{"id":133,"date":"2008-12-05T00:47:30","date_gmt":"2008-12-04T19:17:30","guid":{"rendered":"http:\/\/mynation.net\/docs\/103-1993\/"},"modified":"2008-12-05T00:47:30","modified_gmt":"2008-12-04T19:17:30","slug":"103-1993","status":"publish","type":"post","link":"https:\/\/mynation.net\/docs\/103-1993\/","title":{"rendered":"K.Shyamsunder vs N.Ramachandraiah And Others (Unclean hand)"},"content":{"rendered":"

Andhra High Court <\/strong>
\nTHE HON’BLE SRI JUSTICE P.S.NARAYANA
\nC.C.C.A.No.103 of 1993<\/p>\n

19-06-2007<\/p>\n

K.Shyamsunder (died) per L.Rs. 2 to 7 (already on record)
\nvs
\nN.Ramachandraiah and others<\/p>\n

Counsel for appellants : Sri M.V.S. Suresh Kumar
\nCounsel for respondents : Sri V.L.N.G.K. Murthy<\/p>\n

:JUDGMENT:<\/p>\n

1. Facts in nutshell: The tenant claiming to be an agreement holder of the
\nproperty in question instituted the suit O.S.No.456\/83 on the file of I
\nAdditional Judge, City Civil Court, Hyderabad praying for the relief of specific
\nperformance directing defendants 1 to 3 to execute registered sale deed and 4th
\ndefendant also to join them in execution of the said sale deed so as to comply
\nwith the statutory requirements and to declare the sale deeds dated 20-10-1981
\nand 11-6-1982 executed by 5th defendant in favour of the 4th defendant as
\nvoid, ineffective and inoperative and for certain other ancillary reliefs.
\nDefendants 1 to 3 filed written statement virtually admitting the stand taken by
\nthe plaintiff. Defendants 4 and 5 filed separate written statements resisting
\nthe same. The learned Judge having settled the Issues, recorded the evidence of
\nP.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
\nand ultimately decreed the suit in part directing execution of a registered sale
\ndeed in relation to 3\/4th of the undivided share in the plaint schedule property
\nin favour of the plaintiff after receiving the balance sale consideration within
\none month from the date of the Judgment with certain other further ancillary
\nobservations. Aggrieved by the same the matter was carried by way of Appeal,
\nthe present Appeal, C.C.C.A.No.103\/93, and inasmuch as the 1st appellant and the
\n4th respondent died, appellants 2 to 7 and respondents 2 and 3 who had been
\nalready on record had been recorded as the legal representatives by the order
\ndated 28-5-2007. Even during the pendency of the suit O.S.No.456\/83, the 4th
\ndefendant Smt.P.N.Sumathi died and the legal representatives, defendants 6 to
\n11, were added as per orders in I.A.No.299\/93 dated 23-3-1993.
\n2. Pleadings of the respective parties: For the purpose of convenience, the
\nparties hereinafter would be referred to as shown in O.S.No.456\/83.
\nAverments made in the plaint : The plaintiff pleaded in the plaint as hereunder
\n:
\n\u00a0 The plaintiff occupied the house property bearing Municipal No.3-5-353
\nsituate at Vithalwadi, Narayanaguda, Hyderabad consisting of two rooms, one
\nhall, one verandah with frontage, kitchen, bathroom and two latrines, totally
\nadmeasuring about 125 sq. yards as a tenant of Smt.K.Manibai alias K.Maniamma
\nw\/o.Sri K.Srinivasa Rao, on or about 8-3-1973. The said Smt.K.Maniamma had sold
\none room and a piece of land adjoining the aforesaid property to provide funds
\nfor her unemployed son K.Shyamsunder, the 5th defendant, with the understanding
\nand family settlement that after her death the rest of her property, namely, the
\nsuit property under the occupation and possession of the plaintiff, should go to
\nher daughters, defendants 1 to 3 and Smt.K.Maniamma died on 26-8-1981. It was
\nfurther pleaded that as against this background, to the knowledge of the 4th
\ndefendant and her husband Sri P.V.Narsing Rao, the plaintiff entered into an
\nagreement of sale on 11-9-1981 with defendants 1 to 3 to purchase the suit
\nproperty for a price of Rs.60,000\/- and paid an advanced of Rs.6000\/- on the
\nsame day. The possession of the suit property by the plaintiff since the date
\nof the aforesaid sale agreement dated 11-9-1981 had been as an agreement holder
\nand in part performance of the said agreement. Although aware of all these
\nfacts, the 4th defendant got issued to the plaintiff a notice dated 5-1-1982
\nwith false allegations claiming to be the purchaser and called upon the
\nplaintiff to vacate the suit property. The plaintiff sent a reply notice dated
\n28-1-1982 and the same was received by the 4th defendant through her Counsel on
\n6-2-1982. From the notice dated 16-8-1982, the plaintiff learnt that the suit
\nproperty had been conveyed to the 4th defendant by the 5th defendant through two
\nsale deeds dated 20-10-1981 and 11-6-1982. The allegation that the
\n4th defendant purchased the suit property from the 5th defendant after due
\nenquiries and that the latter was alleged to had been bequeathed the same by his
\nmother through a Will is totally false and invented to cover up the invalid,
\nillegal and fraudulent transaction. It was further pleaded that the aforesaid
\ntwo sale deeds are void, sham, bogus, invalid and illegal and brought into
\nexistence by defendants 4 and 5 with ulterior motives and deserve to be set
\naside as such. It was further specifically pleaded that the plaintiff had been
\nready and willing ever since 11-9-1981, the date of the suit agreement, to
\nperform his part of the contract by paying the vendors, defendants 1 to 3, the
\nbalance of purchase money and take a regular registered sale deed in his name
\nand at his cost as to stamp and registration charges.
\nAverments made in the written statement of defendants 1 to 3 :
\nDefendants 1 to 3 admitted the averments in para-3 of the plaint and further the
\n5th defendant agreed at the time of sale of one room and the adjacent place
\nseparately by two sale deeds by Smt.Maniamma, their mother. It was further
\nadmitted that the said properties were sold to provide funds to the 5th
\ndefendant who was unemployed, two his share in the properties belonging to
\nSmt.Maniamma and the rest of the property i.e., the suit property, should go to
\nthe defendants 1 to 3 after the death of Smt.Maniamma separately. The room
\nalong with open space was sold to the 4th defendant who had constructed one room
\non that open piece of land for his tailoring shop. Defendants 1 to 3 further
\nadmitted that they had entered into an agreement with the plaintiff on 11-9-1981
\nto sell the suit property to him for a sale consideration of Rs.60,000\/- and
\nreceived an advance of Rs.6000\/- from him on the same day and passed a receipt
\nin favour of the plaintiff. The plaintiff who was already living in the suit
\npremises as tenant was put in possession of the suit property as agreement
\nholder in part performance of the said sale agreement. Subsequent to 11-9-1981
\nthe defendants 1 to 3 received a further sum of Rs.7400\/- in different
\ninstalments from the plaintiff towards sale consideration. It was further
\npleaded that defendants 1 to 3 had no knowledge of the notices said to have been
\nexchanged between the plaintiff and the 4th defendant. The 5th defendant has no
\nright or authority to sell the suit property to the 4th defendant. The 5th
\ndefendant received the sale proceeds of one room and open place sold by their
\nmother towards his share in the property left by Maniamma and hence the 5th
\ndefendant has no right, title or interest in the suit property. The defendants
\n1 to 3 are not aware of any Will alleged to have been executed by their mother
\nlate Maniamma. It was further pleaded that the defendants 1 to 3 could not
\nexecute and register the sale deed in favour of the plaintiff as he issued a
\nnotice to them on 19-7-1982 informing them of the sale deed said to have been
\nexecuted by the 5th defendant in favour of the 4th defendant in respect of the
