JUDGMENT
C.Y. Somayajulu, J.
1. Defendants in a suit for specific performance are the appellants. For the sake of convenience parties to the appeal would hereinafter be referred to as they are arrayed in the trial Court.
2. The case, in brief, of the plaintiff is that Khasimbi (hereinafter referred to as the deceased), i.e., wife of first defendant and mother of Defendants 2 to 6, was the owner of Ac. 1.25 cents of wet land situated in R.S. Nos. 114/2 and 115/2 of Gollapudi Village (hereinafter referred to as the suit land). She agreed to sell the suit land to him for Rs. 30,000/-, at the rate of Rs. 21,000/- per acre and received Rs. 1,000/-as advance and executed an agreement of sale in his favour on 4-6-1976 and put him in possession thereof. The said agreement was attested by the first defendant. As per the terms of the said agreement, he has to discharge the debts due from the deceased to third parties mentioned therein. So, he discharged those debts and is always ready and willing to perform his part of the contract. Since the deceased died without executing the sale deed in his favour, he got issued a registered notice to the defendants to execute and register the sale deed in respect of the suit land in his favour for which Defendants 2 to 4 sent a reply through their advocate denying the agreement. Later all the defendants approached him and sought time to execute and register the sale deed, and made an endorsement on the reverse of the agreement on 2-6-1979, but failed to do so.
3. First and second defendants filed separate written statements. First defendant also filed additional written statement after obtaining leave from the Court. Third defendant filed a memo adopting the additional written statement of the first defendant. The case, in brief, of the first defendant is that the agreement of sale relied on by the plaintiff is not binding on him and the other defendants as it was obtained by taking advantage of his illiteracy and the inexperience of the deceased. Plaintiff, who used to lend money to him and the deceased, was obtaining promissory notes in the names of his nominees for higher amounts than that were lent, and gave pressure to discharge those debts, with a view to coerce him and the deceased to sell away the suit land to him, and had, with that intention, filed O.S. No. 538 of 1976 in the name of his nominee brother Venkata Rathaiah, and got the properties of the deceased attached before judgment. When the deceased questioned the plaintiff about that abrupt action, he suggested to the deceased to keep her documents of title as security for the amount due from her, and told her that she need not appear in the suit filed against her. Succumbing to the mechanizations of the plaintiff, the deceased, who was sick, gave her original title deeds dated 24-6-1946 and 24-4-1950 to the plaintiff. At that time she was made to sign a document in the house of the Village Karanam on 4-6-1976 at 7.30 or 8 p.m., by dominating her will, with his attestation thereon, without reading over or explaining the contents therein to them. The deceased cannot read or write Telugu language but can only sign in Urdu, and so under an impression that that document was mortgaged by deposit of title deeds, they affixed their signature and thumb mark therein. In fact, no amount was paid either to him or to the deceased at that time, nor was the possession of the suit land delivered to the plaintiff on that day. Plaintiff forcibly entered into possession of the suit land. Assuming that O.S. No. 538 of 1976 would be withdrawn as per the assurance given by the plaintiff, the deceased did not appear in that suit, and came to know later that the said suit was decreed ex parte. Extent of land mentioned in the schedule appended to the agreement does not tally with the extent of land purchased by the deceased, because Ac.0.28 4/5 cents purchased by him and his brothers from Md. Akbar intervenes the land in R.S. No. 115/2 and 114/2 purchased by the deceased. Since the deceased was not the absolute owner of the entire land in R.S. No. 114/2 for her to enter into an agreement to sell the same. Plaintiff who did not choose to take any action in spite of his and his children denying the agreement relied on by him, got issued the notice dated 3-5-1979, falsely alleging that he is ready and willing to perform his part of the contract, after there is a steep increase in the value of the suit land. The allegation that he and the other defendants had on 2-6-1979 made an endorsement on the reverse of the agreement is not true. As the debts shown in the agreement relied on by the plaintiff are deemed to have been discharged by virtue of the provisions of the A.P. Agriculture Indebtedness (Relief) Act, 1977 (Act 7 of 1977), there were no subsisting debts at the time of the alleged agreement for their being discharged by the plaintiff and so plaintiff is not entitled to the reliefs sought.
