Andhra Pradesh High Court – Amravati
Shaik Mariyam Khatoon (Died) And 5 … vs Yalamanchili Rajani on 6 September, 2024
APHC010322092011
IN THE HIGH COURT OF ANDHRA
PRADESH
[3365]
AT AMARAVATI
(Special Original Jurisdiction)
FRIDAY ,THE SIXTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
FIRST APPEAL NO: 536/2011
Between:
Shaik Mariyam Khatoon (died) And 5 Others ...APPELLANT(S)
AND
Yalamanchili Rajani ...RESPONDENT
Counsel for the Appellant(S):
1. N SRIRAM MURTHY
Counsel for the Respondent:
1. RAMALAKSHMANA REDDY SANEPALLI
The Court made the following:
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A.S.No.536 of 2011
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
APPEAL SUIT No.536 of 2011
JUDGMENT:
This Appeal under Section 96 of the Code of Civil
Procedure (C.P.C.) is filed against the judgment dated
11.11.2010 of learned Senior Civil Judge, Mangalagiri in
O.S.No.71 of 2008. The said suit was for specific performance of
an agreement for sale and in the alternative for compensation.
The intending purchaser filed the said suit as against the vendors.
After due trial, the suit was decreed in favour of the purchaser.
Aggrieved defendants/vendors preferred this appeal. The plaintiff
in the suit is the sole respondent in this appeal.
2. An unregistered, non-possessory agreement for sale dated
29.08.2003 fell in controversy. Smt. Shaik Mariyam Khatoon
stated to have executed the said agreement for sale in favour of
Smt. Yalamanchili Rajani. Ac.2.20 cents of agricultural land in
Rayapudi Village of Thulluru Mandal, Guntur District in
D.No.112/1 is the property that was agreed to be sold. The
agreed sale consideration is Rs.8,91,000/-. Rs.2,00,000/-
towards advance sale consideration was stated to have been
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A.S.No.536 of 2011
paid and received on the date of agreement. The outer date for
payment of the balance sale consideration of Rs.6,91,000/- was
on or before 20.12.2003. After taking measurements the sale
consideration would be adjusted. If the intending purchaser could
not pay the balance sale consideration on or before the date
fixed, she shall pay 12% interest over the balance sale
consideration and obtain the registered sale deed from the
vendor. Within the date fixed/20.12.2003 the balance sale
consideration was not paid. On 09.01.2004 the intending
purchaser issued notice to the vendor. On 19.01.2004 the vendor
issued reply notice to the intending purchaser. Thereafter plaint
was presented on 23.02.2004.
3. Before adverting to the facts on record, the following
principles of law are required to be noticed:
Sale is a transfer of ownership in exchange for a price paid
or promised or part-paid and part-promised. A contract for the
sale of immovable property is a contract that the sale of such
property shall take place on terms settled between the parties. It
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A.S.No.536 of 2011does not, of itself, create any interest in or charge on such
property1.
Every person competent to contract and entitled to
transferable property, or authorised to dispose of transferable
property not his own, is competent to transfer such property either
wholly or in part, and either absolutely or conditionally, in the
circumstances, to the extent and in the manner, allowed and
prescribed by any law for the time being in force.2 What is to be
noticed is it is not only the title holder who can transfer property
but also one who is authorized by title holders is also entitled to
transfer the property.
Every seller of immovable property is bound to disclose to
the buyer any material defect in the property or in the seller’s title
thereto of which the seller is, and the buyer is not, aware, and
which the buyer could not with ordinary care discover.3 It is also
to be noticed in a suit by a vendor for specific performance of an
agreement for sale specific performance cannot granted if the
vendor contracted to sell the property knowing that he/she does
1
Section 54 of the Transfer of Property Act
2
Section 7 of the Transfer of Property
3
Section 55(1)(a) of the Transfer of Property Act
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A.S.No.536 of 2011not have title to the property.4 This principle is not applicable to
purchasers of the property when they sue for specific
performance. Law is that vendor is not permitted to set up defect
of title as a defence in a suit for specific performance.
