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Andhra Pradesh High Court
Judges : A.GOPAL RAO
Vanimisatti Anil Kumar - Appellant
Versus
Jayavarapu Krishna Murty - Respondent
Decided On : 04-28-94
SPECIFIC PERFORMANCE - SUIT FOR - AGREEMENT OF SALE - EXECUTION OF - DEFENDANTS 1 AND 2 EXECUTED AGREEMENT OF SALE IN FAVOUR OF PLAINTIFFS FOR SALE OF SUIT PROPERTY - DEFENDANTS 4 TO 6 WERE ADDED AS DEFENDANTS AS THEY BECAME COPARCENERS BY VIRTUE OF AMENDMENT TO HINDU SUCCESSION ACT - DEFENDANTS 1 AND 2 ADMITTED EXECUTION OF AGREEMENT OF SALE AND RECEIPT OF PART OF SALE CONSIDERATION - DEFENDANTS 4 TO 6 CLAIMED THAT THEY ARE NOT BOUND BY AGREEMENT OF SALE AS IT WAS NOT SUPPORTED BY CONSIDERATION AND WAS NOT FOR LEGAL NECESSITY - LOWER COURT DECREED SUIT FOR SPECIFIC PERFORMANCE - DEFENDANTS APPEALED.
Fact of the Case:
Defendants 1 and 2 executed an agreement of sale in favour of plaintiffs for sale of suit property. Defendants 4 to 6 were added as defendants as they became coparceners by virtue of amendment to Hindu Succession Act. Defendants 1 and 2 admitted execution of agreement of sale and receipt of part of sale consideration. Defendants 4 to 6 claimed that they are not bound by agreement of sale as it was not supported by consideration and was not for legal necessity. Lower court decreed suit for specific performance. Defendants appealed.
Finding of the Court:
1. The suit agreement, Ex. A. 1, dated 31-8-1981, is for the legal necessity and also for discharging the antecedent debts, binding on the estate of the defendants. 2. The alleged settlement pleaded by the first defendant has not been established by him. 3. The 3rd defendant is not a bona fide purchaser for value of a part of the suit schedule property, as he had the knowledge of the existence of Ex. A. 1, suit agreement. 4. The plaintiffs are always ready and willing to perform their part of the contract.
Issues: 1. Whether the suit agreement, Ex. A. 1, dated 31-8-1981, is for the legal necessity and also for discharging the antecedent debts, binding on the estate of the defendants? 2. Whether the alleged settlement pleaded by the first defendant has been established by him? 3. Whether the 3rd defendant is a bona fide purchaser for value of a part of the suit schedule property? 4. Whether the plaintiffs are always ready and willing to perform their part of the contract?
Ratio Decidendi: 1. The recitals in Ex. A. 1, suit agreement cannot be taken as be all and end all . It turned out that, the 1st defendant had already mortgaged the property under Ex. B. 21, dated 17-7-1979 to one Kola Ramarao for Rs. 30,000. 00. It is in the evidence that the 1st defendant has no particular avocation. In his evidence as D. W. 1, the 1st defendant clearly and categorically admitted that he cannot perform the marriages of his daughters except by selling the family properties. The mortgage debt under Ex. B. 21 was subsisting as on the date of execution of Ex. A. 1, suit agreement, as well as on the date when the suit was filed in the lower court. In fact, the said mortgage debt was discharged only on 12-4-1985, under the endorsement, Ex. B. 22 made on the mortgage deed, Ex. B. 21. 2. The alleged settlement deed has not been filed into court. That settlement deed, according to the 1st defendant, was written by one Vidyadhar Rao in the presence of one Akkuri Venkataratnam and T. V. A. Narasimharao, who attested the said deed. These facts are stated by the 1st defendant as D. W. 1, but the same have not been established either by producing the document itself or by examining any one of the attestors or the scribe of the same. 3. The 1st defendant admits the execution of the sale deed in favour of the 3rd defendant. One of the plaintiffs, who was examined as P. W. 1 deposed that immediately after coming to know that the 3rd defendant is purchasing a part of the suit schedule property, he (PW 1) approached the 3rd defendant and apprised him of the existence of the suit agreement, Ex. A. 1 and that thereupon the 3rd defendant assured him that he will not purchase the said part of the suit schedule property. Having said so, the 3rd defendant obtained the sale deed in respect of a part of the suit schedule property on 10-12-1987. 4. Plaintiffs filed Exs. A. 14 to A. 29, their accounts to establish that they have enough funds to pay the balance of sale consideration to the defendants, as and when required. Plaintiffs also issued a legal notice, Ex. A. 10, demanding the defendants to execute the sale deed in terms of Ex. A. l, wherein they have categorically stated that they are always ready and willing to perform their part of the contract.
