1
IN THE COURT OF THE I ADDITIONAL DISTRICT JUDGE:
NELLORE
Present: Kuchi Syamala Devi,
I Additional District Judge, Nellore.
Dated this the 23rd day of March, 2018
O.S.No. 41/2004
Vidavaluru Vasantha Lakshmi …. Plaintiff
vs.
1. Jalli Venkata Seshaiah
2. Jalli Vijaya Lakshmi
3. Papineni Prameela Kumari (died)
4. Pokala Revathi Devi
5. Devarapu Venkateswarlu (added as per orders in I.A.35/10
Dated 24.6.2010)
(D4 is recognized as sole legal heir of
D3 as per order dated 24.9.2012 on
Memo filed by D4) (The name of 5th defendant is struck out
As per orders dated 20.8.2015 in
I.A.No.66/2014) ….defendants
This suit coming on 7.3.2018 before me in the presence of Sri N.Sreenivasulu Reddy, Advocate for plaintiff and Sri G.V.Chowdary, Advocate for first and second defendant, Sri N.Venkateswara Rao, Advocate for sixth and seventh defendants and third and fourth defendants died and the name of fifth defendant is struck out and that the matter having stood over for consideration till this day, this Court delivered the following :
2
J U D G M E N T
This is a suit filed by the plaintiff for specific performance of the contract dated 13.9.2001 executed by Late Koka
Paramkusa Rao in favour of the plaintiff , D.1 & D.2 are declared to be entitled to the schedule property , that fifth defendant may be directed to receive Rs.13,00,000/ and execute the registered sale deed or D1 & D2 may be directed to return the sum of Rs.30,000/ received by them with interest . That D3 & D4 are declared to be entitled to the schedule property, they may be directed to receive
Rs.13,30,000/ and executed a registered sale deed.
2.Late Koka Paramkusa Rao was absolute owner of the plaint schedule property who had perchased the same. He executed an agreement of sale in favour of the plaintiff for Rs.13,50,000/ on 13.9.2001.Hereceivedanadvanceof
Rs.20,000/. Due to poor eye sight Late Koka Paramkusa Rao had affixed L.T.I mark and date of agreement of sale. The said agreement was attested by first defendant along with others. He agreed to execute sale deed on or before 12.12.2001 after receiving balance of sale consideration. Whileso, Late Koka Paramkusa Rao died on 30.10.2001 before executing the sale deed. After the death of
Late Koka Paramkusa Rao defendants 1 & 2 who claims to be the
Brotherinlaw and his wife has informed the plaintiff that Late
Koka Paramkusa Rao had executed a registered Will on 4.11.2000 wherein he bequeathed the schedule house property and some other properties to them cancelling the earlier Will dated 29.7.1995 executed by him in favour of his wife Jalli Seshamma, D/o Jalli
Nageswara Rao since Seshamma died and they took possession of the schedule house and became entitled to the property and therefore defendants 1 & 2 have ratified the agreement of sale and acknowledged receipt of Rs.20,000/ paid by the plaintiff and also
Rs.30,000/ from the plaintiff towards additional advance and 3 executed a fresh agreement of sale on 26.11.2001 and agreed to execute a registered sale deed 12.1.2002. Thus D1 & D2 have acknowledged the receipt of Rs.50,000/ paid by the plaintiff by way of advance. Whileso while the plaintiff was getting ready to obtain sale deed in pursuance of agreement of sale dated 13.9.2001, plaintiff came to know that D.3 & D.4 have filed the suit in
OS.No.34/2001, on the file of I Additional District Judge, Nellore for
declaration and delivery of possession of the schedule mentioned property. There after plaintiff issued a telegraphic notice on 12.01.2002 to D.1 and D.2 to clarify. Then they sent a reply on 19.01.2002 informing that the agreement of sale Dated 26112001 executed by them is anterior to the interim injunction and that they are opposing the said suit. D.1 and D.2 informed that they are ready to execute sale deed after receipt of balance of consideration. Plaintiff issued a reply on 29012002 that she is not prepared to face the contempt proceedings and obtain sale deed without the injunction order being vacated. Hence in these circumstances plaintiff obtaining sale deed could not arise, as D3 and D4 are claiming to be wife and daughter of
Late Koka Paramkusa Rao questioning the Will executed by him. Plaintiff thought it that it is not safe to obtain sale deed from D1 and D2 after paying sale price.
3.Plaintiff submits that after death of Late Koka
Paramkusa Rao whoever may be the persons entitled to the said property after the death of Late Koka Paramkusa Rao the said agreement of sale is binding on them and they will be taking the property subject to the agreement of sale and therefore they are bound to execute the sale deed in favour of plaintiff after receiving the balance. The plaintiff is always 4 ready and willing to pay balance of sale consideration to perform her part of contract. Hence the suit.
4.D.1 and D.2 filed written statement admitting that the agreement of sale executed by Late Koka Paramkusa Rao in favour of the plaintiff for Rs.13,50,000 on 13092001. It is also admitted that Late Koka Paramkusa Rao received Rs.20,000 by way of advance. It is also admitted that after the death of Late
Koka Paramkusa Rao on 30102001 he executed another agreement dated 26112001 and agreed to execute registered sale deed on 12012002. These defendants received Rs.30,000 from the plaintiff under agreement of sale defendants acknowledged Rs.50,000 paid by plaintiff by way of advance and balance of Rs.13,00,000 has to be paid to these defendants.