4. The disputed agreement for sale was exhibited as Ex.A.1
during trial. It is mentioned therein that the executant Smt. Shaik
Mariyam Khatoon holds full and complete rights and possession
over the property and that she intended to sell it to meet her
family needs and Smt. Yalamanchili Rajani agreed to purchase it.
It is also mentioned that since the intending purchaser requested
the executant, she agreed to get her two daughters and execute
the regular registered sale deed in favour of the purchaser after
the purchaser pays the entire balance sale consideration. It is
further mentioned that the property originally belonged to Sri Md.
Khasim and he died and the executant got the property after his
death. A perusal of this document shows that the executant
subscribed her thumb impression. It also bears the signatures of
four witnesses who attested it. There is also the signature of the
scribe.
4
Section 17 of the Specific Relief Act, 1963
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5. The intending purchaser-Yalamanchili Rajani got issued a
lawyer’s notice dated 09.01.2004 as per Ex.A.2 to the vendor. In
this it is mentioned that she has been requesting the vendor to
receive the balance sale consideration and register the regular
sale deed in terms of the agreement for sale, but the vendor was
avoiding it on one pretext or the other and therefore, by this
notice the vendor was called upon to receive the balance sale
consideration and execute the registered sale deed.
6. In response to it, through a lawyer, the executant of
agreement for sale got issued a reply notice as per Ex.A.3. A
perusal of this notice discloses that the vendor admitted the
bargain between the parties and admitted the execution of
agreement for sale and the total sale consideration and about the
advance of Rs.2,00,000/- that was received. It is further stated
that before the outer date fixed/20.12.2003 the intending
purchaser did not come forward and did not co-operate with the
executant to have the registered sale deed after paying the
balance sale consideration. It is also mentioned that the
executant was orally demanding the purchaser to materialize the
deal. Since the intending purchaser did not come forward, she
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A.S.No.536 of 2011
committed breach of it. In those circumstances the agreement
could not bind the vendor anymore.
7. All the above referred documents and contents of those
documents preceded the institution of the suit.
8. Smt. Yalamanchili Rajani, who intended to purchase the
property and who obtained Ex.A.1-agreement for sale, filed the
suit. Initially the suit was filed only for the prayer of specific
performance of agreement for sale but thereafter it was amended
and a prayer for compensation was claimed as an alternative
relief. The plaint was filed as against the executant-Smt. Shaik
Mariyam Khatoon showing her as defendant No.1. It was also
filed against her two daughters showing them as defendant No.2
and defendant No.3. Subsequently, the two sons of defendant
No.1 and the widow of deceased son of defendant No.1 were
brought on record and were arrayed as defendant Nos.4 to 6
respectively.
9. Plaint refers to the contents of agreement for sale and
mentions that plaintiff has always been ready and willing to
perform her part of the contract but the regular registered sale
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deed could not be obtained because of the conduct of the
defendants. It is stated that the plaintiff had come to know that
the defendants were also trying to avoid the sale showing that
one of her sons/defendant No.5 was sued by some other person
for recovery of debt and a part of the subject matter land was
stated to have been attached. Plaint shows that father of the
plaintiff is a rich man and owns lands and the agreement
mentioned property is adjacent to it. It was in those
circumstances he wanted to purchase this property in the name
of the plaintiff. Plaint further avers that all the children of
Smt. Shaik Mariyam Khatoon/defendant No.1 represented that on
the death of the original owner Sri Shaik Md.Khasim, his
widow/defendant No.1, his daughters/defendant Nos.2 and 3 and
his sons/defendant Nos.4 and 5 and the widow of another
deceased son/defendant No.6 had shares and they had all gifted
all their shares to defendant No.1 on 29.01.1998 through a Hiba
and all that was done in compliance with the wishes of the
original owner Sri Shaik Md.Khasim.
