*THE HON'BLE SRI JUSTICE P.S.NARAYANA +FIRST APPEAL NO : 1319 of 1992 % 6-8-2009 # Dammalapati Subba Rao ..... APPELLANT AND $ Bobbili Peda Nanchara Prasad and others .....RESPONDENTS <GIST: >HEAD NOTE: ! Counsel for the Appellant:MR.MOVVA.CHANDRASHEKAR RAO ^Counsel for the Respondent Nos 2 & 3 : MR.V.L.N.G.KMURTHY Counsel for the Respondent Nos.4 to 6 : MR.M.V.S.SURESH KUMAR ?CASES REFERRED: 1. AIR 1948 P.C. 95 2. AIR 1956 Andhra 33 (FB) 3. AIR 1967 S.C. 727 4. 1975(2) APLJ 34 5. AIR 2006 A.P. 212 6. 1996(2) Madras Law Weekly 7. 1981(1) S.C.C. 80 8. AIR 1986 Madras 156 9. AIR 1971 S.C. 1238 10. 2004(6) S.C.C. 649 11. 2008(2) S.C.J. 705 12. 1998(6) ALT 133 13. 2006(4) ALD 118 14. AIR 2000 S.C. 2408 15. 2001(6) ALT 26 ( S.C.) 16. 2006(4) ALD 572 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE SIXTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE P.S.NARAYANA FIRST APPEAL NO : 1319 of 1992 (Appeal under Section 96 of C.P.C., Against the judgment and decree dated 14-5-1992 in O.S.No.127 of 1984 on the file of the court of the Subordinate Judge, Machilipatnam) Between: Dammalapati Subba Rao ..... APPELLANT AND Bobbili Peda Nanchara Prasad and others .....RESPONDENTS Counsel for the Appellant:MR.MOVVA.CHANDRASHEKAR RAO Counsel for the Respondent Nos 2 & 3 : MR.V.L.N.G.KMURTHY Counsel for the Respondent Nos.4 to 6 : MR.M.V.S.SURESH KUMAR The Court Delivered the Following JUDGEMENT:-- JUDGMENT: 1. Dammalapati Subba Rao, the plaintiff in O.S.No.127/84 on the file of Subordinate Judge, Machilipatnam, had preferred this Appeal being aggrieved of the relief of refund of consideration only in stead of ordering specific performance. 2. The said suit was filed praying for the relief of specific performance of contract of sale dated 25-7-1982 executed by 1st defendant for himself and as guardian of defendants 2 and 3 in favour of the plaintiff for Rs.28,350/- in respect of the plaint schedule land, or in the alternative to pay the plaintiff a sum of Rs.35,265/- towards principal and interest @ 12% per annum and for costs. The learned Subordinate Judge, Machilipatnam after settling the Issues and in the light of the respective pleadings of the parties, recorded the evidence of P.W.1 to P.W.3, D.W.1 to D.W.4, marked Exs.A-1 to A-7 and Exs.B-1 to B-7 and came to the conclusion that the relief of specific performance to be negatived, but however granted the decree for Rs.28,350/- with proportionate costs against the 1st defendant only and the rest of the plaintiff’s claim was dismissed without costs. The suit against defendants 2 and 3 was dismissed without costs. Aggrieved by the same, this appeal had been preferred. 3. The 1st respondent died and A.S.M.P.No.12027/2004 was filed to bring on the legal representatives of the 1st respondent as o th e r legal representatives of the 1st respondent and the application was ordered on 8-12-2008 and respondents 4 to 6 were brought on record. It is needless to say that the sons of respondents 1, 2 and 3 had been already on record. 4. The letter dated 30-11-2004 addressed by the learned District Judge, Krishna, Machilipatnam would go to show that in view of the Judgment books being eaten away by white ants, the learned Judge instructed the staff concerned for reconstruction of the draft judgments which were eaten away by white ants with the available fair judgments. The said office had specified that the originals of Exs.A-2 to A-6 and Exs.B-2 to B-7 were already destroyed by the lower court and hence this Court directed to furnish photo copies or Xerox copies available to this Court. Accordingly, records of Exs.A-2 to A-6 and Exs.B-2 to B-7 called for from the respective Advocates of the court below and the same were sent by the learned District Judge on 30-11-2004 vide Dis.No.6826 dated 1-12-2004. Even on verification it was noticed that those copies relating to Exs.A-2, A-7 and B-4 are not traceable. Hence on 22- 12-2008 the respective Counsel had been directed to take steps to place the copies of the documents which are being relied upon by the parties before the Court and since the said copies had been placed before this Court, the Appeal had been taken up for final hearing and the same is being disposed of finally. 