Andhra Pradesh High Court – Amravati
S. Saleem vs Smt.Palamangalam Vendamma 6 Others on 20 January, 2025
APHC010281582013
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
MONDAY ,THE TWENTIETH DAY OF JANUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
SECOND APPEAL NO: 240/2013
Between:
S. Saleem ...APPELLANT
AND
Smt Palamangalam Vendamma 6 Others and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. P V VIDYASAGAR
Counsel for the Respondent(S):
1. A V SIVAIAH
The Court made the following:
VENUTHURUMALLI GOPALA KRISHNA RAO,J
THE HON’BLE SRI JUSTICE V.GOPALA KRISHNA RAOSECOND APPEAL No.240 OF 2013
Judgment:
This second appeal under Section 100 of the Code of Civil Procedure
(“C.P.C.” for short) is filed aggrieved against the decree and judgment, dated
03.08.2012 in A.S.No.75 of 2006, on the file of the III Additional District Judge,
Tirupati, allowing the appeal in part the decree and judgment, dated
21.01.2016 in O.S.No.47 of 1995, on the file of Senior Civil Judge, Puttur.
2. The appellant herein is the 7th defendant; the 1st respondent herein is
plaintiff and the respondent Nos.2 to 7 herein are defendant Nos.2 to 6 and 8
in O.S.No.47 of 1995, on the file of Senior Civil Judge, Puttur. It is to be noted
herein that during the pendency of this appeal, the 3rd respondent died and
her legal representatives were already on record as respondent Nos.2, 4 and
5.
3. The plaintiff initiated action in O.S.No.47 of 1995, on the file of Senior
Civil Judge, Puttur, with a prayer for specific performance of agreement of
sale by receiving the balance sale consideration and execute the sale deed for
the suit properties in favour of plaintiff and get it register and deliver vacant
possession of the suit property to the plaintiff.
4. The learned Senior Civil Judge, Puttur, decreed the suit without
costs. Felt aggrieved of the same, the 7th defendant in the above said suit filed
A.S.No.75 of 2006, on the file of the III Additional District Judge, Tirupati. The
learned III Additional District Judge, Tirupati, partly allowed the appeal
directing the defendants to execute a regular sale deed in favour of the
plaintiff in respect of plaint item No.1 of schedule properties and dismissed the
appeal in so far as item Nos.2 and 3 of the plaint schedule property by
modifying the decree and judgment passed by the learned Senior Civil Judge,
Puttur. Aggrieved thereby, the unsuccessful 7th defendant approached this
Court by way of second appeal.
5. For the sake of convenience, both parties in the appeal will be
referred to as they are arrayed in the original suit.
6. The case of the plaintiff, in brief, as set out in the plaint averments in
O.S.No.47 of 2006, is as follows:
The 1st defendant was in absolute possession and enjoyment of the
schedule property. She had agreed to sell away the schedule mentioned
properties in favour of the plaintiff for Rs.54,000/- for her family necessities,
court expenses and to discharge her old debts. On 19.05.1990 the 1 st
defendant had received a sum of Rs.45,000/- from the plaintiff as advance for
the said sale consideration and she had executed an agreement of sale in
favour of the plaintiff, agreeing to receive the balance of sale consideration
after the civil litigations, which are pending in O.S.No.98/1989 on the file of
District Munsif, Nagari and O.S.No.200/1990, on the file of Sub-Ordinate
Judge Court, Puttur, are over and execute a sale deed in favour of the plaintiff
and get it registered. The plaintiff was always ready and willing to perform her
part of contract due to the said litigation. The plaintiff recently came to know
that the said civil litigations are collusive litigations between the 1st defendant
and defendant Nos.2 to 5 and also came to know that the 2 nd defendant had
fraudulently alienated the schedule mentioned properties in collusion, dated
16.08.1995. The plaintiff further came to know that the defendant Nos.2 to 5
within three days had fraudulently alienated the schedule mentioned
properties in favour of 7th defendant in collusion with him under a fraudulent,
sham, nominal, null and void sale deed, dated 19.08.1995. The defendant
Nos.2 to 7 are well aware of the suit agreement of sale.
