JUDGMENT
1. The unsuccessful plaintiffs have preferred this appeal against the judgment and decree dated 24-3-1987 passed by the learned Additional Subordinate Judge, Tirupathi, in OS No.136 of 1979. Respondents 1 to 7 herein are the defendants in the suit. The other respondents have been brought on record as the legal representatives of the deceased one or the other respondents during the pendency of the proceedings.
2. It is expedient to refer the parties as they are originally arrayed in the suit so as to avoid any confusion and for better understanding of the matter.
3. The factual matrix, necessary and germane for adjudicating the contentious issues between the parties inter se may be stated thus: The suit OS No.136 of 1979 was filled seeking a decree for specific performance of the suit agreement of sale-dated 4-11-1978 mentioning inter alia in the plaint that defendants 1 to 3 purchased the lands in an extent of Ac.13-14 cts, (‘B’ schedule lands for brevity) from the defendants 4 to 7 under an agreement of sale dated 5-5-1974 for a sum of Rs.1,20,000/- as per the terms stipulated therein inter alia and the defendants 4 to 7 received the sale price in full and delivered possession of the ‘B’ schedule lands in part performance thereof. The execution of the sale deed alone remained. Later the defendants 1 and 2 for themselves and on behalf of defendant No.3 agreed to sell a part of the ‘B’ schedule land in an extent of Ac.9-91 cts., (‘A’ schedule lands for brevity) for a consideration of 90,000/-. A contract of sale dated 4-11-1978 was executed by the defendants 1 and 2 for themselves and on behalf of D3, in favour of the plaintiffs 1 and 2 and an amount of Rs.30,000/- was
paid as an advance thereunder while agreeing to pay the balance within two months there from. The former agreement of sale, dated 5-5-1974 was delivered by them to the plaintiffs at the same time. Defendants 1 and 2 for themselves and on behalf of the third defendant were extending time for the performance of the contract from time to time under separate endorsements made in regard thereto on the suit agreement on sale itself. On 23-5-1979 defendants 1 to 3 agreed that the plaintiff should pay the balance sale consideration of Rs. 60,000/- to them by 22-8-1979 and should get the sale deed executed in their names or in the name of whom-so-ever the plaintiffs may desires, by defendants 4 to 7 and defendants 1 to 3. The plaintiffs were always reddy and willing to perform their part of the contract. They gave notice dated 11-8-1979 catling upon the defendants to get ready for registration at 10.00 a.m., on 21-8-1979. The plaintiffs waited with money on that day at the Sub-Registrars Office, Tirupathi, expecting the defendants to come, but the defendants did not turn up. Hence the suit as aforesaid.
4. The suit was resisted by the defendants 1 to 3 by filing separate statements. Defendants 5 to 7 together filed a separate statement, which was adopted by the 4th defendant, Although separate statements have been filed, the places taken by the defendants inter alia in the statements well neigh are same. The case of the defendants I to 3 was that they purchased the plaint ‘B’ schedule lands under an agreement of sale dated 5-5-1974 from the defendants 4 to 7 for a sum of Rs.1,20,000/-. Initially an amount of Rs.10,000/- was paid as an advance, and on different dates in piecemeal, paid several amounts and thus in all they paid an amount of Rs.1,10,000/- to the defendants 4 to 7. For payment of the balance when the first defendant approached the first plaintiff for a loan, the first plaintiff lent the said sum of Rs.10,000/-,
but obtained a promissory note dated 29-8-1974 in the name of one Munaiah of Venkalagiri stipulating interest at 12% per annum only therein, although the actual interest to be paid was at 18%. Defendants 4 to 7 delivered possession of the ‘B’ Schedule lands to the defendants 1 to 3 on 30-8-1974. The sale deed could not be executed by defendants 4 to 7 in favour of defendants 1 to 3 on account of Act 13/72. The first defendant paid the interest accrued up to 1-6-1975 and a fresh promissory note was executed on that day for Rs.10,000/- in favour of the said Muneyya.
5. Subsequently, defendants 1 to 3 among themselves divided ‘B’ schedule lands. Thereafter, the first defendant sold away Ac.3-23 gts., land covered by S.No.200/2 under an agreement of sale on 16-2-1976 to one Kolluru Jayalakshmamma and delivered possession of the same also to her. Similarly, the second defendant also sold, half share of his interest in the lands covered by S.Nos.203/1 and 203/3 under a contract of sate of 12-4-1976 to one Veeramma and delivered possession of the same also to her. After deducting the lands covered by the said two transactions there remained the land in an extent of Ac.7-87 cts., only belonging to the defendants 1 to 3.
