IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY THIRD DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.126 OF 1998 BETWEEN C. Malla Reddy. …APPELLANT AND K. Ramuloo (died) and others. …RESPONDENTS Counsel for the Appellant: MR. SRINIVAS POLVARAPU Counsel for Respondents 4 to 6: MR. K.B.R. KRISHNA MURTHY Counsel for Respondents 8 to 9: MR. A.V. SIVAIAH The Court made the following: - JUDGMENT: Plaintiff is the appellant, whose suit O.S.No.30 of 1987 for specific performance was dismissed by both the Courts below. 2. This second appeal was admitted on 22.04.1998 on the following substantial question of law: “Whether the disputed unregistered Will Ex.B1 propounded by D4 to D6 in an interlocutory application could have been permitted to be relied upon as evidence in the suit when they did not file any written statement setting up the above Will?” 3. The facts, in brief, are as follows: (a) Plaintiff alleges that he has purchased the suit lands from the first defendant under an agreement of sale dated 27.09.1978 marked as Ex.A1 for Rs.81,000/- by paying Rs.500/- as advance and remaining amount was payable at Rs.5,000/- on 20.10.1978 and remaining Rs.75,500/- on 20.01.1979. The said agreement executed by the first defendant in favour of the plaintiff is said to have followed by further payment of Rs.5,000/- and Rs.15,500/- on 08.12.1978 and 12.07.1979 respectively, which is said to have acknowledged by the first defendant. The second defendant is the wife of the first defendant. Plaintiff alleges that he received a legal notice from the third defendant – Ex.A2 dated 28.02.1980 making a rival claim to a part of the suit schedule property whereupon the plaintiff gave a legal notice – Ex.A3 dated 12.06.1980 to defendants 1 and 2 calling upon them to execute and register a sale deed by receiving the balance amount. It is also the case of the plaintiff that the suit lands are purchased by the first defendant in the name of his wife – second defendant, but the first defendant is the ostensible owner. (b) The first defendant filed a written statement denying that he purchased the suit lands in the name of the second defendant and asserting that she purchased the suit lands with her own funds. Further, the first defendant denied the execution of the suit agreement and receipt of consideration and claimed that the monies were paid towards sale of produce of the land. The second defendant also filed a separate written statement asserting that she purchased the suit schedule property out of her own funds – streedhana funds and that she is in possession of the property in her own right. She also claimed that the first defendant had no manner of right or authority to deal with the suit schedule property and as such, the Ex.A1 agreement is neither valid nor enforceable. The third defendant, rival claimant, who had issued Ex.A2 notice, was also impleaded as the third defendant but he remained ex parte and his claim for all purposes does not survive. (c) It appears that the second defendant died pending the suit after filing written statement whereupon the plaintiff filed I.A.No.361 of 1982 praying the Court that the first defendant, who is the husband of the deceased second defendant, who is already on record, may be treated as her legal heir and that application was allowed by the trial Court by order dated 29.10.1982. (d) It appears that the second wife and children of the first defendant filed an application being I.A.No.492 of 1983 under Order 1 Rule 10 of the Code of Civil Procedure, 1908 claiming that they have interest in the suit schedule property, as the second defendant died testate after leaving the will dated 11.07.1982 – Ex.B1 wherein the said proposed parties were entitled to her estate as legatees under the will. The said application was opposed by the plaintiff but the Court below by order dated 03.12.1983 allowed the IA to avoid multiplicity of the suit by observing that the required issue may be framed in the suit. Subsequently, pending this second appeal the first defendant also died whereupon the respondents 7 to 9 herein the other children of the first defendant through this second wife were brought on record as legal representatives. After impleading the defendants 4 to 6 no separate written statement was filed by the said defendants and as such, the will – Ex.B1 on the basis of which they claim interest in the suit schedule property was not set up in the pleadings by them. It is in that view that the aforesaid substantial question of law came to be formulated by this Court referred to above. 4. The issues, which are framed by the trial Court, are as follows: 1. Whether the 1st defendant purchased the suit lands benami in the name of 2nd defendant and whether he is the real owner of the suit lands? 2. Whether the defendant No.1 had the right and authority to sell the suit lands to the plaintiff? 3. Whether the plaintiff was in possession of the suit lands as on the date of filing of the suit and whether he continues to be in possession? 4. Whether there is privity of contract in between the plaintiff and D-1? 5. Whether the plaintiff invested and developed the suit lands as alleged in the plaint? 6. Whether the document dated 27-9-1976 entered into by and between the plaintiff and defendant No.1 is true and valid and properly stamped and legally enforceable? 7. Whether the cause of action arose for the plaintiff on 3-10-1980 to file the suit? 8. Whether the suit is properly valued? 9. To what relief? 