These defendants got the property by means of registered Will executed by Late Koka Paramkusa Rao on 04112000 in sound and disposing state of mind thus these defendants are absolute owners of the plaint schedule property. Hence agreement executed by Late Koka Paramkusa Rao is not binding on these defendants. It is false that plaintiff has been ready and willing to perform her part of contract. Hence agreement executed by
Late Koka Paramkusa Rao is not binding on these defendants.
Plaintiff is making attempts in seeking specific performance after lapse of 2 years. There are no bonafide on the part of plaintiff claiming the relief. Plaintiff is not entitled for the relief of specific performance or for return of Rs.30,000. Hence the suit is liable to be dismissed.
5.4th defendant filed written statement which is adopted by 3rd defendant denying the allegations mentioned in the plaint and contended that they have no knowledge about agreement of 5 sale executed by Late Koka Paramkusa Rao in favour of the plaintiff. The property is not selfacquired property of Late
Koka Paramkusa Rao acquired with his selfearnings. The property purchased by him is ancestral property as it was purchased with the ancestral properties sale proceeds and earnings of D3 and thus Late Koka Paramkusa Rao has no right alone to alienate the property to third parties without consent of D3 and D4. There is no dispute that Late Koka
Paramkusa Rao purchased the property under sale deed dated 05051997. These defendant and D3 were living along with
Late Koka Paramkusa Rao and in possession of the property till his death. D3 is legally wedded wife of Late Koka
Paramkusa Rao and D4 is their daughter. D1 and D2 are no way related to Late Koka Paramkusa Rao and they belong to different castes. D2 is keptmistress of Late Koka Paramkusa
Rao. It is submitted that D.3 was working as teacher in
Ramachandra Puram and was visiting Late Koka Paramkusa
Rao at the plaint schedule property and deceased performed the marriage of this defendant with Srinivasa Rao. D.1 and
D.2 have no right whatsoever in the plaint schedule property.
It is not true to suggest that due to poor eye sight Late Koka
Paramkusa Rao on the date of agreement of sale affixed his thumb impression, though he is a signatory.
6.The said document is a forged and fabricated document and created just to knock away the property and also to create hardship to the defendant. D.1 and D.2 colluded with the plaintiff and created the document. The sale agreement null and void and it is not binding on the defendant. D1 is one of 6 the attestor in the agreement of sale. It proves that the document is collusive one.
7.These defendants have filed a suit in O.S.No.34/2001 on the file of I ADJ. Nellore for declaration and injunction not to alienate the property and the said suit is pending. The agreement of sale executed by D.1 and D.2 on 26112001 is without any right, title or interest in the property. The Will executed by Late Koka Paramkusa Rao is also unchallenged and it is a forged document. The agreement of sale is time barred and cannot be looked into. Hence the transaction between D1 and D2 is not binding on this defendant. Hence the suit is liable to be dismissed.
8.D.1 and D.2 filed additional written statement contending that the sale deed executed in favour of D5 is illegal sham and nominal and not binding on D1 and D2 since D3 and D4 have no right to sell the same in favour of third parties. Hence the suit may be dismissed.
9.D1 and D2 filed additional written statement during the pendency of the suit. Fifth defendant was added as per orders in I.A.35/2010 dated 24062010.
10.Fifth defendant filed written statement denying the allegations in the plaint and contended that D3 and D4 together sold the property to the defendant for valuable consideration. He is a bonafide purchaser. The agreement of sale in favour of the plaintiff is not valid under Law. Hence the suit is liable to be dismissed.
7
11.D3 filed additional written statement contending that 1st defendant is only servantmaid under her father Late Koka
Paramkusa Rao taking advantage of his possession they have created the Will. The agreement of sale dated 13092001 is fabricated one. Hence the suit is liable to be dismissed.
12.Fifth defendant filed additional written statement that the plaintiff, D1 and D2 are acting hand in glove. Hence the suit is liable to be dismissed.
13.During the pendency of the suit 4th defendant also died and defendants 6 and 7 are impleded as legal heirs of 4th defendant as per orders in I.A.517/2017.
14.D6 filed additional written statement stating that 7th defendant is his only only daughter and deceased 4th defendant is his wife. 4th defendant executed a registered General Power of Attorney on 18102010 in his favor to look after the affairs.
The plaintiff is not entitled for any reliefs against him and his daughter i.e, 7th defendant and hence the suit is liable to be dismissed.
15.Basing on the above pleadings the following issues are settled by my predecessor for trial.
1. Whether the suit agreement is true, valid and binding on the defendants 3 and 4 ?
2. Whether the plaintiff is entitled for specific performance of the agreement of sale dated 13092001 as prayed for, if so, which of the defendants have to execute the sale deed in favour of the plaintiff ?
3. Whether the defendants 1 and 2 are to be declared to be entitled to the plaint schedule property and whether they 8 may be directed to receive the balance of Rs.13,00,000/ and execute the sale deed ?