The 1st defendant filed written statement before the trial Court by
denying the averments in the plaint. The brief averments in the written
statement are as follows:
There is no cause of action to file this suit. The plaintiff is not entitled for
any of the relief much less the relief of specific performance of contract and for
delivery of possession of the suit properties. The 1st defendant neither agreed
to sell the schedule property in favour of the plaintiff for Rs.54,000/- for her
family necessities, court expenses and to discharge her debts nor executed
agreement of sale, dated 19.05.1990 in favour of the plaintiff for the suit
properties. The 1st defendant has no right, title or possession over the suit
schedule property and hence the question of execution of suit agreement of
sale does not arise at all. She filed a suit in O.S.No.98/1989 on the file of
District Munsif Court, Nagari for permanent injunction on the basis of
unregistered relinquishment deed. Prior to that there was proceedings
between the 1st defendant and Elumalai Reddy in O.S.No.10/1965 on the file
of Sub Court, Chittoor. The 1st defendant was given Ac.0-71 cents of land in
Sy.No.33/2 i.e., item No.1 of the plaint schedule property herein towards her
maintenance. After lifetime of the 1st defendant, the said Elumalai Reddy will
get right, title, possession and enjoyment over the suit schedule property. The
said Elumalai Reddy was declared the owner of the lands in Sy.No.33/4 for an
extent of Ac.0-20 cents, Sy.No.37/1 for an extent of Ac.1-72 cents as well as
in Sy.No.33/2 of Nagari Village Accounts i.e., item Nos.2 and 3, etc. of the
plaint schedule property in O.S.No.10/1965 on the file of Sub Court, Chittoor.
In fact, the defendant filed an appeal in A.S.No.106 of 1971 on the file of
Additional District Judge, Chittoor against the judgment in O.S.No.10/1965 of
Sub Court, Chittoor. During the pendency of the appeal, the 1st defendant and
Elumalai Reddy compromised the matter and the 1st defendant delivered
possession of land in Sy.No.33/4 for an extent of Ac.0-22 cents, Sy.No.37/1
for an extent of Ac.1-72 cents of Nagari village accounts and subsequently
compromise petition was filed in the appeal and the appeal was dismissed in
the year 1989. The defendant filed a suit in O.S.No.98 of 1989 on the basis of
unregistered relinquishment deed and obtained interim injunction. The 1st
defendant had been in possession of the said property. The 1st defendant
approached the 2nd defendant for compromise in O.S.No.98 of 1989, the 1st
defendant agreed to relinquish her maintenance right in lands in Sy.No.33/2
for an extent of Ac.0-71 cents by receiving an amount of Rs.40,000/-, dated
16.08.1995 and executed a registered maintenance relinquishment deed,
dated 16.08.1995. She also executed a registered delivery deed in favour of
2nd defendant on 16.08.1995 for the land of Ac.0-22 cents in
Sy.No.33/2 and Ac.1-72 cents in Sy.No.37/1 and delivered possession of the
said property in favour of 2nd defendant. The 1st defendant also filed memo in
O.S.No.98 of 1989, on the file of District Munsif Court, Nagari, for not pressing
that the suit, as the 1st defendant executed registered maintenance
relinquishment deed and registered delivery deed for the suit property and
delivered possession of the same to the 2nd defendant and 2nd defendant was
in possession and enjoyment of the suit properties from 16.08.1995. The 1st
defendant never executed suit agreement of sale in favour of plaintiff and the
said agreement is forged document and the same is not binding on the 1st
defendant.
The 7th defendant filed written statement before the trial Court by
denying the averments in the plaint which was adopted by the defendant
Nos.2 to 6. The brief averments in the written statement are as follows:
The 1st defendant did not execute any sale deed in favour of plaintiff.
The 1st defendant has no right, title or interest or possession over the suit
schedule property. He entered into an agreement of sale in favour of plaintiff.
The 1st defendant has executed registered maintenance relinquishment deed
in favour of 2nd defendant on 16.08.1995 for Ac.0-72 cents in Sy.No.33/2 and
delivered possession of the same on that day. She also executed a registered
delivery deed in favour of 2nd defendant on 16.08.1995 for the land of Ac.0-22
cents in Sy.No.33/2 and Ac.1-72 cents in Sy.No.37/1 and delivered
possession of the said property in favour of 2nd defendant. The 1st defendant
also filed memo in O.S.No.98/1989 on the file if District Munsif Court, Nagari
for not pressing that the suit, as the 1st defendant executed registered
maintenance relinquishment deed and registered delivery deed for the suit
property and delivered possession of the same to the 2nd defendant and 2nd
defendant was in possession and enjoyment of the suit properties from
16.08.1995. The 2nd defendant and his family members i.e., defendant Nos.3
to 6 have agreed to sell the schedule mentioned property and other properties
in favour of 7th defendant and accordingly defendant Nos.2 to 6 executed
registered sale deeds, dated 19.08.1995 in favour of 7th defendant for valid
consideration and delivered possession of the suit properties and other
properties in favour of 7th defendant. Since the date of purchase, the 7th
defendant is in possession and enjoyment over the suit schedule property.
