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Andhra Pradesh High Court
Judges : C.Y.SOMAYAJULU, G.BIKSHAPATHY
Kothurthi Krishna Bhaskara Rao - Appellant
Versus
Nadiminti Suryanarayan Murthy - Respondent
Decided On : 07-11-03
Specific Relief Act of 1877 - Section 27 and 19 - Recovery of amount - Agreement of sale - Averments in plaint are defendants to agreed sell plaint schedule house to plaintiff for a consideration of Accordingly an agreement of sale was executed by defendants to and a sum of was paid and balance sum of was agreed to be paid within six months and registered sale deed was to be executed in favour of plaintiff - Even though plaintiff was ready and willing to perform his part of obligation defendants failed to register Sale Deed and deliver plaint schedule property - Defendants to filed written statement stating that plaint schedule property was absolute property of late husband of defendant and father and maternal grandfather of defendants and said executed a registered Will deed bequeathing plaint schedule property with life estate to his wife thereafter in favour of defendants and till life and vested reminder to male issues of defendants and in absence of male issues to female issues of defendants and However died on It is stated that plaintiff was informed on when he came to that defendant was not agreeable for cancellation of agreement and therefore sale Deed was executed in his favour – Held, Division Bench of this Court in case cited supra further held that of Specific Relief Act laid down an exception to ordinary rule that a person is bound to perform his obligation under a contract of sale and that agreement-holder has priority in matter of obtaining title of vendor - But equity protects a subsequent purchaser even as against a prior agreement-holder provided he establishes that he parted with entire money innocently without knowledge of prior agreement - Where out of the sale consideration a part is payable in discharge of a debt due to a third party and same remained unpaid subsequent purchaser cannot be said to be a person who has paid full money before he had notice of agreement of sale - admittedly in instant case full amount agreed between parties was not paid when Sale Deed was executed in favour of defendant - Execution of promote cannot be said to be full payment - what is specified in provision was that amount has been actually paid and that is reason why sub-clause of Section protects bona fide purchase who had parted with his money and without notice of prior agreement – Otherwise provision would allow unscrupulous purchasers to exploit situation - Appeal allowed
( 1 ) THE L. P. A. is directed against the judgment and decree of the learned single Judge in A. S. No. 2061 of 1989 reversing the judgment and decree of the learned Subordinate Judge, amalapuram in O. S. No. 50 of 1983, dated 13-9-1989.
( 2 ) PLAINTIFF is the Appellant. He filed a suit in O. S. No. 50 of 1983 for specific performance of agreement of sale dated 18-1- 1983 or in the alternative for recovery of the amount paid as advance and for damages.
( 3 ) THE averments in the plaint are as follows :defendants No. 1 to 5 agreed the sell the plaint schedule house to the plaintiff for a consideration of Rs. 46,000. 00. Accordingly, an agreement of sale dated : 18-1-1983 Ex. A-1 was executed by defendants Nos. 1 to 5 and a sum of Rs. 1,000. 00 was paid and the balance sum of Rs. 45,000. 00 was agreed to be paid within six months and the registered sale deed was to be executed in favour of the plaintiff. Even though the plaintiff was ready and willing to perform his part of obligation, defendants No. 1 to 5 failed to register the Sale Deed and deliver the plaint schedule property. Therefore, plaintiff got issued a notice Ex. A-2. In the meanwhile, plaintiff came to know that defendants No. 1 to 5 and the 6th defendant colluded together and played fraud on the plaintiff by executing a Sale Deed dated : 18-1-1983 in favour of 6th defendant subject to agreement ex. A-1. Therefore, the plaintiff got issued a notice calling upon the defendants No. 1 to 5 to execute the Sale Deed and also alleging that the Sale Deed executed in favour of defendant No. 6 dated : 9-2-1983 was fictitious and fabricated document. As there was no response to the notice, the suit was filed by the plaintiff.
( 4 ) DEFENDANTS No. 1 to 5 filed written statement stating that the plaint schedule property was absolute property of late bulusu Suryanarayana, husband of defendant No. 1 and the father of defendant Nos. 2 and 3 and maternal grand father of defendants No. 4 and. 5. The said Bulusu suryanarayana executed a registered Will deed dated : 8-8-1973 bequeathing the plaint schedule property with life estate to his wife, thereafter in favour of defendants no. 2 and 3 till life and vested reminder to the male issues of defendants No. 2 and 3 and in the absence of male issues to the female issues of defendants No. 2 and 3. However, Bulusu Suryanarayana died on 1980. It is also stated that during the life time of bulusu Suryanarayana, he borrowed a sum of Rs. 1. 400. 00 from Malladi Venkatalakshmi under pronote dated : 3-1-1975 and he died without discharging the debt. The plaint schedule property was left out to the defendant No. 6/01/1981 for Rs. 150. 00. When Malladi Venkatalakshmi pressed for the payment of pronote amount, they could not discharge the same and therefore, to avoid unnecessary litigation, in October, 1982 defendants No. 1 and 2 decided to sell the plaint schedule property. They informed the 6th defendant who was the tenant and also others intending to purchase the schedule property. Later in January, 1983, 6th defendant approached the defendants No. 1 to 3 and offered to purchase the same for a sum of Rs. 40,000. 00. However, after bargain, the sale price was fixed at Rs. 45,000. 00. 6th defendant obtained Agreement of Sale dated 4-1-1983 from the defendants No. 1 to 5 and paid a sum of Rs. 5,500. 00 as advance to enable the defendants No. 1 to 5 to clear the debts to Malladi Venkatalakshmi and sundry debts. It was also agreed that the 6th defendant shall pay the interest @ 12% on the remaining sale consideration and to obtain the Sale Deed at his cost. It is stated that out of the advance amount received, the debt due to Malladi Venkatalakshmi was discharged. On 18-1-1983, the plaintiff along with one Gunda Narasimhamurthy approached the defendants No. 1 to 5 herein and offered to purchase the plaint schedule property for a sum of Rs. 46,000. 00. It is the case of the defendants that they informed the plaintiff that they had
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