4. Whether D1 and D2 are to be directed to return the sum of Rs.30,000/ together with interest at 18% from 26112001 received by them ?
5. Whether D3 and D4 are to be declared to be entitled to the plaint schedule property and whether they may be directed to receive Rs.13,30,000/ and execute the registered sale deed relating to the plaint schedule property ?
6. Which of the defendants is to deliver possession of the plaint schedule property ?
7. Whether the agreement of sale dated 26112001 executed by the defendants 1 and 2 is in continuation of the agreement of sale executed by Late Koka Paramkusa Rao
dated 13092001 ?
8. Whether the agreement of sale executed by Late Koka Paramkusa Rao is not binding on the defendants 1 and 2 as contended by the defendants 1 and 2 in their written statement ?
9. Whether the deceased Late Koka Paramkusa Rao and the defendants 3 and 4 are residing under Hindu joint family and whether they were in joint possession and enjoyment of the plaint schedule property and whether the said property is the exclusive property of the defendants 3 and 4 as contended in para 6 of the written statement of the 4 th defendant ?
10. Whether the Will said to have been executed by Late Koka Paramkusa Rao is a forged/fabricated/created document as contended by the 4 th defendant ?
11. To what relief, the plaintiff is entitled to ?
On 10112011 the following additional issues are framed:
1. Whether D5 is a bonafide purchaser of the property or not ?
2. Whether Defendants 1 and 2 are entitled to execute agreement of sale in favour of plaintiff in view of decree in O.S.34/01 ?
9
3. Whether the plaintiff is entitled to claim property or to any alternative relief ?
16.On behalf of plaintiff P.Ws 1 to 6 are examined and marked Exs. A.1 to A.17 are marked on behalf of defendants DW1 is examined and marked Ex.B.1, Exs.X.1 to X.3, the Ex.C.1 and C.2 are marked.
17.The suit is originally filed on the file of I
Additional District Judge, Nellore by plaintiff for specific
performance of contract. Subsequently after issues are framed, the suit was transferred to III Additional District
Judge, Nellore as per orders of the Principal District
Court in CTD No.13765 dated 24082007. Subsequently the docket discloses that the suit was called along with
O.S.No.34/01. Again on 26032012 the suit was
transferred to this court from the file of III Additional
District Judge, Nellore as per proceedings of the District
Judge in Dis No.6697 dated 05122011.
18.Plaintiff filed I.A.No.66/15 to strike out the name of 5th defendant as he was already declared as insolvent by the insolvency court and he is not a bonafide purchaser.
D.5 name was struck of as per orders in I.A.No.66/15
dated 20082015.
ISSUE NO. 1 :
19.Plaintiff filed the suit for specific performance of contract dt. 13.9.2001. One Koka Paramkusa Rao is absolute owner of the plaint schedule property who had purchased the same under a registered sale deed dt. 5.5.1977 under Ex.A.1. He sold the 10 property to the plaintiff under an agreement of sale which is Ex.A.2
dt. 13.9.2001 for Rs.13,50,000/ and received Rs.20,000/ as advance.
Plaintiff claimed to have purchased the plaint schedule property from him under the said agreement of sale Ex.A.2.
20. It is the case of the plaintiff that late Paramkusa Rao executant of the agreement of sale died on 30.10.2001. After his death, D.1 and D.2 executed another agreement of sale on 26.11.2001 in continuation of the earlier agreement claiming that
Paramkusa Rao executed a Will in their favour and they have ratified agreement of sale dt. 13.9.2001 and advance amount of
Rs.20,000/. They have also received another Rs.30,000/ under
Ex.A.3.
21.Whileso, D.3 and D.4 who are wife and daughter of late
Paramkusa Rao filed suit in O.S.No. 34/2001 on the file of I
Additional District Judge, Nellore for declaration of their title and
delivery of possession against D.1 and D.2.
22.It is further case of the plaintiff that she got issued a telegraphic notice under Ex.A.4 on 12.1.2002 to D.1 and D.2 in view of the pendency of the suit that plaintiff was not prepared to obtain a sale deed from D.1 and D.2 and the same was informed by her to D.1 and D.2 by reply dt. 19.1.2002 under Ex.A.5. Plaintiff contended that she has been ready and willing to perform her part of contract with the balance of sale consideration and to show her bonafidies she deposited the amount into the account and filed the statement of account and Ex.A.17 showing the balance of sale consideration deposited in her account.
23.Now, it is contended by the plaintiff that since D.3 and
D.4 are claiming title to the property as legal representatives of deceased Paramkusa Rao and D.1 and D.2 are claiming title by 11 virtue of alleged Will executed by Paramkusa Rao she is seeking specific performance from D.1 to D.4.
24.Defendants 1 and 2 have admitted the execution of
Ex.A.2 agreement of sale dt. 13.9.2001 and also receiving an advance amount of Rs.20,000/ by Late Paramkusa Rao. It is their contention that they became entitled to the suit schedule property by virtue of Will executed by Koka Paramkusa Rao on 4.11.2000.
They also admitted execution of Ex.A.3 agreement dt. 26.11.2001 and agreed to execute a sale deed by 12.1.2002. They acknowledged the receipt of Rs.30,000/ as advance under Ex.A.3 in total and they acknowledged the receipt of Rs.50,000/ as advance under two agreements Exs.A.2 and A.3.