10. Defendants joined the contest and filed written statements.
In the written statements it is mentioned that defendant No.1
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owns only 1/8th share in the property and the remaining shares
belonged to her children and grandchildren. The worth of the
property was Rs.20,00,000/-. It is alleged that through
misrepresentation the plaintiff obtained agreement for sale dated
28.09.2003. Plaintiff did not negotiate with other legal heirs to
purchase their shares. Defendant No.1 admitted receipt of
Rs.2,00,000/- towards advance sale consideration. It is further
mentioned that pattadar passbook stands in the name of
defendant No.1 for the property. However, that was obtained with
the consent of all the other legal heirs. Defendant No.1 asserted
that she has been in possession of the said property but states
that she holds possession for herself and on behalf of others.
That the father of the plaintiff misrepresented to her that the
property was worth only Rs.8,00,000/- or Rs.9,00,000/- and got
the agreement for sale from her. That the agreement for sale is
vitiated by fraud and misrepresentation and that it does not bind
the defendants. She admitted having received notice from the
plaintiff and admitted having got issued her reply notice by
furnishing all the instructions to her advocate. It is also stated
that defendant No.1 had only 1/8th share and the remaining 7/8th
shares belonged to the other legal heirs. Since defendant No.1 is
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A.S.No.536 of 2011
not the absolute owner, she would not alienate the property by
herself. The real value of the property was Rs.20,00,000/-, but
for a very far lesser price the agreement was obtained. The
plaintiff has not been ready and willing to perform her part of the
contract. The collusive Court proceedings stated in the plaint are
incorrect. The plaintiff did not issue any notice to other
defendants. That the notice issued by the plaintiff does not
mention Hiba. Finally, defendants sought dismissal of the suit.
12. After the amendment of plaint seeking alternative relief of
compensation, an additional written statement was filed by
defendant No.4 and a memo adopting the same was filed by
defendant Nos.2, 3, 5 and 6. It has to be recorded that
subsequent to filing her written statement defendant No.1 died.
By the time the suit went on for trial all her legal representatives
were already on record.
13. On the above pleadings, the learned trial Court settled the
following issues and additional issues:
1. Whether the plaintiff is entitled for specific performance of
agreement of sale as prayed for?
2. To what relief?
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Additional Issues:
1. Whether the plaintiff is entitled a decree for Rs.8,00,000/-
towards compensation against the defendants for breach
of the contract of sale dated 29.08.2003 with future
interest at the rate of 12% p.a. from the date of the suit to
till the date of realization?
2. To what relief?
14. Plaintiff testified as PW.1 and got examined one of the
attestors as PW.2 and the scribe as PW.3. The agreement for
sale is Ex.A.1. Her notice is Ex.A.2 and the reply notice from
defendant No.1 is Ex.A.3. Defendant No.4 alone testified as
DW.1. No documents were adduced in evidence for defendants.
15. After hearing arguments on both sides and from the oral
and documentary evidence available on record, the learned trial
Court recorded its findings that:
The plaintiff has always been ready and willing to perform
her part of the contract, and the breach of contract was on
part of defendant No.1.
The contentions about misrepresentation and fraud were
incorrect and had no factual basis.
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A.S.No.536 of 2011 Execution of Ex.A.1 and its contents stood proved.
That the father of the plaintiff testified as PW.2 (in fact
PW.2 is one of the attestors of Ex.A.1 and not the father of
plaintiff).
Defendants have exclusive knowledge of title over their
property and they are estopped from speaking contrary to
Ex.A.1 and their Ex.A.3-reply notice.
