Goli Nanoji Rao (died) per L. Rs. vs Gudanti Kamala Devi

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(AP) 303

Andhra Pradesh High Court
P.S. NARAYANA, J.
Goli Nanoji Rao (died) per L.Rs. Appellant
v.
Gudanti Kamala Devi and others Respondent
Appeal Nos.616 and 620 of 1995
Decided on 3-4-2006.
Advocate Appeared
Mr. V. Srinivasa Rao, Advocate for the Appellants.
Mr. V.L.N. Gopala Krishna Murthy, Advocate for Respondent Nos.2 and 3.
None appeared for Respondent Nos.1, 4 and 5.

Headnote:
Sale – Specific Performance of Contract of Sale – Whether negativing the relief of specific performance and granting the alternative relief of refund of advance amount can be said to be just and proper in the facts and circumstances of the case – Whether the relief of partition and in the alternative the relief of maintenance claimed by the 3rd defendant and the findings recorded by the learned Judge to be confirmed or to be disturbed in the facts and circumstances of the case – Whether the legal representatives of the plaintiff are entitled to the principal relief of specific performance in the facts and circumstances of the case – If so, to what relief the parties would be entitled to – Held, Court is of considered opinion that negativing the relief of specific performance and ordering the refund of amount may not be just and proper in the facts and circumstances of the case – It is no doubt true that specific performance always need not be granted merely because it is lawful to do so for the Court while exercising the discretion – Court can arrive is that the present legal representatives of the deceased original plaintiff in the suit for specific performance are bound to succeed – No further findings need be recorded as far as the relief of maintenance claim of the 3rd defendant mother is concerned – It is needless to say that the question of arrears of maintenance if any already accrued may be worked out separately if the legal representatives of the 3rd defendant, the mother, choose to exercise the option of putting forth such claim if any inclusive of the daughters – Subject to the above observation, the maintenance decree granted in O.S. may not further survive by virtue of the death of the 3rd defendant-mother – Appeal Allowed

JUDGMENT

Goli Nanoji Rao, the plaintiff in O.S. No.121/80 filed the suit for specific performance of contract of sale dated 10-5-1980 and in the alternative for damages of RS.1,30,000/- against defendants 1 and 2 in the said suit. O.S. No.24/81 was originally filed as O.P. No.4 7/80 by Guddanti Kamala Devi, widow of the late Guddanti Seshaiah, who was shown as 3rd defendant in O.S. No.121 180 against her sons, daughters and tenants and also the plaintiff in O.S. No.121 180 praying for partition and separate possession of her 1 16th share in the plaint schedule building or in the alternative for maintenance at the rate of Rs.1000/- per month and also for creation of a charge over . the plaint schedule building for securing the payment of maintenance. Both the suits were decided together though evidence was recorded independently. In O.S. No.121/80 P.W.1 to P.W.3, D.Ws.1 and 2 were examined, Exs.A-1 to A-20 were marked. Likewise, in O.S. No.24/81 P.W.1, D.Ws.1 and 2 were examined and Exs.A-1 to A-3 and EX.B-1 were marked. On appreciation of evidence, the learned Judge after recording certain findings, the relief of specific performance was negatived and alternative relief of refund of Rs.30,000/- received as earnest money from the plaintiff in O.S. No.121 180 with interest at 18% per annum from the date of suit till the date of payment was ordered and it was further directed that they shall also pay a sum of Rs.1,000/- being the costs of execution of the agreement of sale and the costs to the plaintiff as damages and they shall also pay the earnest money and damages to the plaintiff on or before 18-6-1993. As far as O.S. No.24/81 is concerned, some quantum of maintenance had been awarded and charge was created over the property. It is not in controversy that the plaintiff in O.S. NO.24/81 is no more and hence the claim of maintenance at present does not survive. Goli Nanoji Rao, the plaintiff in O.S. No.121/80 died and the legal representatives of deceased appellant in A.S. No620/95 were brought on record by order dated 24-1-2006 in A.S.M.P. No.168/06.

2. A.S. No.620/95 is preferred as against the Judgment and Decree made in O.S. No.121/80. A.S. No.616/95 is filed as against the Judgment and Decree made in O.S. No.24/81 by the self-same Nanoji Rao. It is no doubt true that on record the death of Guddanti Kamala Devi had not been recorded but the Death Certificate would evidence the death of Guddanti Kamala Devi on 16-10-2004. It is stated that all the legal representatives already are on record in A.S. No.616/95 and in the connected appeal in A.S. NO.620/95 certain legal representatives are already on record, representing the estate. At any rate, inasmuch as both the appeals are preferred as against the common Judgment inasmuch as all the legal representatives are already on record in A.S. No.616/95, the rest of the legal representatives whether brought on record or not in A.S. No.620/95, it would not seriously alter the situation.

3. Contentions of Sri V. Srinivasa Rao: The learned counsel representing the legal representatives of the appellant in both the appeals would submit that the learned Judge having recorded positive findings in relation to agreement of sale in question negatived the relief on the ground that the plaintiff in the other suit O.S. No.24/81 had right of maintenance and on that ground the main relief of specific performance was negatived and the alternative relief of refund was ordered. The learned counsel also would maintain that not only that the said maintenance holder-the plaintiff in O.S. No.24/81 is no more but also in view of the fact that the original plaintiff is ready and willing to take the property even if it is annexed with such an obligation if any, refusing the relief of specific performance cannot be sustained. Hence, the learned counsel would maintain that the appeals are to be allowed decreeing the suit for specific performance O.S. NO.121/80 as prayed for and inasmuch as the maintenance claim

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