25. It is the main contention of the defendants 1 and 2 that the earlier sale agreement Ex.A.2 is superseded by way of fresh agreement Ex.A.3. They expressed their readiness and willingness to execute sale deed in favour of the plaintiff. But it is the plaintiff who is making stake attempts in not obtaining sale deed.
26. It is pertinent to note that defendants 1 and 2 though filed written statement they did not get into witness box to substantiate their contentions in the written statement.
27.Defendants 3 and 4 who are wife and daughter of late
Paramkusa Rao denied execution of agreement of sale Exs.A.2 and A.3 they also denied the title of D.1 and D.2 in the plaint schedule property. It is their contention that the property is joint family property of Paramkusa Rao in which they have right in the property. Therefore, late Paramkusa Rao cannot execute agreement in favour of the plaintiff that is how the dispute centres 12 round between plaintiff, D.1 and D.2 on one hand; plaintiff, and
D.3 and D.4 on the other hand.
28.With these back ground of facts, it is for consideration whether the agreement of sale dt. 13.9.2001 marked as Ex.A.2 is true, valid and binding on these defendants .
29.Plaintiff inorder to substantiate the factual matrix with regard to Ex.A.2 examined herself as P.W.1 and also examined scribe of the document P.W.2. P.W.3 is the attestor. Plaintiff examined P.W.4 who is Branch Manager, State Bank of Hyderabad,
Ramamurthy Nagar and summoned Exs.A.11 to A.16 to prove that
Paramkusa Rao affixed her Left Thumb Impression on Ex.A.2 and to that he made transactions by Left Hand Thumb Impression,
Exs.A.11 to A.16 were produced. Plaintiff also examined P.Ws. 5 and 6 to prove the thumb impressions on the agreement of sale of the executant. P.W.5 is the SubRegistrar who produced thumb impression Register. P.W.6 is Finger Print Expert who was examined on commission. D.W.1 is sixth defendant in the suit and he is the husband of fourth defendant.
30.`Learned Counsel submitted the following citations in support of his case :
1. Ramnivas Gupta and others vs. Maliram reported in 2002[3]ALT 754
2. Chodi Mahalakshmi vs. Koppada Sathiraju reported in AIR 2011 AP 125
3. K.S.Vidyanadam and others vs. Vairavan reported in AIR 1997
SC 1751
4. Manjunath Anandappa Urf Shivappa Hansi vs. Tammanasa and others reported In AIR 2003 Supreme Court 1391 5.Baddam Prathap Reddy vs. Chennadi Jalapathi Reddy and another reported in 2008[5] ALT 192 13
6. Ayithi Appalanaidu vs. Petla Papamma reported in 2011 [5] ALD 393
7. Citadel Fine Pharmaceuticals vs. Ramaniyam Real Estates Private limited and another [2011]9 Supreme Court Cases 147
8. Mrs. Saradamani Kandappan vs. Mrs. S.Rajalakshmi and others vs. Mrs. S.Rajalakshmi and tohers vs. Mrs. Saradamani Kandappan and other reported in AIR 2011 Supreme Court 3234.
31.The first question to be considered is whether the existence, execution and consideration of Ex.A.2 agreement of sale
dt. 13.9.2001 is proved by the plaintiff or not because in view of the
denial of these documents by defendants 3, 4, 6 and 7. It is also for consideration before this Court whether the subsequent agreement
Ex.A.3 is valid which is executed by D.1 and D.2 and in view of this subsequent agreement whether the earlier agreement Ex.A.2 was superseded or not is also for consideration.
32.There is no dispute with regard to the title of
Paramkusa Rao in the plaint schedule property . It is evident from
Ex.A.1 sale deed which is registered as document No. 953/1977 that late Paramkusa Rao purchased the property under registered document. Ex.A.2 recitals are important for consideration. Ex.A.2 is
dated 13.9.2001. Ex.A.2 recites that Paramkusa Rao had agreed
to sell the property to the plaintiff for Rs.13,50,000/ and received an advance of Rs.20,000/ on the date of agreement of sale. It is agreed that the balance of sale consideration shall be paid by 12.12.2001. It is further recited that if the balance of sale consideration is not paid within stipulated time, agreement stands forfeited and if the executant does not execute the sale deed, even though plaintiff was ready with the balance, then the plaintiff can enforce the agreement through a Court of Law.
14
33.It is specifically seen under Ex.A.2 that no possession was delivered to the plaintiff under this agreement of sale. Stamps are purchased for Ex.A.2 agreement in the name of the plaintiff.
Ex.A.2 agreement contains the thumb impression of Paramkusa Rao
There is a note made under Ex.A.2 that due to poor eyesight and as he is not in a position to sign, he affixed his thumb impression.
34.P.W.2 is the document writer since 1990. His evidence shows that he knew Paramkusa Rao and P.W.1. He deposed that he scribed agreement of sale under Ex.A.2 and it is in his hand writing. He also deposed that he was informed by Paramkusa Rao that he was having poor vision , therefore he is affixing his thumb impression. It is in his evidence that Paramkusa Rao affixed his thumb impression on Ex.A.2 in his presence. In the cross examination, P.W.2 deposed that he went to the house of
Paramkusa Rao situated at Santhapet, Nellore for scribing Ex.A.2..