6. In the last quarter on 1978 the first defendant at the request of defendants 2 and 3 agreed to pay their share of the purchase money and acquire their interest in the balance lands from out of ‘B’ schedule lands. In that connection the first defendant requested the first plaintiff for a loan of Rs.90,000/- on the mortgage of the self same lands. The first plaintiff agreed to advance the loan but insisted to execute an agreement of sale instead of a mortgage so as to avoid income tax. It was understood that the sale agreement to the nominal and the subsequent sale deed to be executed pursuant thereto sale to be nominal. The
first plaintiff further agreed to execute a reconveyance deed in favour of the first defendant upon discharge of the debt wilhin five years from the date of the reconveyance deed. Thus, pursuant to the said understanding the suit agreement of sale dated 4-11-1978 was executed by the first defendant in favour of the plaintiff and defendants 1 and 2 signed on it. No consideration of Rs.30,000/- was passed as recited in the said document. Instead it was agreed that the promissory note debt of Rs.10,000/-, of the said Muneyya to be treated as completely discharged. The plaintiff promised to pay the balance amount on the next day after calculating the amount due under the promissory note correctly. But on the next day, the first was informed that the debt due from one Venkatarama Naidu of Pakala would be adjusted from out of the balance as jaggery was sold to the said Venkatarama Naidu at this instance. When the first defendant protested the first plaintiff refused to pay any amounts to him until the amount due from the said Venkatarama Naidu was collected. Thus, the first defendant was got trapped. Inspite of best efforts, as the first defendant could not get the said Venkatarama Naidu of Pakala, the period of two moths fixed under the agreement of safe was extended twice. As the first plaintiff was insisting, the first defendant raised a dispute before one Kesavulu Naidu, Reddappa Naidu, and Srinivasulu Reddi, the elders who on 19-4-1979 decided that the first plaintiff should recover his debt from Venkatrama Naidu of Pakala village only without harassing the first defendant, that the first plaintiff should receive interest on the promissory note dated 1-6-1975 at 12% per annum only and that the first plaintiff should return the agreement dated 4-11-1978, duly cancelled after receiving the amount from the first defendant within a reasonable time. Both parties agreed for the said settlement.
7. Since railway wagon repairs workshop was proposed to be located
adjacent to the first defendant’s lands, the first defendant wanted to know away the ‘A’ schedule lands by hook or crook. The third defendant in addition to the above pleas had taken the other pleas that there was no private of contract between himself and the plaintiffs and there was no cause of action to action to file the suit against him by the plaintiffs. It was his further plea that due to internal misunderstandings they approached defendants 4 to 7, and requested them to take back the lands. Therefore, defendants 4 to 7 agreed to purchase the lands for a sum of Rs.1,50,000/- and an agreement of sale dated 28-6-1979 was entered into between them and therefore, the suit of the plaintiff should be dismissed. Defendants 4 to 7 almost toed the line of the other defendants in their statements.
8. One the above pleadings, the following issues have been framed at the time of settlement of issues :
(1) Whether there is privity of contract between the plaintiff and defendants 4 to 7 and whether the suit as against them is maintainable?
(2) Whether the suit agreement of sale is void and unenforceable in law in view of the ordinance prohibiting the alienations?
(3) Whether the suit agreement of sale has become in executable as defendants 1 to 3 have parted with possession of the suit land subsequently?
(4) Whether the plaintiffs are ready and willing to perform their part of the agreement at all material times?
(5) Whether the suit agreement has come into existence under the circumstances stated by the first defendant in his written statement?
(6) Whether the plaintiff is entitled to specific performance of suit agreement
of sale and for possession of suit land?
(7) To what relief?
On 6-6-1986 an additional issue was framed to the effect that
“Whether the plaintiffs are entitled to enforce the agreement of sale against the deceased 3rd defendant and his heirs the defendants 8 to 12?”
9. At the time of trial three witnesses were examined on the side of the plaintiff and the documents Exs.A1 to A8 were got marked. 12 witnesses were examined on the side of the defendants and Exs.B1 to B34 were got marked and Exs.X1 to X10 and X16 were got marked through witnesses. Upon considering the evidence both oral and documentary and upon hearing both sides, the trial Court dismissed the suit with costs. The Court below answered all issues in favour of the plaintiff except issue No.5, Issue No.6 and additional issue. Having been aggrieved by the same, as aforesaid, the appellants filed the present appeal.
10. Sri N.V. Suryanayana Murthy, the learned senior Counsel contends on behalf of the appellants that the Court below having answered issues 1 to 4 in favour of the plaintiffs should have also answered the issues 5, 6 and the additional issue No.1 in favour of the plaintiffs consequentially. The learned Counsel contends that the findings of the Court below on issues 5, 6 and additional issue No.1 are perverse. It is his further contention that probabilities inherent in the case should have been considered in appreciating the evidence. The learned Counsel further contends that Ex.A2(c) endorsement on Ex.A2 agreement of sale was obviously subsequent to the so-called mediation and therefore, the entire version of the defendants is false. On the other hand, the learned Counsel appearing for the
contesting respondents Sri P.S. Narayana contends that the plaintiffs failed miserably to prove the passing of consideration of Rs.30,000/- under the agreement of sale by any cogent evidence, more particularly by filling the income tax returns, except the oral testimony of PW2, and therefore, the consideration was not proved. The learned Counsel further contends that D4 to D7 have been totally kept dark by the plaintiffs and there is no privity of contract between them and the plaintiffs. According to the learned Counsel the deletion of the name of the second appellant is fatal and the appeal should fail in too It is his further contention that no decree for money can be passed in favour of the plaintiffs towards the refund of the advance money since D1 and D2 are no more and as the legal representatives of Dl and D2 are not personally liable. The learned Counsel appearing for the LRs. of R2, Mr. Chandramouli contends that the plaintiffs have not come with truth and they are the habitual moneylenders since they filed several such suits for specific performance of agreements of sale similar to the once in the instant case, and therefore, they shall be non-suited.