16. After recording the above findings, the learned trial Court
found justice on part of the plaintiff and granted the relief of
specific performance in the following terms:
“In the result, the suit is decreed with costs directing
the defendants 2 to 6 to execute a registered sale deed in
respect of plaint schedule property by performing specifically
the agreement of sale dated 29.08.2003 in favour of the
plaintiff within three months and deliver vacant possession of
the schedule property, after receiving balance sale
consideration of Rs.6,91,000/- with interest at the rate of 12%
p.a. from 20.12.2003 till performance of agreement.”
17. Coming to the alternative relief, it stated that since the
primary relief was granted, there was no need to embark upon
any discussion concerning the said alternative relief.
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A.S.No.536 of 2011
18. Sri N.Srirama Murthy, the learned counsel for appellants
and Sri R.N.Hemendranath Reddy, the learned counsel for
respondent submitted arguments and both sides cited legal
authorities.
19. In this appeal serious objections are raised and the
judgment of the trial Court is impugned. The thrust of the
arguments rest on two principal contentions.
That the executant of Ex.A.1 was not the full owner of the
property and there are other legal heirs and they did not
execute Ex.A.1-agreement for sale and those who are not
parties to the agreement for sale cannot be directed to
execute registered sale deed in terms of Ex.A.1. That the
trial Court completely erred in appreciating the facts and
law.
That in every suit for specific performance the plaintiff must
show readiness and willingness from the time of
agreement till the time of evidence and the material on
record would show that the plaintiff was not ready and
willing and therefore, the discretionary relief of specific
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A.S.No.536 of 2011
performance ought not to have been granted by the trial
Court.
The further arguments are that the father of the plaintiff is
the one who bargained and got Ex.A.1 and he is a material
witness and he did not testify and that must be considered
adverse to the case of plaintiff and suit ought to have been
dismissed. It is also argued that the Hiba pleaded in the
plaint is not proved.
20. As against that, the respondent/plaintiff contends that it is
defendant No.1 who alone is the owner and all the other legal
heirs together had given away the property to defendant No.1 and
accordingly, defendant No.1 executed the agreement for sale.
That there are enough pleadings on record and enough evidence
on record showing continuous readiness and willingness on the
part of the plaintiff. That the misrepresentation and fraud having
been alleged by the appellants were never proved and they did
not even prove the value of the property which they claimed as
the real worth of the property. That the daughters of defendant
No.1 did not depose in the case and thereby they showed that
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A.S.No.536 of 2011
they had already given away their rights to their mother and
execution of Ex.A.1 by their mother is valid.
21. The following points fall for consideration in this appeal:
“1. Whether Ex.A.1-agreement for sale cannot be
specifically enforced on the ground that the
executant was not the exclusive owner of the
subject matter property or that the agreement was
obtained by misrepresentation or fraud?
2. Whether the respondent/plaintiff has not been ready
and willing to perform her part of the contract and
therefore not entitled to obtain the decree for
specific performance?
3. Whether the impugned judgment of the trial Court is
erroneous on facts or law requiring interference in
this appeal?
POINT No.1:
22. The premise on which the suit was laid was that the
property exclusively belonged to the deceased first appellant-
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A.S.No.536 of 2011
Smt. Shaik Mariyam Khatoon. As one could see from the
pleadings and evidence on both sides, the parties to the suit are
not related to one another. Plaintiff is resident of Chanda Nagar,
Rangareddy District, Hyderabad. The defendants are residents
of various places in Andhra Pradesh. The property situates in
Rayapudi Village of State of Andhra Pradesh. It is common
ground on both sides that the property originally belonged to Sri
Md. Khasim. He died in the year 1997. He was survived by his
wife/defendant No.1 and two daughters/defendant Nos.2 and 3
and two sons/defendant Nos.4 and 5 and the widow of another
deceased son/defendant No.6. Defendants claimed that on the
death of the original owner all of them succeeded and accordingly
the widow of the deceased who is defendant No.1 had only 1/8 th
share and the remaining 7/8th share belonged to the other legal
heirs. It is also undisputed that Ex.A.1-agreement for sale was
executed by defendant No.1 who is stated to be holding only 1/8th
share and not by the remaining legal heirs. It is in the context of
the above facts the enforceability of Ex.A.1 fell for consideration.