4. The case, in brief, of the second defendant is that the deceased did not execute the agreement relied on by the plaintiff and that there was no need for her to sell the suit land, which is adjacent to the National Highway. Since the deceased, to his knowledge, did not contract any debts, question of her entering into an agreement to sell the suit land for discharge of those debts does not arise. The inordinate delay in filing the suit disentitles the plaintiff from claiming the relief of specific performance. The endorsement on the reverse of the agreement relied on by the plaintiff is not true and is fabricated and so plaintiff is not entitled to any relief.
5. Plaintiff filed a rejoinder contending that inasmuch as the debts mentioned in the agreement were discharged even prior to 29-12-1976 i.e., coming into force of the A.P. Act 7 of 1977, defendants cannot claim the benefit of the said Act 7 of 1977.
6. Basing on the above pleadings, the trial Court framed 7 issues and one additional issue for trial. In support of his case, plaintiff besides examining himself as PW1 examined 3 other witnesses as PWs.2 to 4 and marked Exs. A1 to A34. On behalf of the defendants, first defendant was examined as DW1, third defendant was examined as DW2 eighth defendant was examined as DWs.8 and 5 other witnesses were examined as DWs.3 to 7. Exs. B1 to B38 were marked on their behalf. Exs. X1 to X4 were marked through witnesses and Exs. C1 and C2 were marked from the Court record. The trial Court held that the agreement relied on by the plaintiff is true and that he is entitled to the relief of specific performance and decreed the suit. Hence, the appeal by the defendants.
7. The point for consideration is whether the agreement of sale relied on by the plaintiff is true, and if so is he entitled to the relief of specific performance of that agreement?
8. Placing strong reliance on Kharbuja Kuer v. Jangbahadur and Narayan Mishra v. Champa Dibya , Sri Mowa Chandra Sekhara Rao, learned Counsel for defendants, contended that inasmuch as the deceased was a pardahnashin, and since none of the witnesses examined by the plaintiff spoke about the contents of Ex. A1 being read over to her, Ex. A1, in any event, cannot be said to have been duly executed by the deceased more so because the evidence of DWs. 5 and 7 shows that the deceased came to the house of the scribe subsequent to the completion of the writing of the document and that the plaintiff himself had instructed the scribe about the contents to be written in the document. His next contention is that since Ex. A.1 was obtained under coercion, i.e., under the threat of attachment before judgment of the property of the deceased, it is unenforceable more so because plaintiff failed to explain the reasons for using an old stamp paper for Ex. A1 and in any event since the plaintiff failed to issue notice intimating his readiness and willingness to perform his part of contract, plaintiff is not entitled to the relief of specific performance of Ex. A1. It is his contention that the plaintiff, in order to explain away the inordinate delay, came up with a false case that the delay was due to the failure of the defendants obtaining permission from the Urban Ceiling Authorities. He relied on Malamma v. Permanand , Ramjanam Bharthi v. Dhurandhar Kuer , M.N. Mohammad Mirza v. B. Subhan Saheb , Sirmul v. Annapurna Devi , Lourdu Mari David v. Louis Chinnaya Arogiaswamy and Sampatlal Randal Kimtee v. A.V. Shhdhar Naik 1991 (1) ALT 184, in support of the contentions raised by him. The contention of Sri T.S. Anand, learned Counsel for plaintiff, is that since the trial Court gave cogent reasons for its conclusions, and since the defendants who alleged in their written statement that the plaintiff was not put in possession of the suit land in pursuance of Ex. A.1, and had trespassed into the suit property, changed their version and admitted during cross-examination about delivery of possession and since there is no plea in the written statements of any of the defendants that the deceased was a pardanashin, the said contention, raised for the first time in this appeal without any foundation in the pleadings, cannot be believed or accepted, more so because the deceased admittedly was carrying on business all by herself. He relied on Nirmala Anand v. Advent Corporation Private Limited 2002 (4) ALD 3 (SC) and Gyarsi Bai v. Dhansukh Lal , in support of his contention.