\nsuit property which had cast a cloud on the title of these defendants to the
\nsuit property. The defendants 1 to 3 asserted that they have full right and
\ntitle and absolute authority to sell the suit property and the 5th defendant has
\nno right, title or interest in the suit property and these defendants are
\nwilling to execute and register the sale deed in favour of the plaintiff after
\nreceiving the balance sale consideration of Rs.46,600\/- from him.
\nAverments made in the written statement of 4th defendant : The 4th defendant
\ndenied the allegations made in the plaint and had further pleaded that the
\nplaintiff entered into the property as a tenant and still continues as a tenant.
\nThe property was sold to the 4th defendant by Smt.Mariyamma solely to meet the
\nresponsibilities, maintenance and to meet the necessities of the whole family.
\nIt is admitted that the 5th defendant was unemployed at that time and there was
\nno other source of income excepting the rent for the maintenance of the family
\nand the 4th defendant was informed that due to burden to repay the loans which
\nwere taken by her from others, it was deemed proper by Smt.Maniamma to sell the
\nfront room along with the open space to the 4th defendant to meet her
\nnecessities of the family. There was no occasion to enter into an agreement of
\nsale with the plaintiff and there was no occasion to have information or
\nknowledge to Sri P.V.Narsingh Rao regarding any agreement of sale as there was
\nnever any agreement of sale with the plaintiff. The fact is that Smt.Maniamma
\nin her life time had entered into an agreement to sell the rear portion of the
\nhouse bearing M.C.H.No.3-5-533, Vittalwadi, Narayanguda, Hyderabad. The
\nbeneficiary executed the sale deed and concluded the agreement of sale entered
\ninto by the deceased Maniamma. As such the question of entering into an
\nagreement with the plaintiff is utterly false and concocted and the suit is
\nfrivolous with the intention to vex the defendants with sole intention to harass
\nthe defendants 4 and 5 and also to make illegal gains. The 4th defendant had
\nexecuted the sale deeds on the referred dates and they are true and the
\nallegations set off by the plaintiff are all false and taken up only with the
\nintention to harass the parties and give vent to his bitterness against the
\ndefendants 4 and 5. It is amazing to note that the plaintiff himself in his own
\nwriting had admitted the ownership and title in the name of the 5th defendant in
\nthe rental receipts issued to him for the rents paid in the month of September
\n1981 onwards which amply reveal the fact of the 5th defendant being the owner
\nand it goes to prove that the Will executed by Smt.Maniamma was within the
\nknowledge and information of the plaintiff and it was duly acted upon. The
\nplaintiff had not come to the Court with clean hands and also never offered to
\ndeposit the agreed alleged price consideration for sale in the Court to show his
\nbona fides and the means of it. The plaintiff though a Government servant had
\nadopted illegal means and abused the law and had instigated the defendants 1, 2
\nand 3 under the greed or unlawful gains. The plaintiff and the defendants 1, 2
\nand 3 had colluded with ill-motives and the signatures of the defendants 1 to 3
\nare only with intent to create false case under this pretext as without the
\ncollusion the plaintiff shall not have any ground for filing the suit and as
\nsuch had entered into a conspiracy to deprive and cause loss to the defendants 4
\nand 5 from their legal rights and to cause injury to them beyond repair and also
\nwith ill-motives to make wrongful gains. There is no cause of action for the
\nplaintiff to file the suit. The relief of specific performance being value for
\nRs.60,000\/- is not disputed but the other reliefs are not valued properly and no
\nCourt fee is paid and hence the suit be dismissed with exemplary costs as the
\ndefendants 4 and 5 had been unnecessarily dragged to the Court and made to run
\nfrom post to pillar to meet the allegations and fictitious creation of the
\nplaintiff.
\nAverments made in the written statement of the 5th defendant : It was pleaded
\nthat the description of the parties is not correct as incorrect residential
\naddress of the parties had been given with bad intention to facilitate
\nplaintiff’s concocted case. The contents of para-3 of the plaint had been
\ndenied except to the fact that the plaintiff entered the suit property as a
\ntenant. It was further pleaded that still the plaintiff continues to be a
\ntenant. It is true that Smt.Maniamma died on 26-8-1981 and it was denied
\nthat late Smt.Maniamma sold a room and piece of land adjacent to it to provide
\nfunds to the 5th defendant’s needs. On the other hand, late Smt.Maniamma sold
\nthe property to meet the domestic needs of her family as a whole. There was no
\nquestion of the 5th defendant staking any claim to the property during the life
\ntime of Maniamma nor did late Maniamma apportioned the suit property as
\ncontended by the plaintiff by way of any settlement. On the other hand late
\nManiamma, the mother of the defendants in her Will dated 17-5-1977 wished that
\nthe 5th defendant should lookafter the 3rd defendant, namely Nirmala, being
\nestranged from her husband. The 5th defendant is faithfully carrying out the
\nwishes of his mother and the 3rd defendant-Smt.Nirmala continues to stay with
\nhim as admitted by the plaintiff in his legal notice dated 19-7-1982. The
\ncontents of para-4 of the plaint had been denied and it was further pleaded that
\nthe 5th defendant is not aware of any transactions between the plaintiff and the
\ndefendants 1 to 3 nor is he aware that the 4th defendant’s husband viz., Sri
\nP.V. Narsing Rao had the knowledge of the same. It was denied that the plaintiff
\nresided in the suit house as an agreement holder. The plaintiff’s residence in
\nthe suit premises was as the tenant of the 5th defendant which fact was admitted
\nby the plaintiff himself vide rental receipt Nos.34, 35, 36 and 37 respectively
\ndated 2-9-1981, 1-10-1981, 1-11-1981 and 3-12-1981 which are all in the
\nplaintiff’s own hand-writing. It was further pleaded the 5th defendant is not
\nfully aware of the exchange of various legal notices between the plaintiff and
\nthe 4th defendant, except that the 4th defendant who is the purchaser informed
\nthe 5th defendant about the plaintiff creating trouble in taking possession of
\nthe property, the 4th defendant having filed an eviction petition before the
\nRent Controller. It was further pleaded that it is true that the 5th defendant
\nas the beneficiary and executor of late Maniamma’s Will had sold the suit
\npremises in two stages vide sale deeds dated 20-10-1981 and 11-6-1982.
\nThe plaintiff’s contention that the Will of late Maniamma is fabricated by the
\n4th defendant and the 5th defendant had been vehemently denied. On the other
\nhand it was pleaded that the plaintiff who entered the suit premises posing as a
\ntenant with good intent to the mother of the 5th defendant, now wants to usurp
\nthe property by abusing his social status and creating rift between the 5th
\ndefendant and his sisters. Hence the plaintiff’s suit itself is filed with
\nulterior motives and deserves to be dismissed in limini. It was further pleaded
\nthat any transaction regarding the suit property between the plaintiff and
\ndefendants 1 to 3 is not binding on the 5th defendant who, as the executor of
\nlate Maniamma’s Will is the title holder of the suit property under Law and
\nhence the same amounts to criminal manipulations for which the plaintiff will be
\nheld responsible.
\n3. Issues settled by the trial Court :<\/p>\n