The sale consideration mentioned in Ex.A.1 is Rs.8,91,000/-.
While cross-examining PW.1, it was suggested that it was worth
Rs.25,00,000/-. In the written statement filed by defendants its
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worth is mentioned as Rs.20,00,000/-. DW.1 in his evidence
stated that by the time of Ex.A.1 it was worth Rs.20,00,000/-. By
the time he gave evidence it was worth Rs.50,00,000/-. The
value of the property as was thought of by defendants was
suggested to PW.1 during cross-examination and she denied it as
false. Nothing prevented the defendants from furnishing
valuation certificate of the property by adducing it as evidence.
That was not done. Defendants did not produce any other
witness to show the real value of the property in and around that
area. Thus, except making bald allegations the defendants did
not choose to disclose to the Court by any tangible evidence
about the worth of the property. Thus, there was no material on
record to think that the property was worth Rs.20,00,000/- or
Rs.25,00,000/- or Rs.50,00,000/-. Contents of Ex.A.1 indicate
that the executant agreed to sell it for Rs.8,91,000/-. As per its
recitals that was the worth of the property. In Ex.A.3-reply notice
given by the executant no other value of the property was
mentioned. The change in the value of the property was first time
pleaded in the written statement and as stated earlier that stood
not proved. In such circumstances the value of the property as
mentioned in Ex.A.1 must be taken as correct. If that is so, it has
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to be recorded that there was no misrepresentation of value of
the property. There is one more reason that can be added to it.
If the value of the property is taken to be Rs.25,00,000/- then 1/8th
share of defendant No.1 comes to Rs.3,12,500/-. It is contended
in her written statement that she executed it only when it was
represented to her that the purchaser would bargain with other
sharers and purchase their shares. If that is true, her 1/8th share
in Rs.25,00,000/- being only Rs.3,12,500/- and not Rs.8,91,000/-
is indicative of the fact that she was the full owner of it and not a
mere sharer as otherwise such sale consideration at
Rs.8,91,000/- could not have been mentioned. Her plea in the
written statement is a clear ploy to avoid the contractual
obligation. These facts would make it crystal clear that there was
no misrepresentation or fraud played by the plaintiff with
reference to the value of the property. The bargain was settled
for the correct value of the property. These facts would also give
rise to a point that the contention of the defendants that
defendant No.1 was not the exclusive owner is an afterthought
and that was taken to avoid the bargain.
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A.S.No.536 of 2011
23. Recitals in Ex.A.1 show that defendant No.1 is the
exclusive owner and exclusive possessor of the property. The
pleadings of defendants and the admissions made by DW.1
during his cross-examination show that defendant No.1 has been
in possession of this property. Thus, the plaintiff when bargained
with defendant No.1 and obtained Ex.A.1 in which document
defendant No.1 has recorded that the property has been in her
exclusive possession, it is right on part of the plaintiff to believe
the other recitals in Ex.A.1 wherein defendant No.1 claimed that
she has been the exclusive owner of this property. DW.1 in his
cross-examination stated that defendant No.1 and all the other
legal representatives have been living together. It has been seen
that in terms of Section 55 of the Transfer of Property Act, if the
vendor knows the defect in her title she should disclose it to the
purchaser. Ex.A.1 does not mention that the property belongs to
some other sharers also. Be that as it may. Since it is contended
on her behalf that she is illiterate, one should see a little further.
DW.1 in his cross-examination stated that as all of them and
defendant No.1 were living together and they were informed by
defendant No.1 that she had executed Ex.A.1-agreement for sale
in favour of the plaintiff. This evidence of DW.1 shows that this
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disclosure by defendant No.1 occurred soon after execution of
Ex.A.1. If defendant No.1 was not the exclusive owner of the
property, her children were expected to question her as to why
did she enter into Ex.A.1-agreement for sale agreeing to sell the
whole property to the plaintiff. Evidence of DW.1 does not show
that he or other defendants ever questioned defendant No.1 in
that regard. DW.1 further admitted that he and other sharers
never issued any notices to plaintiff on knowing about Ex.A.1.
