PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9791
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY
Second Appeal No.176 of 2012
28-02-2013
V. Sudhakar Naidu
Smt. M. Padmavathamma and another
Counsel for the appellant: Sri N. Ashok Kumar
Counsel for respondent: Sri P. Hemachandra for R-1
<GIST
>HEAD NOTE:
?CASES REFERRED:
AIR 2004 Kerala 155
JUDGMENT:
The sole plaintiff in O.S.No.180 of 2001 on the file of the Additional Senior
Civil Judge, Tirupati is the appellant.
He entered into an agreement of sale dated 11-02-1999 with the
respondents/defendants. He pleaded that the respondents, who are sister and
brother got the suit schedule property in a family partition; evidenced by a
registered partition deed dated
20-06-1992, and that they offered to sell the same for a sum of Rs.4,50,000/-.
Advance of Rs.50,000/- is said to have been paid.
It is stated that the suit schedule property is part of larger extent of Ac.2.24
cents in Sy.No.525/2B of Perur Village, Tirupati Rural Mandal and that the
corresponding share being, 1/21 was agreed to be conveyed by the respondents.
It is alleged that though he was ready and willing to perform his part of
contract, the respondents did not cooperate and accordingly prayed for a decree
for specific performance.
The 2nd respondent remained ex parte, and the suit was contested by the 1st
respondent. She stated that the agreement relied upon by the appellant is
interpolated, fabricated and is unenforceable in law. Obviously, indirectly
admitting the execution thereof, the 1st respondent stated that the contents of
the agreement are incomplete, and that the same is unenforceable in law. She
raised the plea of limitation, and has also stated that the rights, if any,
under the agreement stood forfeited.
The trial Court dismissed the suit, through its judgment dated 31-08-2006.
Aggrieved by the same, the appellant filed A.S.No.140 of 2006 in the Court of
III Additional District Judge, Tirupati. The appeal was dismissed on 04-08-
2010. Hence, this Second Appeal.
Sri N. Ashok Kumar, learned counsel for the appellant submits that once the
respondents did not dispute the execution of the agreement of sale, the suit
ought to have been decreed.
He contends that the property was originally purchased by the father of the
respondents 1 and 2, in the form of an undivided share of 1/24 in Ac.2.24 cents,
and that later on, it was partitioned among the joint family members. Learned
counsel submits that the trial Court and the lower Appellate Court have
concentrated more
upon unnecessary details, than dealing with the actual issue, that is involved
in the matter.
Sri P. Hemachandra, leaned counsel for the 1st respondent, on the other hand,
submits that the agreement, Ex.A-1 was substantially interpolated, not only by
striking of some words, but also in certain other respects. He contends that
the agreement was prepared, giving an indication that the property was jointly
sold by the respondents and their brother, Rudra Deva Reddy and for reasons best
known to them, the respondents did not obtain his signature and struck off his
name. He contends that the description of the property, both in Ex.A-1 and in
the plaint is vague, uncertain and cannot be the subject-matter of a decree, at
all.
The suit for specific performance of an agreement of sale filed by the appellant
herein was opposed by the respondents,
by raising the plea of interpolation and tampering with of the agreement, as
well as its unenforceability. The trial Court framed the following issues, on
the basis of the pleadings:
1. Whether the plaintiff is entitled for specific performance of contract in
pursuance of agreement of sale dated 11.2.1999?
2. Whether the suit agreement is a created one with material alterations?
3. Whether the time is essence of contract of the suit agreement?
4. Whether the suit agreement is unenforceable under law?
5. Whether the suit based on agreement of sale dated 11.2.1999 is barred by
limitation?
On behalf of the appellant, PWs 1 to 4 were examined and Exs.A-1 to A-3 were
filed. On behalf of the respondents, DWs 1 to 3 were examined and Exs.B-1 and
B-2 were filed. On dismissal of the suit, the appellant filed A.S.No.140 of
2006, wherein the following points were framed:
1. Whether the suit agreement dt. 11.2.99 is materially altered and not
enforceable under law?
2. Whether time is the essence of the contract under the suit agreement of sale
in favour of the plaintiff?
3. Whether the plaintiff is entitled for specific performance of contract under
agreement of sale dt. 11.2.99?
The appeal was ultimately dismissed.
Ex.A-1 is the agreement of sale dated 11-02-1999. Though the respondents
resisted the suit by raising several grounds, they did not seriously dispute the
execution thereof. Therefore, it has to be proceeded on the assumption that the
execution of Ex.A-1 is proved. However, a perusal of the said agreement
discloses that there exist several anomalies. In the body of the agreement, it
is mentioned that the property, that is proposed to be sold in favour of the
appellant is jointly held by the respondents, and their brother, Rudra Deva
Reddy.