1. Whether the agreement of sale relief prayed upon by the plaintiff with
\ndefendants 1 to 3 is valid and binding ?
\n2. Whether the payments pleaded by the plaintiff are true ?
\n3. Whether the plaintiff is entitled for the reliefs of cancellation of sale
\ndeeds dated 20-10-1981 and 11-6-1982 ?
\n4. Whether the plaintiffs are entitled for the relief of specific performance of
\ncontract of sale ?
\n5. To what relief ?<\/p>\n

4. Oral and documentary evidence available on record :<\/p>\n

Witnesses examined for plaintiff :<\/p>\n

P.W.1 – N.Ramachandraiah
\nP.W.2 – K.Laxmaiah<\/p>\n

Witnesses examined for defendants :<\/p>\n

D.W.1 – P.V. Narasinga Rao
\nD.W.2 – K.Chandraiah<\/p>\n

Exhibits marked for plaintiff :<\/p>\n

Ex.A.1 – Notice dated 5-1-1982
\nEx.A.2 – Copy of reply dated 28-1-1982
\nEx.A.3 – Postal acknowledgement
\nEx.A.4 – Copy of notice dated 19-7-1982
\nEx.A.5 – Postal acknowledgement
\nEx.A.6 – Postal acknowledgement
\nEx.A.7 – Postal acknowledgement
\nEx.A.8 – Returned covers
\nEx.A.9 – Notice dated 16-8-1982
\nEx.A.10 – Extract of sale deed
\nEx.A-11 – Extract of sale deed
\nEx.A-12 – Extract of sale deed
\nEx.A-13 – Agreement of sale
\nEx.A-14 – Certified copy of order in R.C.No.1562\/86 on the file of IV
\nAdditional Rent Controller, Hyderabad.<\/p>\n