5. Pleadings of the parties: Averments made in the plaint: It was pleaded that the 1st defendant is the father of defendants 2 and 3. The 1st defendant for himself and as guardian of the defendants 2 and 3 and for the benefit of the joint family of the defendants 1 to 3 to discharge the debts payable to Sri Chinta Appa Rao and Sri Ravi Rambabu payable by the defendants 1 to 3, agreed to sell the extent of Acs.3-15 of land belonging to the defendants in the village of Ayyavari Rudravaram at the rate of Rs.9000/- per acre for a total sum of Rs.28,350/-. The 1st defendant for himself and as guardian of defendants 2 and 3 executed a contract of sale in favour of the plaintiff on 25- 7-1982. Accordingly the plaintiff discharged the pronote debts payable to Sri Chinta Appa Rao and Ravi Rambabu to the tune of Rs.27,560/- and the balance of sale consideration of Rs.790/- was paid to the defendants as mentioned in the agreement of sale. Thus the plaintiff paid the entire sale consideration amount of Rs.28,350/- to the defendants as agreed. It was also pleaded that as the plaint schedule property written statement delivered to the plaintiff, the plaintiff had been in the peaceful possession and enjoyment of the same from the date of contract of sale. Further it was pleaded that as the plaintiff had no money to obtain the sale deed and as there was water in the plaint schedule land to get the same measured, the defendants agreed to get the plaint schedule land measured and to know the actual extent of the land after measurement in favour of the plaintiff in the month of January 1983. Even though the plaintiff was ready with necessary money the defendants did not cooperate to have the plaint schedule land measured and to get the sale deed executed and registered. In spite of several demands and requests the defendants did not co-operate and have the sale deed registered after measurement only with a view to cause loss to the plaintiff. Ultimately the plaintiff got a notice issued through his Advocate on 8-12-1983 to the 1st defendant and the 1st defendant got a reply notice issued through his Advocate with false and untenable allegations. Thus the defendants are not bent upon to co- operate with the plaintiff. The plaintiff is always ready and willing to perform his part of the contract but the defendants, having received the entire sale consideration amount of Rs.28,350/- are not willing and coming forward to perform their part of the contract and hence the suit or specific performance of the contract of sale dated 25-7-1982 and for other reliefs. Averments made in the written statement of 1st defendant : It is admitted that the signature of the 1st defendant was taken on the alleged contract of sale in respect of Acs.3-15 cents belonging to the 1st defendant and his family by one Chinta Appa Rao and the said Chinta Appa Rao obtained the signature of the 1st defendant when he was in the fields after making certain representations fraudulently and without proper consideration and the alleged agreement dated 25-7-1982 in favour of the plaintiff is neither true, correct, valid or enforceable and it had also not been acted upon and there was no agreement between the plaintiff and the 1st defendant either in respect of the suit property or otherwise. The said Chinta Appa Rao who is a money lender and into whose clutches the 1st defendant had fallen and the alleged agreement came into existence in the circumstances stated hereunder. The 1st defendant because of his ways in life and trusting the nature and on the evil advice of the companions got into the clutches of the said C.Appa Rao, resident of Chigurukota, Mandavilli Taluk who is a money lender well versed in fleecing debtors and accustomed to take undue advantage of them by unfair and illegal methods with the idea of getting at their property and obtaining wrongful gain for himself. The 1st defendant obtained two loans of Rs.500/- each, one on 6-5-1970 under a pronote and shortly thereafter the other loan under a hand loan. In about the year 1972, he borrowed six bags of paddy worth Rs.360/- only. The said Chinta Appa Rao is accustomed to charge compound interest at more than Rs.2/- upto Rs.3-50 per month with yearly rests. He was taking pronotes from time to time for double the amounts and also in the name of his friends and relatives. He used to give out and represent that the payments made were being appropriated towards excess interest and some times renewed pronotes were taken without reference to the earlier pronotes and some times referring to them according to his convenience and pleasure. The 1st defendant was afraid that his father and others will come to know of these dealings and gradually succumbed to the said Appa Rao. The 1st defendant returned six bags of paddy and also made various payments from time to time amounting to about Rs.17,000/- in his helpless conditions. He used to give out that certain amounts were due by particular time as he pleased. As the 1st defendant remembers, in 1972 he represented that an amount of Rs.2000/- was due and took pronote for Rs.4000/- and contrary to understanding the renewed pronotes the calculation was made at Rs.3/- and more amount as interest with yearly rests. In spite of various payments, the 1st defendant was