ORDER
L. Narasimha Reddy, J.
1. In this appeal the defendant in OS No. 14 of 1987 on the file of the Subordinate Judge, Bapatla, challenges the decree and judgment passed therein.
2. The plaintiff and defendant are brother and sister.
3. The plaint averments in brief are as under:
4. One Kavuri Sankaraiah was declared insolvent in the year, 1956 in I.P.No. 10/56. He composed his debts to various creditors and filed I.A.No. 740/64, for annulment of the adjudication so that his properties are relieved from the burden on account of his having been adjudicated as insolvent. Two creditors by name Dasari Sundaramaiah and Dasari Brahmaiah objected for the annulment of the adjudication at that stage, and the same was dismissed and the matter was carried in appeal to District Court, in A.S.No. 189/74. During the pendency of the said appeal, the said creditors compromised the matter with Kavuri Sankaraiah and received Rs. 19,000/- in full and final settlement As Kavuri Sankaraiah had no means to pay the amount, he entered into a contract of sale with the plaintiff for Rs. 45,000/- in Ex.A.1 and the plaintiff paid the said amount of Rs. 19,000/- to the creditors.
5. At a subsequent stage two more creditors by name Kavuri Raghavaiah and Prattipati Venkateswarlu filed applications that they were not aware of filing of I.A. No. 740/64 and mat their debts were not composed. Later on, at the instance of the defendant, the plaintiff discharged the debts of these two creditors.
6. In the meantime, Kavuri Sankaraiah executed a will on 22-10-1977 (Ex.A2), whereunder he bequeathed all his properties in favour of the defendant who was his foster daughter. In the will, extensive reference was made to the various debts incurred by him, the execution of Ex.A1 and the manner in which the defendant is fastened, the manner in which she has to handle the properties as well as to, discharge the debts. Kavuri Sankaraiah died in December, 1977.
7. The defendant, as the legal representative of Kavuri Sankaraiah filed A.S.No. 7/81 in the District Judge, Guntur against the orders in I.A.No. 740/74 against Kavuri Raghavaiah and Prattipati Venkateswarlu. Later on, at the instance of the defendant, the plaintiff discharged the debts of these two creditors also. According to the plaintiff, he has paid in all a sum of Rs. 30,893/- for discharging the debts of Kavuri Sankariah.
8. It is the case of the plaintiff that he discharged the liability towards, these persons and also the matter ended in compromise. Thereby all the debts incurred by Kavuri Sankaraiah got composed and the properties held by him stood revested in the defendant. The plaintiff claimed that he paid in all Rs. 30,893/- and the defendant is under an obligation to execute the sale deed after receiving the balance of sale consideration pursuant to Ex.A1. He stated that he demanded the defendant several times to execute the sale deed however the defendant was evading on one pretext or the other. He got issued a notice also and ultimately the suit was filed on 24-10-1986 for the relief of Specific Performance of the agreement of sale of Ex.A-1 and for decree for damages at Rs. 19,200/- or in the alternative have decree for an amount of Rs. 1,17,093/- with interest, at 12% p.a.
9. The defendant filed her written statement mainly claiming that the execution of Ex.A1 by late Kavuri Sankaraiah was only for the purpose of screening the property from the debts payable by him to various creditors. She stated that allegation of payment of Rs. 11,893/- by the plaintiff to the creditors by name Kavuri Raghavaiah and Pralliapti Venkuteswarlu is false and she has also taken certain subsidiary pleas.
10. On the basis of the rival pleadings, the trial Court framed the following issues:
(1) Whether the plaintiff is entitled for specific performance of contract of sale dated 16-9-1976?
(2) Whether the plaintiff is entitled to alternative relief of recovery of Rs. 1,17,093/- from the defendant ?
(3) To what relief?
Additional Issues :
(1) Whether the contract of sale dated 16-9-1976 is normal?
(2) Whether the defendant is entitled to contend that the contract of sale is not enforceable ?