Final Decision: Appeal dismissed, subject to the modification of the judgment and decree of the lower Court, with regard to costs, as mentioned above. Parties will bear their own costs in this appeal.
( 1 ) DEFENDANTS 2 and 4 to 6 in Original Suit No. 65 of 1984, on the file of the Subordinate Judge s Court, Kovvur, West Godavari, are the appellants in this appeal. Respondents 1 and 2 herein are the plaintiffs in that suit. That suit was filed by the plaintiffs for (a) specific performance of the suit agreement of sale dated 31-8-1981, executed by the 1st defendant for himself and on behalf of the minor-2nd defendant in favour of plaintiffs 1 and 2 for Rs. l,02,900. 00 agreeing to sell the house property with site bearing Door No. 53, in the Temple Street, in 10th Ward of Jangareddigudem, Polavaram Taluk, West Godavari District; (b) for recovery of a sum of Rs. 10,000. 00 towards damages for the diala-tary tactics adopted by the defendant in completing the sale transaction in time; (c) alternatively for a decree for refund of Rs. 78,900. 00; (d) for. a further sum of Rs. 1,00,000. 00 as damages for breach of con- tract and also for a declaration that the 3rd defendant, who is a subsequent-purchaser of a part of the suit schedule property from defendants 1 and 2 under a registered sate deed dated 10-12-1987, is not a bona fide purchaser for value and that the said sale deed in favour of the 3rd defendant is not at all supported by consideration.
( 2 ) PLAINTIFFS are brothers and members of a Joint Hindu Family. The 2nd defendant is the undivided son of the 1st defendant. They are members of a Joint Hindu Family, of which the 1st defendant is the manager. The plaint schedule property and the adjacent terraced building are the joint properties of defendants 1 and 2 and the same was mortgaged to one Kola Ramarao of Eluru for Rs. 30,000 on 27-7-1979 by defendants 1 and2 in order to discharge the Antecedent debts of the joint family. In order to discharge the Antecedent debts, including the mortgage debt to Kola Ramarao and also in order to settle down permanently in the Tirunalveli Ashram, in Tamil Nadu State, defendants 1 and 2 wanted to dispose of their joint family property at Janagaraddigudem and at Tade-palligudem, they published a notice in the daily newspaper andhra Prabhat , dated 14-10-1980, putting the suit property for sale. They also informed others in the surroundings about their intention, to sell the above property. Plaintiffs, coming to know about the intention of defendants 1 and 2, and after seeing the publication in the newspaper, approached defendants with a view to purchase the plaint schedule property. First defendant informed the plaintiffs that he is selling the property in order to discharge the antecedent debts of his family and also with a view to permanently shift to Tirunalveli in Tamil Nadu State. Plaintiffs, on enquiries, also came to know about the mortgage of the schedule proper in favour- of one Kola Ram-rao, and the other liabilities of the defendants to their creditors. The plaint schedule property was in a very neglected condition, which required heavy expenditure for repairs and renovation. Defendants are also related to the plaintiffs. Plaintiffs approached the defendants through one T. V. A. Narasimha Rao, one T. V. A. Jagannadha Rao (D. W. 2) T. Baipiraju and M. Nageswara Sastry (P. W. 2 ). T. V. A. : Narasimharao and T. V. A. Jagannadha Rao, mentioned above, are the brothers of the wife of the 1st defendant, Bapiraju is the mother-in-law of the 1st defendant. T. V. A. Narasimha Rao is also the father-in-law of the second plaintiff. On 31-8-1981, a settlement was reached between the plaintiffs and defendants, in the presence of the mediators mentioned above, whereby the plaintiffs agreed, to purchase and the defendants agreed to sell the plaint schedule property for Rs. 1,02,900. 00; defendants should discharge the mortgage debt due to Kola Ramarao. The said settlement was reduced to writing in Ex. A. 1 as a sale agreement on that day, i. e. 31-8-1381, which was attested by T. Bapiraju, T. V. A. Narasimharao and T. V. A. Jagannadharao (D. W. 2 ). P. W. 2 is the scribe of
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