Thus, despite knowledge of the fact that defendant No.1 executed
Ex.A.1, none of the sharers raised any question is a sure
indication to show that they did not hold those shares anymore
and they were all bestowed on defendant No.1.
24. While cross-examining DW.1 he was asked about Ex.A.3-
reply notice from defendant No.1. He stated that the said reply
notice was drafted on their instructions. That means all the other
alleged legal heirs together along with defendant No.1 instructed
their lawyer to issue the reply notice. At paragraph No.7 of her
written statement defendant No.1 stated, “For the notice issued
on behalf of the plaintiff, this defendant informed her advocate the
above said facts and requested him to reply accordingly.” In the
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A.S.No.536 of 2011
earlier paragraph, she mentioned the value of the property as
Rs.20,00,000/- and misrepresentation and fraud and about her
owning only 1/8th share and the existence of 7/8th share with other
legal heirs of her deceased husband etc. Now when one looks at
Ex.A.3-reply notice, it is at once clear that this Ex.A.3-reply notice
does not even whisper about other sharers and their shares and
about the ownership of defendant No.1 only for 1/8th share.
There is also clear omission about the misrepresentation or fraud
and about the real value of the property etc. This Ex.A.3-reply
notice being issued at the instructions of all the defendants when
it does not contain any whisper of the rights of other defendants
over this property, it is at once clear that it is defendant No.1
alone who was the owner of the property and accordingly she
made such a recital in Ex.A.1 and that was surely believed by the
plaintiff.
25. It is mentioned in the written statement of defendants and it
is also deposed by DW.1 that it was defendant No.1 who has
been in possession of the property and who was given pattadar
passbooks by the Revenue Authorities. Thus, for anyone to
purchase the property he or she would find defendant No.1
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A.S.No.536 of 2011
holding possession of the property and holding revenue entries in
her favour. In such circumstances when such an individual
represents that she owns the property, it would naturally be
believed by the intending purchaser. To be precise, the
pleadings and the evidence of PW.1 is that it was only because
defendant No.1 represented to her that she has been the
exclusive owner of the property, the deal was settled and Ex.A.1
was obtained. From the discussion made so far, it could be
stated that defendant No.1 is the exclusive owner and execution
of Ex.A.1 by her is valid and it must be enforced. Even if the
other defendants held any shares they by their demonstrated
conduct disclosed that they hold no rights, and the property
belonged to defendant No.1 only. They are estopped from
contending with anything contrary to it.
