Andhra High Court
THE HON’BLE SRI JUSTICE P.S.NARAYANA
C.C.C.A.No.103 of 1993
19-06-2007
K.Shyamsunder (died) per L.Rs. 2 to 7 (already on record)
vs
N.Ramachandraiah and others
Counsel for appellants : Sri M.V.S. Suresh Kumar
Counsel for respondents : Sri V.L.N.G.K. Murthy
:JUDGMENT:
1. Facts in nutshell: The tenant claiming to be an agreement holder of the
property in question instituted the suit O.S.No.456/83 on the file of I
Additional Judge, City Civil Court, Hyderabad praying for the relief of specific
performance directing defendants 1 to 3 to execute registered sale deed and 4th
defendant also to join them in execution of the said sale deed so as to comply
with the statutory requirements and to declare the sale deeds dated 20-10-1981
and 11-6-1982 executed by 5th defendant in favour of the 4th defendant as
void, ineffective and inoperative and for certain other ancillary reliefs.
Defendants 1 to 3 filed written statement virtually admitting the stand taken by
the plaintiff. Defendants 4 and 5 filed separate written statements resisting
the same. The learned Judge having settled the Issues, recorded the evidence of
P.W.1 and P.W.2 and D.W.1 and D.W.2, marked Exs.A-1 to A-14 and Exs.B-1 to B-12
and ultimately decreed the suit in part directing execution of a registered sale
deed in relation to 3/4th of the undivided share in the plaint schedule property
in favour of the plaintiff after receiving the balance sale consideration within
one month from the date of the Judgment with certain other further ancillary
observations. Aggrieved by the same the matter was carried by way of Appeal,
the present Appeal, C.C.C.A.No.103/93, and inasmuch as the 1st appellant and the
4th respondent died, appellants 2 to 7 and respondents 2 and 3 who had been
already on record had been recorded as the legal representatives by the order
dated 28-5-2007. Even during the pendency of the suit O.S.No.456/83, the 4th
defendant Smt.P.N.Sumathi died and the legal representatives, defendants 6 to
11, were added as per orders in I.A.No.299/93 dated 23-3-1993.
2. Pleadings of the respective parties: For the purpose of convenience, the
parties hereinafter would be referred to as shown in O.S.No.456/83.
Averments made in the plaint : The plaintiff pleaded in the plaint as hereunder
:
The plaintiff occupied the house property bearing Municipal No.3-5-353
situate at Vithalwadi, Narayanaguda, Hyderabad consisting of two rooms, one
hall, one verandah with frontage, kitchen, bathroom and two latrines, totally
admeasuring about 125 sq. yards as a tenant of Smt.K.Manibai alias K.Maniamma
w/o.Sri K.Srinivasa Rao, on or about 8-3-1973. The said Smt.K.Maniamma had sold
one room and a piece of land adjoining the aforesaid property to provide funds
for her unemployed son K.Shyamsunder, the 5th defendant, with the understanding
and family settlement that after her death the rest of her property, namely, the
suit property under the occupation and possession of the plaintiff, should go to
her daughters, defendants 1 to 3 and Smt.K.Maniamma died on 26-8-1981. It was
further pleaded that as against this background, to the knowledge of the 4th
defendant and her husband Sri P.V.Narsing Rao, the plaintiff entered into an
agreement of sale on 11-9-1981 with defendants 1 to 3 to purchase the suit
property for a price of Rs.60,000/- and paid an advanced of Rs.6000/- on the
same day. The possession of the suit property by the plaintiff since the date
of the aforesaid sale agreement dated 11-9-1981 had been as an agreement holder
and in part performance of the said agreement. Although aware of all these
facts, the 4th defendant got issued to the plaintiff a notice dated 5-1-1982
with false allegations claiming to be the purchaser and called upon the
plaintiff to vacate the suit property. The plaintiff sent a reply notice dated
28-1-1982 and the same was received by the 4th defendant through her Counsel on
6-2-1982. From the notice dated 16-8-1982, the plaintiff learnt that the suit
property had been conveyed to the 4th defendant by the 5th defendant through two
sale deeds dated 20-10-1981 and 11-6-1982. The allegation that the
4th defendant purchased the suit property from the 5th defendant after due
enquiries and that the latter was alleged to had been bequeathed the same by his
mother through a Will is totally false and invented to cover up the invalid,
illegal and fraudulent transaction. It was further pleaded that the aforesaid
two sale deeds are void, sham, bogus, invalid and illegal and brought into
existence by defendants 4 and 5 with ulterior motives and deserve to be set
aside as such. It was further specifically pleaded that the plaintiff had been
ready and willing ever since 11-9-1981, the date of the suit agreement, to
perform his part of the contract by paying the vendors, defendants 1 to 3, the
balance of purchase money and take a regular registered sale deed in his name
and at his cost as to stamp and registration charges.