11. The plaintiff himself examined as PW1 and marked Exs.A1 to A8 The defendant examined herself as DW1 and she examined DWs.2 and 3 also. No documents were filed on behalf of the defendant. On an appreciation of oral and documentary evidence the trial Court decreed the suit for specific performance and also decreed the claim of the plaintiff towards damages at Rs. 19,200/-. Hence this appeal by the defendant.
12. Sri T. Veerabhadrayya, the learned Counsel for the appellant submits that Ex.A1 was executed by late Kavuri Sankaraiah only, with a view to screen the properties and it was only nominal that the surrounding circumstances would clearly establish that Ex.A1 was not to be acted upon and the plaintiff has taken advantage of the confidence reposed in him by late Kavuri Sankaraiah. He further submits that the decree for damages cannot be sustained either on facts or in law.
13. Sri P.V.R. Sharma, the learned Counsel for the plaintiff-respondent on the other hand submits that Ex.A1 was executed by late Kavuri Sankaraiah for genuine necessity. It was supported by consideration and in fact, was acted upon. He submits that the very fact that extensive reference was made to Ex.A1 in the will, Ex.A2, would clearly indicate that the plea of the defendant that Ex.A1 was only nominal and cannot be sustained. So far as the question of damages is concerned, the learned Counsel submits that since the defendant had the benefit of enjoying the property for all these years, the plaintiff is entitled to be compensated for the same.
14. In view of the submissions of the learned Counsel for the parties the questions, that arise for consideration in this appeal are whether:
(a) Whether the Ex.A1 is nominal and intended not to be acted upon; and
(b) Whether the plaintiff is entitled for the damages claimed by him.
15. Ex.A1 is the agreement of sale executed by late Kavuri Sankaraiah on 16-9-1976. He offered to sell the suit schedule property to the plaintiff for a consideration of Rs. 45,000/-. No serious dispute is raised as to the genuinely of this document. Therefore it has to be taken that Ex.A1 was executed by late Kavuri Sankaraiah. The contention of the defendant is that Ex.A1 was executed only to screen certain properties from the creditors and it was not acted upon.
16. It is a matter of record that late Kavuri Sankaraiah was declared insolvent. With that declaration, his properties, were to vest in the Court receiver. With a view to get the properties revested in him, he initiated steps in the year, 1964 and filed I.A.No. 740/64, to compose his debts and get the orders of insolvency annulled. While he could adjust the liabilities of all other creditors, two creditors by name Dasari Dundaramaiah and Brahmanaiah, insisted on payment of amount to them. At this stage Kavuri Sankaraiah offered to sell the suit property under Ex.A1, to the plaintiff. Under Ex. A1, Kavuri Sankaraiah, did not receive any amount from the plaintiff. But the recitals in Ex.A1 clearly indicate the purpose for which he has intended to sell the property. Within two months from the date of Ex.A1, Kavuri Sankaraiah made an endorsement on that document acknowledging the payment made by the plaintiff to the said two creditors amounting to Rs. 19,000/-. There is no dispute about the payment of this amount. This is one of the steps to indicate that Ex.A1 was acted upon.
17. One strong circumstance to show that Ex.A1 was acted upon and it is not a nominal one is its reference in Ex.A2. Ex.A2 is the will executed by Kavuri Sankaraiah on 22-10-1977. Extensive reference was made to Ex.A1, in this will. He also referred to various items of liabilities which remained undischarged in Ex.A2. He desired the defendant, to whom the property was bequeathed to receive the balance of consideration under Ex.A1 and to discharge the debts to the extent possible. The defendant does not dispute the existence or the genuinely of the Ex.A2. On the other hand she derives title to the property under that document and it is on the basis of Ex.A2, that she filed A.S.No. 7/81. In her deposition she categorically stated that each and every portion of the will is to be believed and is correct. When copious reference was made to Ex.A1 in Ex.A2, it cannot be said that Ex.A1 was intended, not to be acted upon. Therefore the evidence on record clearly establishes that Ex.A1 was executed and it was intended to be acted upon and in fact acted upon and therefore the same is liable to be given effect to.