Exhibits marked for defendants :<\/p>\n

Ex.B-1 – Counter foil rent receipt
\nEx.B-2 – Signature on counter foil rent receipt
\nEx.B-3 – Counterfoil rent receipt
\nEx.B.4 – Counterfoil rent receipt
\nEx.B.5 – Signature on counterfoil rent receipt
\nEx.B.6 – Will deed dated 17-5-1977
\nEx.B.7 – Copy of English translation of Ex.B.6
\nEx.B.8 – Sale deed dated 1-12-1980
\nEx.B.9 – Registered sale deed dated 11-6-1982
\nEx.B.10 – Registered sale deed
\nEx.B.11 – Plan
\nEx.B-12 – Sale deed dated 1-12-1980<\/p>\n

5. Findings recorded by the trial Court in brief : The trial Court on
\nappreciation of the evidence available on record, disbelieved the stand taken by
\nthe plaintiff relating to the family settlement to the effect that the subject
\nmatter of the suit had absolutely fallen to the share of defendants 1 to 3, but
\nhowever, inasmuch as defendants 1 to 3 admitted the claim of the plaintiff, the
\nlearned Judge was inclined to grant the relief to the extent of 3\/4th share.
\nThe learned Judge also on appreciation of the evidence available on record
\nrecorded the findings disbelieving Ex.B-6 Will and consequently came to the
\nconclusion that inasmuch as the mother died intestate, the daughters and the son
\nwould be the sharers and they are entitled to sell their respective shares.
\nSeveral circumstances why the trial Judge was not inclined to believe Ex.B-6
\nalso had been narrated while appreciating the evidence of D.W.2, the attestor of
\nthe said document.
\n6. Submissions of Sri M.V.S. Suresh Kumar : Sri M.V.S. Suresh Kumar, the
\nlearned Counsel representing the appellants had taken this Court through the
\nrespective pleadings of the parties and also the evidence available on record
\nand would comment that this is a typical case where the tenant who was not
\ninclined to vacate the premises, being aggrieved of the sale deeds executed by
\nthe real owner of the property thought of creating agreement of sale in question
\nEx.A-13 in connivance with the sisters of the true owner, defendants 1 to 3 in
\nthe suit. The learned Counsel pointed out that the rent receipts in relation to
\nwhich P.W.1 was cross-examined at length, Exs.B-1 to B-5, would clearly go to
\nshow that Ex.A-13 was brought into existence only with a view to defeat the sale
\ntransactions, Exs.B-9 and B-10. The learned Counsel also pointed out that the
\nflimsy reasons which had been recorded by the learned trial Judge cannot be
\ntaken into serious consideration while deciding the validity or otherwise of
\nEx.B-6. The learned Counsel also explained the circumstances under which Ex.B-8
\nwas executed in relation to a portion of the property and also the Will Ex.B-6
\nbeing specifically referred to in the recitals of Exs.B-9 and B-10. The learned
\nCounsel also had taken this Court through the contents of Ex.A-13 and would
\nsubmit that on the face of the document, it is clear that the same is suspicious
\nand an ante-dated one. The mere fact that there is no proper understanding
\nbetween the brother and sisters cannot be taken advantage of and this sitting
\ntenant continues to be the tenant only and nothing beyond thereto and the status
\nof the tenant is not changed at all since the plaintiff cannot be said to be an
\nagreement holder. The learned Counsel also pointed out that the mere pleading,
\nthe written statement filed by defendants 1 to 3, may not be sufficient and none
\nof them had been examined. Further, Ex.A-13 suffers from several legal
\ninfirmities. The learned Counsel also made elaborate submissions relating to the
\nfindings recorded by the trial Judge in relation to the family settlement and
\nwould submit that inasmuch as the family settlement pleaded by the plaintiff had
\nbeen disbelieved, in view of the fact that the plaintiff approached the Court
\nfor the relief of specific performance with unclean hands, on that ground itself
\nthe plaintiff should have been non-suited. The learned Counsel specifically
\npointed out to the specific findings recorded by the learned Judge and would
\nmaintain that this finding in a way had attained finality since no independent
\nAppeal as such had been filed by the plaintiff aggrieved by that portion of the
\ndecree negativing a portion of the relief. The learned Counsel also pointed out
\nto the admissions made by P.W.1 in the witness box in relation to the rent
\nreceipts, Exs.B-1 to B-5. The learned Counsel also would submit that in the
\nlight of the clear evidence of D.W.1, the 6th defendant in the suit, the husband
\nof the purchaser, the 4th defendant in the suit and also in the light of the
\nevidence of D.W.2, the attestor, the learned Judge ought to have recorded
\npositive findings in relation to the validity of Ex.B-6 and should have
\ndismissed the suit in toto. The learned Counsel also would further maintain that
\nthe validity or otherwise of Ex.B-6 may not help much in deciding the suit of
\nthe plaintiff praying for the relief of specific performance since even if Ex.B-
\n6 to be disbelieved, the family members would be entitled to the respective
\nshares and it is a matter which may have to be decided in between the heirs of
\nthe deceased mother and in view of the same the relief of specific performance
\nto be negatived in the facts and circumstances of the case. Several other
\nfactual details in the evidence of P.W.1 and D.W.1 also had been pointed out.
\n7. Submissions of Sri V.L.N.G.K. Murthy: Sri V.L.N.G.K. Murthy, the learned
\nCounsel representing the 1st respondent\/plaintiff made the following
\nsubmissions. The learned Counsel would submit that though it is a suit for
\nspecific performance, the entire case revolves around whether the 5th defendant
\nis having absolute title in relation to the plaint schedule property or not and
\nwhether the Will Ex.B-6 relied upon to be believed or not and in the light of
\nthe same, even though it is a suit for specific performance, especially in the
\nlight of the stand taken by the defendants 1 to 3 in the written statement
\nadmitting the claim of the plaintiff, the validity of Ex.B-6 may have to be gone
\ninto. The learned Counsel also pointed out the suspicious circumstances, the
\nstamp having not been purchased either by the testatrix or on her behalf and
\nseveral other further suspicious circumstances in relation thereto. The learned
\nCounsel also would maintain that the 5th defendant was not examined. Further,
\nthe 4th defendant also was not examined. The G.P.A. holder, the husband of the
\n4th defendant, the 6th defendant alone was examined as D.W.1 and the evidence of
\nD.W.2 is highly insufficient in relation to Ex.B-6. The Counsel in all fairness
\nwould submit that it is true that the family arrangement had been disbelieved
\nand it is true that if Maniamma died intestate and not testate, the brother and
\nthe sisters i.e., the son and the daughters of the said Maniamma automatically
\nwould be entitled to their respective shares. Further, the learned Counsel
\npointed out that the plea of the 5th defendant that Nirmala to reside with the
\n5th defendant and the 5th defendant to look after her, the said Nirmala also was
\na party to the agreement of sale in question, Ex.A-13 and in this view of the
\nmatter also the stand taken by the 5th defendant may have to be viewed with
\nsuspicion. Further, the learned Counsel pointed out that the Will Ex.B-6 to be
\ndisbelieved since the active participation of the beneficiary, the legatee, the
\n5th defendant, is clearly apparent and he had not entered into the witness box
\nto dispel these suspicious circumstances. The learned Counsel also would
\nmaintain that the contention that the plaintiff approached the Court with a
\nfalse case and with unclean hands, these aspects cannot be raised by the
\ndefendants 4 and 5 who have no locus standi to question the agreement of sale
\nexecuted by defendants 1 to 3, the sisters of the 5th defendant, the other heirs
\nof the deceased mother. When that being so, the decree and Judgment made by the
\nCourt of first instance cannot be found fault and the Appeal is liable to be
\ndismissed.
\n8. Points for consideration :
\n1. Whether the trial Court is justified in decreeing the suit for specific
\nperformance to an extent of 3\/4th share in the facts and circumstances of the
\ncase ?
\n2. Whether the validity or otherwise of the Will in question Ex.B-6 to be gone
\ninto in detail in a suit for specific performance of this nature instituted by
\nthe agreement holder in the facts and circumstances of the case ?
\n3. If so, to what relief the parties would be entitled to ?<\/p>\n