Averments made in the written statement of defendants 1 to 3 :
Defendants 1 to 3 admitted the averments in para-3 of the plaint and further the
5th defendant agreed at the time of sale of one room and the adjacent place
separately by two sale deeds by Smt.Maniamma, their mother. It was further
admitted that the said properties were sold to provide funds to the 5th
defendant who was unemployed, two his share in the properties belonging to
Smt.Maniamma and the rest of the property i.e., the suit property, should go to
the defendants 1 to 3 after the death of Smt.Maniamma separately. The room
along with open space was sold to the 4th defendant who had constructed one room
on that open piece of land for his tailoring shop. Defendants 1 to 3 further
admitted that they had entered into an agreement with the plaintiff on 11-9-1981
to sell the suit property to him for a sale consideration of Rs.60,000/- and
received an advance of Rs.6000/- from him on the same day and passed a receipt
in favour of the plaintiff. The plaintiff who was already living in the suit
premises as tenant was put in possession of the suit property as agreement
holder in part performance of the said sale agreement. Subsequent to 11-9-1981
the defendants 1 to 3 received a further sum of Rs.7400/- in different
instalments from the plaintiff towards sale consideration. It was further
pleaded that defendants 1 to 3 had no knowledge of the notices said to have been
exchanged between the plaintiff and the 4th defendant. The 5th defendant has no
right or authority to sell the suit property to the 4th defendant. The 5th
defendant received the sale proceeds of one room and open place sold by their
mother towards his share in the property left by Maniamma and hence the 5th
defendant has no right, title or interest in the suit property. The defendants
1 to 3 are not aware of any Will alleged to have been executed by their mother
late Maniamma. It was further pleaded that the defendants 1 to 3 could not
execute and register the sale deed in favour of the plaintiff as he issued a
notice to them on 19-7-1982 informing them of the sale deed said to have been
executed by the 5th defendant in favour of the 4th defendant in respect of the
suit property which had cast a cloud on the title of these defendants to the
suit property. The defendants 1 to 3 asserted that they have full right and
title and absolute authority to sell the suit property and the 5th defendant has
no right, title or interest in the suit property and these defendants are
willing to execute and register the sale deed in favour of the plaintiff after
receiving the balance sale consideration of Rs.46,600/- from him.
Averments made in the written statement of 4th defendant : The 4th defendant
denied the allegations made in the plaint and had further pleaded that the
plaintiff entered into the property as a tenant and still continues as a tenant.
The property was sold to the 4th defendant by Smt.Mariyamma solely to meet the
responsibilities, maintenance and to meet the necessities of the whole family.
It is admitted that the 5th defendant was unemployed at that time and there was
no other source of income excepting the rent for the maintenance of the family
and the 4th defendant was informed that due to burden to repay the loans which
were taken by her from others, it was deemed proper by Smt.Maniamma to sell the
front room along with the open space to the 4th defendant to meet her
necessities of the family. There was no occasion to enter into an agreement of
sale with the plaintiff and there was no occasion to have information or
knowledge to Sri P.V.Narsingh Rao regarding any agreement of sale as there was
never any agreement of sale with the plaintiff. The fact is that Smt.Maniamma
in her life time had entered into an agreement to sell the rear portion of the
house bearing M.C.H.No.3-5-533, Vittalwadi, Narayanguda, Hyderabad. The
beneficiary executed the sale deed and concluded the agreement of sale entered
into by the deceased Maniamma. As such the question of entering into an
agreement with the plaintiff is utterly false and concocted and the suit is
frivolous with the intention to vex the defendants with sole intention to harass
the defendants 4 and 5 and also to make illegal gains. The 4th defendant had
executed the sale deeds on the referred dates and they are true and the
allegations set off by the plaintiff are all false and taken up only with the
intention to harass the parties and give vent to his bitterness against the
defendants 4 and 5. It is amazing to note that the plaintiff himself in his own
writing had admitted the ownership and title in the name of the 5th defendant in
the rental receipts issued to him for the rents paid in the month of September
1981 onwards which amply reveal the fact of the 5th defendant being the owner
and it goes to prove that the Will executed by Smt.Maniamma was within the
knowledge and information of the plaintiff and it was duly acted upon. The
plaintiff had not come to the Court with clean hands and also never offered to
deposit the agreed alleged price consideration for sale in the Court to show his
bona fides and the means of it. The plaintiff though a Government servant had
adopted illegal means and abused the law and had instigated the defendants 1, 2
and 3 under the greed or unlawful gains. The plaintiff and the defendants 1, 2
and 3 had colluded with ill-motives and the signatures of the defendants 1 to 3
are only with intent to create false case under this pretext as without the
collusion the plaintiff shall not have any ground for filing the suit and as
such had entered into a conspiracy to deprive and cause loss to the defendants 4
and 5 from their legal rights and to cause injury to them beyond repair and also
with ill-motives to make wrongful gains. There is no cause of action for the
plaintiff to file the suit. The relief of specific performance being value for
Rs.60,000/- is not disputed but the other reliefs are not valued properly and no
Court fee is paid and hence the suit be dismissed with exemplary costs as the
defendants 4 and 5 had been unnecessarily dragged to the Court and made to run
from post to pillar to meet the allegations and fictitious creation of the
plaintiff.
