IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD MONDAY, THE FOURTEENTH DAY OF MARCH, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 249 OF 2001 BETWEEN: Pulavarthi Mallikarjuna Rao and another …APPELLANTS AND Samayamantula Sesharatnam …RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 249 OF 2001 JUDGMENT: The defendants in O.S.No. 124 of 1992 on the file of Subordinate Judge, Amalapuram, are the appellants herein. 2. The suit was filed for recovery of specific performance of the contract of sale, dated 28.10.1992 in the alternative for refund of the consideration of Rs.1,75,000/-. 3. The allegations in the plaint go to show that the 1st defendant is the owner of the plaint schedule property, which is said to be 790 square yards and tiled house at Machavaram village and her family was doing Copra business. For the purpose of providing capital for the business and also for discharging the liabilities, the 1st defendant offered to sell the schedule property to several persons, but finally, the plaintiff agreed to purchase the property for a consideration of Rs.1,95,000/- and paid a sum of Rs.1,75,000/- on 28.10.1992 and agreement of sale was executed. The plaintiff was always ready and willing to pay the balance of consideration and obtain the sale deed. The defendant has postponed the sale. Hence the suit. 4. The 1st defendant filed a written statement denying the allegations in the plaint about the conduct of sale, dated 28.10.1992 and payment of consideration of Rs.1,75,000/-. He submitted that the said agreement is a fabricated one. The allegation that the plaintiff is ready and willing to perform the part of the contract is not true and he is not liable to execute the sale deed. 4. After filing of the suit, the 1st defendant died and defendants 2 & 3, who are the sons of 1st defendant, were added as parties. They did not file any separate written statement. 5. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the plaintiff is not entitled to specific performance? 2) Whether the agreement was executed in the circumstances mentioned in the written statement? 3) To what relief? 6. On behalf of the plaintiff, PWs.1 and 2 were examined and marked Exs.A-1 to A-5. On behalf of the defendants, DWs.1 and 2 were examined and no documents were marked. 7. After considering the evidence on record, the learned Subordinate Judge, Amalapuram, passed a decree for specific performance. Aggrieved by the said judgment and decree, the present appeal is filed. 8. The points that arise for consideration are: 1) Whether the agreement of sale, dated 28.10.1992 pleaded by the plaintiff is true and valid? 2) Whether the plaintiff is entitled for the specific performance of the contract of sale as decreed by the lower Court ? 9. POINTS: The fact that the defendants 2 and 3 were doing some Copra business is not in dispute and the 1st defendant is the owner of the schedule property is also not in dispute. According to the case of the plaintiff, the schedule property was offered to be sold for a consideration of Rs.1,95,000/- for the benefit of the children of the 1st defendant, who were doing business. PW-1 is the husband of the plaintiff and PW-2 is the brother of PW-1. Their evidence goes to show that they gone to the house of 1st defendant along with the scribe and the amount was paid and Ex.A-1 was executed by the 1st defendant and it was attested by DWs. 1 and 2, who were the children of the deceased, and PW-2, the brother of PW-1. The case of the defendants is one of total denial. The learned Subordinate Judge, taking into consideration the veracity of the evidence of DWs. 1 and 2, came to the conclusion that they are associated with the sale agreement and the sale agreement is true and accordingly, granted the decree for specific performance. 10. The learned counsel for the appellants strongly contends that the reasoning of the lower Court in coming to a conclusion about the genuineness of the document basing on the evidence of DWs. 1 and 2 and their failure to take any specific plea is of no consequence since the 1st defendant, who is the owner of the property, has specifically denied the execution of the agreement or passing of the consideration. According to him, the burden is totally on the plaintiff and except the interested evidence of PWs. 1 and 2, no other evidence is adduced by the plaintiff and the scribe of the document was not examined and therefore, agreement is not proved. It is also his further contention that the document was sent to the expert for comparison of signatures and the expert opined on comparison of the signature on Ex.A-1 with the signature of defendant No.1 on the Vakalat and Written Statement, found that the signature on Ex.A-1 does not belong to defendant No.1. This part of the opinion of the expert has no relevancy without examining the expert as a witness. 