11. In view of the said contentions the following points would emerge for determination in this appeal.
1. Whether the suit agreement of sale dated 4-11-1978 is nominal and sham having come into existence under the circumstances pleaded by the defendants in their written statements?
2. Whether no consideration as recited in the suit agreement has been passed?
3. Whether the first appellant to the relief of specific performance or in the alternative to the relief of refund of money?
4. Whether the appeal is not maintainable as the name of the second appellant was ordered to be deleted?
12. Notwithstanding the plurality of the pleas taken by the defendants the predominant among them and the most contentious issues between the parties inter se are in regard to the nominality of the suit agreement of sale and want of consideration thereunder. In proof of respective claims voluminous oral and documentary evidence has been adduced on either side. On the side of the defendants to bring home the plea of no consideration under Ex.A2 suit agreement; of all the documents Exs.B1 toB34, the documents germance in the context for consideration are Exs.B3 to B5, since the defendants wanted to prove the plea by circumstantial evidence through these documents. The other documents in Exs.B7 to B34 and Exs.X1 to X14 and X15, are all not germance for consideration. As a matter of fact, none of these documents is directly relevant to prove the plea of nominality or the other plea of no consideration. Out of Exs.A1 to A8, Exs.A1 and A2 are the two crucial documents viz., the contracts of sale. Exs. A3 to A8 are the exchange of registered notices and the acknowledgments thereof and therefor not germance for consideration.
13. The transaction under Ex.A1 is not in dispute. The consideration under Ex.A1 was paid under Exs.A1 (a) to A1 (f)- The land was also delivered by D4 to D7 to Dl to D3. Although the title over the ‘A’ schedule lands has not been passed in favour of D1 to D3, the purchasers thereof, possession has been delivered to them and they have been enjoying the property as owners thereof. D4 to D7 agreed inter alia in the said agreement to execute the sale deed either jointly or severally in favour of D1 to D3 or in favour of their nominees of successors.
14. Ex.A2 is the suit agreement of sale dated 4-11-1978, in respect of !B’ schedule lands. The execution of this document by D1 and D2 is not in dispute. The
circumstances under which Ex.A.2 is said to have been executed according to the defendants 1 and 2, are that, the first defendant in the last quarter of 1978 arranged with the defendants 2 and 3 to pay them their share of the purchase money and acquire their interest also in the ‘B’ schedule lands and in that connection approached the first plaintiff for a loan of Rs.90,000/- on the mortgage of the said lands. So as to avoid income tax, the first plaintiff said to have suggested that instead of mortgage, an agreement of sale be executed in his favour followed up by a sale deed. The agreement was understood to be nominal and at the time of the registration of the sale deed it was further agreed to execute a contemporaneous document by the plaintiffs agreeing to reconvey the properties in favour of the defendants on discharges of the loan within five years from the date of that document and the defendants could continue to cultivate the said lands. Admittedly, Ex.A1 agreement of sale has been delivered to the first plaintiff on the date of execution of Ex.A2 agreement of sale and the factum of delivery has also been recited in the said document. The subsequent endorsements made on 2-1 -1979, 25-2-1979 and 23-5-1975 in Ex.A2(a) to A2(c) are not in dispute. On all the three endorsements both the defendants signed agreeing inter alia that on account of certain contingency the sale deed could not be registered and therefore, the stipulated time was extended by the respective periods mentioned therein. The defendants sought to explain that because the 1st defendant could not get at Venkata Ramaniadu to see that the plaintiffs debt is cleared and in the process the two months stipulated period was elapsed he had to extend the time under Ex.A2(a) and Ex.A2(b) endorsements. Ex.A2(c) endorsement is a crucial endorsement to be considered, inasmuch as the plea of the first defendant was that there had been a mediation before the elders and that the elders suggested on 19-4-1979
that (1) the first plaintiff should recover the debt from one Venkatrama Naidu of Pakal by himself without harassing the first defendant (2) that the first plaintiff should receive interest on the promissory note dated 1-6-1975 executed in favour of one Muneyya at 12% p.a. only and (3) the first plaintiff should return the suit agreement of sale dated 4-11-1978 duly cancelled after receiving the amount from the first defendant within a reasonable time, and that both the first plaintiff and the first defendant agreed for the said settlement. Apparently this Ex.A2(c) endorsement made on 23-5-1979 belies the plea taken by the defendants in their respective statements. However, a faint attempt has been made to explain away the said contingency by eliciting in the re-examination of DW1 that since Muneyya’s debt had not been discharged, Ex.A2(c) endorsement was made. Even the endorsements made on Exs.A2(a) and A2(b) apparently belie the plea of nominality of Ex.A2 agreement of sale. The other explanation coming both from the evidence of DW1 is that in view of the dealings between himself and PW1 from 1971 onwards they have confidenced on each other.