During the pendency of the suit, the 1st defendant died and her legal
representative bought on record as 8th defendant. The 8th defendant filed a
memo by adopting the written statement already filed by the 1st defendant.
7. On the basis of above pleadings, the learned Senior Civil Judge,
Puttur, framed the following issues for trial:
(1) Whether the agreement of sale, dated 19.05.1990 executed in favour
of the plaintiff by the 1st defendant is true, valid and binding on the
defendants?
(2) Whether the sale deed, dated 19.08.1995 executed by the defendant
Nos.2 to 6 in favour of 7th defendant is collusive and fraudulent?
(3) Whether the civil litigation between 1st defendant and defendant Nos.2
to 5 are collusive litigation and compromised for the purpose of
registered sale deed, dated 19.08.1995?
(4) Whether the deed of delivery of possession, dated 16.08.1995
executed by the 1st defendant in favour of the 2nd defendant is
collusive and fraudulent one?
(5) Whether the 1st defendant has executed registered maintenance
relinquishment deed, dated 16.08.1995 in favour of 2 nd defendant for
an extent of Ac.0-71 cents in Sy.No.33/2 is true and correct?
(6) Whether the 7th defendant is bonafide purchaser for valid
consideration?
(7) Whether the plaintiff is entitled for regular sale deed through 8th
defendant in pursuance of the agreement of sale executed by the 1 st
defendant?
(8) Whether the suit is barred by res-judicata?
(9) Whether the suit agreement of sale is antedated, forged document
and created for the purpose of this litigation?
(10) Whether the plaintiff is entitled for relief of specific performance of
contract against the defendants or not?
(11) To what relief?
8. During the course of trial in the trial Court, on behalf of the plaintiff,
P.W.1 and P.W.2 were examined and Exs.A.1 to A.4 were marked. On behalf
of the defendants, D.W.1 to D.W.6 were examined and Ex.B.1 to Ex.B.24
were marked. Apart from the above, C.W.1 was examined and Ex.C.1 to
Ex.C.4 were marked.
9. The learned Senior Civil Judge, Puttur, after conclusion of trial, on
hearing the arguments of both sides and on consideration of oral and
documentary evidence on record, the suit for specific performance of
agreement of sale is decreed in respect of plaint item Nos.1 to 3 schedule
properties. Felt aggrieved thereby, the 7th defendant filed the appeal suit in
A.S.No.75 of 2006, on the file of the III Additional District Judge, Tirupati,
wherein, the following point came up for consideration:
1) Whether Ex.A.1, agreement of sale was duly executed by 1 st
defendant in favour of plaintiff?
2) Whether limited right of 1st defendant over item No.1 of plaint
schedule property was enlarged into absolute right in view of Section
14(1) of the Hindu Succession Act?
3) Whether Bachu Narayana Chetty, father of defendant Nos.2 to 6
purchased the plaint schedule properties from Markondaiah Naidu,
Muddukrishna and Raniamma who are vendees of Kuppam Elumalai
Reddy under Ex.B.8 and Ex.B.7 respectively?
4) Whether the non-examination of plaintiff disentitle the plaintiff for the
relief of specific performance?
5) Whether the plaintiff is always ready and willing to perform her part of
contract?
6) Whether Ex.B.1 to Ex.B.3 are sham, collusive and nominal documents?
7) Whether 7th defendant/appellant is a bonafide purchaser for valuable
sale consideration?
8) Whether the plaintiff is entitled for the relief of specific performance?
9) To what relief?
10. The learned III Additional District Judge, Tirupati i.e., the first
appellate Judge, after hearing the arguments, answered the point, as above,
partly allowed the appeal by modifying the decree and judgment passed by
the trial Court as the plaintiff is not entitled the relief of specific performance of
agreement of sale in respect of item Nos.2 and 3 of the schedule properties
and the plaintiff is entitled the relief of specific performance of agreement of
sale in respect of item No.1 of the plaint schedule property. Felt aggrieved of
the same, the plaintiff filed second appeal in S.A.No.1381 of 2012 before this
Court and the said second appeal was dismissed at the stage of admission
itself. Aggrieved against the 1st appellate Court judgment in respect of the
plaint item No.1 of the schedule property, the 7th defendant filed this second
appeal. Therefore, the subject matter of the present second appeal is
concerned only item No.1 of the plaint schedule property.