He could not give the particulars of persons present at that time.
He gave Serial Numbers 1 to 4 for the attestors. He categorically stated that the attestors also signed in his presence. It is thus clear from the evidence of P.W.2 that he scribed the agreement Ex.A.2 though he has not signed as scribe. The document shows that he endorsed his name. It is not unnatural for a scribe to endorse as ' దసససర'.
35.P.W.3 is first attestor on Ex.A.2 . He is no other than the son of D.1. His evidence shows that he worked as Booking clerk in Gopika Cine Theatre . He deposed that he does not know the name of the scribe on Ex.A.2. According to him, Rs. 20,000/ or
Rs. 30,000/ was paid to Paramkusa Rao on the date of Ex.A.2.
The property is in possession of his parents. P.W.3 does not remember in how many pages Ex.A.2 was written and in whose names the stamps were purchased. It was suggested that after 15 death of Paramkusa Rao himself and defendants colluded and fabricated Ex.A.2.
36.Fifth defendant also crossexamined this witness that in view of the fact that his name was struck off as defendant, there is no need to consider his crossexamination or his defence taken in the suit. Further, the record does not disclose that the fifth defendant had challenged the orders passed in I.A.No. 66/2014 striking out his name.
37.It is settled principle of law that execution does not mean mere affixing the thumb impression or making signatures, the document has to be proved as a whole.
38.The Learned Counsel for plaintiff stated that executant
Koka Paramkusa Rao was a retired Deputy Superintendent of
Police but due to his old age, he was unable to sign and therefore in
Ex.A.2 he put his thumb impression. In order to prove that Late
Paramkusa Rao was putting his thumb impression in all usual transactions apart from Ex.A.2, plaintiff filed Exs.A.11 to A.15, they have been produced through P.W.4. Ex.A.11 is withdrawal form dt.
1.9.1986. In this there is an endorsement on the declaration that the account holder was unable to sign and they obtained thumb impression on the withdrawal form. Similarly, Ex.A.12 is the letter
dt. 30.5.2000 in which late Paramkusa Rao addressed letter to
State Bank of Hyderabad, V.M.C Nellore that he is unable to put his signature on the cheque because of his old age and requested to permit him to withdraw the pension amount by affixing thumb impression. This Ex.A.12 is prior to Ex.A.2. Ex.A.13 is cheque dt.
20.4.2001 containing the thumb impression of late Paramkusa Rao.
Ex.A.15 is another cheque. Ex.A.16 is statement of account of
Paramkusa Rao .
16
39.P.W.4 is Deputy Manager who produced these documents. There was much crossexamination about his competency to give evidence and suggested that he is not competent to give evidence. The purpose of filing these Exs.A.11 to A.16 is not going into the merits of the entries in the pass book. The only purpose is late Paramkusa Rao was affixing his thumb impression inspite of fact he is a signatory. For that limited purpose the evidence of P.W.5 is sufficient.
40.The thumb impression appearing on Ex.A.2 was sent to
Finger Print Expert Bureau, Hyderabad. He gave his report opining that the disputed document i.e., Ex.A.2 thumb impression and thumb impression register against document bearing No.171 BK 3/1995 dt. 29.7.1995 are interse identical. The finger print Expert has given his reasons for opinion which is marked as Ex.C.2. 7 points of identity were also mentioned in the said document. He was examined as P.W.6 on commission.
41.The crossexamination of this witness show that the report does not contain whether the impressions are plain or rolled impressions, medium of ink used, articles used for taking prints etc., Though the lengthy crossexamination was made to this witness, it was not argued by defendants 3 and 4 in the course of arguments with regard to the evidence of P.W.6, nonaffect of absence of mentioning medium of ink used or impressions or loop pattern , but P.W.6 stated in his evidence that he examined other factors of ridges such as subsidiary ridges, nacent ridges, creasers, scars and etc.,
42.P.W.6 categorically stated that there is no dissimilarity in the ridge characteristics. Of course, he admitted that the report do not disclose the glaringness of impression rarety of type. The evidence of Finger Print Expert is an opinion evidence and the case 17 cannot be rested solely on his evidence. It is not a conclusive proof.
His evidence has to be scrutinised with other evidence available on record.
43.Besides the evidence of P.W.6 as already stated there is documentary evidence Exs.A.11 to A.16 showing the circumstances where Paramkusa Rao was affixing his thumb impression long prior to Ex.A.2. Therefore, for these reasons it cannot be held that thumb impression on Ex.A.2 is not that of late Paramkusa Rao .
44.The next point for consideration is with regard to the validity of Ex.A.2. Plaintiff is claiming relief of specific performance of contract of sale dt. 13.9.2001. The relief of specific performance is a discretionary relief. The burden of proving execution is on the plaintiff. Since the document Ex.A.2 contains the thumb impression, burden is on the plaintiff to prove its execution.