15. As regards the settlement of terms in between the first plaintiff and the first defendant there appears to be the sole testimony of DW1, as can be seen from the respective please of D1 and D2 in their written statements. Obviously, the burden is upon the first defendant to prove the circumstances under which Ex.A2 is said to have been executed. It seems the first defendant proposes to establish his plea of nominality of Ex.A2 and want to consideration there under by the circumstances, (1) that the debt under promissory note dated 1-6-1975 in favour of Muneyya was agreed to be given discharge, (2) that the debt of Venkatarama Naidu of Pakal should be seen to be cleared by the first defendant or on the failure thereof should be deducted from out of the advance amount
of Rs.30,000/-, (3) that in the mediation before the elders both parties agreed for the settlement suggested. To prove that the first plaintiff advanced on amount of Rs. 10,000/-to the first defendant in the name of Muneyya, the first defendant has sought to establish the same by examining DW7 and by getting Exs.B3 and B4 documents marked. Ex.B3 promissory note stands in the name of Muneyya for Rs.10,000/-. DW7 is the attestor thereof. Ex.B4 document shows some calculations of figures. Even assuming for a moment that the evidence of DW7 is acceptable coupled with Ex.B3. what it proves is that an amount of Rs.10,000/- was lent by the first plaintiff to the first defendant and the promissory note was obtained in the name of Muneyya, In view of the fact that Ex.B3 is in the hands of the first defendant, the presumption is that the debt covered by the said document is discharged. To show that first defendant executed the promissory note dated 1-6-1975 in favour of Muneyya for the debt covered by Ex.B3 after paying accrued interest thereon till that date, there is no evidence. The document is not before the Court. Except the ipse dixit of DW1 absolutely there is no evidence to show that there has been such a debt covered by a promissory note dated 1-6-1975. Therefore, the oral evidence of DW1 and the documents Exs.B3 and B4 cannot establish the existence of a debt under a promissory note dated 1-6-1975 as claimed by the first defendant.
16. As regards the money transactions between PW1 and the said Venkataramanaidu of Pakal, there is no proof positive to establish the same. Because PW1 denied any such acquaintance the first defendant has sought to establish the circumstance by examining the clerk DW 4. Even accepting the evidence of DW4 on its face value, what all it shows is that PW1 had acquaintance with Venkataramaniadu of Pakal and there had been dealings between
them inter se. This evidence will not automatically establish any debt due by Venkataramanidu of Pakal of PW1. In the absence of any such proof of existence of any debt there is no point in asking DW1 to see that debt is cleared by Venkataramanaidu of Pakal. Therefore, this circumstance of the denial of PW1 of any acquaintance between him and Venkataramanaidu will not automatically establish the debt except showing the conduct of the witness. The third circumstance being very much relied upon by the defendants is the so-called mediation. There has been no documentary evidence adduced in proof thereof. The oral evidence on the point is that of DWs.1, 2, 3, 6 and 8 which is got to be appreciated.
17. There can be no straightjacket formula for the appreciation of oral evidence of the witnesses. The credibility of the witness is the paramount consideration for the Court. After passing the three legal tests viz., relevancy, admissibility, and competence of the witness, while considering the credibility of the witness, the Court has to consider various parameters so as to appreciale the oral evidence on the point by testing the same on the touch stone of two important yardsticks viz., the probabilities and surrounding circumstances among various other parameters. Even when no rebuttal is adduced by the adversary the ocular testimony of the witnesses examined on the side of the party on whom the burden lies, cannot implicitly be relied upon without testing the same with reference to the probabilities and surrounding circumstances. The judgments of the Apex Court in Govinda v. Champa Bat, AIR 1965 SC 354 and Chaturbhuj Pande v. Collector, Raigarh, , would lend support to my above view. Let us therefore see the voluminous oral evidence: on the side of the defendants and that of PWs.1 and 2 on the side of the plaintiffs: how far and to what extent stands the judicial scrutiny.
18. In view of the probability factor that endorsements could not have been made had there been really on agreement between the parties inter se that Ex.A2 would never be acted upon and Ex.A1 agreement should not have been delivered on the date of execution of Ex.A2, it requires a clear and cogent evidence to establish the plea of nominality of Ex.A2 agreement. It has been the consistent plea of the defendants 1 and 2 that there has been a division amongst themselves after purchase of the properties under Ex.A1 agreement and each has been enjoying his respective share. It has also been the plea of first defendant that the first defendant wanted to take the shares ofthe other two defendants and in that connection that the first defendant approached the first plaintiff for the loan of Rs.90,000/-. Even assuming for a moment that the plaintiff wanted a sale agreement to be executed so as to avoid income tax, when the first defendant requested for a loan on the mortgage of the lands, the sale agreement should have been confined only to the share of the first defendant. The first defendant could not have included the share of the second defendant as well as the share of the third defendant for the purpose of obtaining loan from the plaintiff. It is not at all the plea of either of these defendants that the first defendant requested the other defendants to accede to the demand of the plaintiff for execution of an agreement of sale and to become a party thereto, although they have no interest in the said tranaction. Yet another improbability which is inherent and innate from the facts of the case and which surfaces up is that the first defendant wanted a loan of Rs.90,000/-so as to pay the same to the other defendants for acquiring their shares in the property covered by Ex.A1 agreement. When no money was paid under Ex.A2, the very purpose of approaching the plaintiff for loan would get automatically frustrated. Added to it that if really the plaintiff wanted that the loan of Rs. 10,000/- under the promissory