11. On hearing both side counsels at the time of admission of the
appeal, on 08.12.2017, the composite High Court of Andhra Pradesh at
Hyderabad, framed the following substantial questions of law:
1) Whether a suit for specific performance is not maintainable
without issuing a prior notice as contemplated under Form
Nos.47 and 48 of Appendix-A of CPC?
2) Whether the suit against D2 to D7 who are not parties to the
agreement of sale -Ex.A.1 is maintainable?
12. Heard Sri P.V. Vidya Sagar, learned counsel for the appellant and
heard Sri A.V. Sivaiah, learned counsel appearing for the respondents.
13. Learned counsel for the appellant/7th defendant would contend that
while dismissing the appeal, the First Appellate Court has not properly
appreciated the evidence on record, as a result, the First Appellate Court
erroneously held that the plaintiff is entitled a relief of specific performance of
agreement of sale in respect of item No.1 of the plaint schedule property. He
would further contend that the impugned judgment and decree passed by the
First Appellate Court in respect of item No.1 of the plaint schedule property is
contrary to law. He would further contend that the First Appellate Court ought
to have held that in terms of Section 14(2) of the Hindu Succession Act, the
deceased 1st defendant is having limited rights in item No.1 of the plaint
schedule property.
14. Per contra, learned counsel for the respondent/plaintiff would
contend that there are no merits in the second appeal filed by the appellant/
7th defendant and that the second appeal may be dismissed by confirming the
findings given by the learned First Appellate Judge.
15. The suit is based on Ex.A.1 agreement of sale said to have been
executed by the 1st defendant in favour of the plaintiff. The 1st defendant
denied execution of Ex.A.1 agreement of sale. The learned trial Judge on
appreciation of the oral and documentary evidence, came to a conclusion that
Ex.A.1 agreement of sale is genuine document. The learned First Appellate
Judge also came to a same conclusion that the execution of agreement of
sale under Ex.A.1 is genuine document and the same is proved by the
plaintiff. Another important point is that Ex.A.1 agreement of sale was sent to
the Fingerprint Expert for comparison of the thumb marks of the 1st defendant
and the expert sent a report stating that Ex.A.1 is genuine one and thumb
marks on Ex.A.1 belong to 1st defendant and the said expert was also
examined as C.W.1, through him Ex.C.1 to Ex.C.4 documents were marked.
On appreciation of the entire evidence on record, both the Courts below came
to a concurrent finding that Ex.A.1 agreement of sale is proved by the plaintiff
and Ex.A.1 agreement of sale is genuine document.
16. In a second appeal filed under Section 100 of the Code of Civil
Procedure, this Court is normally not expected to re-appreciate the evidence
on record. It shall not reverse the findings of both the Courts below except
under few situations. If it is found that the material and relevant evidence are
not considered by the First Appellate Court and if considered it would have
lead to an opposite conclusion, is one instance where this Court is entitled to
interfere. The other situation is when the findings of the facts were arrived by
the First Appellate Court by placing reliance on inadmissible evidence, which if
it was omitted, an appropriate conclusion was possible. It is on such
occasions also this Court can interfere. It is also relevant to say that if the
judgment of both the Courts below are contrary to mandatory provisions of the
law applicable to the case, then also an interference under Section 100 of the
Code of Civil Procedure is permissible.
17. Admittedly, item No.1 of the plaint schedule property is self-acquired
property of Govinda Reddy i.e., father of Elumalai Reddy has got two wives.