45.Learned Counsel for defendants placed reliance on the judgment reported in 2011 [5] ALD 393 wherein their Lordships held at para 33 as follows:
''Therefore, it is clear that heavy burden lies on a party who is relying on a document executed by an illiterate and rustic villager to prove that the contents of that document were read over to that person and he understood the same, that means if it is not in the mother tongue of that person the contents of the document are truly translated to that man in his mother tongue and after understanding the contents of the same he had put his thumb impression on such document. A duty is cast upon the Courts to keep in mind the strict rule of law in respect of onus where the executant happens to be ignorant illiterate. ''
46.It is also a settled principle of law that a vendor cannot convey better title than what he has in the property. Now with this legal 18 position, we have to appreciate whether the plaintiff had proved the agreement of sale while seeking the relief of specific performance.
47.Ex.A.1 is sale deed where in Paramkusa Rao purchased the property. The contents of Ex.A.1 are important and relevant for consideration. Ex.A.1 is registration copy of the sale deed dt.
5.5.1977. It is executed by Vedam Annapoornamma. The sale deed Ex.A.1 clearly shows that the executant vendor of the plaintiff had purchased 15 ankanams equal to 100.225 sq. meters of house out of 66 ankanams 62 sq. yards. Therefore, it is clear that Late
Paramkusa Rao under Ex.A.1 sale deed had purchased midde house in an extent of 15 ankanams = 100.225 sq. meters only.
48.There is no other document of title filed by the plaintiff and it is specific that Ex.A.1 is parent document to the plaint schedule property.
49Now let us look into Ex.A.2. This Ex.A.2 dt. 13.9.2001
Schedule appended to Ex.A.2 shows that an extent of 25 ankanams or 167.335 sq. meters of midde house was purchased by plaintiff.
When Paramkusa Rao got title only to 15 ankanams in the midde house as per Ex.A.1 registered sale deed, how the plaintiff had purchased 25 anaknams under Ex.A.2. On this aspect, the entire evidence of plaintiff or pleadings are silent. Moreover, it is appearing to the naked eye, that there is interpolation in the extent of the property. Figure'1' is interpolated as '2' in '25' and similarly extent in Square meters 100.225 sq.mts was corrected . Figure ''00'' is corrected as ''67.'' and figure ''22'' is corrected as ''33''. This is appearing glaringly in the document. In the plaint schedule, the extent of property is shown as 25 ankanams. It is the duty of the plaintiff to explain how she is claiming specific performance for 25 anakanms of property when her vendor's title deed shows only an extent of property as 15 ankanams.
19
50.When there is a clear interpolation in the extent in
Ex.A.1 it is the duty of the plaintiff to dispell this aspect in her evidence. But the entire evidence of P.W.1 is silent. Even the scribe of the document P.W.2 also did not state or explain about this interpolation in the schedule of Ex.A.2. P.W.3 attestor also did not say anything. All the witnesses examined on behalf of plaintiff,
P.Ws. 1 to 3 so far as Ex.A.2 is concerned they did not spell a single word as to how interpolation took place in the extent of the lands under Ex.A.2. Plaintiff is the custodian of Ex.A.2 agreement of sale and resile from its execution. It is the plaintiff who had purchased this document. Therefore it is the duty of the plaintiff to explain about this corrections.
51.In that view of the matter Ex.A.2 agreement of sale is not valid under Law for two reasons. One is plaintiff wants to enforce Ex.A.2 agreement of sale for an extent of property which his vendor does not have title. Second thing is plaintiff failed to explain how and why this interpolation in Ex.A.2 took place. All the requisites of a contract of sale are to be proved by the person he woo comes to the Court and claims relief. Hence, I hold that Ex.A.2 agreement of sale is not proved by the plaintiff in accordance with
Law. The issue is answered accordingly.
ISSUE Nos. 7, 8, 10 and ADDITIONAL ISSUE NO.2
52. First and second defendants have admitted the execution of Ex.A.1 agreement of sale by late Paramkusa Rao in favour of plaintiff in their written statement . The contents of agreement of sale and other terms and conditions are also admitted by them. The consideration of Rs.20,000/ is also admitted by them.
Their contention is after the death of Paramkusa Rao on 30.10.2001 another agreement was entered into between D.1 and D.2 and plaintiff on 26.11.2001. According to D.1 and D.2 it is a fresh 20 agreement of sale and the earlier agreement Ex.A.2 is superseded.
But the plaintiff contended that Ex.A.3 is in continuation of earlier agreement of sale dt. 13.9.2001 . Evidently and admittedly, D.1 and D.2 are not natural heirs or blood relations of Paramkusa Rao .
They are claiming title to the plaint schedule property from
Paramkusa Rao by virtue of Will said to have been executed by
Paramkusa Rao in favour of fourth defendant. Written statement pleadings contents would disclose that Will was executed on 4.11.2000 and they have been in possession and enjoyment of the property. Unfortunately, D.1 and D.2 in this case who are claiming title to the plaint schedule property and who had executed Ex.A.3 document have not entered into the witness box and substantiate their contentions in the written statement and their title to the property to execute Ex.A.3. Defendants 1 and 2 who placed cogent evidence that they acquired title from Paramkusa Rao and therefore they have executed the agreement Ex.A.3 in favour of the plaintiff.