5. Plaintiff examined himself as P.W.1 and P.Ws.2 to 5 as witnesses. Among the plaintiff’s witnesses P.Ws.3 and 5 are the vendors of the second defendant, who have deposed that the first defendant is the real owner, who purchased the suit schedule land from them in the name of the second defendant. P.W.2, an Upper Division Clerk working in the District Court, was examined to prove and mark Ex.A13 agreement dated 12.07.1979, which is in the nature of a supplemental agreement to Ex.A1 wherein, time for payment was extended. Plaintiff also marked Exs.A1 to A15. While Exs.A1 to A3 are already described above, Exs.A4 and A5 are postal acknowledgements wherein notice Ex.A3 addressed to the defendants 1 and 2 was returned unserved. Exs.A8 to A12 and Exs.A14 and A15 are documents in the nature of revenue record to show that the plaintiff is in possession. The first defendant examined himself as D.W.1; D.W.2 is one of the attestors of the will – Ex.B1 whereas D.W.3 is the sixth defendant, who is also a witness to Ex.B1, will. The defendants marked Ex.B1 will, which is already referred to above and the second defendant’s title deeds are marked as Exs.B2, B3 and B6. The rest of the documents filed on behalf of the defendants are either pahanies or land revenue receipts, ryot passbook etc. 6. The trial Court on consideration of the evidence found that Ex.A1 agreement was genuine but since the first defendant is not the owner and the second defendant is the owner of the suit schedule properties, no relief could be granted to the plaintiff and the suit was dismissed. The trial Court also found that Ex.B1 was proved by D.W.2 attestor. The lower appellate Court while confirming the said findings also recorded that oral evidence of P.Ws.3 and 5 cannot override the registered documents Exs.B2, B3 and B6 under which the second defendant claimed title to the property. The lower appellate Court also found that mere management of the property by the husband cannot prove his ownership and there is no evidence of implied authority of the first defendant to deal with the property of the second defendant. It also found that though Ex.B1 will was proved by examining D.W.2, the contention of the plaintiff’s counsel seeking remand of the suit was not justified, as the plaintiff was well aware of the will as well as the claim of defendants 2 to 5 in the suit itself, but no steps were taken and no objection was raised when they led evidence in support of the will. Consequently, it agreed with the trial Court and dismissed the appeal. 7. In this second appeal, elaborate submissions have been made by Mr. P. Srinivas, learned counsel for the appellant and Mr. K.B.R. Krishna Murthy, learned counsel appearing for respondents 2 to 6 and Mr. A.V. Sivaiah, learned counsel appearing for respondents 8 and 9. 8. Though several questions touching upon Sections 90 to 92 of the Evidence Act; the Benami Transactions (Prohibition) Act and other questions of fact were argued by the learned counsel for the appellant, he also made submissions that in the absence of an issue, the adjudication on the genuineness and validity of Ex.B1 will is unsustainable and contended that the substantial question of law formulated in the appeal may be answered in favour of the appellant by remitting the suit for framing appropriate issue on Ex.B1. Learned counsel also raised specific contention that evidence of P.Ws.3 and 5, the vendors of the second defendant, clearly supports the plaintiff’s case that in reality the first defendant was an ostensible owner but the same has not been considered by both the Courts below. 9. Learned counsel for the respondents, on the other hand, submitted that there is no necessity to go into those aspects as even the vendors of the second defendant i.e. P.Ws.3 and 5 have admitted the exclusive ownership and title of the second defendant as is evident from their cross-examination. They also submitted that the appellant/plaintiff being an Advocate himself was well versed with the legal position that when the title deeds of suit schedule property stand in the name of the second defendant, the suit agreement with the first defendant ought to have been either counter signed or authorized by the second defendant. They, therefore, contend that the suit agreement is not enforceable so far as the second defendant and her properties are concerned, as, admittedly, she is not the signatory to the suit agreement nor she has authorized the first defendant – her husband, on her behalf. They also contended that the cross-examination of P.W.1, plaintiff, clearly shows that he was aware of the title standing in the name of the second defendant but has not cared to take her signature while going through the suit transaction nor there is any evidence to show that the appellant/plaintiff has discharged his obligations under Ex.A1 even after extension of time, as granted under Ex.A13. Learned counsel, therefore, submitted that without the necessity of dealing with the substantial question of law, as framed above, even otherwise the concurrent findings of both the Courts below are not open for interference. 