Averments made in the written statement of the 5th defendant : It was pleaded
that the description of the parties is not correct as incorrect residential
address of the parties had been given with bad intention to facilitate
plaintiff’s concocted case. The contents of para-3 of the plaint had been
denied except to the fact that the plaintiff entered the suit property as a
tenant. It was further pleaded that still the plaintiff continues to be a
tenant. It is true that Smt.Maniamma died on 26-8-1981 and it was denied
that late Smt.Maniamma sold a room and piece of land adjacent to it to provide
funds to the 5th defendant’s needs. On the other hand, late Smt.Maniamma sold
the property to meet the domestic needs of her family as a whole. There was no
question of the 5th defendant staking any claim to the property during the life
time of Maniamma nor did late Maniamma apportioned the suit property as
contended by the plaintiff by way of any settlement. On the other hand late
Maniamma, the mother of the defendants in her Will dated 17-5-1977 wished that
the 5th defendant should lookafter the 3rd defendant, namely Nirmala, being
estranged from her husband. The 5th defendant is faithfully carrying out the
wishes of his mother and the 3rd defendant-Smt.Nirmala continues to stay with
him as admitted by the plaintiff in his legal notice dated 19-7-1982. The
contents of para-4 of the plaint had been denied and it was further pleaded that
the 5th defendant is not aware of any transactions between the plaintiff and the
defendants 1 to 3 nor is he aware that the 4th defendant’s husband viz., Sri
P.V. Narsing Rao had the knowledge of the same. It was denied that the plaintiff
resided in the suit house as an agreement holder. The plaintiff’s residence in
the suit premises was as the tenant of the 5th defendant which fact was admitted
by the plaintiff himself vide rental receipt Nos.34, 35, 36 and 37 respectively
dated 2-9-1981, 1-10-1981, 1-11-1981 and 3-12-1981 which are all in the
plaintiff’s own hand-writing. It was further pleaded the 5th defendant is not
fully aware of the exchange of various legal notices between the plaintiff and
the 4th defendant, except that the 4th defendant who is the purchaser informed
the 5th defendant about the plaintiff creating trouble in taking possession of
the property, the 4th defendant having filed an eviction petition before the
Rent Controller. It was further pleaded that it is true that the 5th defendant
as the beneficiary and executor of late Maniamma’s Will had sold the suit
premises in two stages vide sale deeds dated 20-10-1981 and 11-6-1982.
The plaintiff’s contention that the Will of late Maniamma is fabricated by the
4th defendant and the 5th defendant had been vehemently denied. On the other
hand it was pleaded that the plaintiff who entered the suit premises posing as a
tenant with good intent to the mother of the 5th defendant, now wants to usurp
the property by abusing his social status and creating rift between the 5th
defendant and his sisters. Hence the plaintiff’s suit itself is filed with
ulterior motives and deserves to be dismissed in limini. It was further pleaded
that any transaction regarding the suit property between the plaintiff and
defendants 1 to 3 is not binding on the 5th defendant who, as the executor of
late Maniamma’s Will is the title holder of the suit property under Law and
hence the same amounts to criminal manipulations for which the plaintiff will be
held responsible.
3. Issues settled by the trial Court :
1. Whether the agreement of sale relief prayed upon by the plaintiff with
defendants 1 to 3 is valid and binding ?
2. Whether the payments pleaded by the plaintiff are true ?
3. Whether the plaintiff is entitled for the reliefs of cancellation of sale
deeds dated 20-10-1981 and 11-6-1982 ?
4. Whether the plaintiffs are entitled for the relief of specific performance of
contract of sale ?
5. To what relief ?
4. Oral and documentary evidence available on record :
Witnesses examined for plaintiff :
P.W.1 – N.Ramachandraiah
P.W.2 – K.Laxmaiah
Witnesses examined for defendants :
D.W.1 – P.V. Narasinga Rao
D.W.2 – K.Chandraiah
Exhibits marked for plaintiff :
Ex.A.1 – Notice dated 5-1-1982
Ex.A.2 – Copy of reply dated 28-1-1982
Ex.A.3 – Postal acknowledgement
Ex.A.4 – Copy of notice dated 19-7-1982
Ex.A.5 – Postal acknowledgement
Ex.A.6 – Postal acknowledgement
Ex.A.7 – Postal acknowledgement
Ex.A.8 – Returned covers
Ex.A.9 – Notice dated 16-8-1982
Ex.A.10 – Extract of sale deed
Ex.A-11 – Extract of sale deed
Ex.A-12 – Extract of sale deed
Ex.A-13 – Agreement of sale
Ex.A-14 – Certified copy of order in R.C.No.1562/86 on the file of IV
Additional Rent Controller, Hyderabad.