11. Therefore, the Court has now to consider whether the evidence on record establishes the truthfulness of the claim of the plaintiff. Evidently, the plaintiff was not examined and her husband, who is said to be looking after the affairs of the plaintiff, was examined. His evidence goes to show that the consideration of Rs.1,75,000/- was paid and Ex.A-1 was executed by the 1st defendant, which was attested by defendants 2 and 3. Evidently, he is a native of Bandarulanka and his wife and children reside at that place and the suit property is situated at Machavaram. The contention of the counsel for the appellants is there was no need to purchase the property at Machavaram when plaintiff has got her house and therefore, contract is improbable. I do not think that it is a valid contention to be taken into consideration. It is true that at the time of the sale agreement, the original sale deed is said to have been given to PW-1, it was not filed. Evidently, the stamps were purchased in the name of the plaintiff and in order to prove the capacity of the plaintiff to pay money, the plaintiff has also produced the account books and also the tax returns. The wife of PW-1 is said to be lending money. He is also said to be doing money lending business. It was also elicited in his cross-examination that he and the defendants 2 and 3 were doing business in Copra and some amounts were due to him as per the accounts and there are hand loans also due from the defendants 2 and 3. He claims to have picked up the scribe at Sub-Registry, Ambazipet and went to the house of 1st defendant at about 3 or 4 P.M. Ex.A-4 does not show that the amount of Rs.1,75,00/- was paid towards sale consideration. The evidence of PW-2, who is no other than the brother of PW-1, is also to the same effect. Therefore, from the evidence of PW-1, it is quite clear that there are monetary relationship between the plaintiff and the defendants and he stated that the suit transaction was not connected with any loan transaction. As against this evidence, the evidence of DW-1, who is the 2nd defendant, goes to show that his mother never sold the property and there was no need for her. In cross-examination, he stated that he had Copra business and the property was purchased by his father in the name of the 1st defendant and she sold some property to others. According to him, he gave Vakalat containing the signature of his mother and gave instructions for drafting of the written statement by the Advocate. He claims to have noticed his signature as an attester on the sale agreement served on his mother. He claims to have filed an insolvency petition in I.P.No.6 of 1992 and it was allowed. He also claimed that PW-1 is also a creditor in the insolvency petition. There were business transactions between him and PW-1 and there were no disputes between them. DW-2, who is also the attester of Ex.A-1, also denied the agreement of sale. His evidence also goes to show that he has got business and he did not file insolvency petition, he denied that his mother has executed a sale deed in favour of Nakka Neerajakshi, which was admitted by DW-1. He did not see the Ex.A-1 earlier; he has got acquaintance with PW-1. 12. From the evidence of DWs. 1 and 2, it is quite clear that they have no enmity with the plaintiff or PW-1. In fact, their relationship between them is very cordial and business dealings also. If such is the case, the reason for plaintiff or PW-1 to fabricate the contract of sale Ex.A-1 with their signatures appears to be improbable. Further- more according to the case of the plaintiff, the property was sold for the benefit of the defendants 2 and 3, who were doing business and to discharge some debts. From the own showing of the DW-1, he was indebted to PW-1 and others and filed an insolvency petition. Therefore, it is quite possible that there was pressure on the family to discharge the debts due by them. From the evidence of DW-1, it is quite clear that the 1st defendant was also doing business, and has got on her commitments. If at all the defendants 2 and 3 are denying the signatures on Ex.A-1, they could have as well sent the signatures for comparison to the expert, but they did not do so. In fact, the instructions for drafting of the written statement were given by defendant No.2. Therefore, all the circumstances were taken into consideration by the lower Court to come to a conclusion that there is a valid agreement of sale and consideration was paid as pleaded by the plaintiff. There are no strong reasons mentioned for fabricating the agreement of sale Ex.A-1 and it is also not acceptable, for the reason that the relationship is always good and never strained. Merely because no legal notice was given prior to filing of the suit, the relief of specific performance cannot be denied since the suit was filed within one month from the date of the agreement. It is not a case where the defendants expressed their readiness and willingness and pleaded that the suit is premature. It is also not a clear case of the defendants that the transaction Ex.A-1 is a loan transaction rather than a sale transaction. Merely because there are some financial dealings, no inference can be drawn that there is a possibility of a loan transaction when there is no specific plea. The possibility of the sale of the property for the purpose of discharging of the debts cannot also be doubted. The lower Court has given sufficient reasons to accept the claim of the plaintiff based on the evidence of DWs. 1 and 2 and the evidence of PWs. 1 and 2 and there are no grounds to interfere with the judgment and decree passed by the learned Senior Civil Judge. Accordingly, points are answered. 13. In the result, appeal is dismissed. In the circumstances of the case, each party shall bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J Date: 14-03-2011. INL