53.The alleged Will is not filed into this Court to prove their rights in the property and their right to execute Ex.A.3. In the absence of any document it has to be held that D.1 and D.2 have no right in the plaint schedule property to convey any title to the plaintiff under the agreement Ex.A.3 or to enter into contract with the plaintiff.
54.Now, coming to the contents of Ex.A.3, this document contains that it was executed by D.1 and D.2. They contains the signature of D.1 and D.2 in all pages. Ex.A.3 is running in 3 pages.
They bear the stamp worth Rs.100/. What is significant to note is the date of execution of Ex.A.3 is left blank. Ex.A.3 contains as follows:
''2001వ ససవతతరస నవసబర నల తద ''' 21
It is quite manifest from this that Ex.A.3 bears no date as to when it was executed. Absence of date in the agreement that it is a major indicates the flaw in the agreement. Even D.1 and D.2 who are executants of these document did not made to be any date of execution of this document. The very mention of the date of purchase of stamps is not sufficient of execution. Plaintiff did not speak anything about this in her evidence as to why and how the date is left blank. First and second defendants have also were not adduced any evidence either to prove their title in the property and their right to execute Ex.A.3. Therefore, Ex.A.3 is also not proved by the plaintiff. I hold that Ex.A.3 is not valid contract under Law.
In view of these facts, the question whether the document is in continuation of earlier agreement or it is a fresh contract does not crop up for consideration. The issues are answered accordingly.
ISSUE NOS. 5 AND 9 ADDITIONAL ISSUE NO. 1, ISSUE
NO. 2
55. Third and fourth defendants who are wife and daughter of deceased Koka Paramkusa Rao are contesting the suit contending that D.1 and D.2 have no title to the plaint schedule property and the alleged agreement of sale executed by D.1 and D.2 are under
Ex.A.3 or Ex.A.1 are not valid under law and fourth defendant as mentioned in para 3 of her written statement that she is not aware about the agreement of sale dt. 30.9.2001. The date of agreement is wrongly mentioned in the written statement. It is her contention that the property is not selfacquired property of Paramkusa Rao and it is purchased with the ancestral property sale proceeds and earnings of D.3. The purchase of property by deceased Paramkusa
Rao is not in dispute and it is admitted by her which is under 22
Ex.A.1 sale deed. Without consent of D.3 and D.4 Paramkusa Rao cannot sell the property to the plaintiff is the main contention The entire written statement of D.4 shows that agreement of sale referred by her is 30.9.2001 and there is no such agreement of sale
dt. 30.9.2001 and it is not the case of the plaintiff also.
56.Similarly the date of agreement of sale under which D.1 and D.2 alleged to have ratify and execute another agreement is wrongly mentioned by 4th defendant as 20.6.2011 when it is the case of the plaintiff that it is on 26.11.2001. In fact the Ex.A.3 agreement of sale does not contain any date.
57.Be it as it may, when the fourth defendant has raised such contention that the property purchased by Paramkusa Rao is not his selfacquired property but it is purchased with the ancestral property sale proceeds, the burden of proving such act lies on third and fourth defendants who have taken such a plea which they have failed to do so.
58.During the pendency of the suit, 3rd and 4th defendants both of them died and defendants 6 and 7 are impleaded as legal representatives of deceased 4th defendant.
59.Sixth defendant who is husband of fourth defendant have been impleaded as legal representative and who filed written statement had pleaded that his wife executed a General Power of Attorney in his favour to look after the suit affairs and thus denied the right of the plaintiff in seeking the relief. There is no evidence placed by
D,.W.1 who is sixth defendant in the suit to establish the fact that
Ex.A.1 property was purchased by Koka Paramkusa Rao from out of ancestral sale proceeds. Except the pleading in the written statement there is no iota of evidence set up by D.W.1 in that regard. In the absence of any such evidence mere contention of the defendants 3,4, 6 and 7 is of no avail. There should be positive 23 evidence in this regard to show that the sale proceeds had emerged from out of ancestral property. What property the ancestral property Paramkusa Rao possessed is also not pleaded or proved.
Therefore I hold that defendants have failed to prove that plaint schedule property is the joint family property of Paramkusa Rao .
60.D.3 and D.4 have filed Exs.A.8 and A.9 which is decree and judgment in O.S.No. 34/2001 whereunder they have filed suit for declaration of their title and for delivery of possession against
D.1 and D.2 herein. At the outset, this judgment Ex.A.10 is subjudiced in appeal in A.S.No. 156/2010 before the Honourable
High Court . Another important factor is plaintiff is not made a party in that suit O.S.No. 34/2001 either by herself or by the defendants 3 and 4 herein. Moreover, D.3 and D.4 have sold the property to D.5 during the pendency of the suit.
61.The contention of D.5 and his alleged purchase of the property is hit by doctrine of lispendens. There is nothing on record to show by these defendants D.3 and D.4 that the property is sold by them to D.5.
62.Written statement of D.5 shows only that he is bonafide purchaser for value but no where in his written statement he stated as to when he purchased the property from D.3 and D.4. The date of sale deed is not mentioned in the written statement .
However, since D.5's name is struck off, there is not much to consider about his defence in the suit.
63.Thus, in view of my findings on issue No.1, the question of declaring defendants 3 and 4 to receive balance of consideration does not arise at all. The issues are answered accordingly.