Exhibits marked for defendants :
Ex.B-1 – Counter foil rent receipt
Ex.B-2 – Signature on counter foil rent receipt
Ex.B-3 – Counterfoil rent receipt
Ex.B.4 – Counterfoil rent receipt
Ex.B.5 – Signature on counterfoil rent receipt
Ex.B.6 – Will deed dated 17-5-1977
Ex.B.7 – Copy of English translation of Ex.B.6
Ex.B.8 – Sale deed dated 1-12-1980
Ex.B.9 – Registered sale deed dated 11-6-1982
Ex.B.10 – Registered sale deed
Ex.B.11 – Plan
Ex.B-12 – Sale deed dated 1-12-1980
5. Findings recorded by the trial Court in brief : The trial Court on
appreciation of the evidence available on record, disbelieved the stand taken by
the plaintiff relating to the family settlement to the effect that the subject
matter of the suit had absolutely fallen to the share of defendants 1 to 3, but
however, inasmuch as defendants 1 to 3 admitted the claim of the plaintiff, the
learned Judge was inclined to grant the relief to the extent of 3/4th share.
The learned Judge also on appreciation of the evidence available on record
recorded the findings disbelieving Ex.B-6 Will and consequently came to the
conclusion that inasmuch as the mother died intestate, the daughters and the son
would be the sharers and they are entitled to sell their respective shares.
Several circumstances why the trial Judge was not inclined to believe Ex.B-6
also had been narrated while appreciating the evidence of D.W.2, the attestor of
the said document.
6. Submissions of Sri M.V.S. Suresh Kumar : Sri M.V.S. Suresh Kumar, the
learned Counsel representing the appellants had taken this Court through the
respective pleadings of the parties and also the evidence available on record
and would comment that this is a typical case where the tenant who was not
inclined to vacate the premises, being aggrieved of the sale deeds executed by
the real owner of the property thought of creating agreement of sale in question
Ex.A-13 in connivance with the sisters of the true owner, defendants 1 to 3 in
the suit. The learned Counsel pointed out that the rent receipts in relation to
which P.W.1 was cross-examined at length, Exs.B-1 to B-5, would clearly go to
show that Ex.A-13 was brought into existence only with a view to defeat the sale
transactions, Exs.B-9 and B-10. The learned Counsel also pointed out that the
flimsy reasons which had been recorded by the learned trial Judge cannot be
taken into serious consideration while deciding the validity or otherwise of
Ex.B-6. The learned Counsel also explained the circumstances under which Ex.B-8
was executed in relation to a portion of the property and also the Will Ex.B-6
being specifically referred to in the recitals of Exs.B-9 and B-10. The learned
Counsel also had taken this Court through the contents of Ex.A-13 and would
submit that on the face of the document, it is clear that the same is suspicious
and an ante-dated one. The mere fact that there is no proper understanding
between the brother and sisters cannot be taken advantage of and this sitting
tenant continues to be the tenant only and nothing beyond thereto and the status
of the tenant is not changed at all since the plaintiff cannot be said to be an
agreement holder. The learned Counsel also pointed out that the mere pleading,
the written statement filed by defendants 1 to 3, may not be sufficient and none
of them had been examined. Further, Ex.A-13 suffers from several legal
infirmities. The learned Counsel also made elaborate submissions relating to the
findings recorded by the trial Judge in relation to the family settlement and
would submit that inasmuch as the family settlement pleaded by the plaintiff had
been disbelieved, in view of the fact that the plaintiff approached the Court
for the relief of specific performance with unclean hands, on that ground itself
the plaintiff should have been non-suited. The learned Counsel specifically
pointed out to the specific findings recorded by the learned Judge and would
maintain that this finding in a way had attained finality since no independent
Appeal as such had been filed by the plaintiff aggrieved by that portion of the
decree negativing a portion of the relief. The learned Counsel also pointed out
to the admissions made by P.W.1 in the witness box in relation to the rent
receipts, Exs.B-1 to B-5. The learned Counsel also would submit that in the
light of the clear evidence of D.W.1, the 6th defendant in the suit, the husband
of the purchaser, the 4th defendant in the suit and also in the light of the
evidence of D.W.2, the attestor, the learned Judge ought to have recorded
positive findings in relation to the validity of Ex.B-6 and should have
dismissed the suit in toto. The learned Counsel also would further maintain that
the validity or otherwise of Ex.B-6 may not help much in deciding the suit of
the plaintiff praying for the relief of specific performance since even if Ex.B-
6 to be disbelieved, the family members would be entitled to the respective
shares and it is a matter which may have to be decided in between the heirs of
the deceased mother and in view of the same the relief of specific performance
to be negatived in the facts and circumstances of the case. Several other
factual details in the evidence of P.W.1 and D.W.1 also had been pointed out.