26. The evidence of PW.1 would disclose and a perusal of
Ex.A.1 would disclose that it was attested by two sons and the
widow of the deceased son of defendant No.1. This Ex.A.1 was
shown to DW.1 and he admitted that it bears the signatures of
himself and that of his brother and that of his sister-in-law/wife of
the deceased brother of DW.1. It is already seen that soon after
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Ex.A.1, as per the evidence of DW.1, she and other sharers had
come to know about the execution of Ex.A.1. In the written
statements of defendants, they denied attestation of this
document. But in the cross-examination, DW.1 admitted having
attested Ex.A.1. Thus, known falsehood was pleaded and known
falsehood was spoken to by the defendants. What is to be noted
is that the evidence of PWs.1, 2 and 3 and the admissions of
DW.1 show that the sons and widow of the deceased son of
defendant No.1 were very much present at the time of Ex.A.1 and
they had full knowledge of execution of Ex.A.1 by defendant
No.1. If plaintiff had knowledge that there are other sharers,
these three persons who attested Ex.A.1 would have been asked
by her to join the execution of Ex.A.1. The very fact that she did
not ask them to join as executants is a sure indication that she
accepted the statement of defendant No.1 that she alone is the
exclusive owner of the property. However, her prudence made
her obtain the attesting signatures of the sons and widow of pre-
deceased son of defendant No.1. There was still a lingering
doubt in the mind of plaintiff and therefore, it is mentioned in
Ex.A.1 by defendant No.1 that defendant No.1 would register the
sale deed along with her two daughters. Ex.A.1 says that
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A.S.No.536 of 2011
defendant No.1 would join her daughters only because the
plaintiff asked for it. Thus, the recital is crystal clear that
defendant No.1 knew very well that she alone was the owner of
the property, but to satisfy the doubts of plaintiff, she promised
that she would join her daughters for the regular registered sale
deed. It was well within the competence of the daughters/
defendant Nos.2 and 3 to come and depose that their mother was
not the exclusive owner, and she never told them anything about
Ex.A.1 or her desire to join then in execution of regular registered
sale deed. The fact remains that defendant Nos.2 and
3/daughters did not testify before the trial Court. Reasons were
not offered explaining this failure. It is in these circumstances
one has to see about hiba that is pleaded in the plaint. Plaintiff
being stranger had no knowledge of hiba and her knowledge is
only from what was informed to her by the defendants. Among
Mohammadans, conferring of rights by hiba is recognized and
that remained undisputed. Contention of appellants is that hiba is
not proved. It is to state that all the reasons mentioned earlier in
this judgment about the defendants are in tune with hiba and
therefore, there was no burden on plaintiff to prove it any further.
The upshot of the above discussion is that it is defendant No.1
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and defendant No.1 alone who holds the subject matter property,
and she executed the Ex.A.1-agreement for sale and therefore,
this is an enforceable agreement for sale. All the other legal heirs
of the original owner as well as defendant No.1 are all aware of
these facts and it was only for that reason Revenue Authorities
granted pattadar passbook in the name of defendant No.1 alone
and they knew very well and therefore they did not take any
contrary plea in their Ex.A.3-reply notice and in fact they showed
their support to their mother and attested Ex.A.1. By their
participation in attesting Ex.A.1 and in instructing their counsel in
giving Ex.A.3-reply notice, they are estopped from contending
anything contrary to it.
The learned counsel for appellants cited the following
rulings:
1. AIR 2022 SC 1640 wherein it was held that no one can
confer a better title than what he himself had.
2. (1989) 3 SCC 287, 2000 (5) ALT 759 and AIR 2001
Gujarat 90 wherein it was held that specific performance
can be decreed only against the executant of the
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A.S.No.536 of 2011contract having right to dispose of the suit property.
One sharer cannot transfer the shares of other share
holders.
In the case at hand, it is seen that executant of Ex.A.1 is the full
owner of the property. Therefore, Ex.A.1 is valid and is
enforceable. All the above rulings stand in tune with this.
3. Learned counsel for appellants cited 2016 (3) ALD 351
and 2011 (4) ALD 577, AIR 1989 SC 1269, 2003 Law
Suit (P&H) 868. In these rulings it was held that there is
no presumption that the attesting witnesses of a
document shall be assumed to be aware of the contents
of the document. A witness cannot become a party to
the transaction and cannot be made to comply with the
terms of the contract.
4. Learned counsel for respondent cited 2022 (2) ALD 339.
In this it was held that if the attestor of the document has
in existing interest in the property dealt with in the
document, it has been always the case that this
attestation has been taken in order to bind him as to the
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A.S.No.536 of 2011
correctness of the recitals therein. Such attestor is
estopped by his conduct. It is to state that the facts on
hand are governed by this principle.