9. Points 1 and 2 : For the purpose of convenience, it would be appropriate
\nto discuss Point Nos.1 and 2 together to avoid repetition of findings or
\noverlapping findings. The respective pleadings of the parties, the evidence
\navailable on record, the findings recorded by the trial Court already had been
\nspecified supra.
\n10. This is a suit for specific performance with ancillary reliefs filed
\nby the tenant. In a case of this nature, the conduct of the contesting parties
\nmay have to be carefully considered. Here is a plaintiff\/tenant claiming to be
\nan agreement holder and taking a specific stand that he ceased to be a tenant
\nand is continuing in possession in part performance of the agreement of sale –
\nEx.A-13. No doubt, defendants 1 to 3 admitted the claim putforth by the
\nplaintiff. Defendants 4 and 5 contested the matter on the ground that the
\nmother of the 5th defendant in fact died testate and thus the 5th defendant
\nbecame the absolute owner and by virtue of the alienations made in favour of the
\n4th defendant, the 4th defendant became the absolute owner of the property in
\nquestion. The evidence of P.W.1 who is a Government employee, shown to be a
\nDeputy Executive Engineer, R & B, at the relevant point of time, is to the
\nfollowing effect. This witness, P.W.1, deposed that he has been residing in the
\nsuit house from March 1973 onwards and from March 1973 till 11-9-1981 he
\nstayed in the house as tenant under one Maniamma who died on 26-8-1981.
\nDefendants 1 to 3 are the daughters of the said Maniamma and he purchased the
\nsuit schedule property from defendants 1 to 3 under an agreement of sale dated
\n11-9-1981 for a sum of Rs.60,000\/- and on the date of the said agreement of sale
\nrelating to the schedule property he paid a sum of Rs.6000\/- to the defendants 1
\nto 3 out of the sale consideration of Rs.60,000\/-. P.W.1 also deposed that the
\n1st defendant scribed the said agreement of sale and Madhusudhan and Laxmaiah
\nwere present at the time when he obtained agreement of sale and paid Rs.6000\/-
\nout of the sale consideration amount of Rs.60,00\/-. Eversince the agreement of
\nsale he has been continuing in possession as purchaser. Subsequent to the
\nfiling of the suit he paid another sum of Rs.7000\/- and odd to defendants 1 to
\n3, the executants of the agreement of sale. P.W.1 also deposed that the 4th
\ndefendant and her husband are aware of the purchase of the suit schedule
\nproperty by him from defendants 1 to 3 under the agreement of sale in question
\nand he informed them prior to the obtaining of the suit agreement of sale from
\ndefendants 1 to 3 that he is going to purchase the suit property from defendants
\n1 to 3, the owners of the property. P.W.1 also deposed that even after he
\npurchased t suit schedule property under the agreement of sale in question, the
\n4th defendant and her husband were aware of the same and the 4th defendant
\nissued a registered notice Ex.A-1 to him on 5-1-1982 demanding to pay
\nrents for the schedule property and Ex.A-2 is the reply wherein P.W.1 had
\nstated his case. The postal acknowledgement is marked as Ex.A-3. Thereafter he
\ngave a registered notice to all the defendants on 19-7-1982, the office copy of
\nwhich is marked as Ex.A-4. Ex.A-5 is the acknowledgement relating to the 1st
\ndefendant; Ex.A.6 is the postal acknowledgement relating to the 2nd defendant;
\nEx.A.7 is the postal acknowledgement relating to the 4th defendant; Exs.A-8 and
\nA-9 are the returned registered notices addressed to defendants 3 and 5. The 4th
\ndefendant gave a reply to Ex.A.4 which was marked as Ex.A-10. The registration
\nextracts of the two sale deeds under which the 4th defendant purchased the suit
\nschedule property from the 5th defendant were marked as Exs.A-11 and A-12.
\nEx.A-13 is the suit agreement of sale. Thus, it is stated that P.W.1 has always
\nbeen ready and willing to perform his part of the contract. In the cross-
\nexamination P.W.1 deposed that he cannot say the dates when he paid the amount
\nof more than Rs.11000\/- to defendants 1 to 3 in the suit subsequent to the date
\nof Ex.A-13. He had obtained receipts relating to the payment of the amount to
\nthe defendants 1 to 3, but he had not filed the same in the suit. The amount
\npaid by him is in part satisfaction of the sale consideration. In cross-
\nexamination further this witness deposed the role of one Madhusudhan and the
\nbargain was settled within a week or 10 days prior to the date of Ex.A-13
\nagreement of sale. The negotiations relating to the purchase of the suit house
\nby him had taken place during a period of one week or ten days prior to the date
\nof Ex.A-13. This witness also deposed that after the 1st defendant made the
\nabove offer, he informed the same to the 5th defendant, the brother of the 1st
\ndefendant and requested him to sign the sale deed going to be executed by
\ndefendants 1 to 3 in his favour in respect of the schedule property as an
\nattestor, but the 5th defendant refused. Even prior to the aforesaid offer was
\nmade to him by the 1st defendant he is aware that the 5th defendant has no
\ninterest or share in the plaint schedule house as Maniamma used to say that as
\nthe 5th defendant sold away some shops and land he is not having any share in
\nthe suit schedule house and the property belongs to her daughters defendants 1
\nto 3. Prior to the obtaining of Ex.A-13 he did not consult any Advocate and he
\nconsulted only Madhusudhan. This witness also further deposed that he had not
\nseen any document which discloses that the 5th defendant is not having any share
\nin the suit schedule property. The documents which he had perused discloses
\nthat the suit schedule property belongs to Maniamma only. He obtained Ex.A-13
\nafter due deliberations and the same was not obtained in haste. This witness
\nalso deposed that on the advice of Madhusudhan he obtained Ex.A-13 on white
\npaper in stead of stamped paper. Madhusudhan also informed him that they can