10. After hearing this appeal at length, I am of the view that the question formulated for consideration may not be relevant in view of the other fundamental questions, which arise in the matter and a decision whereon would have substantial bearing on the decision of the suit itself. I am, therefore, of the view that the following substantial question of law can be formulated on the basis of the contentions already advanced, which arise in this second appeal. “Whether the appellant/plaintiff can seek specific performance of Ex.A1 agreement, admittedly, relating to the property owned by the second defendant, when the said Ex.A1 agreement is not executed by the second defendant but executed by the first defendant – her husband?” The aforesaid question is, therefore, framed for consideration under Section 100(5) of the Code of Civil Procedure, 1908 and answered hereunder. 11. Plaintiff, as P.W.1, in the cross-examination states as follows: “Before entering into agreement of sale, I made enquiries with the then Malipatel of the village, one Sri Bala Krishna Reddy (who was examined as P.W.3 and who was also one of the vendors of D2)…I was told by him that D-1 purchased the same in an auction by the Co-operative department, in the name of his wife, D-2, but I did not inspect and verify the same from the revenue records…I did not also verify the title deeds of D-1 prior to Ex.A-1…Excepting the information given by Malipatel, I have not made any other enquiry into the title prior to Ex.A1. I did not notify in the newspaper to the public that I was intending to purchase the suit property before entering into Ex.A-1 agreement. After receipt of Ex.A-2 notice from D-3, I called upon D-1 to produce title deeds. It was only then I personally verified the records from Tahsil office. I did not demand D-1 to obtain and deliver a consent letter from D-2 expressing her agreement to sell the suit property to me, as she personally told me in the presence of Malipatel Bala Krishna Reddy and Khaja Miyan (P.W.2), that she agreed to sell the suit property to me. I have not issued any notice to D-2 informing her that D-1 agreed to sell and calling upon her to state if she also agreed to sell or not... It is not true to say that on 12.07.1979 I obtained signatures of D-1 on some document which I paid him Rs.15,500/-. On the other hand, both of us executed Ex.A-13 on 12.07.1979 and I furnished a copy of the same … On the date of execution of agreement Ex.A-1 in my favour the first defendant informed me that in the revenue records the name of Susheela Bai (D2) is shown as owner and pattadar. Ex.A-1 does not say that first defendant entered into an agreement with me for and on behalf of D2. In Ex.A-1, it is not mentioned that the first defendant had purchased the land in the name of the second defendant denominee. But he told him so… The extent agreed to be sold has not been mentioned in Ex.A-1. The village is also not mentioned in Ex.A-1. Reference to Sy.Nos. alone is there...” 12. P.Ws.2 and 3, who are examined by the plaintiff to support his submissions speak on execution and attestation of Ex.A1 but in the chief examination P.W.2 did not state that the second defendant was present and agreed to Ex.A1 transaction as stated by P.W.1. P.W.2 is also a witness to Ex.A13 and that part will be discussed separately hereunder. P.W.3, the vendor of the second defendant and scribe of Ex.A1, speaks of the circumstances relating to execution of Ex.A1 agreement. He also does not state that the second defendant was present and confirmed Ex.A1 transaction. In the cross-examination, however, he says: “I worked as Malipatel of our village for 28 years. I know D-2 was the owner and possessor of the suit land as on the date of Ex.A-1. The D-2 had absolute rights over the suit lands. The deceased defendant No.2 was supervising the cultivation, in the suit lands…” 13. P.W.5, the other vendor of the second defendant, states in the chief examination that the suit land belongs to the first defendant and the first defendant paid the entire consideration amount and got registered the sale deed in the name of his wife – second defendant. He also states that about seven years ago the first defendant sold the suit lands to the plaintiff. In the cross-examination, however, he admits that the registered document (Ex.B2 dated 19.07.1969) shows in the recitals that the vendee Susheela Bai (D2) paid the consideration to the vendors. 14. The aforesaid evidence adduced on behalf the plaintiff, therefore, shows that even before the execution of Ex.A1 the plaintiff was aware that the suit schedule property stands in the name of the second defendant and P.W.3, on whose advise he purchased the property from the first defendant, specifically admits that the second defendant has the absolute title over the suit schedule land. It is, therefore, inexplicable as to how the plaintiff has obtained the suit agreement from the first defendant and has paid amounts to him but has not obtained any document and not even a letter of consent or confirmation from the second defendant to support the authority of the first defendant. It does not appear from the evidence led by the plaintiff that any attempt is made by the plaintiff to show consent of the second defendant for the suit transaction either directly or indirectly. 