The decision is applicable to the facts on hand.
41.To eliminate delay the learned counsel for the plaintiff relied upon a decision reported in AIR 2000 SUPREME COURT Page 2408. Therein his Lordships held at para No.6 that:
“The first ground which the High Court took note of is
the delay in filing the suit. It may be apt to bear in mind
the following aspects of delay which are relevant in a
case of specific performance of contract for sale of
immovable property: (i) Delay running beyond the
period prescribed under the Limitation Act; (ii) Delay in
cases where though the suit is within the period of
limitation, yet : (a) due to delay the third parties have
acquired rights in the subject-matter of suit; (b) in the
facts and circumstances of the case, delay may give
rise to plea of waiver or otherwise it will be inequitable
to grant a discretionary relief. Here none of the above
mentioned aspects applies. That apart factually also, the
High Court proceeded on an incorrect assumption with
regard to cause of action. Ext.2 was executed on
February 20, 1977 and under it the sale deed was to be
executed on or before July 19, 1977. The last notice was
issued on November 26, 1978 and from that date the suit
was filed only after nine months and not after more than
20
a year as noted by the High Court. Therefore on the
facts of this case the ground of delay cannot be invoked
to deny relief to the plaintiff.”
42.Perused the said decision. The delay that was stated by the defendants has no legs to stand for the reason the time is not essence of contract. More so within 3 years of agreement under Ex.A-1 the plaintiff paid remaining balance amount of Rs.10,000/- on 03/05/2010 and got issued legal notice under Ex.A-3, waited then within 15 days the present suit is filed as such the delay as stated by defendants is not at all in force and the suit is maintainable and it is within the period of limitation and the proposition of law is applicable to the facts on hand.
43.The counsel for plaintiff relied upon another decision reported in
AIR 1966 A.P. Page 110. Therein his Lordships held that:
“The plaintiff filed suit for specific performance of
agreement of sale executed by first defendant. Second
defendant was a tenant under him cultivating the lands.
It was further alleged that in order to defeat the claim of
the plaintiff first defendant and second defendant
colluded and brought into existence of another
agreement of sale pertained to the land. The relief
asked for was also for possession of suit lands against
second defendant. “
It is further held by his Lordships that:
“The claim made by the plaintiff was one under Section
27(b) of the Specific Relief Act and it was properly
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valued and proper Court fee was paid as prescribed
under Section 39 of the A.P. Court Fee Act.”
“The suit was essentially one for specific performance
not only against the first defendant but also against the
second defendant. There could be no doubt that
specific performance could be asked for and granted
against any subsequent transferee with a notice of the
prior contract.”
44.Perused the proposition of law. It is aptly applicable to the present set of facts on hand as defendants 1 & 2 are the persons who executed the agreement of sale in favour of the plaintiff. Subsequently, second defendant obtained Gift Deed from first defendant. Now the suit is filed against both defendants after given notice under Ex.A-3 as such the suit is perfectly maintainable against the both defendants.
45.The learned counsel for the plaintiff further relied upon another decision reported in AIR 2008 SUPREME COURT Page 2489. Therein his Lordships held that:
“The suit is filed for specific performance of agreement
of sale.”
At para No.19 it is held that:
“The first appellate court did not arrive at a conclusion
that the appellant was a member of a Mitakashra co-
parcenary. The source of the property was not
disclosed. The manner in which the properties were
being possessed by the appellant vis-a-vis, the other co-
owners had not been taken into consideration. It was
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not held that the parties were joint in kitchen or mess.
No other documentary or oral evidence was brought on
record to show that the parties were in joint possession
of the properties.”
At para No.20 it is held that:
“One of the witnesses examined on behalf of the
appellant admitted that the appellant had been in
separate possession of the suit property. Appellant also
in his deposition accepted that he and his other co-
sharers were in separate possession of the property.”
[[At para No.21 it is held that:
“For the purpose of assigning one's interest in the
property, it was not necessary that partition by metes
and bounds amongst the coparceners must take place.
When an intention is expressed to partition the
coparcenary property, the share of each of the
coparceners becomes clear and ascertainable. Once the
share of a co-parcener is determined, it ceases to be a
coparcenary property. The parties in such an event
would not possess the property as "joint tenants" but as
"tenants in common". The decision of this Court in State
Bank of India (supra), therefore is not applicable to the
present case.”
46.Perused the decision. In the present case on hand that the property was already partitioned by the father of first defendant namely
Gattaiah with his sister Chinna Ayyamma or with her L.Rs and Gattaiah got specific property that was fallen to first defendant by survivorship and she got mentioned the same in the Gift Deed executed by her in favour of second defendant dt.20-03-2009 under Ex.A-2 as such the property is 23 specific and first defendant is the absolute owner of the property and she alienated to plaintiff under agreement of sale under Ex.A-1 an extent of
Ac.0.03 cents. In the given circumstances, the proposition of law that was relied upon by the plaintiff is applicable to the present set of facts on hand.
47.The learned counsel for the plaintiff relied upon another decision reported in AIR 1999 SUPREME COURT Page 2544 for the proposition that:
“Court can exercise for comparison of signatures under
Section 73 of I.E. Act to come to right decision of the matter.”
48.No efforts were made by defendants though they contended that the thumb mark of first defendant and signatures of second defendant are not their signatures. But the defendants did not move their little finger to send the document to the Expert for the opinion and they did not ask the
Court to compare the signatures and to come to right decision of the matter. Admittedly first defendant affixed thumb mark. It cannot be compared by Court with naked eye or under magnificent lens. Second defendant did not deny his signature on agreement by filing separate written statement and he did not adduce his evidence and he did not file any additional written statement after amendment of pleadings of plaintiff.
Under the given circumstances, the comparison under Section 73 of I.E.
Act does not arise and the decision has no application to the facts on hand.
24
49.Having taken into consideration of the facts and circumstances, I am of the considered opinion that the plaintiff has already paid the entire sale consideration of Rs.3,60,000/- and the agreement of sale under
Ex.A-1 dt.06-07-2006 is true and binding on the defendants inspite of oral as well as written demands made by the plaintiff. Defendants did not came forward to execute the Regular Sale Deed. Hence plaintiff is entitled for specific performance of agreement of sale. Accordingly issue
Nos.1 and 4 are answered in favour of the plaintiff against the defendants.
50.In view of the findings given to issue Nos.1 to 4, I am of the considered opinion that the plaintiff is entitled for a decree against the defendants as prayed for.
In the result, the suit is decreed with costs. The defendants are directed to execute the regular sale deed in favour of the plaintiff within 60 days from the date of this Judgment, failing which the plaintiff is at liberty to levy the execution and to get the regular sale deed with possession under due process of law.
Dictated to the Personal Assistant, transcribed by her, corrected
and pronounced by me in the open Court, this the 25th day of April, 2013.
PRINCIPAL SENIOR CIVIL JUDGE
K U R N O O L
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiff:
P.W.1: Pothuraju Ramadas
P.W.2: B.C. Maddilety 25
For Defendants:
D.W.1:Pothuraju Ayyamma
EXHIBITS MARKED
For Plaintiff:
Ex.A-1:Original sale agreement dt.06-07-2006
Ex.A-2:Certified copy of Gift Deed dt.20-03-2009.
Ex.A-3:Office copy of legal notice dt.03-11-2010
Ex.A-4:Postal receipts
Ex.A-5:Returned postal covers
For Defendants:
Ex.B-1:Certified copy of sale deed dt.30-06-1950 in favour of P.Chowdari Gattaiah and Chinna Ayyamma
P.S.C.J.