\npay necessary stamp duty and penalty in Court. Subsequent to the death of
\nManiamma he had obtained Ex.A-13 from defendants 1 to 3 and further this witness
\ndeposed that when he paid certain instalments at the rate of Rs.300\/- per month
\nas requested by defendants 1 to 3 to the 5th defendant and the 5th defendant
\nbrought the rent receipt books and he signed the rent receipts and he did so for
\nthree months. In the counterfoils of the rent receipts which P.W.1 signed it
\nwas not mentioned that he was paying those amounts out of Rs.1000\/- by way of
\ninstalments to be paid to the 5th defendant on the request of defendants 1 to 3.
\nThis witness in fact had not seriously disputed the said rent receipts and
\nelaborate cross-examination was made in relation thereto. P.W.1 also deposed
\nthat in Ex.A-13 there was no mention about delivery of possession of the suit
\nschedule house to him as he was in possession of the same as a tenant even by
\nthat date. In Ex.A-13 it is not mentioned that he can continue in the suit
\nschedule house without paying any rent from the date of Ex.A-13. No doubt, the
\nsuggestions put to this witness in relation to the specific defence taken by
\ndefendants 4 and 5 in the written statement had been specifically denied. In the
\ncross-examination by the 5th defendant also several admissions were made by
\nP.W.1.
\n11. P.W.2 is one Laxmaiah who deposed that in the agreement of sale in
\nquestion Ex.A-13, this witness and Madhusudhan figured as attestors and he no
\ndoubt deposed that on the date of agreement of sale relating to the suit
\nschedule property, the consideration was agreed to be Rs.60,000\/- and on that
\ndate a sum of Rs.6000\/- had been paid. This witness was cross-examined at
\nlength. This witness deposed that Ex.A-13 was written some where at about 9
\na.m. and it was executed in the month of September 1981. The 1st defendant
\nwrote Ex.A-13 at the dictation of Madhusudhan Rao and while Madhusudhan Rao was
\ndictating to the 1st defendant he came to know the contents of Ex.A-13. This
\nwitness also was cross-examined at length relating to the topography, the nature
\nof the house and other particulars. The suggestions put to this witness had
\nbeen specifically denied.
\n12. As against this evidence, the evidence of D.W.1, the husband of the
\n4th defendant, the G.P.A. holder of the 4th defendant, is available on record,
\nwho is the 6th defendant in the suit. This witness in detail deposed in
\nrelation to the Will deed dated 17-5-1977 which was given to the 4th defendant
\nby the 5th defendant in the suit which was executed by Maniamma, the mother of
\nthe 5th defendant and also the defendants 1 to 3 in the suit. The said Will
\ndeed was marked as Ex.B.6. The English translation of Ex.B.6 was marked as
\nEx.B.7. This witness also deposed that Maniamma executed the sale deed dated 1-
\n12-1980 in favour of the 4th defendant in the suit and the same was marked as
\nEx.B.8. Ex.B.8 relates to a portion of the house belonging to Maniamma and the
\nsame is adjacent to the suit schedule property purchased by the 4th defendant
\nfrom the 5th defendant in the suit. This witness, D.W.1 also deposed that the
\n5th defendant executed a registered sale deed Ex.B.9, dated 11-6-1982 in respect
\nof a portion of the suit house in favour of the 4th defendant. The 5th
\ndefendant sold the remaining portion of the aforesaid house in favour of the 4th
\ndefendant by virtue of a registered sale deed dated 20-10-1981, marked as Ex.B-
\n10. The plan was marked as Ex.B-11. Thus, this witness deposed that the 4th
\ndefendant purchased the house portions in Exs.B-9 and B-10 from the 5th
\ndefendant in the suit as he is the absolute owner. This witness also deposed
\nabout the 4th defendant filing a Rent Control case on the file of IV Additional
\nRent Controller, Hyderabad against the plaintiff in the suit for eviction and
\nother particulars. This witness was cross-examined at length both by defendants
\n1 to 3 and also by the plaintiff and several of the suggestions put this witness
\nhad been specifically denied.
\n13. Apart from this evidence of D.W.1, the evidence of D.W.2 also is
\navailable on record who had deposed that he knows Maniamma, the mother of the
\ndefendants 1 to 3 and 5 and he purchased the plot of land from her for
\nconstruction of a mulgi for himself and the plot is adjacent to the house of
\nManiamma. Manayya called D.W.2 about 9 or 10 years ago stating that Maniamma
\nwants his presence as she was executing a Will. The signature on Ex.B.6 as the
\nfirst attestor is that of this witness, D.W.2. D.W.2 no doubt deposed that
\nManiamma affixed her thumb impression on Ex.B.6 and after the execution of the
\nWill they attested the Will. The scribe of the said Will is Manayya. The
\ncontents of the Will had been read and explained in his presence. This witness
\nwas cross-examined in relation to the stamp paper which had been used and the
\nsuggestions put to this witness that this is a fabricated document had been
\nspecifically denied. This is the evidence available on record.
\n14. At the outset, it is pertinent to note that this is a suit for
\nspecific performance and certain ancillary reliefs prayed for by the plaintiff
\nwho was incidentally a tenant at the relevant point of time and who claims to be
\ncontinuing in possession of the property in part performance of the agreement of
\nsale in question, Ex.A-13. In a suit for specific performance, the bona fides
\nof the plaintiff and also whether the plaintiff approached the Court with clean
\nhands or unclean hands, may have to be seriously considered. Even a cursory
\nglance of Ex.A-13 would go to show that this document cannot be taken as a true
\nand genuine document despite the fact that the defendants 1 to 3 had not
\nresisted the claim of the plaintiff in relation thereto for the reasons
\nspecified infra.
\n15. The first aspect to be considered is that the plaintiff\/P.W.1 is not
\nan illiterate. He is a well educated man and a Government employee at the