15. Most important other circumstance, which supports this conclusion, is evident from Ex.A13, which is in the nature of a supplemental agreement extending the time for payment of balance amount in favour of the plaintiff. The aforesaid agreement, at more than one place, acknowledges that the second defendant is the pattadar and that payments are made to the pattadar and that future payment will made to the pattadar and states that balance amount of Rs.60,000/- will be paid by 05.03.1980, otherwise the pattadar will get back the possession of the land and the amounts paid will be forfeited. The said agreement is thus executed in favour of the first defendant by the plaintiff and note appended to the said agreement signed by the first defendant states that after payment of entire amount at the time of registration there will be no objection either from the first defendant or from the second defendant or anybody else for registration. A reading of this document, in my opinion, shows that the plaintiff is categorically aware that the second defendant is the pattadar and transaction has to be completed by her, however, this document also is not signed or confirmed by the second defendant. P.W.2, who is examined as a witness to prove this document, states that after some period after execution of Ex.A1, the plaintiff and the first defendant executed Ex.A13, which was attested by him. The defendants have denied Ex.A13 as having been executed by the first defendant, but the plaintiff, who seeks to support his claim on the basis of the said document, has been unable to explain that in spite of plaintiff’s knowledge of the second defendant being the owner and pattadar, no steps are taken by him for obtaining at least a confirmation from the first defendant for the suit transaction. In the light of these circumstances, therefore, I am unable to find any infirmity in the ultimate conclusion of the Courts below that Ex.A1 suit agreement is not enforceable. Firstly, the second defendant being actual, apparent and real owner has never entered into or acknowledged the agreement in favour of the plaintiff and secondly, even the plaintiff is not shown to have kept his promise for payment of balance amount within the time stipulated even under Ex.A13. In the absence of any contract with the owner, I am unable to see as to how the decree for specific performance could be sought for by the plaintiff against the second defendant. 16. The contentions of both parties, in the light of the evidence on record also give rise to two possible situations viz. (a) If the plaintiff proved that the first defendant is the real owner, the finding that Ex.A1 is proved would support his claim and the claim of legal representatives of the second defendant including the will – Ex.B2 under which they are claiming, would become unnecessary to be considered. (b) The second situation would arise if the evidence supports the finding that the second defendant is the owner of the property, in which case, the plaintiff is required to establish the implied authority of the first defendant on behalf of the second defendant and then the question of the will – Ex.B1 executed by the second defendant will have to be examined as to whether it is genuine and proved in accordance with law and as to whether the first defendant succeeds or defendants 4 to 6 succeed to the property of the second defendant. In my view, even if Ex.A1 is held proved, the plaintiff has failed to prove that the first defendant is the real owner, though the apparent title is with the second defendant. The first situation envisaged, as above, therefore, does not arise, as even the plaintiff admits that the second defendant is the owner, as is evident from Ex.A13 discussed above. In the second situation, when the second defendant is held owner of the suit schedule property, there is no evidence to establish the implied authority of the first defendant. In that view, therefore, even if Ex.A1 suit agreement executed by the first defendant in favour of the plaintiff is proved, the relief of specific performance cannot be granted. In that view of the matter, the substantial question of law, as formulated in the paragraph above, deserves to be answered against the appellant and it has to be held that the judgments of both the Courts below dismissing the plaintiff’s suit does not suffer from any substantial error including perversity. 17. Learned counsel for the appellant has relied upon R. JANAKIRAMAN v. STATE[1] for showing distinction between Sections 91 and 92 of the Evidence Act and in support of his contention that circumstances under which the registered documents were executed can be explained by leading oral evidence. The said proposition is also sought to be supported by decisions in VIDYADHAR KRISHNARAO MUNGI v. USMAN GANI SAHEB KONKANI[2] and RAPOLU YADAGIRI v. SMT. RAPOLU LAKSHMAMMA[3]. He also placed reliance upon R. RAJAGOPAL REDDY v. PADMINI CHANDRASEKHARAN[4] wherein the Supreme Court held on retrospectivity of Benami Transactions (Prohibition) Act, 1998. He also relied upon NETYAM VENKATARAMANNA v. MAHANKALI NARASIMHAN[5] for the proposition that the vendor in a specific performance suit cannot plead defect in his own title. 18. In my view, on facts, the questions relating to admissibility of oral evidence to explain the registered documentary evidence does not arise in the present case, as P.Ws.3 and 5 whose evidence, as relied upon by the plaintiff, admit that the second defendant is the owner of the property. Similarly, no circumstances are established by the plaintiff to support the contention that the second defendant was benami holder for the first defendant. In that view of the matter, I am of the view that the aforesaid decisions do not assist the learned counsel for the appellant. The second appeal is accordingly dismissed. However, on the facts and circumstances, there shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J March 23, 2011 DSK [1] (2006) 1 SCC 697 [2] AIR 1974 SC 658 [3] AIR 2003 AP 200 [4] (1995) 2 SCC 630 [5] AIR 1994 AP 244