It appears that the father of the respondents purchased the undivided share of
1/24, in an extent of Ac.2.24 cents,
in Sy.No.525/2B of Perur Village, from his vendor, through sale deed dated 16-
07-1966, marked as Ex.B-2. The record discloses that he got the property
divided, and came into possession of the share, covered by Ex.B-2. However, the
partition of the family of the respondents took place through Ex.B-1, dated 20-
06-1992. A perusal of that document discloses that the division of shares was
mostly in the form of mentioning the value in rupees, and not by metes and
bounds. Obviously, on account of this, the description of the property in the
agreement is made in vague and uncertain terms, as under:
"Chittoor District-Chandragiri Sub District-Tirupathi Rural Mandalam-Perur
Village Accounts-S.No.525/2B, in a total extent of Ac.2.24 cents, in this
undivided 1/24 share, present share of right of 1/21 share of site allotted to
the Defendants bearing Plot No.24 total site".
The same was repeated in the plaint schedule. No boundaries are mentioned, nor
the extent is stated. It is relevant to take note of the requirement under Rule
3 of Order VII C.P.C., which reads:
"O.VII R 3. Where the subject-matter of the suit is immovable property.- Where
the subject-matter of the suit is immovable property, the plaint shall contain a
description of the property sufficient to identify it, and, in case such
property can be identified by boundaries or numbers in a record of settlement or
survey, the plaint shall specify such boundaries or numbers".
The schedule that is furnished in the plaint does not at all conform to or
accord with Rule 3 of Order VII C.P.C. No boundaries are mentioned, much less,
the extent is indicated. The appellant himself was not sure as to whether he
was claiming 1/24, or 1/21 share in the extent, in Sy.No.524/2B, admeasuring
Ac.2.24 cents. It is not even mentioned as to whether the subject-matter of the
agreement is an undivided share, or a definite extent of land. The respondents
1 and 2, no doubt, did not dispute their signatures on Ex.A-1. However, several
circumstances remained unexplained, in relation to Ex.A-1.
The respondents are said to be exclusive owners of the property. However, they
have executed agreement of sale on the basis of an alleged relinquishment by
their brother of his share.
No document, evidencing the same was placed before the Court.
The 1st respondent has three issues.
The agreement was prepared in such a way,
that all the three children of the 1st respondent have figured as vendors.
Not only their names were mentioned,
but also space was provided for signature of all the three.
However, it is only
the respondents 1 and 2 that signed the agreement and the place in between their
signatures is left blank, so much so, the numerical - 2 was struck off.
In the
body of the agreement also, the name of the Rudra Deva Reddy was struck off.
One or two words were added.
No evidence was adduced to establish that these
changes and alterations have taken place with the assent of the parties
concerned.
Obviously, these acts constitute novation of the contract, without
the participation of the other party to it.
It is fairly well settled principle
of law that an agreement becomes unenforceable, if any changes to it are caused by only one of the parties.
Learned counsel for the appellant submits that the brother of the respondents 1
and 2 can be said to have relinquished his share of the property and agreement
can be enforced to the extent of the share of the respondents 1 and 2. He has
placed reliance upon the judgment of the Kerala High Court in Krishnan v. K.S.
Krishnan and others1. That was a case, where, out of the five co-owners, two
have relinquished their shares in favour of the other three, and the latter, in
turn, executed the agreement of sale. There was no dispute as to the
relinquishment. In the instant case, there was not even a plea that the brother
of the respondents 1 and 2 relinquished his share.
There is intrinsic evidence
to contradict this plea, from the fact that the name of Rudra Deva Deddy was
very much mentioned in the agreement, and he was expected to sign it.
The plea of the respondents that time was the essence of the contract was taken
into account by the trial Court and lower Appellate Court, with reference to the
decided cases. Further, a finding was recorded to the effect that the appellant
failed to prove that he is ready and willing to perform his part of the
contract. Being a question of fact, that cannot be re-agitated in a Second
Appeal.
Apart from the reasons mentioned above, the principle underlying Section 22 of
the Specific Relief Act needs to be taken into account.
The relief of specific
performance of an agreement of sale is purely equitable in nature and it is only
when the Court is satisfied, that a clear case is made out for grant of the
relief, and there are no counterbalancing factors, that such a relief can be
granted.
The various issues discussed above would certainly have a bearing upon the
exercise of discretion, by the Court.
Denial of relief of specific performance
in a case of this nature, where,
a) there is total uncertainty about the description of the property,
b) the agreement was altered in several respects by the appellant, and c) there
is failure of the appellant to prove his readiness and willingness to perform
his part of the contract; can not at all be treated as contrary to law.
No substantial question of law arises for consideration.
The Second Appeal is accordingly dismissed.
The miscellaneous petition filed in this Second Appeal shall also stand disposed
of.
There shall be no order as to costs.