5. By the very purport of the above rulings cited for the
appellants, one would notice that the facts on record
show full knowledge of facts to the attesting witness
then the situation is different. In the case at hand, it is
never a case of any presumption of knowledge of
attestors. The evidence on record fully disclosed
complete knowledge and awareness for all the
appellants about absence of title in them and the full title
of executant of Ex.A.1. They happened to be attestors
and not that they are sharers anymore. Therefore,
these rulings do not have their applicability for the facts
on record.
6. For the reasons mentioned above, this point is
answered against the appellants.
POINT No.2:
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Dr. VRKS, J
A.S.No.536 of 2011Learned counsel for plaintiff argued that plaintiff has
not been ready and willing to perform the contract and that
is clear since she failed to pay the balance sale
consideration within the appointed date and failed to give
notice before that date. Learned counsel cited (2010) 10
SCC 512 wherein it was held that the burden is on the
plaintiff to prove continuous readiness and willingness to
perform her part of the obligations. That was reiterated in
2009 (5) ALD 663, 2008 (5) ALT 192, (2019) 8 SCC 575,
AIR 1996 SC 116, AIR 1993 SC 1742, (2020) 11 SCC 790.
As against that, the learned counsel for respondent cited
2022 LiveLaw (SC) 375. In this their Lordships held that when
once the execution of agreement for sale and the payment of
advance sale consideration are admitted or proved nothing
further is required on part of the purchaser to prove.
After considering all the above rulings, the following
aspects are to be stated:
In the plaint, it is clearly averred and PW.1 categorically
deposed and her other witnesses fully supported and Ex.A.2-
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Dr. VRKS, J
A.S.No.536 of 2011notice contains clear averments that the plaintiff has always been
ready and willing to perform her part of the contract. Case of
plaintiff that her father is rich and he funds her purchase has not
been traversed by the defendants through their pleadings. DW.1
did not depose any poverty on part of plaintiff or her father. Mere
suggestions to PW.1 that she did not show her passbook about
funds is no reason to suspect any financial inability on part of
plaintiff. There is no reason to disbelieve the evidence of PW.1
and the contents of Ex.A.2-notice that she was offering money
and asking for regular registered sale deed. The anxiety of
plaintiff to have the bargain accomplished is clear as the notice
was issued and suit was filed just few days after the outer date
fixed in Ex.A.1. The fact that in the event of delay plaintiff was
obliged to pay interest is a clear indication that the time was not
the essence of contract. Thus, it is clear that respondent/plaintiff
has always been ready and willing to perform her part of the
contract and the breach was on part of the opposite party only.
Therefore, this point is answered against the appellants.
POINT No.3:
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Dr. VRKS, J
A.S.No.536 of 2011There is a mistake in referring to PW.2 and mentioning him
as father of the plaintiff. In fact, the father of the plaintiff did not
depose. However, this mistake by itself does not set at naught
the other valid reasons mentioned by the trial Court in decreeing
the suit. The contention of the appellants that it was the father
who bargain, and his evidence was necessary to decide the suit
and withholding him from deposing should lead to adverse
inference against the plaintiff. There is no merit in this contention.
It is never the case of defendants either in their written statement
or in Ex.A.3-reply notice or in the evidence of DW.1 that the
plaintiff was not with her father when the bargain was settled. In
fact, averments in the written statement specifically alleged that
the plaintiff and her father misrepresented defendant No.1 and
obtained Ex.A.1. Thus, the plaintiff had full knowledge of facts
along with her father. Her evidence is there on record. Evidence
of her father would be a repetition. Non-examination of him has
thus no legal consequence. The impugned judgment of the trial
Court considered all the facts and governing principles of law and
reached to the decision and it furnished adequate reasons
justifying the conclusions. Hence, no interference is needed.
Therefore, this point is answered against the appellants.
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A.S.No.536 of 2011
2. In the result, this Appeal is dismissed. There shall be no
order as to costs.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 06.09.2024
Ivd
THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
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Dr. VRKS, J
A.S.No.536 of 2011
APPEAL SUIT No.536 of 2011
Date: 06.09.2024
Ivd