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Andhra Pradesh High Court
Judges : A.SAMBASIVA RAO, SHIV SHANKAR
M.Veera Raghaviah - Appellant
Versus
M.China Veeriah - Respondent
Decided On : 01-30-75
SPECIFIC PERFORMANCE - AGREEMENT OF SALE - JOINT FAMILY PROPERTY - DEBTS - AVYAVAHARIKA DEBTS - SPECIFIC PERFORMANCE REFUSED - REFUND OF AMOUNT PAID - INTEREST - ACCOUNTING FOR INCOME.
Fact of the Case:
Plaintiff filed a suit for specific performance of an agreement of sale executed in his favor by the first defendant. The first defendant admitted execution of the agreement, the existence of debts, the need to sell the land to discharge them, the receipt of the two sums of Rs. 1,000.00 and Rs. 14,000.00 on the agreement and the discharge of his debts with the aid of those amounts. The second defendant, the son of the first defendant, resisted the suit claiming that Ac. 1-10 cents out of the land is his own separate property as it has been settled on his mother by her maternal aunt, with a life interest in herself. On his mother's death in 1951 he succeeded to the vested remainder and became full owner on the donor's death in 1964. The rest of the property, i.e., Ac. 4.00 belongs to the joint family of himself and his father, as it had been acquired by the latter after selling away Ac. 6-00 of land originally belonging to the family.
Finding of the Court:
1. Ac. 1-10 cents out of Ac. 5-10 cents is the separate property of the second defendant and the first defendant has no manner of right to deal with it. 2. Ac. 4.00 is joint family property. 3. The debts evidenced by the following promissory notes have not been accepted by the Court below; Exs. A-28, A-29, A-26. A-13, A-2, A-15, and A-16 and finally Ex. A-12. 4. The debts which were found to be true by the trial court which are to the extent of nearly Rs. 7,600.00 are not binding on the second defendant. 5. The first defendant had sufficient means of his own to discharge those debts and it was not necessary for him to sell the property for that purpose. 6. Ex. A-1 was ante-dated. 7. The agreement of sale is shrouded by highly suspicious features and circumstances. 8. Specific performance should be refused.
Issues: 1. Whether Ac. 1-10 cents out of Ac. 5-10 cents is the separate property of the second defendant? 2. Whether Ac. 4.00 is joint family property? 3. Whether the debts evidenced by the following promissory notes have not been accepted by the Court below; Exs. A-28, A-29, A-26. A-13, A-2, A-15, and A-16 and finally Ex. A-12? 4. Whether the debts which were found to be true by the trial court which are to the extent of nearly Rs. 7,600.00 are binding on the second defendant? 5. Whether the first defendant had sufficient means of his own to discharge those debts and it was not necessary for him to sell the property for that purpose? 6. Whether Ex. A-1 was ante-dated? 7. Whether the agreement of sale is shrouded by highly suspicious features and circumstances? 8. Whether specific performance should be refused?
Ratio Decidendi: 1. The debts evidenced by the following promissory notes have not been accepted by the Court below; Exs. A-28, A-29, A-26. A-13, A-2, A-15, and A-16 and finally Ex. A-12. 2. The debts which were found to be true by the trial court which are to the extent of nearly Rs. 7,600.00 are not binding on the second defendant. 3. The first defendant had sufficient means of his own to discharge those debts and it was not necessary for him to sell the property for that purpose. 4. Ex. A-1 was ante-dated. 5. The agreement of sale is shrouded by highly suspicious features and circumstances. 6. Specific performance should be refused.
Final Decision: The appeal is dismissed. The 2nd defendant-2nd respondent will have his costs from the plaintiff and the plaintiff and the 1st defendant-1st respondent will bear their own. A decree is passed against the 1st defendant alone for the amount of Rs. 15,000.00 with interest at 5% per annum from the dates of their payment. The 2nd defendant shall be entitled to recover the amount from the plaintiff for his separate property of Ac. 1-10 cents and for his half share in the rest of the land from 12-5-1969.
( 1 ) THE plaintiff has preferred this appeal. He filed before the lower court in his bid for securing performance of an agreement of sale executed in his favour by the first defendant. He has now filed C. M. P. No. 1831 of 1974 to amend the plaint seeking performance of the agreement by the first defendant-respondent to the extent of the land to which he is entitled to with the stipulated price of Rs. 6,300. 00 per acre, in case he is unable to perform the whole of the agreement and for refund of the amount paid in excess to him, or in the alternative for refund of the entire amount of Rs. 15,000. 00 with interest at 5% per annum.
( 2 ) THE plaintiff alleges: The agreement is Ex. A-1 dated 27/01/1969 and is in respect of Ac. 5-10 cents. The first defendant (respondent No. 1) alone executed this agreement agreeing to sell the aforesaid land at the rate of Rs. 6,300/- per acre. The sale was to be completed by the end of May of that year after measuring the land. The transaction purports to have been entered into by the first defendant to discharge his antecedent debts and for acquiring other properties. The second defendant is his major son and both of them constituted the joint family. However, the land in question is either self-acquired or separate property of the first defendant. Rs. 1,000. 00 was paid on the date of the agreement. On 11th and 12/05/1969, a further sum of RS. 14,000. 00 was paid and an endorsement to this effect was made on Ex. A-1 and the same is marked as Ex. A-30. Rs. 9,729. 32 ps. was paid to the creditors of the first defendant directly on those dates and since the other creditors were not readily available the balance of Rs. 4,220. 80 ps. was handed over to the first defendant for discharging those debts. Possession of the land was handed over to the plaintiff on the payment of Rs. 14,000. 00. Thereafter the defendants failed to complete the transaction and execute a sale deed in his favour, though he was ready and willing to pay the balance and take a document. Hence he was obliged to seek performance from the Court.
( 3 ) THE executant, viz. , the first defendant, admits execution of the agreement, the existence of the debts, the need to sell the land to discharge them, the receipt of the two sums of Rs. 1,000. 00 and Rs. 14,000. 00 on the agreement and the discharge of his debts with the aid of those amounts He has debts to the tune of Rs. 12,000. 00 more to be discharged. His son, the second defendant, has become quarrelsome and cantankerous and is raising all sorts of objections to the debts and the proposed sale. The land in question is his self-acquired or separate property. He is ready and willing to complete the transaction according to the terms of the agreement. It is thus seen that the first defendant goes the whole hog with the plaintiff.
( 4 ) IT is from the son the second defendant that the resistance to the suit comes. According to him Ac. 1-10 cents out of the land is his own separate property as it has been settled on his mother by her maternal aunt, with a life interest in herself. On his mothers death in 1951 he succeeded to the vested remainder and became full owner on the donors death in 1964. The rest of the property, i. e. , Ac. 4. 00 belongs to the joint family of himself and his father, as it had been acquired by the latter after selling away Ac. 6-00 of land originally belonging to the family. In any case, that extent became a joint family asset as it had been thrown into the hotchpot by the first defendant.
( 5 ) THE second defendant proceeds to aver that the mother died in 1951 and since then the father fell into bad ways like keeping women. For his immoral purposes he was incurring some debts-There have been serious disputes resulting in suits between him and the father for a very long time. Taking advantage of this estrangement, the plaintiff secured the agreement by fraud and playing deceitful and immoral tactics. The first defendant, to spite the seco
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