9. The fact that the stamp on which Ex. A1 is engrossed was purchased long prior to the date of Ex. A1, may not be of much consequence because neither the Stamp Act nor the rules made thereunder prohibit stamps purchased by either of the parties to the transaction long prior to its execution being used for evidencing the transaction. Had any question in that regard i.e., why an old stamp was used for Ex. A1, been put to PW1, he might have explained the reasons for using an old stamp for writing of Ex. A1 agreement. Having not done so, defendants cannot, at the stage of appeal, ask the Court to draw any presumption on the genuineness of the transaction merely because a stamp purchased long prior to the date of transaction was used for evidencing the transaction.
10. The contention that the deceased was sick by the date of Ex. A1 cannot be believed or accepted because no reliance evidence is placed on record in that regard. The evidence of DW3, a Doctor, shows that he treated the deceased during the period 8-9-1976 to 31-7-1977, as per the medical prescriptions shown to him. During cross-examination he stated that the brain and mind of the deceased were normal and that prior to 8-9-1976 the deceased might not have been a patient of his. So, the evidence of DW3 does not establish that the deceased was sick by 4-6-1976 I.e., the date of Ex. A1. So, it can be presumed that the deceased was hale and hearty by the date of Ex. A1.
11. As rightly contended by the learned Counsel for the plaintiff, there is no plea in the written statements of any of the defendants that the deceased was a pardahnashin. only on the basis of the evidence of DW 7, the scribe of Ex. A1, that the deceased wore a White cloth across her face, the learned Counsel for the defendants tried to build up a case that the evidence on record shows that the deceased was a pardahnashin. That statement of DW7, even if true, only shows that the deceased was wearing a ‘pardah’. Merely because a Muslim woman wears a ‘pardah’ in the presence of strange males or when she goes out of her house, she would not become a ‘pardahnashin’. Even assuming that a plea that the deceased was a pardahnashin can be raised for the first time in appeal, without a foundation in the pleadings, the following paragraphs in Kharbuja Kuer’s case (supra), and extracted in Narayan Mishra’s case (supra), relied on by the learned Counsel for defendants, would show that the deceased cannot be said to be a pardahnashin lady.
5… In India paradanashin ladies have been given a special protection in view of the social conditions of the times; they are presumed to have an imperfect knowledge of the world, as. by the pardah system they are practically excluded from social intercourse and communication with the outside word.In Farid-Un-Nisa v. Mukhtar Ahmad, 52 Ind App 342 at p. 350 : AIR 1925 PC 204 at p. 209, Lord Sumner traces the origin of the custom and states the principle on which the presumption is based. The learned Lord observed:
In this it has only given the special development, which Indian social usages make necessary, to the general rules of English Law, which protect persons, whose disabilities make them dependent upon or subject them to the influence of others, even though nothing in the nature of deception or coercion may have occurred. This is part of the law relating to personal capacity to make binding transfers or settlements of property of any kind.
The learned Lord also points out:
Of course fraud, duress and actual undue influence are separate matters.
It is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies shall not be confused with other doctrines, such as fraud, duress and actual undue influence, which apply to all persons whether they be pardahnashin ladies or not.(underlining mine)
It should be remembered that the above observations were made in respect of transactions which took place more than three quarters of a century prior to the date of Ex. A1, when ladies of some communities were practically excluded from social intercourse and communication with outside world and were not interacting with anybody else except their relatives and the members of their families. So, a special protection was given to them at that time. Since the deceased, admittedly, was moving around and was borrowing money and was carrying on business, by no stretch of imagination can she be said to be a ‘pardahnashin’, in the sense, referred to in the above decision of the Apex Court, relied on by the learned Counsel for the defendants. Even assuming that the deceased was a pardahnashin, as held by the Apex Court in the above decisions, plaintiff, either by direct or circumstantial evidence, can establish due execution of Ex. A1. So, it has to be seen if the evidence on record establishes due execution of Ex. A1 by the deceased.