Sanjeevamma i.e., 1st defendant is first wife of Govinda Reddy and
Venkatamma is the second wife of Govinda Reddy. Rajamma is the only
daughter of Govinda Reddy and 1st defendant herein. It is also further clear
that Govinda Reddy filed a suit in O.S.No.10 of 1965 before Additional Senior
Civil Judge, Chittoor against his first wife/1st defendant herein, second wife
and his daughter for declaration of title and permanent injunction or in
alternative relief directing the defendant Nos.2 and 3 to deliver possession to
him. The material on record further reveals that the trial Court passed Ex.B.4
decree in O.S.No.10 of 1965 and item No.1 of the plaint schedule property
herein is item No.2 of schedule property in O.S.No.10 of 1965. In the said
decree and judgment, it was declared that Elumalai Reddy was having title for
all the schedule properties and there was a finding in the said decree that the
1st defendant herein and her daughter have to deliver possession of item
Nos.4, 5, 6 and 8 in O.S.No.10 of 1965 and half share in item No.1 of the
plaint schedule property to Elumalai Reddy, but the said suit is concerned with
reference to item Nos.2, 4 and 5 of the schedule property. The recitals of the
said decree and judgment clearly goes to show that in view of the
arrangement, 1st defendant herein was given possession of Ac.0-71 cents of
land in Sy.No.33/2 i.e., item No.1 of the plaint schedule property herein which
is equivalent to item No.2 of the schedule property in O.S.No.10 of 1965
towards her maintenance. D.W.1 i.e., 7th defendant also admits in his
evidence in cross examination itself that item No.1 of the plaint schedule
property herein i.e., Ac.0-71 cents was given for maintenance to the 1st
defendant till her lifetime and later it was reverted to Elumalai Reddy, her
stepson. In view of the admissions of appellant herein and in view of the
recitals of Ex.B.4 certified copy of decree in O.S.No.10 of 1965, item No.1 of
the plaint schedule property herein was given to the 1st defendant towards her
maintenance in lieu of her pre-existing right.
18. The material on record further reveals that the 1st defendant
executed Ex.B.2 on 16.08.1995 relinquishing her maintenance rights in item
No.1 of the plaint schedule property by receiving Rs.45,000/- in favour of 2nd
defendant. It clearly goes to show item No.1 of the plaint schedule property
was given to the 1st defendant towards her maintenance. It is the specific
case of the plaintiff that the limited rights given to the 1st defendant enlarges
into absolute rights in view of Section 14(1) of the Hindu Succession Act. It is
also relevant to say that the defendant Nos.2 to 7 are claiming item No.1 of
the plaint schedule property only through the 1st defendant and Elumalai
Reddy. It is the specific case of the appellant that Elumalai Reddy sold away
item No.1 of the suit schedule property to Markondaiah Naidu and others
under a registered sale deed and they in turn sold the property to one B.
Narayana Chetty under registered a sale deed and after the death of
Narayana Chetty, his legal heirs i.e., defendant Nos.2 to 6 become owners of
item No.1 of plaint schedule property and they sold the same to the 7 th
defendant/appellant under Ex.B.1 registered sale deed. On appreciation of
the entire oral and documentary evidence on record, the learned trial Judge
and the learned First Appellate Judge came to a conclusion that Section 14(1)
of the Hindu Succession Act applicable to the case in respect of item No.1 of
the schedule property.
19. In a case of Nazar Singh and others vs. Jagjit Kaur and others1,
the Apex Court held as follows:
“According to sub-section(1) any property possessed by a female Hindu
shall be held by her as full owner thereof and not as a limited owner
irrespective of the fact whether the said property was acquired by her
before the commencement of the Act. Explanation to sub-section (1)
elaborates the meaning and content of the expression “property” in sub-
section (1). It includes property given in lieu of maintenance.”
In a case of Vaddeboyina Tulasamma and others vs. Vaddeboyina
Sesha Reddi (dead) by L.Rs2, the Apex Court held as follows:
“It is, therefore, clear that the compromise by which the properties were
allotted to the appellant Tulasamma in lieu of her maintenance were
merely in recognition of her right to maintenance which was a pre-
existing right and, therefore, the case of the appellant would be taken out
of the ambit of Sec.14(2) and would fall squarely within Section 14(1)
read with the Explanation thereto.”
In the case on hand, the material on record further reveals that item
No.1 of the plaint schedule property was given to the 1st defendant towards
her maintenance. As seen from recitals of Ex.B.2 and Ex.B.3, on account of
compromise between defendant Nos.1 and 2, 1st defendant has executed
Ex.B.2 and Ex.B.2 by receiving certain money. In fact, the 1st defendant has
no right to execute Ex.B.2 and Ex.B.3 on 19.08.1995 she executed Ex.A.1
1
AIR 1996 Supreme Court 855
2
AIR 1977 Supreme Court 1944
agreement of sale on 19.05.1990 in favour of plaintiff. To defeat Ex.A.1
document, Ex.B.2 and Ex.B.3 are brought into existence.
20. The 1st defendant was conferred with the rights in respect of item
No.1 of the plaint schedule property towards her maintenance, though she has
made an attempt to dispute execution of Ex.A.1 agreement of sale in favour of
plaintiff, a concurrent finding was recorded to the effect that Ex.A.1 agreement
of sale was proved as stated supra. As regards the title of the 1st defendant,
vis-à-vis item No.1 of the schedule property, limited rights of 1st defendant
conferred under the decree in O.S.No.10 of 1965 under Ex.B.4 enlarges into
absolute rights by operation of Section 14(1) of the Hindu Succession Act. The
said finding arrived by both the Courts below have given the said finding on
appreciation of the entire oral and documentary evidence on record.