note dated 1-6-1975 in favour of Muneyya and the amount due from Venkatrama Naidu under the Jaggery transactions inter se between him and the first plaintiff be given credit from out of the loan amount of Rs.90,000/-, the first defendant in ordinary course would not have acceded to the request as there was need for an amount of Rs.90,000/- as as to pay the same to the other defendants. Therefore, in ordinary course he would not have acceded to the demand of the plaintiff, however, much the pressure wielded upon him by the plaintiff. The very recitals in Ex.A2 agreement that an advance amount of Rs. 30,000/- was paid and the balance would be paid within two months thereafter, although not a decisive factor, would appear to be an oddity, when the first defendant wanted a loan of Rs.90,000/- he could have agreed for payment of the said loan in piecemeal, particularly when the first plaintiff agreed to give the loan not on the mortgage of the lands but on execution of an agreement of sale so as to avoid income tax. Why should the second defendant join in the execution of the agreement Ex.A2 is a legitimate question that automatically surfaces up for consideration. The explanation on the part of the second defendant that he signed the document as an attestor on the face of it is not palatable and cannot be received without any pinch of satt, inasmuch as his signature appears underneath the signature of the first defendant on the right side of the document, whereas on the left side of the document in juxta position to their signature there are the signature of the attestors undemeath the caption of attestors. Furthermore this explanation given by the second defendant in his evidence as DW8 is quite inconsistent with his own plea taken in his written statement wherein it is averred that he signed on Ex.A2 along with the first defendant on the date of its execution. At any rate it is not his plea in the written statement that he signed on Ex.A2 as an attest or and therefore is not
acceptable. When his explanation is not acceptable for the above reasons then his joining in the document as an executant certainly militates against the case of the defendants that what was a loan transaction was shown to be a transaction of sale with specific understanding and promise on the part of the plaintiff that Ex.A2 document would be never acted upon. Above all, even assuming for a moment that the plaintiff wanted that the loan amount covered by the promissory note in favour of Muneyya should be give credit nothing prevented the parties from mentioning the same specifically in the agreement which should sub serve the interest of the plaintiff inasmuch as his earlier debt would be cleared. The case of the first defendant ex facie that he agreed for the course of having recited in the document mentioning an amount of Rs.3,000/- was passed as an advance without actual payment is quite unacceptable, whatever may be the circumstance under which he was so placed so as to accede to the demands of the plaintiff. In ordinary course, when the plaintiff did not pay the advance of Rs.30,000/- in cash to the first defendant and wanted the promissory note amount of Rs. 10,000/- to be given credit and that the first defendant should see that amount due by one Venkatrama Naidu of Pakal was repaid to the plaintiff, the first defendant should have protested for such a course as he was totally unconcerned with the transactions in between the plaintiff and the said Venkatrama Naidu of Pakal. More particularly, when it is his specific plea in the written statement that the plaintiff wanted that amount due by Venkatrama Naidu of Pakal be deducted from out of the advance amount of Rs.30,000/- he could have equally protested for such a course. Absolutely no compelling circumstances are discernible to show that the plaintiff was so dominating the will of the first defendant and the latter had to succumb to the said quite unreasonable demands. Even assuming for a moment
that the first defendant got himself played into the hands of the plaintiff the second defendant would not have signed on Ex.A2 if really the plaintiff suggested such unreasonable terms contrary to the recitals in the document. All these probability factors would certainly militate against the plea of the defendants.
19. All this is one part in the absence of any subsequent endorsements made on the overleap of Ex.A2 agreement. Initially the plaintiff made two endorsements on 2-1-1979 and 25-2-1979 extending the time for performance. His specific plea was that only after those two endorsements he made an attempt to get the dispute resolved through mediators and mediation was effected on 19-4-1979. The first two endorsements made on Ex.A2 agreement could not have been made by the first defendant in ordinary circumstances when the 1st plaintiff according to the grievance of the petitioner was really doding to pay even the advance amount of Rs.30,000/-, not to speak of the balance of Rs.60,000/- as agreed to be paid within two months after the execution of Ex.A2. Certainly that was a case of highhanded attitude on the part of the plaintiff and the first defendant in ordinary course would have protested against the said attitude of the plaintiff and the so-called mediation could have preceded these two endorsements. The plea of the first defendant that he was under pressure and victim of the circumstances again in ordinary course cannot be accepted in view of the above probability factors. Subsequent two endorsements therefore would go against the theory of the defendants. The last endorsement made on Ex.A1 on 23-5-1979 after the so-called mediation on 19-4-1979 would certainly belie the theory propounded by the defendants that there was mediation and the plaintiff and the defendants agreed for the course suggested by the mediators etc.
20. To bring home the theory of nominality, the defendants sought to rely upon the oral evidence of the mediators. The oral evidence of the so-called mediators loses every significance in the first instance on account of the fact that when both parties did agree to follow the course as suggested by the mediators nothing prevented them to reduce the terms into writing more particular when things happened contrary to the recitals in Ex.A2. Further more when the plaintiff wanted the third endorsement to be made on 23-5-1979 extending time in ordinary course the defendant would have approached the mediators seeking extension of time. Therefore, the plea that since the first defendant could not pay that amount he made the third endorsement on 23-5-1979 is inherently improbable. Above all, when there was a settlement and both parties agreed for the course suggested by the mediators and having regard to the earlier transactions between the plaintiff and the first defendant when the plaintiff without actual payment as alleged by the first defendant made the first defendant to sign the document Ex.A2 and the subsequent two endorsements and wanted the first defendant to see that the debt due to the plaintiff by Venkatrama Naidu of Pakal should be cleared when the first defendant was totally unconcerned with the same and when it is specifically pleaded that he got trapped and all this back drop would have definitely made the first defendant to insist for reducing the terms of the settlement into writing. Absence of any such written settlement would certainly go a long way against the case of the defendant.