12. The deceased, who was alive for nine months after Ex. A1, did not dispute Ex. A1 during her lifetime. DW1 who is the husband of the deceased and who admitted about his figuring as an attestor to Ex. A1, admitting during chief-examination that he and the deceased executed the promissory notes referred to in Ex. A1. The evidence of PWs.3 and 4 attestors to Ex. A1 clearly shows that the deceased executed Ex. A1 after knowing its contents and DW1 signing as an attestor thereto. The suggestion put to PW4 during cross-examination, reading-
It is not true to say that Ex. A1 was executed as a security with a stipulation that it has to be cancelled whenever the amount due is paid
shows that the defendants admitting execution of Ex. A1 by the deceased. In fact, DW5 admitted that PWs.3 and 4 attested Ex. A1, and that they are respectable persons in their village. So, their evidence cannot be disbelieved.
13. DW 7 is the scribe of Ex. A1. During chief-examination he stated that the deceased came to his house after he wrote the recitals in Ex. A1 and was not present at the time of drafting of Ex. A1. During cross-examination he stated that there are no false recitals in ExAl and that he is the scribe of Ex. A2 receipt showing the discharge of the decree debt due from the deceased to K.V. Rattaiah and that Ex.A2 is referred to Ex. A1 and that DW1 agreed for the said course, and that he wrote the recitals therein only as per the instructions of DW 1 i.e., first defendant, but later altered the said statement and stated that PW 1 (plaintiff) also instructed him and that he incorporated in Ex. A1 the recitals mentioned to him by both DW 1 and PW 1 and that the deceased signed in Ex. A1 on all the pages in his presence. Since the evidence of a witness has to be read with the statements made by him in the cross-examination and as assessment of the evidence of a witness cannot be made only on the basis of the statements made by him in the chief-examination only and since there is no need for the husband of the deceased i.e., first defendant to cheat or defraud his wife, it is difficult to believe that the deceased affixed her signatures to Ex. A. 1 without knowing the contents thereof. DW 7 has an axe to grind against PW 1, inasmuch as he got issued a notice demanding payment of the money due to the co-operative society and collected it. Therefore, there is a reason for his deposing against PW 1. Significantly, this witness DW 7 admitted that possession of the suit land was given to the plaintiff in pursuance of Ex. A1 and also admitted that he mentioned in Ex. A1 that the agreement is entered into for discharge of a decree debt and the debts due to two other persons.
If Ex. A1 is not true, when the evidence of DW 7 shows that possession of the suit land was given to the plaintiff in pursuance of Ex. A1, the deceased who was alive for nine months after Ex. A1, would not have failed to take steps for recovery of possession from the plaintiff, if he had forcibly entered into possession thereof, as contended by the defendants in their written statement. During the cross-examination made on 10-7-1987, DW1 also clearly admitted that plaintiff took possession of the suit land at the time of the agreement i.e., Ex. A1.
14. The evidence of PW1 shows that the deceased gave Ex. A7 copy of the application made by her to the Urban Land Ceiling Authorities seeking permission to sell the suit land to him. The signature of the deceased in Ex. A7 is not denied or disputed. In fact the suggestion put to PW 1 during cross-examination, on Ex. A7, reads
It is not true to say that Ex. A7 was entrusted to me for the purpose of filing of the same before ceiling authority It is not true to say that Khasim Bee gave me Ex. A7 to file it in Urban Ceiling Office but 1 did not file it in the said office.
So, it is clear that the defendants agree that the deceased handed over Ex.A7 to PW1. If the deceased did not really execute Ex. A1, and affixed her signatures thereto, assuming that it is only a mortgage or security for discharging of the debts due from her to the plaintiff or his alleged nominees, there was no need for the deceased signing Ex.A7 i.e., copy of ‘application’ made by her to the Urban Land Ceiling Authorities seeking permission to sell the suit land to the plaintiff. Thus, Ex.A7 also belies the contention that the deceased affixed her signatures to Ex. A1 without knowing the contents thereof.
15. The title deeds of the suit land, admittedly, are in the custody of the plaintiff. The contention of the defendants that those title deeds were handed over to plaintiff as a collateral security, but not in pursuance of Ex. A1, is sought to be established through DWs. 5 and 7 i.e., an attestor to and the scribe of Ex. A7. DW5 seems to be close to the first defendant because he during cross-examination, stated that first defendant informed him about the plaintiff issuing Ex.A8 notice and made a request to him to go and talk to the plaintiff. He admitted that he owes money to the plaintiff and his relatives. Since DW5 signed in Ex. A1 as an attestor, he cannot be heard to say that the terms agreed between the parties are different from the terms mentioned therein in view of Section 92 of the Evidence Act, 1872.
