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2007 Supreme(AP) 284

Andhra Pradesh High Court
Judges : T.CH.SURYA RAO
Movva Tirupathaiah - Appellant
Versus
Movva Shivaji Rao - Respondent
Decided On : 03/13/2007
Case No : A.S.Nos.2767 & 2846 of 1989 & 2315 of 1993

Advocates Appeared: For the Appellant:A.K. Narasimha Rao, Advocate. For the Respondents:T.S. Anand Advocate.

Headnote:

Hindu Succession Act, 1956 – Sections 4, 15, 16 – Appeal Against decree - Suit agreement of sale against - Schedule mentioned properties - Common judgment and decrees passed by the learned Subordinate Judge are now sought to be assailed in the instant appeals judgment and decree passed in awarding future profits is now being assailed facts lie in a narrow compass was filed seeking specific performance of the suit agreement of sale against the sole defendant by name was filed by the said seeking the relief of possession of the plaint A schedule mentioned properties from defendants 1 and 2 who are the plaintiff in and his son. Defendants 2 and 3 have been added subsequently in consequent upon the death of the 1st defendant sole plaintiff in died her mother was brought on record as her legal representative, as the second plaintiff in that suit joint trial was conducted in both the suits by recording the evidence in suit for specific performance was filed on the premise that the plaintiff entered into an agreement with the sole defendant in respect of the plaint schedule property and the defendant agreed to sell the said property for a consideration of and on the date of execution of the sale agreement plaintiff paid a sum as advance sale consideration and the property was delivered to the plaintiff by the defendant –Held, Even the Bench judgment did not consider the legal position with reference to Sections 4 and 15 of the Act and instead, it proceeded with reference to the earlier law in vogue as enunciated by the Privy Council and other High Courts in the country rendered far earlier to the advent of the Hindu Succession Act law seems to be no more res integra. Apart from the mandatory provisions of Sections 4, 15 and 16 of the Act Apex Court had an occasion at least more than once to deal with it. same question fell squarely for consideration. As per the matrix in that case, one Chowdary gifted the property to his two daughters collateral of the said filed a suit for declaration on the premise that the properties were ancestral in the hands of chowdary and the gift made by him in favour of his daughters would not enure beyond his life time suit ended in a compromise decree in between the parties inter se advent of Hindu Succession Act and when died heirs filed the suit claiming that the land of Chowdary in respect of which declaratory decree was passed pursuant to the compromise in favour daughters in super session of the custom prevalent in Punjab would become the preferential heirs of chowdary and hence on his death became entitled to the property in question – A.S No.2767 of 1989 is dismissed.

Judgment :-

Inasmuch as these appeals emanate from the common judgment dated 16.11.1989 and as the parties are same, they can be disposed of together.

The common judgment and decrees dated 16.11.1989 in O.S.Nos.30 and 52 of 1984 passed by the learned Subordinate Judge, Gudivada are now sought to be assailed in the instant appeals. The judgment and decree passed in I.A.No.262 of 1992 in O.S.No.52 of 1984 awarding future profits is now being assailed in A.S.No.2315 of 1993.

The facts lie in a narrow compass. O.S.No.30 of 1984 was filed seeking specific performance of the suit agreement of sale dated 1.6.1977 against the sole defendant by name Smt. Movva Naga Siromani. O.S.No.52 of 1984 was filed by the said Movva Naga Siromani seeking the relief of possession of the plaint 'A' schedule mentioned properties from defendants 1 and 2 who are the plaintiff in O.S.No.52 of 1984 and his son. Defendants 2 and 3 have been added subsequently in O.S.No.30 of 1984 consequent upon the death of the 1st defendant. Since the sole plaintiff in O.S.No.52 of 1984 died, her mother was brought on record as her legal representative, as the second plaintiff in that suit. A joint trial was conducted in both the suits by recording the evidence in O.S.No.30 of 1984. The suit for specific performance was filed on the premise that the plaintiff entered into an agreement dated 1.6.1977 with the sole defendant in respect of the plaint schedule property and the defendant agreed to sell the said property for a consideration of Rs.21,600/- and on the date of execution of the sale agreement, the plaintiff paid a sum of Rs.14,000/- as advance sale consideration and the property was delivered to the plaintiff by the defendant. The plaintiff agreed to pay the balance sale consideration of Rs.7,600/- on or before 1.8.1977 and on such payment, the defendant agreed to execute the sale deed in his favour. It was further agreed in between the parties inter se that in the event the plaintiff fails to pay the balance sale consideration of Rs.7,600/- on or before the said date, the plaintiff should pay interest at 12% per annum on the said amount and obtain a sale deed before three years. It is stated that the plaintiff further paid a sum of Rs.7,600/- on 27.3.1978 to the defendant under a receipt. The plaintiff was always ready and willing to perform his part of the contract but the defendant with an evil intention, avoided the execution of the sale deed and left the house of her husband on 1.3.1979 and got a notice dated 5.3.1979 issued suppressing the agreement of sale. A reply was got issued by the plaintiff to the defendant and later filed the suit.

That suit was resisted by filing a written statement by the sole defendant denying the execution of any agreement of sale as alleged in favour of the plaintiff and the receipt of advance sale consideration as well as the subsequent alleged payment on 27.3.1978. The defendant further denied the delivery of property to the plaintiff. It was her further case that her husband, the son of the plaintiff obtained her signatures on some blank papers in or about the month of November, 1976 on the pretext that the said papers were required for filing a petition before the Tahsildar, Gannavaram for seeking exemption from delivering levy paddy and the defendant, therefore, suspected that the plaintiff, in collusion with her husband, fabricated the purported sale agreement and the receipt misusing those blank papers. It was her further plea that she purchased the property in question under a registered sale deed dated 29.4.1974 for Rs.10,800/- from the plaintiff when she and her husband living together at Chilla Boyinapalli and her husband entrusted the suit property to the plaintiff after the sale on an understanding that the plaintiff should cultivate the said land and pay to the defendant the income realized thereon every year. Later, the defendant was deserted by her husband in the first week of January, 1979 and therefore she had t














































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