\nrelevant point of time. No doubt, he had deposed that he had obtained the
\npermission to enter into this transaction but nothing had been placed on record.
\nBe that as it may, such a person obtaining a document of this nature, Ex.A-13,
\nat any stretch of imagination cannot be believed, that too on the advise of one
\nMadhusudhan. Yet another important aspect is that he came with a specific stand
\nthat by virtue of the family arrangement or family settlement, inasmuch as a
\nportion of the property already had been alienated and the 5th defendant being
\nan unemployee the same had been adjusted towards his share, he is not entitled
\nto any share in the property and that is the reason why he entered into this
\nbargain with the defendants 1 to 3 being the absolute owners of the rest of the
\nproperty, the subject matter of the suit. This stand was disbelieved even by
\nthe learned trial Judge after recording reasons in detail which in fact in a way
\nattained finality since the decree was made relating to only 3\/4th share. Apart
\nfrom this aspect of the matter, the evidence of P.W.1 also cannot be believed
\nfor the reason that he continued to pass rent receipts even after the alleged
\nagreement of sale coming into existence. Virtually all these rent receipts,
\nExs.B-1, B-2, B-3, B-4 and B-5 were admitted but a stand had been taken that as
\nrequested by defendants 1 to 3, an amount of Rs.1000\/- to be paid in three
\ninstalments, the said amounts had been paid. This explanation given by P.W.1
\nalso cannot be believed. Except the evidence of P.W.2 there is no other
\nevidence available on record. P.W.2 is an interested witness as can be seen
\nfrom the evidence of P.W.2 himself. P.W.1 who had been a Government employee at
\nthe relevant point of time, at any stretch of imagination, cannot be believed
\nthat while entering into a transaction, could have entered into a transaction of
\nthis nature, Ex.A-13. It is no doubt true that the defendants 1 to 3 had not
\ndenied the claim putforth by the plaintiff at all. It is pertinent to note
\nthough it is stated that the 1st defendant had scribed Ex.A-13, at least the 1st
\ndefendant was not examined and none of the parties i.e., defendants 1 to 3, had
\nbeen examined. Apart from this aspect of the matter, in the light of the series
\nof events, the dates in the counterfoils Exs.B-1 to B-5 and also the date of
\nagreement of sale in question Ex.A-13 and further Exs.B-9 and B-10, there cannot
\nbe any doubt whatsoever that inasmuch as there was pressure from the 4th
\ndefendant on this tenant to vacate the premises since it was to the dislike of
\nthe tenant to vacate the premises, may be, the tenant might have thought of this
\nEx.A-13, taking advantage of certain differences between defendants 1 to 3 with
\nthe 5th defendant, their brother. This is the only conclusion at which this
\nCourt can arrive at in the peculiar facts and circumstances. The plea of part
\nperformance also cannot be believed in the light of the recitals in Ex.A-13.
\nApart fromthis aspect of the matter, the advance amount paid also is a paltry
\nsum of Rs.6000\/- even as per the evidence of P.W.1. Hence, this Court is of the
\nconsidered opinion that Ex.A-13 is not a genuine or a bona fide transaction and
\nthe same was thought of by P.W.1 only to get over the eviction action if any
\nwhich may be initiated by the 4th defendant on the strength of Exs.B-9 and B-10.
\n16. Unfortunately, the litigation does not stop there. It is true that
\nexcept the evidence of D.W.2 there is no other evidence available in relation to
\nEx.B.6, Will deed, said to have been executed by Maniamma. The 5th defendant
\nalso was not examined and none concerned with Ex.B.6 had been examined. Though
\nthe 4th defendant was not examined, the husband of the 4th defendant i.e., 6th
\ndefendant, and incidentally the G.P.A. holder was examined as D.W.1 and no doubt
\nhe had knowledge about all the facts and hence the evidence of D.W.1 would
\nassume some importance. Whatever the reason may be, the recitals in Ex.B.8, the
\nstamp used in relation to Ex.B.6 and relating to the nature of evidence which
\nhad been adduced, certain findings had been recorded by the learned trial Judge.
\nIt is pertinent to note, in a suit of this nature, the principal question to be
\ndecided would be whether the plaintiff is entitled to the relief of specific
\nperformance or not and when the same to be negatived for the reasons specified
\nabove, the question whether Ex.B.6 is true, valid and binding and whether by
\nvirtue of Ex.B.6, can it be said that the 5th defendant became the absolute
\nowner of the total property and whether by virtue of Ex.B.9 and Ex.B-10, the 4th
\ndefendant became the absolute owner of the total property or only entitled to a
\nshare, these questions would fall into insignificance for the reason that this
\nwould be a fight between the vendor-5th defendant, of the 4th defendant under
\nEx.B.9 and Ex.B-10 on one hand and his sisters, defendants 1 to 3, on the other
\nhand. Hence, it is left open that those parties to agitate their rights, if
\nany, if they are so advised. Inasmuch as they are arrayed as defendants, the
\nprincipal question i.e., whether Maniamma in fact died testate or intestate, is
\nleft open. Inasmuch as the principal relief and the ancillary reliefs prayed
\nfor by the 1st respondent\/plaintiff cannot be granted on the strength of such
\ndocument Ex.A-13 and since this Court is of the clear considered opinion that
\nthe present litigation is only a speculative litigation initiated by the tenant
\nfor the reason of warding off the blow of eviction proceedings if any to be
\ntaken by the purchaser, the appellants are bound to succeed.
\n17. Point No.3 : In the light of the findings recorded above, the Appeal is
\nallowed, with costs throughout, leaving the question whether Maniamma died
\nintestate or testate, open.
\n\u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"