16. The evidence of DW 7, the scribe of Ex. A1, in chief-examination is that as per the settlement if first defendant were to pay the amount due to the plaintiff within two months Ex. A1 would stand cancelled and possession of suit land will have to be delivered back by the plaintiff. This evidence, which is contrary to the recitals in Ex. A1, cannot be taken into consideration in view of Section 92 of the Evidence Act, 1872, and also because he admitted during cross-examination that he did not tell anybody that Ex. A1 is a security bond or a lease deed. Therefore, I hold that the deceased affixed her signatures to Ex. A1 knowing it to be an agreement of sale, and delivered her title deeds to the plaintiff and put him in possession of the suit land.
17. The next contention of the learned Counsel for defendants is that since Ex. A1 was obtained after getting the properties of the deceased attached before judgment in O.S. No. 538 of 1976, it amounts to coercion and so Ex. A1 is unenforceable. Ex.B7 and Ex.B8 are the notices received by the first defendant and the deceased in LA. No. 2696 of 1976 in O.S. No. 538 of 1976. They show that the petitioner/plaintiff therein sought attachment before judgment of a Lathe machine and agricultural produce belonging to the deceased. Since Rule 12 of Order 38 CPC prohibits attachment before judgment of the agricultural produce in possession of an agriculturist, deceased could have claimed exemption of attachment of agricultural produce before judgment. There is nothing on record to show that either the deceased or the first defendant took such a plea. Section 15 of the Indian Contract Act, 1872, defines ‘Coercion’ as:
committing, or threatening to commit, any act forbidden by the Indian Penal Code (XLV of 1860), or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement
So, it is clear that seeking attachment before judgment, does not fit into the definition of ‘coercion’. Since it is not the case of defendants that plaintiff committed any of the acts mentioned in the above section, it cannot be said that Ex. A1 was obtained by coercion.
18. Question of plaintiff exercising ‘undue influence’ either on the deceased or on the first defendant does not arise because the evidence on record does not establish that plaintiff was in a position to dominate the will of either the deceased or the first defendant to make them enter into an agreement to sell the suit land, and since the written statements of the defendants are bereft of the details of the fraud, undue influence, etc., alleged by them, which is mandatory as per the ratio in Bishundeo Niirain v. Seogeni Rai and so, it cannot be said that Ex. A1 is vitiated by fraud or coercion or undue influence.
19. Since defendants are representing the estate of the deceased in their capacity as her heirs, they are bound by what the deceased did during her lifetime. If Ex. A1 really was obtained by fraud, coercion, etc., or was obtained without disclosing the contents thereof to her, the deceased would have even during her lifetime repudiated Ex. A1, as it is well known that a contract entered into by using fraud, etc., is a ‘voidable’ but not a ‘void’ contract, and also would not have given Ex.A7 to the plaintiff.
20. The other contention is that Ex. A1 is a nominal or sham transaction and that all the debts mentioned in Ex. A1 are in fact due to the plaintiff but not to the promisees in those promissory notes and since there is no evidence on record to show that any of the creditors of the deceased referred to in Ex. A1, issued notices demanding repayment of the debts due to them, it is clear that there, in fact, was no urgent necessity for the deceased to sell the suit land. The contention that unless there is a demand, the money due under a promissory note does not become payable, cannot be accepted, because money payable under a demand promissory note, is a present debt, and is payable even without a demand, because as per Article 21 of the Limitation Act, 1963, limitation starts from the date of the instrument but not the date of demand, and ‘on demand’ mentioned in a promissory note, in the legal sense means ‘forthwith and without demand’. Question as to who are the real or actual creditors of the deceased in respect of the debts mentioned in Ex. A1 is not very relevant for deciding this case because it is not the case of the defendants that the debts mentioned in Ex. A1 are not really due from the deceased. The liability of the deceased to pay those debts, in fact, is impliedly admitted, because DW1, even in his chief examination, stated-
On the date of discharge of Ex. B1 and B3 I paid Rs. 6,000/-to plaintiff Plaintiff while returning Ex. B1 and Ex.B3 to me said that still I have to pay him some more amounts.