21. Apart from the probabilities factor, DW1 in his statement in para 20 pleaded that he took mediators by names Kesavula Naidu-DW6, Reddeppa Naidu-DW3 and Srinivasula Reddy (not examined) and on 19-4-1979 the mediators settled the dispute, which was acceptable to both the parties. However, in his evidence he stated that
DW3, one Srinivasula Reddy, DW6 and Ramachandra Naidu mediated the dispute. Thus, he added fourth name of Ramachandra Naidu in his evidence, which is inconsistent with his plea. DW2 in his evidence stated that DWs.3, 6 and one Srinivasula Naidu did the mediation. He claims to have been present at the time of mediation. He also excluded Ramachandra Naidu and he states that one Srinivasula Naidu was present as one of the mediators. However, according to the plea and evidence of DW2, it is Srinivasula Reddy, but not Srinivasula Naidu. DW3, one of the mediators, did not even give the names of DW6 and Ramachandra Naidu in his evidence. In the cross-examination he admitted that he did not remember the names of the other two mediators. Ramachandra Naidu was not examined. The name of DW10 is also Ramachandra Naidu, but he did not depose anything about the mediation. It is not known whether he is the same person referred to in the evidence of DW1 as one of the mediators. Ultimately, DWs.3 and 6 alone have been examined to prove the so-called mediation. DW3 did not speak about the name of DW6, So out of the two witnesses, viz., DWs.3 and 6 one is not able to name the other. These discrepancies in the evidence of DWs.1, 2, 3 and 6 would throw any amount of reasonable scepticism on the evidence of DWs.3 and 6, in on overall appreciation of evidence of those witnesses. Coming to the oral evidence of DW1, in the chief-examination itself he has admitted categorically to the following effect:
“It is true that I agreed to sell ‘A’ schedule lands to P1 and it is also true that I executed Ex.A2 but did not receive Rs.30,000/- or any other sum from P1.”
In the cross-examination he further admitted to the following effect:
“The recitals of Ex.A2 are true. Attestor Balakrishna Naidu is the son of my brother Munirathnam Naidu…..The
payment endorsements in Ex.A2(a) to A2(c) are true and payments also are true. D2 signed in all these three endorsements”
Yet another stage, he made an admission in the cross-examination thus:
“I and D2 extended the time for performance on 23-5-1979 for three months under Ex.A2(C) endorsement ……Out of 13 acres purchased under
Ex.A1, we sold seven acres under Ex.A2 to PW1. I had delivered Ex.A1 to PW1 even before Ex.A2 was executed.”
DW8 the second defendant also admitted in his cross-examination as follows:
‘The contents of Exs.A1, A1(a) to A1(g) and Ex.A2 and Ex.A2(a) to Ex.A2(c) are true and correct. Exs.A2(a) to A2(c) were scribed by DW1. I signed in Ex.A2(c) a few days after it was written and I did not observe the signature of the attestor of P. Srinivasa Naidu. Exs.A2(a) to A2(c) were executed for extending the life of Ex.A2 and they were executed with my consent.”
The above excerpts extracted from the depositions of DWs.1 and 2 would clearly bring home to valid execution of Exs.A2(a) to A2(c).
22. Having regard to the totality of the facts and circumstances discussed supra and in view of the admissions of PWs.1 and 8 as excerpted above the oral evidence on the point cannot be accepted. For the above reasons, I am of the considered view that the first defendant has failed to discharge the burden cast upon him to show that Ex.A2 agreement is nominal and sham and it was never intended to be acted upon.
23. Apropos the issue of passing of consideration, in the first instance the recital
in Ex.A2 shows that an advance amount of Rs.30,000/- was passed. The execution of Ex.A2 is an admitted fact. The learned senior Counsel Sri N.V. Suryanaryana Murthy seeks to rely upon the judgment of the Apex Court in this regard, reported in H. Venkatachala Iyengar v. B.N. Thimmajamma, , where in it has been held thus:
“generally speaking, where there is proof of signature every thing else is implied till the contrary is proved”.
24. The learned Counsel seeks to rely upon another judgment of the Apex Court in Pawan Kumar Gupta v. Rochiram Nagdeo, . In Para 23 the Court held thus:
“The clear pleading of the plaintiff is that he purchased the suit property as per Ex.P11-sale deed. Burden of proof cannot be cast on the plaintiff to prove that the transaction was consistent with the apparent tenor of the document. Ex.P11 sale deed contains the recital that sale consideration was paid by the plaintiff of Narain Prasad the transferor. Why should there be a further burden of proof to substantiate that recitals in the document are true? The party who wants to prove that the recitals are untrue must bear the burden to prove it.”
25. Therefore it is his contention that presumption that Ex.A2 is supported by consideration can be drawn when once the execution is admitted or proved. Although, none of the illustrations given under Section 114 of the Evidence Act does cover the situation obtaining under Ex.A2 a presumption of fact may certainly be drawn about the passing of the consideration under Ex.A2 when execution thereof has been admitted. The illustrations given under the section are not exhaustive. After all presumptions are inferences or logical deductions drawn from out of the proved
facts which are circumstantial. Section 11 of the Evidence Act is the genera! section dealing with presumptions of fact. According to that section the Court may presume the existence of any fact which, it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of particular case. In the absence of any rebuttal evidence the Court may presume that consideration as recited in the document has been passed when the execution thereof is an admitted fact. The burden is upon the defendants to prove that no consideration as recited in the document was passed.