Therefore, the said finding need not be disturbed. Therefore, there is no need
to interfere with the said finding given by the learned trial Judge as well as the
learned First Appellate Judge.
21. Furthermore, Elumalai Reddy has no right in item No.1 of the plaint
schedule property since item No.1 of the plaint schedule property become
absolute property of 1st defendant in view of Section 14(1) of the Hindu
Succession Act. As stated supra, a life interest is granted in favour of 1st
defendant in recognition of pre-existing right, only a limited right was given in
item No.1 of the plaint schedule property, which enlarges into absolute right.
22. As stated supra, as per the case of the appellant, Elumalai Reddy
sold away item No.1 of the suit schedule property to Markondaiah Naidu and
others under a registered sale deed and they in turn sold the property to one
B. Narayana Chetty under registered a sale deed and after the death of
Narayana Chetty, his legal heirs i.e., defendant Nos.2 to 6 become owners of
item No.1 of plaint schedule property and they sold the same to the 7 th
defendant/appellant under Ex.B.1 registered sale deed. It is relevant to say
after passing decree and judgment in O.S.No.10 of 1965, it was confirmed in
the appeal by the First Appellate Court. As stated supra, as per Section 14(1)
of the Hindu Succession Act, item No.1 of the plaint schedule property is
absolute property of the 1st defendant and her limited rights were converted
into absolute rights. It is also relevant to say during lifetime of the 1st
defendant, Elumalai Reddy executed a registered sale deed in respect of item
No.1 of the plaint schedule property in favour of third parties. As noticed
supra, Elumalai Reddy has no right to sell item No.1 of the plaint schedule
property to third parties since item No.1 of the plaint schedule property was
given to 1st defendant towards her maintenance with life interest. As noticed
supra, Elumalai Reddy alienated the said property during the lifetime of 1st
defendant and subsequent to the alienation made by Elumalai Reddy in favour
of Narayana Chetty, the children of Narayana Chetty i.e., defendant Nos.2 to 6
alienated item No.1 of the plaint schedule property to the 7th defendant under
a registered sale deed. The trial Court as well as First Appellate Court gave
concurrent finding that the vendor of 7th defendant has no right to alienate item
No.1 of the plaint schedule property to the 7th defendant and Ex.B.1 to Ex.B.3
were brought into existence to defeat rights of agreement holder under Ex.A.1.
23. The specific recital in Ex.A.1 agreement of sale is after clearing of
the Court cases, the plaintiff has to pay the remaining balance sale
consideration of Rs.9,000/- and to obtain a registered sale deed. It is not in
dispute that the number of suit and nature of suit is not mentioned in Ex.A.1
agreement of sale. The material on record reveals that by the date of Ex.A.1
agreement of sale, O.S.No.98 of 1989 filed by the 1st defendant against the
2nd defendant and others was pending in District Munsif Court at Nagari.
24. It was represented by the learned counsel for the appellant that the
plaintiff did not enter into witness box and P.W.1 is not competent to give
evidence on behalf of the plaintiff. P.W.1 is no other than the husband of
plaintiff. Section 120 of the Indian Evidence Act enables the plaintiff to
examine her husband as a witness on her behalf. P.W.1 is not a third party
and he is no other than the husband of the plaintiff and he is having
knowledge about the suit transaction. In cross examination when elicited
P.W.1 admits himself and his wife are having knowledge in respect of the suit
transaction. It was not suggested to P.W.1 in cross examination by the
learned counsel for the defendants that P.W.1 is incompetent to give evidence
on behalf of the plaintiff. As stated supra, in a second appeal under Section
100 of the Code of Civil Procedure, this Court is normally not expected to re-
appreciate the evidence on record. It is relevant to say there was a specific
recital in Ex.A.1 agreement of sale that after clearing of court cases, the
plaintiff has to pay the remaining balance sale consideration of Rs.9,000/- to
the 1st defendant. It is not the case of the defendants that the pending suits
were cleared and the same was informed to the plaintiff.