_______________________
L. NARASIMHA REDDY, J
Dt.28-02-2013
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY
Second Appeal No.176 of 2012
28-02-2013
V. Sudhakar Naidu
Smt. M. Padmavathamma and another
Counsel for the appellant: Sri N. Ashok Kumar
Counsel for respondent: Sri P. Hemachandra for R-1
<GIST
>HEAD NOTE:
?CASES REFERRED:
AIR 2004 Kerala 155
JUDGMENT:
The sole plaintiff in O.S.No.180 of 2001 on the file of the Additional Senior
Civil Judge, Tirupati is the appellant.
He entered into an agreement of sale dated 11-02-1999 with the
respondents/defendants. He pleaded that the respondents, who are sister and
brother got the suit schedule property in a family partition; evidenced by a
registered partition deed dated
20-06-1992, and that they offered to sell the same for a sum of Rs.4,50,000/-.
Advance of Rs.50,000/- is said to have been paid.
It is stated that the suit schedule property is part of larger extent of Ac.2.24
cents in Sy.No.525/2B of Perur Village, Tirupati Rural Mandal and that the
corresponding share being, 1/21 was agreed to be conveyed by the respondents.
It is alleged that though he was ready and willing to perform his part of
contract, the respondents did not cooperate and accordingly prayed for a decree
for specific performance.
The 2nd respondent remained ex parte, and the suit was contested by the 1st
respondent. She stated that the agreement relied upon by the appellant is
interpolated, fabricated and is unenforceable in law. Obviously, indirectly
admitting the execution thereof, the 1st respondent stated that the contents of
the agreement are incomplete, and that the same is unenforceable in law. She
raised the plea of limitation, and has also stated that the rights, if any,
under the agreement stood forfeited.
The trial Court dismissed the suit, through its judgment dated 31-08-2006.
Aggrieved by the same, the appellant filed A.S.No.140 of 2006 in the Court of
III Additional District Judge, Tirupati. The appeal was dismissed on 04-08-
2010. Hence, this Second Appeal.
Sri N. Ashok Kumar, learned counsel for the appellant submits that once the
respondents did not dispute the execution of the agreement of sale, the suit
ought to have been decreed.
He contends that the property was originally purchased by the father of the
respondents 1 and 2, in the form of an undivided share of 1/24 in Ac.2.24 cents,
and that later on, it was partitioned among the joint family members. Learned
counsel submits that the trial Court and the lower Appellate Court have
concentrated more
upon unnecessary details, than dealing with the actual issue, that is involved
in the matter.
Sri P. Hemachandra, leaned counsel for the 1st respondent, on the other hand,
submits that the agreement, Ex.A-1 was substantially interpolated, not only by
striking of some words, but also in certain other respects. He contends that
the agreement was prepared, giving an indication that the property was jointly
sold by the respondents and their brother, Rudra Deva Reddy and for reasons best
known to them, the respondents did not obtain his signature and struck off his
name. He contends that the description of the property, both in Ex.A-1 and in
the plaint is vague, uncertain and cannot be the subject-matter of a decree, at
all.
The suit for specific performance of an agreement of sale filed by the appellant
herein was opposed by the respondents,
by raising the plea of interpolation and tampering with of the agreement, as
well as its unenforceability. The trial Court framed the following issues, on
the basis of the pleadings:
1. Whether the plaintiff is entitled for specific performance of contract in
pursuance of agreement of sale dated 11.2.1999?
2. Whether the suit agreement is a created one with material alterations?
3. Whether the time is essence of contract of the suit agreement?
4. Whether the suit agreement is unenforceable under law?
5. Whether the suit based on agreement of sale dated 11.2.1999 is barred by
limitation?
On behalf of the appellant, PWs 1 to 4 were examined and Exs.A-1 to A-3 were
filed. On behalf of the respondents, DWs 1 to 3 were examined and Exs.B-1 and
B-2 were filed. On dismissal of the suit, the appellant filed A.S.No.140 of
2006, wherein the following points were framed:
1. Whether the suit agreement dt. 11.2.99 is materially altered and not
enforceable under law?
2. Whether time is the essence of the contract under the suit agreement of sale
in favour of the plaintiff?
3. Whether the plaintiff is entitled for specific performance of contract under
agreement of sale dt. 11.2.99?
The appeal was ultimately dismissed.
Ex.A-1 is the agreement of sale dated 11-02-1999. Though the respondents
resisted the suit by raising several grounds, they did not seriously dispute the
execution thereof. Therefore, it has to be proceeded on the assumption that the
execution of Ex.A-1 is proved. However, a perusal of the said agreement
discloses that there exist several anomalies. In the body of the agreement, it
is mentioned that the property, that is proposed to be sold in favour of the
appellant is jointly held by the respondents, and their brother, Rudra Deva
Reddy.