For all the previous debts plaintiff never insisted payment and he got registered notices issued through Advocate for payments. There is another pronote executed by me and my wife for Rs. 8,000/- in the name of Rathaiah brother of plaintiff. We also executed another pronote for Rs. 5,000/- and another pronote for Rs. 10,000/-. I do not remember in whose names plaintiff get the pronotes for Rs. 5,000/- and Rs. 10,000/-executed. In total plaintiff gave us Rs. 20,000/-. Plaintiff gave us Rs. 20,000/- one month prior to the execution of pronote for Rs. 8,000/- in the name of Rathaiah and other two pronotes for Rs. 5,000/- and Rs. 10,000/- for me on the same date.
When there are several debts and when a suit for recovery of the money due under a promissory note executed by the deceased is filed by a creditor against her, deceased contemplating to sell away the suit land to wipeout her debts cannot be viewed with suspicion. The contention that those promissory notes were obtained for higher amounts than the actual amount lent, to cover up the difference in the rate of interest, cannot be believed because there is no reliable evidence in that regard to rebut the presumption under Section 118 of the Negotiable Instruments Act.
21. DW 4 is examined to show that plaintiff lends money and takes promissory notes in the name of others. As stated earlier, when debts mentioned in Ex. A1 are admittedly borrowed by the deceased the evidence of DW4 pales into insignificance. The fact that there was a partition between PWs 1 and 2 is established during the cross-examination of DW7, where he stated that the deed of partition, between PWs. 1 and 2, which was registered, was scribed by him. So, it is difficult to believe that PW1 would lend money to others in the name of his divided coparceners. Even assuming that plaintiff lent money to the deceased in the name of others, when those borrowings are admitted, it cannot be said that Ex. A1 is a sham and nominal. Since there is nothing in Ex. A1 to show that it is intended to be cancelled subsequently the contention that Ex. A1 is not enforceable cannot be accepted.
22. DW 6 is examined to show that his signature was obtained on Ex.A4 endorsement of discharge, made on the promissory note in favour of Narra Haribabu. During cross-examination, he stated that he attested Ex.A4 without observing the date of promissory note and that he does not remember if he borrowed Rs. 7,500/- for Karampudi Venkata Rattayya on 7-4-1974 and discharged the said debt. He admitted that he executed two promissory notes Exs. A3 and A5 and made two endorsements i.e., Exs. A 31 and A 32. When the factum of defendants owing debts and their discharge is admitted the evidence of DW6 is not of much help to decide the enforceability of Ex. A1.
23. Deceased and first defendant were indebted either to the plaintiff or to others. Deceased executed an agreement and made the plaintiff discharge the debts mentioned in Ex. A1. So, as rightly contended by the learned Counsel for the plaintiff they are estopped from contending that they are not bound by Ex. A1.
24. The evidence of the first defendant as DW1 shows that he and his children have, under Ex. X1, applied for pemiission to the Urban Land Ceiling Authorities to sell the suit land and later withdrew that application. Since it is not the case of the defendants that they entered into an agreement to sell the suit land to anybody else other than the plaintiff, and since no ordinary prudent man would purchase the land in possession of another who is not the vendor, without a no objection from the person in possession, defendants making an application seeking permission to sell the suit land from the Land Ceiling Authorities, prima facie, shows that they made such application for permission to sell the suit land only in pursuance of Ex. A1.
25. The other contention raised is that the signature of the second defendant in Ex. A15 endorsement made on Ex. A1 is forged. The evidence of DW8 (second defendant) in that regard cannot be accepted or believed, because the suggestion put to PW 1 during cross-examination is that Ex. A 15 endorsement was obtained from all the defendants to save limitation, which not only positively establishes Ex. A15 endorsement on Ex. A1 was made by all the defendants, but impliedly establishes the deceased executing Ex. A1 also. The evidence of PW2 and PW4 who are the scribe and attestor of Ex. A15 shows that Defendants 2 to 6 affixed their signatures and first defendant affixed his thumb impression to Ex. A15. Second defendant who filed a separate written statement denying his signature in Ex. A15 did not even cross-examine PWs.2. and 4. Nothing is elicited during the cross-examination of PWs.2 and 4 made on behalf of the other defendants to show that Ex. A15 is not true. So, I hold that Ex. A15 is true and is binding on the defendants.