7. Submissions of Sri V.L.N.G.K. Murthy: Sri V.L.N.G.K. Murthy, the learned
Counsel representing the 1st respondent/plaintiff made the following
submissions. The learned Counsel would submit that though it is a suit for
specific performance, the entire case revolves around whether the 5th defendant
is having absolute title in relation to the plaint schedule property or not and
whether the Will Ex.B-6 relied upon to be believed or not and in the light of
the same, even though it is a suit for specific performance, especially in the
light of the stand taken by the defendants 1 to 3 in the written statement
admitting the claim of the plaintiff, the validity of Ex.B-6 may have to be gone
into. The learned Counsel also pointed out the suspicious circumstances, the
stamp having not been purchased either by the testatrix or on her behalf and
several other further suspicious circumstances in relation thereto. The learned
Counsel also would maintain that the 5th defendant was not examined. Further,
the 4th defendant also was not examined. The G.P.A. holder, the husband of the
4th defendant, the 6th defendant alone was examined as D.W.1 and the evidence of
D.W.2 is highly insufficient in relation to Ex.B-6. The Counsel in all fairness
would submit that it is true that the family arrangement had been disbelieved
and it is true that if Maniamma died intestate and not testate, the brother and
the sisters i.e., the son and the daughters of the said Maniamma automatically
would be entitled to their respective shares. Further, the learned Counsel
pointed out that the plea of the 5th defendant that Nirmala to reside with the
5th defendant and the 5th defendant to look after her, the said Nirmala also was
a party to the agreement of sale in question, Ex.A-13 and in this view of the
matter also the stand taken by the 5th defendant may have to be viewed with
suspicion. Further, the learned Counsel pointed out that the Will Ex.B-6 to be
disbelieved since the active participation of the beneficiary, the legatee, the
5th defendant, is clearly apparent and he had not entered into the witness box
to dispel these suspicious circumstances. The learned Counsel also would
maintain that the contention that the plaintiff approached the Court with a
false case and with unclean hands, these aspects cannot be raised by the
defendants 4 and 5 who have no locus standi to question the agreement of sale
executed by defendants 1 to 3, the sisters of the 5th defendant, the other heirs
of the deceased mother. When that being so, the decree and Judgment made by the
Court of first instance cannot be found fault and the Appeal is liable to be
dismissed.
8. Points for consideration :
1. Whether the trial Court is justified in decreeing the suit for specific
performance to an extent of 3/4th share in the facts and circumstances of the
case ?
2. Whether the validity or otherwise of the Will in question Ex.B-6 to be gone
into in detail in a suit for specific performance of this nature instituted by
the agreement holder in the facts and circumstances of the case ?
3. If so, to what relief the parties would be entitled to ?
9. Points 1 and 2 : For the purpose of convenience, it would be appropriate
to discuss Point Nos.1 and 2 together to avoid repetition of findings or
overlapping findings. The respective pleadings of the parties, the evidence
available on record, the findings recorded by the trial Court already had been
specified supra.
10. This is a suit for specific performance with ancillary reliefs filed
by the tenant. In a case of this nature, the conduct of the contesting parties
may have to be carefully considered. Here is a plaintiff/tenant claiming to be
an agreement holder and taking a specific stand that he ceased to be a tenant
and is continuing in possession in part performance of the agreement of sale –
Ex.A-13. No doubt, defendants 1 to 3 admitted the claim putforth by the
plaintiff. Defendants 4 and 5 contested the matter on the ground that the
mother of the 5th defendant in fact died testate and thus the 5th defendant
became the absolute owner and by virtue of the alienations made in favour of the
4th defendant, the 4th defendant became the absolute owner of the property in
question. The evidence of P.W.1 who is a Government employee, shown to be a
Deputy Executive Engineer, R & B, at the relevant point of time, is to the
following effect. This witness, P.W.1, deposed that he has been residing in the
suit house from March 1973 onwards and from March 1973 till 11-9-1981 he
stayed in the house as tenant under one Maniamma who died on 26-8-1981.
