Back
HIGH COURT OF ANDHRA PRADESH
UMAMAHESHWARAM,KRISHNA RAO, JJ.
Duggirala Sadasiva Vittal
Versus
Bolla Rattain
Appeal No. 752 of 1951 against decree of Sub. J., Eluru, in O. S. No. 135 of 1950.
Decided On : 18-12-1956
SPECIFIC PERFORMANCE - AGREEMENT OF SALE - JOINT FAMILY PROPERTY - LEGAL NECESSITY - CHILD MARRIAGE RESTRAINT ACT - VALIDITY OF MORTGAGE - ORAL PARTITION - READINESS AND WILLINGNESS TO PERFORM CONTRACT - ENTITLEMENT TO SPECIFIC PERFORMANCE.
Fact of the Case:
The plaintiff filed a suit for specific performance of an agreement of sale executed by the 1st defendant on his own behalf and also on behalf of his minor son, the 2nd defendant-appellant. The 1st defendant raised various defenses resisting the plaintiff's suit, including that the agreement of sale was not true, that the contract of sale required the plaintiff to pay an additional sum of Rs. 12,000/- besides discharging the mortgages due on the property, that the plaintiff was not ready and willing to perform her part of the contract, and that specific performance ought not to be decreed. The 2nd defendant pleaded that the contract of sale was not for legal necessity and that the contract should not be enforced. He also alleged that there was a prior oral partition between him and his father and that his share could not be agreed to be sold by his father.
Finding of the Court:
The court found that the suit agreement was true and not ante-dated as alleged by the defendants. It held that the property was the self-acquired property of the father, but that even assuming it was joint family property, the contract of sale was executed to discharge the mortgages due on the property as also for the discharge of the debt due to the 3rd defendant. The court also found that the plaintiff was ready and willing to perform her part of the contract and it was the 1st defendant that defaulted. It negatived the case of the 2nd defendant that there was an oral partition between him and his father.
Issues: 1. Whether the suit property was the separate property of the father or joint family property? 2. Whether the father was competent to enter into the contract of sale and whether the contract was for purposes of legal necessity? 3. Whether the mortgages executed by the father were valid and binding upon the 2nd defendant? 4. Whether the debt due to the mother was a true one? 5. Whether the father was justified in entering into a contract of sale of the entire house though there was legal necessity only to the extent of Rs. 7,700/-? 6. Whether the oral partition set up by the appellant was true? 7. Whether the plaintiff was ready and willing to perform her part of the contract?
Ratio Decidendi: 1. A person might impress his self-acquired or separate property in whole or in part with joint family character. He might throw it into hotchpot or blend it with joint family property or by a declaration of clear intention convert the self-acquired property into Joint family property. 2. The father treated the house as joint family property by including it in the partition deed and taking it for his share and agreeing to pay a sum of Rs. 500/- to the son in lieu of the house. 3. The mortgages executed by the father were valid and binding upon the 2nd defendant as there was no evidence that the mortgagee was ever aware that the daughter for whose marriage the debt was contracted was a minor or that the object of the loan was unlawful. 4. The debt due to the mother was a true one as there was no sufficient reason to disbelieve the evidence of the father and the mother that a sum of Rs. 4,000/- was due to her. 5. The father was justified in entering into a contract of sale of the entire house though there was legal necessity only to the extent of Rs. 7,700/- as there was no evidence that the house was in two separate portions or that it could be sold in two convenient lots. 6. The oral partition set up by the appellant was not true as the ration card clearly showed that the 2nd defendant and his mother were living with the 1st defendant. 7. The plaintiff was ready and willing to perform her part of the contract as she issued notices to the 1st defendant, purchased stamp papers for the document being executed, and clearly set out in the plaint that she was willing to deposit the balance.
Final Decision: The appeal was dismissed with costs of the 1st respondent.
UMAMAHESWARAM, J. : -
The 2nd defendant is the appellant. The suit was filed by the 1st respondent herein for specific performance of an agreement of sale executed by the 1st defendant on his own behalf and also on behalf of his minor son, the 2nd defendant-appellant herein. The agreement was entered into on 22-8-1949 for a sum of Rs. 12,000/-The 1st defendant agreed to sell the house situated in Eluru, West Godavari District. He raised various defences resisting the plaintiffs suit.
He contended that the agreement of sale was not true. He further urged that under the contract of sale a sum of Rs. 12,000/- had to be paid in addition to the plaintiff discharging the mortgages due on the property. It was also stated that the plaintiff was not ready and willing to perform her part of the contract and that specific performance ought not to be decreed. His son, the 2nd defendant, represented by his mothers aunt pleaded that the contract of sale was not for legal necessity and that the contract should not be enforced.
He also alleged that there was a prior oral partition between him and his father and that his share could not be agreed to be sold by his father. The 3rd defendant to the suit was the mother of the 2nd defendant and the 4th wife of the first defendant. Her case was that she obtained a maintenance decree against her husband and that a charge was created over the house. Defendants 4 and 5 were the tenants of the house.
2. The Subordinate Judge of Eluru framed nine issues in the suit. On the evidence he came to the conclusion that the suit agreement was true and not ante-dated as alleged by the defendants. He founded that the property was the self-acquired property of the father. He held that even assuming that it was joint family pro- perty, the contract of sale was executed to discharge the mortgages due on the property as also for the discharge of the debt due to the 3rd defendant.
He held that the plaintiff was ready and willing to perform her part of the contract and it was the 1st defendant that defaulted. He negatived the case of the 2nd defendant that there was an oral partition between him and his father. In the result, he decreed specific performance of the contract of sale as prayed for. The 2nd defendant has consequently referred the appeal.
3. Sri Sankara Sastri, the learned Advocate for the appellant, contended that the Court, below was wrong in holding that the suit property was the separate property of the father. He relied upon the terms of the agreement of sale in which it is recited that for the purpose of discharging the mortgage debt due to Jakka Balanjaneyulu and other sundry debts and for meeting other family expenses, the terraced house belonging to him and his son was sold.
He next invited our attention to partition deed executed between the 1st defendant and his son Rama Rao on 4-11-1935. A reference is made in the partition deed to the mediation effected on 14-9-1955 and the execution of partition lists between the 1st defendant and his son. The house fell to the share of the 1st defendant. Sri Sankara Sastri contended that the father treated the house as joint family property and took the house for his share.
The document that was relied on by the plaintiff for proving that the property was the self-acquired property of the father was Exhibit A-14, a mortgage executed by the 1st defendant on 4-11-1935 in favour of Konduri Gangaiah. In describing the property it is stated that the terraced house was constructed by him personally with his own self-acquired funds on the site purchased by him on 18th November, 1923 from Basavaraju Venkatasubbamma. The sale deeds relating to the suit are marked as Exhibits A. 7 and A. 8.
They do not show whether the consideration was paid out of joint family funds or out of the self-acquisitions of the 1st defendant. The Subordinate Judge relied on the recital in Exhibit A-14 in coming to the conclusion that the property was the self-acquisition of the 1st defendan
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