It appears that the father of the respondents purchased the undivided share of
1/24, in an extent of Ac.2.24 cents,
in Sy.No.525/2B of Perur Village, from his vendor, through sale deed dated 16-
07-1966, marked as Ex.B-2. The record discloses that he got the property
divided, and came into possession of the share, covered by Ex.B-2. However, the
partition of the family of the respondents took place through Ex.B-1, dated 20-
06-1992. A perusal of that document discloses that the division of shares was
mostly in the form of mentioning the value in rupees, and not by metes and
bounds. Obviously, on account of this, the description of the property in the
agreement is made in vague and uncertain terms, as under:
"Chittoor District-Chandragiri Sub District-Tirupathi Rural Mandalam-Perur
Village Accounts-S.No.525/2B, in a total extent of Ac.2.24 cents, in this
undivided 1/24 share, present share of right of 1/21 share of site allotted to
the Defendants bearing Plot No.24 total site".
The same was repeated in the plaint schedule. No boundaries are mentioned, nor
the extent is stated. It is relevant to take note of the requirement under Rule
3 of Order VII C.P.C., which reads:
"O.VII R 3. Where the subject-matter of the suit is immovable property.- Where
the subject-matter of the suit is immovable property, the plaint shall contain a
description of the property sufficient to identify it, and, in case such
property can be identified by boundaries or numbers in a record of settlement or
survey, the plaint shall specify such boundaries or numbers".
The schedule that is furnished in the plaint does not at all conform to or
accord with Rule 3 of Order VII C.P.C. No boundaries are mentioned, much less,
the extent is indicated. The appellant himself was not sure as to whether he
was claiming 1/24, or 1/21 share in the extent, in Sy.No.524/2B, admeasuring
Ac.2.24 cents. It is not even mentioned as to whether the subject-matter of the
agreement is an undivided share, or a definite extent of land. The respondents
1 and 2, no doubt, did not dispute their signatures on Ex.A-1. However, several
circumstances remained unexplained, in relation to Ex.A-1.
The respondents are said to be exclusive owners of the property. However, they
have executed agreement of sale on the basis of an alleged relinquishment by
their brother of his share.
No document, evidencing the same was placed before the Court.
The 1st respondent has three issues.
The agreement was prepared in such a way,
that all the three children of the 1st respondent have figured as vendors.
Not only their names were mentioned,
but also space was provided for signature of all the three.
However, it is only
the respondents 1 and 2 that signed the agreement and the place in between their
signatures is left blank, so much so, the numerical - 2 was struck off.
In the
body of the agreement also, the name of the Rudra Deva Reddy was struck off.
One or two words were added.
No evidence was adduced to establish that these
changes and alterations have taken place with the assent of the parties
concerned.
Obviously, these acts constitute novation of the contract, without
the participation of the other party to it.
It is fairly well settled principle
of law that an agreement becomes unenforceable, if any changes to it are caused by only one of the parties.
Learned counsel for the appellant submits that the brother of the respondents 1
and 2 can be said to have relinquished his share of the property and agreement
can be enforced to the extent of the share of the respondents 1 and 2. He has
placed reliance upon the judgment of the Kerala High Court in Krishnan v. K.S.
Krishnan and others1. That was a case, where, out of the five co-owners, two
have relinquished their shares in favour of the other three, and the latter, in
turn, executed the agreement of sale. There was no dispute as to the
relinquishment. In the instant case, there was not even a plea that the brother
of the respondents 1 and 2 relinquished his share.
There is intrinsic evidence
to contradict this plea, from the fact that the name of Rudra Deva Deddy was
very much mentioned in the agreement, and he was expected to sign it.
The plea of the respondents that time was the essence of the contract was taken
into account by the trial Court and lower Appellate Court, with reference to the
decided cases. Further, a finding was recorded to the effect that the appellant
failed to prove that he is ready and willing to perform his part of the
contract. Being a question of fact, that cannot be re-agitated in a Second
Appeal.
Apart from the reasons mentioned above, the principle underlying Section 22 of
the Specific Relief Act needs to be taken into account.
The relief of specific
performance of an agreement of sale is purely equitable in nature and it is only
when the Court is satisfied, that a clear case is made out for grant of the
relief, and there are no counterbalancing factors, that such a relief can be
granted.
The various issues discussed above would certainly have a bearing upon the
exercise of discretion, by the Court.
Denial of relief of specific performance
in a case of this nature, where,
a) there is total uncertainty about the description of the property,
b) the agreement was altered in several respects by the appellant, and c) there
is failure of the appellant to prove his readiness and willingness to perform
his part of the contract; can not at all be treated as contrary to law.
No substantial question of law arises for consideration.
The Second Appeal is accordingly dismissed.
The miscellaneous petition filed in this Second Appeal shall also stand disposed
of.
There shall be no order as to costs.
_______________________
L. NARASIMHA REDDY, J
Dt.28-02-2013
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