Defendants 1 to 3 are the daughters of the said Maniamma and he purchased the
suit schedule property from defendants 1 to 3 under an agreement of sale dated
11-9-1981 for a sum of Rs.60,000/- and on the date of the said agreement of sale
relating to the schedule property he paid a sum of Rs.6000/- to the defendants 1
to 3 out of the sale consideration of Rs.60,000/-. P.W.1 also deposed that the
1st defendant scribed the said agreement of sale and Madhusudhan and Laxmaiah
were present at the time when he obtained agreement of sale and paid Rs.6000/-
out of the sale consideration amount of Rs.60,00/-. Eversince the agreement of
sale he has been continuing in possession as purchaser. Subsequent to the
filing of the suit he paid another sum of Rs.7000/- and odd to defendants 1 to
3, the executants of the agreement of sale. P.W.1 also deposed that the 4th
defendant and her husband are aware of the purchase of the suit schedule
property by him from defendants 1 to 3 under the agreement of sale in question
and he informed them prior to the obtaining of the suit agreement of sale from
defendants 1 to 3 that he is going to purchase the suit property from defendants
1 to 3, the owners of the property. P.W.1 also deposed that even after he
purchased t suit schedule property under the agreement of sale in question, the
4th defendant and her husband were aware of the same and the 4th defendant
issued a registered notice Ex.A-1 to him on 5-1-1982 demanding to pay
rents for the schedule property and Ex.A-2 is the reply wherein P.W.1 had
stated his case. The postal acknowledgement is marked as Ex.A-3. Thereafter he
gave a registered notice to all the defendants on 19-7-1982, the office copy of
which is marked as Ex.A-4. Ex.A-5 is the acknowledgement relating to the 1st
defendant; Ex.A.6 is the postal acknowledgement relating to the 2nd defendant;
Ex.A.7 is the postal acknowledgement relating to the 4th defendant; Exs.A-8 and
A-9 are the returned registered notices addressed to defendants 3 and 5. The 4th
defendant gave a reply to Ex.A.4 which was marked as Ex.A-10. The registration
extracts of the two sale deeds under which the 4th defendant purchased the suit
schedule property from the 5th defendant were marked as Exs.A-11 and A-12.
Ex.A-13 is the suit agreement of sale. Thus, it is stated that P.W.1 has always
been ready and willing to perform his part of the contract. In the cross-
examination P.W.1 deposed that he cannot say the dates when he paid the amount
of more than Rs.11000/- to defendants 1 to 3 in the suit subsequent to the date
of Ex.A-13. He had obtained receipts relating to the payment of the amount to
the defendants 1 to 3, but he had not filed the same in the suit. The amount
paid by him is in part satisfaction of the sale consideration. In cross-
examination further this witness deposed the role of one Madhusudhan and the
bargain was settled within a week or 10 days prior to the date of Ex.A-13
agreement of sale. The negotiations relating to the purchase of the suit house
by him had taken place during a period of one week or ten days prior to the date
of Ex.A-13. This witness also deposed that after the 1st defendant made the
above offer, he informed the same to the 5th defendant, the brother of the 1st
defendant and requested him to sign the sale deed going to be executed by
defendants 1 to 3 in his favour in respect of the schedule property as an
attestor, but the 5th defendant refused. Even prior to the aforesaid offer was
made to him by the 1st defendant he is aware that the 5th defendant has no
interest or share in the plaint schedule house as Maniamma used to say that as
the 5th defendant sold away some shops and land he is not having any share in
the suit schedule house and the property belongs to her daughters defendants 1
to 3. Prior to the obtaining of Ex.A-13 he did not consult any Advocate and he
consulted only Madhusudhan. This witness also further deposed that he had not
seen any document which discloses that the 5th defendant is not having any share
in the suit schedule property. The documents which he had perused discloses
that the suit schedule property belongs to Maniamma only. He obtained Ex.A-13
after due deliberations and the same was not obtained in haste. This witness
also deposed that on the advice of Madhusudhan he obtained Ex.A-13 on white
paper in stead of stamped paper. Madhusudhan also informed him that they can
pay necessary stamp duty and penalty in Court. Subsequent to the death of
Maniamma he had obtained Ex.A-13 from defendants 1 to 3 and further this witness
deposed that when he paid certain instalments at the rate of Rs.300/- per month
as requested by defendants 1 to 3 to the 5th defendant and the 5th defendant
brought the rent receipt books and he signed the rent receipts and he did so for
three months. In the counterfoils of the rent receipts which P.W.1 signed it
was not mentioned that he was paying those amounts out of Rs.1000/- by way of
instalments to be paid to the 5th defendant on the request of defendants 1 to 3.
This witness in fact had not seriously disputed the said rent receipts and
elaborate cross-examination was made in relation thereto. P.W.1 also deposed
that in Ex.A-13 there was no mention about delivery of possession of the suit
schedule house to him as he was in possession of the same as a tenant even by
that date. In Ex.A-13 it is not mentioned that he can continue in the suit
schedule house without paying any rent from the date of Ex.A-13. No doubt, the
suggestions put to this witness in relation to the specific defence taken by
defendants 4 and 5 in the written statement had been specifically denied. In the
cross-examination by the 5th defendant also several admissions were made by
P.W.1.