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…<\/p>\n","protected":false},"author":1091,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_customify_content_layout":"","_customify_sidebar":"","_customify_page_header_display":"","_customify_disable_header":"","_customify_disable_header_top":"","_customify_disable_header_main":"","_customify_disable_header_bottom":"","_customify_disable_page_title":"","_customify_disable_content_vertical_padding":"","_customify_disable_footer_top":"","_customify_disable_footer_main":"","_customify_disable_footer_bottom":"","_customify_breadcrumb_display":"","_customify_header_transparent_display":"","footnotes":""},"categories":[65],"tags":[15806,12935,1617,744,15398,2555,119,15804,15803,15805,1283,3844,15802,3476,15443],"class_list":["post-133","post","type-post","status-publish","format-standard","hentry","category-judgments","tag-additional-rent-controller","tag-dismissed","tag-false-case","tag-husband","tag-illegal","tag-litigation","tag-maintenance","tag-narasinga-rao","tag-narsing-rao","tag-narsingh-rao","tag-nirmala","tag-property","tag-rent-controller","tag-suresh-kumar","tag-witnesses"],"_links":{"self":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/133","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/users\/1091"}],"replies":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/comments?post=133"}],"version-history":[{"count":0,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/133\/revisions"}],"wp:attachment":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/media?parent=133"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/categories?post=133"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/tags?post=133"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}