25. The appellant has taken a plea that he is a bonafide purchaser for
valuable consideration. The present appeal is confined to in respect of item
No.1 of the plaint schedule property. In so far as item No.1 of the plaint
schedule property is concerned, Elumalai Reddy has no right to alienate the
same in favour of Markondaiah Naidu under Ex.B.7 in view of the right
conferred under Section 14(1) of the Hindu Succession Act in favour of 1st
defendant. As stated supra, Ex.B.1 to Ex.B.3 were brought into existence to
defeat the rights of agreement holder under Ex.A.1. Learned counsel for the
appellant would contend that without issuing any notice, the suit for specific
performance of agreement of sale is filed by the plaintiff, therefore, the plaintiff
is not entitled the main relief of specific performance of agreement of sale.
26. Learned counsel for the appellant placed a reliance of
M. Rangaiah vs. T.V. Satyanarayana Rao and another3.
Learned counsel for the appellant placed another reliance of Baddam
Prathap Reddy vs. Chennadi Jalapathi Reddy and another4, wherein the
composite High Court of Andhra Pradesh at Hyderabad held as follows:
3
2009 (5) ALD 663
4
2008 (5) ALD 200
“This court, however, hastens to add that, in law, oral demand by the
buyer of immovable property, as such, being sufficient compliance with
requirements of Form Nos.47 and 48 cannot be totally ruled out. In such
circumstances, the proof of oral demand should be strong and
unimpeachable and mere allegation, that too, in a passing manner would
not be sufficient compliance with the requirement of law. This aspect of
the mater, however, has to be gone into a little deeper in an appropriate
case, but it would be sufficient to leave the issue with the observations
as made hereinabove.”
In the aforesaid case law the composite High Court of Andhra Pradesh
at Hyderabad further held as follows:
“A study of four decisions cited by the learned Counsel for the appellant
namely, Abdul Khader Rowther v. P.K. Sara Bai, (1989) 4SCC 313 =
AIR 1990 SC 683, Syed Dastagir (supra), Pushparani S. Sundaram
(supra) and Manjunath Anandappa (supra), would show that if the
requirement of sending a communication or notice demanding execution
of sale deed is not complied with prior to filing of the suit, it would
weaken the case of plaintiff for enforcing specific performance of
contract in respect of immovable property. If a notice is issued by the
plaintiff, it itself would – to a large extent, might lead to an inference that
the plaintiff was ready and willing to perform his part of the contract.
Mere allegation that the plaintiff was ready and willing to perform his part
of the contract would not be sufficient for enforcement of the contract. In
Pushparani S. Sundarm’s case (supra) it was held:
…Section 16(c) of the Specific Relief Act requires that not only
there be a plea of readiness and willingness but it has to be
proved so. It is not in dispute that except for a plea there is no
other evidence on record to prove the same except the two
circumstances. It is true that mere absence of a plaintiff coming in
the witness box by itself may b\not be a factor to conclude that he
was not ready and willing in a given case as erroneously
concluded by the High Court. But in the present case, not only
the plaintiff has not come in the witness box, but not even sent
any communication or notice to the defendant about his
willingness to perform his part of the contract. In fact no evidence
is led to prove the same.”
In the aforesaid case law the composite High Court of Andhra Pradesh
at Hyderabad also held as follows:
“In this case plaintiff alleged that since one year prior to filing of the suit
he has been demanding first defendant to receive the balance of
consideration and register sale deed. The suit was filed on 23.11.1994.
Therefore, according to the plaintiff, he had been demanding first
defendant since November 1993. However, in his chief-examination he
admits that he was always ready and willing to perform his part of the
contract since 20.05.1995. This would certainly belie allegation that he
was ready and willing to perform his part of the contract. P.Ws.2 and 3
are silent on this aspect. Therefore, even oral demand has not been
proved, and the plea of oral demand does not carry the case of the
plaintiff any further. Therefore, this Court holds that the suit is barred,
and the same is liable to be dismissed.”
Admittedly, in the case on hand, there was a specific recital in the plaint
itself that the plaintiff was always ready and willing to perform her part of
contract, but the 1st defendant was not ready and willing to perform her part of
contract. It is in the evidence of P.W.1 that the plaintiff is always ready and
willing to perform her part of contract. It is in the evidence of P.W.1 that when
he demanded 1st defendant to execute a regular registered sale deed as per
the terms of Ex.A.1 agreement of sale, the 1st defendant told him that she will
execute sale deed after disposal of the suits filed by her and also 2 nd
defendant’s father against her. It was not at all suggested to P.W.1 by the
learned counsel for the appellant in cross examination that P.W.1 did not
make any demand to the 1st defendant to execute a registered sale deed.