26. All this is one aspect. Now in view of Exs.A2(a) to A2(c) endorsements which admittedly have been made subsequently I am afraid the plea of no consideration under Bx.A2 is not germane for consideration. In that view of the matter, the evidence of PW2 will not in any way help the defendants to buttress their plea of no consideration. What all the witness stated in his evidence was that no amount was passed in his presence. On the other hand, his evidence shows that both the defendants signed in his presence after agreeing to the contents of Ex.A2. At any rate, the evidence of PW2 does not rule out the passing of any consideration under Ex.A2.
27. Coming to the evidence of DW2, the attestor of Ex.A2, his evidence is inconsistent with the very plea taken by the defendants. Neither the first defendant nor the second defendant did speak about DW2 making a protest before attesting the document and the plaintiffs seeking to convince them by explaining that Ex.A2 would be nominal. DW2 is evidently a close relative of first defendant being his nephew. Any attempt to show that Ex.A2 is not supported by consideration is a futile attempt as afore discussed in view of the subsequent three endorsements. In that view
of the matter, the evidence of DW2 looses its efficacy apart from the fact that on an appreciation of his evidence it appears to be quite unconvincing. For the above reasons the contention of the learned Counsel for the defendants that the 1st plaintiff failed to file his income tax returns and therefore an adverse inference is to be drawn merits no consideration.
28. Coming to the evidence of the mediators, as discussed by me supra, that evidence loses every significance in view of Ex.A2(c) endorsement. Further more, their evidence does not inspire any confidence of the Court in the absence of any written agreement reflecting the terms of settlement. One should not be oblivious of the fact that evidence is sought to be adduced contrary to the terms of Ex.A2 document and to defeat the same. Therefore, that evidence should be so cogent, clear and unequivocal. Always documentary evidence is the best evidence, which excludes the oral evidence. But here in this case, since the oral evidence is sought to be adduced so as to exclude the documentary evidence, that evidence under all circumstances should be convincing and clinching on the point. Beset with the improbabilities inherent and innate from the record, the oral evidence on the point is quite incongruous unconvincing and does not inspire any confidence of the Court. With that type of evidence available on record it is not safe to conclude that Ex.A2 document is not supported by consideration as recited therein, particularly, when it is obvious from the very plea of the first defendant that Ex.A2 is supported by consideration at least to the extent of Rs.10,000/-, being the amount covered by promissory note in favour of Muneyya.
Point No. 3 :
The specific case of the plaintiffs as averred in the plain is that D1 and D2 entered into a contract of sale for themselves
and on behalf of D3. Admittedly, third defendant is not a party to the suit agreement and as the third defendant has got equal share along with defendants 1 and 2, the contract of sale, therefore, cannot be specifically enforce as against the third defendant, who is not a party thereto. The plaint ‘A’ schedule lands is an integral whole and has not been divided by metes and bounds amongst defendants 1 to 3 inter se. When the contract is respect of the entire plaint ‘A’ schedule lands generally the Court would order performance in respect of the whole of the property, but not in piecemeal because the contract is indivisible, is the contention of the learned Counsel Sri P.S. Narayana for the defendants. Reliance has been placed in support of the said contention upon the judgment of the Calcutta High Court in Abdul Rahim v. Tufan Gazi, AIR 1928 Cal. 584. It has been held in the said judgment as follows:
“Where the plaintiff, by his conduct, has made it impossible for the Court to give effect to the contract in its entirely, the Court will not allow specific performance of a part”
Reliance has also been placed by the learned Counsel upon the Judgment of Gauhati High Court in Shyam Sunder Chowkhani v. Kajaj Kanti Biswas, AIR 1999 Gau. 101. The Court held in para 20 as follows:
“(i) the plaintiff is not entitled to a decree for specific performance of contract on the ground that Ex.1, the agreement for sale was executed only by defendant No. 1, the son and not the father, defendant No.2. Though both of them were the owners of the land in equal shares. There is absolutely no evidence that defendant No.2 received any part of the consideration money and/ or he agreed to the sale of the land rather from Exhibit GA, the notice asking the plaintiff to take back the advance, it was made
clear that defendant No.2 was not willing to sell the land. So this agreement for sale executed only by one co-share for the entire land cannot be enforced.”
The above judgment of the Gauhati High Court applies in all fours to the facts of the present case. As against this the learned Counsel for the appellants Sri A.K Suryanarayana Murthy seeks to rely upon a short noted judgment of this Court in Ch. Rangandha Chetty v. M. Chinnamma and another, 1985 (2) ALT (NRC) 114. That was a case where sale agreement was executed by two vendors, co-owners, as per the first settlement deed, which was shown to the purchaser, but on account ofthe subsequent settlement deed one of the co-owners was not having any share. Notwithstanding the same, the purchaser is entitled to the relief of specific performance, as no injustice would be caused to the defendants. The said judgment has no application to the facts of the instant case. Here, the third defendant had admittedly a share in the property. His share cannot be allowed to be conveyed by defendants 1 and 2, who have no right over that share.