26. Ex. B 38 is relied on by the defendants to show that land adjoining the suit land was purchased for a higher amount. Since Ex.B38 is dated 22-11-1978 i.e., more than 2 years after Ex.A1, and when it is not the case of the defendants that the consideration fixed for the suit land at the time of Ex. A1 does not represent the true market value at the time, Ex.B38 is of no use to decide this case.
27. Having received the entire consideration payable under Ex. A1 and having put the plaintiff in possession of the suit land defendants obviously are trying to wriggle out of Ex. A1 probably because the rates of real estate have gone up after Ex. A1 agreement.
28. The ratio in Malamma’s case (supra), Ramjanam Bharthi’s case (supra), M.N. Mohammad Mirza’s case (supra), Sirmul’s case (supra), and Lourdu Mari David’s case (supra), is that a person who comes to Court with false case is not entitled to the relief of specific performance. Since plaintiff did not come to Court with a false case and since it is the defendants that have set up a false case, the above decisions have no application to the facts of the case.
29. In Sampatlal Ramlal Kimtee’s case (supra), relied on by the learned Counsel for the defendants, the purchaser who undertook to obtain the permission from the Urban Land Ceiling Authorities, failed to obtain the required permission within that time. So, it was held that the contract was frustrated. It is no doubt true that as per Ex. A1 it is the plaintiff that has to obtain the permission from the Urban Land Ceiling Authorities and the deceased agreed to co-operate. As stated earlier, the deceased made an application and gave a copy thereof i.e., Ex.A7 to the plaintiff. Subsequent to her death, defendants also made an application but they had withdrawn that application, as seen from Ex. X1. Without the co-operation of the vendor, question of the vendee obtaining permission from the Urban Land Ceiling Authorities does not arise. Defendants having withdrawn their application for permission to sell cannot take their own lapse or action as a defence to defeat the claim of the plaintiff. The delay if any is on the part of the defendants, but not on the part of the plaintiff. For that reason and since the suit land is an agricultural land, question of its being governed by the provisions of the Urban Land Ceilings Act may not arise. In fact, recently in Nirmala Anancts case (supra), the Apex Court held that relief of specific performance cannot be refused merely because permission could not be obtained from the Government. Therefore, plaintiff cannot be denied the relief of specific performance merely on the ground that no permission from the Urban Land Ceiling Authorities was obtained by the defendants.
30. The other contention of the learned Counsel for the defendants is that since the boundaries of the suit land show that it covers the entire extent of land covered by Ex. B11 to B15, which is betwixt the land purchased by the deceased under Ex. B11 and Ex. B13, it is clear that the deceased does not have title to the entire suit land and so plaintiff is not entitled to the relief of specific performance. I find no forces in the said contention. As stated earlier, defendants are but the legal representatives of the deceased. It is well known that the legal representatives of a person cannot take a plea which could not open to the party, whose estate they are representing. That apart in a suit for specific performance by the vendee, the vendor cannot take a defence that he has no title to the property agreed to be sold. See Mir Abdul Hakeem Khan v. Syed Abdul Mannan Khadri 1972 (1) APLJ 37 and Netyam Venkataramanna v. Mahankali Narasimhan . So, the fact that the suit land comprises of land, which in fact does not belong to the deceased, is not of any consequence. This apart the rule is that nobody can convey a better title than what he has. If deceased was not the owner of the entire suit land and was the owner of only a part of it, plaintiff would get title only to that part over which the deceased had title, but not to that part over which she had no title. So, defendants cannot have any grievance.
31. For the above reasons and for the reason that the trial Court after carefully considering the entire evidence on record negatived the contentions of the defendants and held that plaintiff is always ready and willing to perform his part of the contract, and as I find no grounds to differ with the conclusions reached by the trial Court, I hold that the plaintiff is entitled to the relief of specific performance sought by him. The point is answered accordingly.
32. In view of my finding on the point for consideration, the appeal is dismissed with costs.