11. P.W.2 is one Laxmaiah who deposed that in the agreement of sale in
question Ex.A-13, this witness and Madhusudhan figured as attestors and he no
doubt deposed that on the date of agreement of sale relating to the suit
schedule property, the consideration was agreed to be Rs.60,000/- and on that
date a sum of Rs.6000/- had been paid. This witness was cross-examined at
length. This witness deposed that Ex.A-13 was written some where at about 9
a.m. and it was executed in the month of September 1981. The 1st defendant
wrote Ex.A-13 at the dictation of Madhusudhan Rao and while Madhusudhan Rao was
dictating to the 1st defendant he came to know the contents of Ex.A-13. This
witness also was cross-examined at length relating to the topography, the nature
of the house and other particulars. The suggestions put to this witness had
been specifically denied.
12. As against this evidence, the evidence of D.W.1, the husband of the
4th defendant, the G.P.A. holder of the 4th defendant, is available on record,
who is the 6th defendant in the suit. This witness in detail deposed in
relation to the Will deed dated 17-5-1977 which was given to the 4th defendant
by the 5th defendant in the suit which was executed by Maniamma, the mother of
the 5th defendant and also the defendants 1 to 3 in the suit. The said Will
deed was marked as Ex.B.6. The English translation of Ex.B.6 was marked as
Ex.B.7. This witness also deposed that Maniamma executed the sale deed dated 1-
12-1980 in favour of the 4th defendant in the suit and the same was marked as
Ex.B.8. Ex.B.8 relates to a portion of the house belonging to Maniamma and the
same is adjacent to the suit schedule property purchased by the 4th defendant
from the 5th defendant in the suit. This witness, D.W.1 also deposed that the
5th defendant executed a registered sale deed Ex.B.9, dated 11-6-1982 in respect
of a portion of the suit house in favour of the 4th defendant. The 5th
defendant sold the remaining portion of the aforesaid house in favour of the 4th
defendant by virtue of a registered sale deed dated 20-10-1981, marked as Ex.B-
10. The plan was marked as Ex.B-11. Thus, this witness deposed that the 4th
defendant purchased the house portions in Exs.B-9 and B-10 from the 5th
defendant in the suit as he is the absolute owner. This witness also deposed
about the 4th defendant filing a Rent Control case on the file of IV Additional
Rent Controller, Hyderabad against the plaintiff in the suit for eviction and
other particulars. This witness was cross-examined at length both by defendants
1 to 3 and also by the plaintiff and several of the suggestions put this witness
had been specifically denied.
13. Apart from this evidence of D.W.1, the evidence of D.W.2 also is
available on record who had deposed that he knows Maniamma, the mother of the
defendants 1 to 3 and 5 and he purchased the plot of land from her for
construction of a mulgi for himself and the plot is adjacent to the house of
Maniamma. Manayya called D.W.2 about 9 or 10 years ago stating that Maniamma
wants his presence as she was executing a Will. The signature on Ex.B.6 as the
first attestor is that of this witness, D.W.2. D.W.2 no doubt deposed that
Maniamma affixed her thumb impression on Ex.B.6 and after the execution of the
Will they attested the Will. The scribe of the said Will is Manayya. The
contents of the Will had been read and explained in his presence. This witness
was cross-examined in relation to the stamp paper which had been used and the
suggestions put to this witness that this is a fabricated document had been
specifically denied. This is the evidence available on record.
14. At the outset, it is pertinent to note that this is a suit for
specific performance and certain ancillary reliefs prayed for by the plaintiff
who was incidentally a tenant at the relevant point of time and who claims to be
continuing in possession of the property in part performance of the agreement of
sale in question, Ex.A-13. In a suit for specific performance, the bona fides
of the plaintiff and also whether the plaintiff approached the Court with clean
hands or unclean hands, may have to be seriously considered. Even a cursory
glance of Ex.A-13 would go to show that this document cannot be taken as a true
and genuine document despite the fact that the defendants 1 to 3 had not
resisted the claim of the plaintiff in relation thereto for the reasons
specified infra.
15. The first aspect to be considered is that the plaintiff/P.W.1 is not
an illiterate. He is a well educated man and a Government employee at the
relevant point of time. No doubt, he had deposed that he had obtained the
permission to enter into this transaction but nothing had been placed on record.