18. The plaintiff claimed an amount of Rs. 19,200/- towards damages. According to him, the defendant delayed the execution of the sale deed and but for the delay, he would have entitled to enjoy the property and it would have yielded him the benefit to an extent of Rs. 2,500/- per year. Since he is deprived of the same, he claimed the said amount. In this context it needs to be observed that the plaintiff knew very well the circumstances that were prevailing in the year 1976, when Ex.A1 was executed. He was only helping Kavuri Sankaraiah to get the property revested in him on the insolvency proceeding being annulled. It is not as if Kavuri Sankaraiah could have executed a sale deed immediately even if he wanted. The plaintiff also knew very well that he had to wait till the property gets revested in Kavuri Sankariah. The revesting, even according to him, took place after the disposal of A.S.No. 7/81. That is the reason why he has not filed the suit in the year 1976. Further in a suit for specific performance, an agreement holder does not get any right till the property is conveyed.
19. The delay in execution of sale deed in this case cannot be attributed to any one of the parties. Even in a case, where the delay is on account of the acts and omissions on the part of the vendor, where the subject-matter of the agreement is immovable property, having regard to the market trends the so called loss or deprivation said to have been suffered by the purchaser is adequately taken care of, on account of the escalation of values. Awarding damages to purchasers under agreement of sale is rather a rare phenomenon. In the facts and circumstances of the case there is absolutely no justification for the plaintiff to claim damages and for the trial Court in awarding the same. The decree to that extent deserves to be set aside.
20. Now it remains to be seen as to what is the relief that can be granted to the plaintiff. It is a matter of record that the plaintiff has paid an amount of Rs. 19,000/- under Ex.A1 and an endorsement to that effect is made on the document itself. The plaintiff also claimed that he paid an amount of Rs. 11,893/-, to two creditors namely Kavuri Raghavaiah and Prattiapti Venkateswarlu. Except oral assertion, no creditable evidence is placed before the trial Court. The plaintiff did not obtain any endorsement on Ex.A1 as regards this amount, as he did in respect of the amount of Rs. 19,000/-. He did not obtain any receipt from the defendant or the creditors, whom he claims to have paid,
21. The plaintiff relied upon Ex.A-4, which is a memo of compromise filed by the defendant in A.S.No. 7/81. A reference was made in the memo as to the existence of an agreement of sale in favour of plaintiff and that he is making the said two creditors to file memos accepting the payment of the amount of Rs. 11,000/- etc. Even if the recitals of Ex.A1 are taken on their face value, it cannot be concluded that it is the plaintiff, who made the said payment. Therefore the plaintiff is liable to pay the balance of consideration namely Rs. 26,000/-.
22. Even according to the plaintiff the value of the property has gone upto 3 to 4 times by the date of the filing of the suit itself. The plaintiff was also realistic when he offered to pay the interest on the balance of consideration if directed by the Court through the pleadings in the plaint itself. Having regard to the escalation of the value of the property and also having regard to the fact that the defendant is no other than the sister of the plaintiff, the ends of justice will be met, if the plaintiff is required to pay interest on the balance of consideration of Rs. 26,000/- at the rate of 18% per annum. The interest shall be calculated from 27-4-1984 on which date the order of insolvency was annulled and the properties stood revested in the defendant. If the plaintiff has deposited any part of the sale consideration into the Court, the interest fetched thereon shall be given credit to.
23. Accordingly there shall be a decree for specific performance of the agreement of sale dated 16-9-1976 (Ex.A1), in favour of the plaintiff on his payment of balance of consideration together with interest as indicated above, calculated up to the date of deposit. The plaintiff shall deposit the balance of consideration as indicated above within a period of three months from the date of the receipt of the decree and judgment in this appeal, by the trial Court.
24. The appeal is partly allowed and the decree of the trial Court shall stand modified to the extent indicated above.
25. Having regard to the relationship of the parties, they shall bear their own costs throughout.