THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 2154 of 1992 JUDGMENT: The plaintiffs in O.S.No.69 of 1985 on the file of the Subordinate Judge, Machilipatnam are the appellants herein. The suit was filed for specific performance of the contract of sale dated 27.06.1977 or in the alternative for refund of the advance of Rs.9,500/- and damages. The allegations in the plaint go to show that the defendants 1 to 3 are the sons, 4th defendant is the widow and defendants 5 to 7 are the daughters of one M.Hanumantha Rao, who died intestate on 09.01.1979. They have succeeded to all his properties. The schedule property was agreed to be sold to the plaintiff by Hanumantha Rao representing that the property has fallen to the share in an oral partition between him and his brother Pandurangarao and an agreement was executed on 27.06.1977 with the following terms: i. The price of the plaint schedule site was fixed at Rs.6.50 per square yard. ii. The schedule site of an estimated extent of 2000 sq. yards subject to determination by measurement was valued at Rs.13,000/-. iii. A sum of Rs.2,000/- was received as advance by the vendor and the plaint schedule site was delivered possession to the vendee; iv. Half of the balance of Rs.11,000/- was agreed to be paid before 31.12.1977. v. The vendee was to obtain the sale deed bearing the expenses therefor after payment of the balance. The plaintiffs were always ready and willing to perform their part of the contract and the following payments were made: Date Amount 21.01.1978 .. Rs. 1,500.00 09.03.1978 .. Rs. 500.00 05.04.1978 .. Rs. 500.00 12.06.1978 .. Rs. 500.00 02.07.1978 .. Rs. 1,000.00 13.07.1978 .. Rs. 2,000.00 26.07.1978 .. Rs. 500.00 18.09.1978 .. Rs. 1,000.00 The vendor has been postponing the same but subsequently the plaintiffs came to know that there was a suit for partition pending between the members of the family and it was represented by the vendor that he will get the property allotted to the share and executed an agreement on 18.09.1978 promising to execute the sale deed after the final decree in O.S.No.84 of 1970. A further sum of Rs.1,000/- was paid on 18.09.1978. The plaintiffs came to know that a preliminary decree was passed and the vendor died and, therefore, filed I.A.No.1236 of 1978 to come on record for working out of the equities and the petition was allowed and the Commissioner was appointed and the Commissioner allotted schedule property share to the vendor. But, however, the legal representative got the final decree petition dismissed for the reasons best known to them. Therefore, the suit is filed for specific performance of the contract. The schedule property is about 2,000 square yards said to be located within the limits of Edepally of Machilipatnam municipality. The defendants 1 and 3 filed written statement disputing the contract of sale and power of the vendor M.Hanumantha Rao to enter into the contract of sale. The suit contract is not enforceable. In O.S.No.84 of 1970, Hanumantha Rao did not disclose the existence of the alleged contract, which is a fraudulent one. The consideration of Rs.13,000/- is very low and the time for the performance of the contract is also unreasonable. Hanumantha Rao contracted the debts for his wasteful habits and, therefore, the suit is liable to be dismissed. The 2nd defendant filed written statement repeating the contentions raised by the other defendants. On the basis of the above pleadings, the following issues were framed for trial: 1. Whether the suit contract dated 27.06.1977 is true, valid and binding on the defendants? 2. Whether the agreement dated 18.09.1978 is true, valid and binding on the defendants? 3. Whether the plaintiffs are entitled for the specific performance prayed for? 4. Whether the plaintiffs are entitled for the damages prayed for? 5. To what relief? On behalf of the plaintiffs, P.Ws.1 to 5 were examined and marked Exs.A-1 to A-31 and on behalf of the defendants, D.W.1 was examined and no documents were marked. After considering the evidence on record, the lower Court has granted a decree for refund of the amount of Rs.9,500/- and refused the claim for specific performance. Aggrieved by the said judgment and decree dated 23.04.1992, the present appeal is filed. The points that arise for consideration are: 1) Whether the plaintiffs are entitled for the specific performance of the contract of sale? 2) Whether the judgment and decree passed by the learned Subordinate Judge is legal and sustainable? POINTS: There is no dispute about the fact that the suit property is the joint family property of the deceased Hanumantha Rao and the plaintiffs. The property is about 2,000 square yards, which is said to be located at Machilipatnam and which is said to be valuable property. Evidently, the agreement of sale Ex.A-1 was said to have been executed on 27.06.1977 whereas the second agreement Ex.A-12 was executed on 18.09.1978. Both the agreements were, therefore, executed while the suit for partition in O.S.No.84 of 1970 was pending. Therefore, when the property is the joint family property and when already a suit was instituted for partition of the property, late Hanumantha Rao as a manager of the family could not have alienated the entire property and the transaction is definitely hit on the principles of lis pendens. There is also a dispute with regard to the conduct of the deceased Hanumantha Rao, the claim of the plaintiffs is that he was made to believe that there was no partition and that the property belonged to Hanumantha Rao, cannot be accepted. Even otherwise, when the second agreement Ex.A-12 is said to have been executed on 18.09.1978 after coming to know about the pending of the suit in O.S.No.84 of 1970 during the lifetime of Hanumantha Rao, the plaintiffs have not taken any steps to see that the contract of sale pleaded by them, is disclosed by Hanumantha Rao in the said suit. On the other hand, the present suit was filed 8 years after the alleged agreement Ex.A- 1 and 7 years after the agreement Ex.A-12. When the plaintiffs came to know about the pendency of the suit in O.S.No.84 of 1970 and got them impleaded as necessary parties in 1978 after the death of Hanumantha Rao, there is no reason as to why the suit for specific performance was not filed immediately and keeping silent for a longer time. The undue delay in filing the suit for specific performance is also not explained. It is to be noted that without getting any rights in the schedule property and without getting a decree for specific performance, the plaintiffs themselves got impleaded in the final decree proceedings, which, evidently, will not create any right in the properties. Therefore, instead of pursuing a remedy, which creates valid rights by getting a decree for specific performance, the plaintiffs have persuaded the remedy by adding as a party in the final decree proceedings, evidently without any basis. The evidence of P.W.4, who is the scribe of Ex.A-12, creates a doubt as to the nature of the transaction under Exs.A-11 and A-12 as to whether it was really a loan transaction or a sale transaction. Merely because, the final decree proceedings were got dismissed by the plaintiffs in O.S.No.84 of 1970, it cannot inure any sympathy for the plaintiffs. The lower Court has also considered Ex.A-27, certified copy of the decree in O.S.No.84 of 1970, whereunder several alienations by Hanumantha Rao were not considered. An attempt was sought to be made by the learned counsel for the appellants that though the final decree was not passed, evidently the share of Hanumantha Rao comes to about 200 square yards and the plaintiffs have already been in possession of 2,000 square yards and to that extent a decree for specific performance may be considered. But this plea of the appellants does not carry weight for the reason that there are several laches on the part of the plaintiffs in instituting the suit for specific performance and the delay was not properly explained and in fact the payments that were made under the agreement are installments and not as lumpsum money. The lower Court has given sufficient reasons in the suit of specific performance and exercised the discretion to grant only the relief of refund of the money. I feel the question of equities does not arise when the entire amount was not paid by the plaintiffs and the nature of the transaction and the bona fides are under serious cloud as found by the lower Court. Therefore, there are absolutely no merits in the appeal. Accordingly, the Appeal Suit is dismissed. No costs. ________________________ N.R.L.NAGESWARA RAO, J DATE: 12-10-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 2154 of 1992 DATE: 12-10-2011 MR