Be that as it may, such a person obtaining a document of this nature, Ex.A-13,
at any stretch of imagination cannot be believed, that too on the advise of one
Madhusudhan. Yet another important aspect is that he came with a specific stand
that by virtue of the family arrangement or family settlement, inasmuch as a
portion of the property already had been alienated and the 5th defendant being
an unemployee the same had been adjusted towards his share, he is not entitled
to any share in the property and that is the reason why he entered into this
bargain with the defendants 1 to 3 being the absolute owners of the rest of the
property, the subject matter of the suit. This stand was disbelieved even by
the learned trial Judge after recording reasons in detail which in fact in a way
attained finality since the decree was made relating to only 3/4th share. Apart
from this aspect of the matter, the evidence of P.W.1 also cannot be believed
for the reason that he continued to pass rent receipts even after the alleged
agreement of sale coming into existence. Virtually all these rent receipts,
Exs.B-1, B-2, B-3, B-4 and B-5 were admitted but a stand had been taken that as
requested by defendants 1 to 3, an amount of Rs.1000/- to be paid in three
instalments, the said amounts had been paid. This explanation given by P.W.1
also cannot be believed. Except the evidence of P.W.2 there is no other
evidence available on record. P.W.2 is an interested witness as can be seen
from the evidence of P.W.2 himself. P.W.1 who had been a Government employee at
the relevant point of time, at any stretch of imagination, cannot be believed
that while entering into a transaction, could have entered into a transaction of
this nature, Ex.A-13. It is no doubt true that the defendants 1 to 3 had not
denied the claim putforth by the plaintiff at all. It is pertinent to note
though it is stated that the 1st defendant had scribed Ex.A-13, at least the 1st
defendant was not examined and none of the parties i.e., defendants 1 to 3, had
been examined. Apart from this aspect of the matter, in the light of the series
of events, the dates in the counterfoils Exs.B-1 to B-5 and also the date of
agreement of sale in question Ex.A-13 and further Exs.B-9 and B-10, there cannot
be any doubt whatsoever that inasmuch as there was pressure from the 4th
defendant on this tenant to vacate the premises since it was to the dislike of
the tenant to vacate the premises, may be, the tenant might have thought of this
Ex.A-13, taking advantage of certain differences between defendants 1 to 3 with
the 5th defendant, their brother. This is the only conclusion at which this
Court can arrive at in the peculiar facts and circumstances. The plea of part
performance also cannot be believed in the light of the recitals in Ex.A-13.
Apart fromthis aspect of the matter, the advance amount paid also is a paltry
sum of Rs.6000/- even as per the evidence of P.W.1. Hence, this Court is of the
considered opinion that Ex.A-13 is not a genuine or a bona fide transaction and
the same was thought of by P.W.1 only to get over the eviction action if any
which may be initiated by the 4th defendant on the strength of Exs.B-9 and B-10.
16. Unfortunately, the litigation does not stop there. It is true that
except the evidence of D.W.2 there is no other evidence available in relation to
Ex.B.6, Will deed, said to have been executed by Maniamma. The 5th defendant
also was not examined and none concerned with Ex.B.6 had been examined. Though
the 4th defendant was not examined, the husband of the 4th defendant i.e., 6th
defendant, and incidentally the G.P.A. holder was examined as D.W.1 and no doubt
he had knowledge about all the facts and hence the evidence of D.W.1 would
assume some importance. Whatever the reason may be, the recitals in Ex.B.8, the
stamp used in relation to Ex.B.6 and relating to the nature of evidence which
had been adduced, certain findings had been recorded by the learned trial Judge.
It is pertinent to note, in a suit of this nature, the principal question to be
decided would be whether the plaintiff is entitled to the relief of specific
performance or not and when the same to be negatived for the reasons specified
above, the question whether Ex.B.6 is true, valid and binding and whether by
virtue of Ex.B.6, can it be said that the 5th defendant became the absolute
owner of the total property and whether by virtue of Ex.B.9 and Ex.B-10, the 4th
defendant became the absolute owner of the total property or only entitled to a
share, these questions would fall into insignificance for the reason that this
would be a fight between the vendor-5th defendant, of the 4th defendant under
Ex.B.9 and Ex.B-10 on one hand and his sisters, defendants 1 to 3, on the other
hand. Hence, it is left open that those parties to agitate their rights, if
any, if they are so advised. Inasmuch as they are arrayed as defendants, the
principal question i.e., whether Maniamma in fact died testate or intestate, is
left open. Inasmuch as the principal relief and the ancillary reliefs prayed
for by the 1st respondent/plaintiff cannot be granted on the strength of such
document Ex.A-13 and since this Court is of the clear considered opinion that
the present litigation is only a speculative litigation initiated by the tenant
for the reason of warding off the blow of eviction proceedings if any to be
taken by the purchaser, the appellants are bound to succeed.
17. Point No.3 : In the light of the findings recorded above, the Appeal is
allowed, with costs throughout, leaving the question whether Maniamma died
intestate or testate, open.