29. That apart, the conduct of the plaintiffs is to be seen. The specific averment in the plaint to the effect that defendants 1 and 2 for themselves and on behalf of the defendant No.3 entered into an agreement of sale with the plaintiffs is not supported by any recital in Ex.A2 nor it is even discernible from a perusal of the whole document, nor the plaintiffs could establish the same otherwise. Therefore, that specific averment in the plaint remains unproved. It appears that it has been made after having realised that D3 who has 1/3rd share in the property is not a party to the suit agreement and the suit agreement of sale cannot be enforced for that share as against defendants 1 and 2. This conduct of the plaintiffs is blameworthy and disentitles
them to any relief of specific performance. It can also be said in the context that the plaintiffs are not coming to the Court with clean hands in having made such an averment in the plaint. Now in view of the fact that either the third defendant or his LRs., are not bound by the terms of Ex.A2 contract and as such, the plaintiffs have not asked for any partition and separation of that share of the third defendant in the plaint ‘A’ schedule lands and as it is an undivided property, Ex.A2 contract can not be specifically enforced as against defendants 1 and 2. Sri P.S. Narayana, the learned Counsel, rightly relied upon the Judgment of the Apex Court in this regard in P.V. Joseph’s Son Mathew v. N. Kuruvila’s Son, . In Para 14 the Apex Court held as follows:
“14. Section 20 of the specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. The High Court has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kurvuvila could get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit by Varghese is the agreement for sale Ex.A1. Since Cheitiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance.”
In a recent judgment in Ganesh Shed v. C.S.G. Setty, , the Apex
Court has refused the relief of specific performance on the premise that there was no concluded contract between the parties. That was a case where the first defendant had taken up the plea in his written statement that there were only proposals and counter proposals and that he had an obligation to consult his brothers D2 and D3 and they were not willing for a consideration of Rs.5,00,000/-, as against the plea of the plaintiffs that there was a concluded contract between the plaintiff and the first defendant, where the draft agreement was approved by the first defendant. Having regard to the facts and circumstances it was held by the Apex Court that there was no concluded contract and ultimately refused the relief of specific performance.
That apart, it is the plea of the defendants that a railway wagon repair workshop would be located adjacent to the plaint ‘A’ schedule lands, and therefore, there has been appreciation in that value of the property. Even according to the plaintiffs they paid only Rs.30,000/- i.e., 1/3rd of the total share consideration. The major portion of the sale consideration has not been paid. On account of the appreciation of the value of the immovable property in general, and on account of the plea of defendants certainly that would place the defendants in a disadvantageous position vis-a-vis the plaintiffs who may stand to gain more on account of the escalation of the value of ‘A’ schedule lands. In any view of the matter, the plaintiffs are not entitled to the relief of specific performance. However, under Section 22 of the Act the plaintiffs can seek for the refund of the amount advanced at j the time of the execution of the contract i.e., the amount of Rs. 30,000/-. Although it has not been originally pleaded, an application seeking amendment of the plaint filed before this Court has been considered in view of the specific provisions under Section 22 of the Specific Relief Act. The plaintiffs are,
therefore, entitled to refund of the advance amount of Rs. 30,000/- from the defendants 1 and 2 who since died from the LRs., who are liable to the extent of the estate of their late fathers viz., defendants 1 and 2, in their hands. An argument has been advanced in this regard by the learned Counsel for the defendants that the LRs.; of the defendants 1 and 2 cannot be mulcted with any liability personally. It is not the personal liability. They are liable to the extent of estate, if any, of their late fathers in their hands.
Point No. 4:
During the pendency of the appeal, an application has been filed of the second appellant requesting to delete his name on the premise that the second plaintiff is walking out in favour of the first plaintiff as he is no more interested in any part of the property and as the first plaintiff alone is interested in the entire property. That application having been considered and allowed the name of the second appellant has been deleted. Curiously, much emphasis has been laid on this aspect by the learned Counsel for the respondent while contending that the first appellant should also be nonsuited since the necessary party in the appeal has been deleted. The learned Counsel seeks to place reliance upon the judgment of this Court in N. Venkateshwarlu v. P. Pullamma, . That was a case where one of the shares who is a necessary party to the suit was not impleaded in the second appeal. That is not the case here. The party was added and that party himself wanted the deletion of his name. The other judgment of this Court in Asst. Commissioner H.R. and C.E. Vijayawada v. S.S.Varaprasada Rao, . has also equally no application, inasmuch as that was a case where a defendant remained ex parte in the suit he should be shown as a party in the array of appeal in accordance with the provisions of Order 41, Rule 14(2) of CPC. It is not the case of any non-
joinder of necessary party. The second appellant wants to walk out on his own accord at the appellate stage that cannot defeat the rights of the first appellant. Moreover, there is no conflict of interest inter se amongst themselves. The second appellant is walking out in favour of the first appellant. Therefore, the appeal is not affected in any way on account of the deletion of the second appellant
30. For the foregoing reasons, the appeal is allowed in part and there shall be a decree in favour of the appellant-first plaintiff for refund of the amount of Rs. 30,000/, with interest at the rate of 12% per annum from the date of suit till the date of decree and at the subsequent rate of 6% from the date of decree till realisation, against the legal representatives of both the deceased defendants 1 and 2 to the extent of the estate of the deceased defendants 1 and 2 in their hands. In view of the facts and circumstances, there shall be no order as to costs.