The agreement was executed in between plaintiff and 1st defendant, the
appellant/7th defendant is not a party to the said agreement. The 1st
defendant did not enter into the witness box. The 1st defendant died during the
pendency of the suit proceedings. The appellant/ 7th defendant admits in his
evidence in cross examination that when he asked, the 1st defendant told him
that she has not executed any agreement of sale except Ex.A.1 agreement of
sale and 1st defendant told him that Ex.A.1 is a forged one and she did not
receive any consideration. The above admission of appellant in his evidence
in cross examination clearly goes to show that on knowing fully well about
Ex.A.1 agreement of sale transaction, the appellant herein purchased item
No.1 of the plaint schedule property. Another crucial admission made by the
7th defendant in his evidence in cross examination is that item No.1 of the
plaint schedule property was given to the 1st defendant towards maintenance
till her lifetime.
27. Learned counsel for the appellant placed a reliance of
Padmakumari and others vs. Dasayyan and others5.
In the case on hand, there was a specific recital in Ex.A.1 agreement of
sale after clearing of court cases, the plaintiff has to pay the remaining
balance sale consideration. Admittedly, the clearing of court cases was not at
all informed to the plaintiff by the 1st defendant. The 1st defendant executed a
document in favour of 2nd defendant to defeat the rights of the plaintiff, on
knowing the same, the plaintiff rushed to the civil Court and filed a suit. It is in
the evidence of P.W.1 that the plaintiff has no knowledge about the clearing of
court cases of 1st defendant. It is not the specific case of the 1st defendant in
the written statement that she informed the plaintiff about the clearing of court
cases.
28. Learned counsel for the appellant relied on U.N. Krishnamurthy
(since deceased) Thr. Lrs. (S) v. A.M. Krishnamurthy (S) 6 wherein the
Apex Court held as follows:
“It is settled law that for relief of specific performance, the plaintiff has to
prove that all along and till the final decision of the suit, he was ready
and willing to perform his part of the contract. It is the bounden duty of
the plaintiff to prove his readiness and willingness by adducing evidence.
5
(2015) 8 Supreme Court Cases 695
6
2022 SCC OnLine SC 840
This crucial facet has to be determined by considering all circumstances
including availability of funds and mere statement or averment in plaint of
readiness and willingness, would not suffice.”
29. In a case of Sita Ram and others vs. Radhey Shyam7, the Apex
Court held as follows:
“The basic principle behind Section 16(c) read with Explanation (ii) is that
any person seeking benefit of the specific performance of contract must
manifest that his conduct has been blemishless throughout entitling him
to the specific relief. The provision imposes a personal bar. The Court is
to grant relief on the basis of the conduct of the person seeking relief. If
the pleadings manifest that the conduct of the plaintiff entitles him to get
the relief on perusal of the plaint he should not be denied the relief.”
30. In a case of Shenbagam and others vs. K.K. Rathinavel 8, the
Apex Court held as follows:
“True enough, generally speaking, time is not of the essence in an
agreement for the sale of immoveable property. In deciding whether to
grant the remedy of specific performance, specifically in suits relating
to sale of immovable property, the courts must be cognizant of the
conduct of the parties, the escalation of the price of the suit property,
and whether one party will unfairly benefit from the decree. The
remedy provided must not cause injustice to a party, specifically when
they are not at fault.”
Admittedly, in the case on hand, the 1st defendant did not inform the
plaintiff about the clearing of court cases and also settlement of cases in
between both parties. Therefore, the same cannot be ignored and the same is
not blamishless.
7
2007 (6) ALT 34 (SC)
8
2022 SCC OnLine SC 71
31. On appreciation of the entire evidence on record, the learned trial
Judge as well as the learned First Appellate Judge gave concurrent finding
that the plaintiff is entitled the relief of specific performance of the agreement
of sale in respect of item No.1 of the plaint schedule property. I do not find any
illegality in the finding given by the learned First Appellate Court that the
plaintiff is entitled the relief of specific performance of agreement of sale in
respect of item No.1 of the plaint schedule property, therefore, the second
appeal is liable to be dismissed.
32. In the result, the second appeal is dismissed confirming the decree
and judgment, dated 03.08.2012 in A.S.No.75 of 2006, on the file of the III
Additional District Judge, Tirupati. Each party do bear their own costs in the
appeal.
As a sequel, miscellaneous petitions, if any, pending in the appeal
shall stand closed.
_________________________
V. GOPALA KRISHNA RAO, J
Date: 20.01.2025
PGR
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