24
ISSUE No. 2 :
64.In view of my findings on issue no.1 and other issues, I hold that plaintiff is not entitled for specific performance of agreement of sale dt. 13.9.2001. The issue is answered accordingly.
ISSUE NO. 6 :
65.In view of my findings on issues 1 and 2, I hold that plaintiff is not entitled for delivery of possession of plaint schedule property.
The issue is answered accordingly.
ISSUE NO. 4 and ADDITIONAL ISSUE NO. 3 dt. 10.11.2011
66.Plaintiff has prayed for the alternative relief of refund of sale consideration of Rs.30,000/ from D.1 and D.2. It is already held while answering other issues, plaintiff had failed to prove agreement of sale Ex.A.2 and A.3 in her favour. The relief of refund of sale consideration is an alternative relief which can be granted in the event specific performance cannot be enforced by the plaintiff.
Here is the case where the plaintiff had failed to prove the very agreement of sale under Ex.A.2 and A.3, for the aforesaid reasons discussed in the above issues . Therefore, I hold that plaintiff is not entitled for refund of sale consideration. The issues are answered accordingly.
67.In the result, the suit is dismissed, with costs.
Dictated to Stenographer, transcribed by her, corrected and
pronounced by me in the open Court on this the 23 rd day of March,
2018
Smt.Kuchi Syamaladevi
I Additional District Judge,Nellore.
25
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiffs:
P.W.1 : Vidavaluru Vasantha Lakshmi
P.W.2 : Jammuladinee Bala Venkata Ashok
P.W.3 : Jalli Dharmendra
P.W.4 : Guddeti Srinivasa Rao
P.W.5 : Syed Mahaboob Basha
P.W.6 : Gutti Ramamurthy
For Defendants :
D.W.1 : Pokala Srinivasa Rao
DOCUMENTS MARKED
For Plaintiffs:
Ex.A.1 Certified copy of registration copy of sale deed dt.5.5.1977 executed by Vedam Annapoornamma in favour of Koka Paramkusa Rao for Rs.40,000/
Ex.A.2 Original agreement of sale deed dt. 13.9.2001 executed by late Koka Paramkusa Rao on Rs.100/ value stamped paper in favour of plaintiff
Ex.A.3 Agreement of sale dt. 26.11.2001 executed by D.1 and D.2 in favour of plaintiff
Ex.A.4 Office copy of telegram dt. 12.1.2002 issued on behalf of plaintiff
Ex.A.5 Reply notice by D.1 and D.2 dt. 19.1.2002
Ex.A.6 Office copy of notice dt. 29.1.2002 sent by plaintiff to defendants 1 and 2
Ex.A.7 Postal acknowledgment of D.1
Ex.A.8 Postal acknowledgment of D.2 26
Ex.A.9 Certified copy of decree dt. 5.2.2010 in O.S.No. 34/2001 on the file of III Additional District Court, Nellore
Ex.A.10 Certified copy of Judgment dt. 5.2.2010 in O.S.No 34/2001 on the file of III Additional District Court,Nellore
Ex.A.11 Certified copy of application dt. 1.9.1986 submitted by K.Paramkusa Rao of State Bank of Hyderabad, Nellore to open pension account.
Ex.A.12 Certified copy of letter dt. 30.5.2000 sent by K.Paramkusa Rao to State Bank of Hyderabad, Nellore.
Ex.A.13 Certified copy of cheque bearing No.0716302
dt. 11.6.2001 issued by K.Paramkusa Rao for Rs.19,000/
drawn on State Bank of Hyderabad, Nellore
Ex.A.14 Certified copyof cheque bearing No. 991427
dt. 20.4.2001 issued by K.Paramkusa Rao for Rs.20,000/
drawn on State Bank of Hyderabad, Nellore.
Ex.A.15 Certified copy of cheque bearing No. 0721235
dt. 13.9.2001 issued by K.Paramkusa Rao for Rs.5,000/
drawn on State Bank of Hyderabad, Nellore
Ex.A.16 Certified copy of statement of account relating to SB/Pension/247 Account of Koka Paramkusa Rao issued by State Bank of Hyderabad, Nellore
Ex.A.17 Statement of account relating to S.B.Account No. 5353500100363701 of plaintiff issued by Karnataka Bank Limited, Nellore branch.
Marked through P.W.5 :
Ex.X.1 : Thumb impression Register
Ex.X.2 : Relevant entry at page No.29
Ex.X.3 : thumb impression of executant of the document No. 171
BK 3/95, dt. 29.7.1995 27
Marked through P.W.6 :
Ex.C.1 : Opinion in C.No. 65/U4/FPBCID/2016 DT. 13.5.2016
Ex.C.2 : Comparison sheet/chart
Ex.C.3 : photocopies of D.1 and D.3
Ex.C.4 : C.D. showing the photocopies of D1, D2,D3 and 'A'
For Defendants :
Ex.B.1 : Valuation certificate issued by Joint SubRegistrarI,
Registration and Stamps Department, relating to suit schedule mentioned property dt. 12.1.2018 [Sd/ Smt.Kuchi Syamala Devi ]/
I A.D.J.