forced to execute a pronote for Rs.9000/-in the year 1975 and as the 1st defendant remembers, adopting the same methods two pronotes were taken in the year 1978, one in favour of his friend and close relative, the plaintiff and another in the name of the said Appa Rao himself. As the 1sdt defendant remembers in the year 1981, the said Appa Rao obtained the signature of the 1st defendant on a pronote which is subsequently represented to be for about Rs.20,000/-. The 1st defendant believes that nothing is due to the said Appa Rao whether the pronotes were taken in the name of himself or in the name of his friends or relatives including the plaintiff. In the year 1982, he put pressure upon the defendant to execute a contract of sale in respect of Acs.3- 15 cents of ancestral joint family land fixing a low rate of Rs.9000/- per acre. The 1st defendant had no other go and in a desperate attempt to get out of the clutches of the said Appa Rao, agreed to execute the agreement. The signature of the 1st defendant was obtained while he was in the fields and it appears that the agreement was got written in the name of the plaintiff. It was also represented to the 1st defendant that another pronote should be executed in favour of one Ravi Rambabu, his nephew and relation so that practically the entire alleged consideration could be for the discharge of the alleged debts to avoid any future dispute on the part of the sons and the members of the family with the understanding that the amount covered by the second pronote nominally taken will be paid to the 1st defendant, his signatures were taken. There is no debt in favour of the said Rambabu on the alleged pronote which is bogus, nominal and improvised in the circumstances stated above. The 1st defendant believes that there is nothing due under the said pronote in favour of the said Appa Rao or under the prior transactions and much less any subsisting amounts. The 1st defendant as a matter of fact does not remember whether in fact he executed the pronote for Rs.20,000/- in his favour. The 1st defendant believes that nothing is due to the said Appa Rao or to the plaintiff and in fact the plaintiff did not make any payment towards the alleged debt due to the said Appa Rao. Fraud had been played on the 1st defendant and he was throughout put under pressure and coerced into doing things which do not represent the correct state of facts. The 1st defendant further believes and asserts that in the alleged prior transactions, nothing will be due in fact or under law by the 1st defendant. The 1st defendant had no dealings with the plaintiff in reality at any time. There was no agreement with him even in respect of the suit land. The document was obtained by the said Appa Rao fraudulently and in the circumstances aforesaid and for his own benefit and all these transactions in the names of his friends and relatives are bogus, nominal and make believe. Except the cash referred in the alleged agreement and some amounts subsequently at the instance of the mediators nothing had been received by the 1st defendant. There are no real debts. There is no real payment and there is no consideration. In fact there is no real necessity for the 1st defendant to sell away his family property, even his own share much less the shares of the undivided sons of the 1st defendant. Even a copy of the contract was not given to the 1st defendant and no account was shown and no amounts were calculated as promised. The property was not at all delivered and the 1st defendant continues to be in possession of the suit land. It was further pleaded that in respect of a portion of the consideration represented by the alleged pronote debt taken in the name of Ravi Rambabu some part payments by adjournments were made but he failed to pay the balance of about Rs.2000/- and the 1st defendant tried to have the matter settled with common acquaintances D.Panduranga Rao which is in fact associated with the said C.Appa Rao. Subsequently even in June 1983, the 1st defendant tried to have the matter settled through Sri Gudise Reddemma, son of Ramaiah but the said Appa Raop was postponing the matter and payment of the balance. A number of subsequent mediations also failed. It is given out that some pronotes and some papers representing the prior transaction \s are shown to the mediators but the 1st defendant was never given a proper opportunity to verify anything. The 1st defendant has reason to believe that there is no pronote for Rs.20,000/- in favour of the said Apparao and much less any alleged payment said to have been made by the plaintiff. It was also further pleaded that the suit land was not delivered to the plaintiff or to anybody else either in pursuance of the alleged contract or otherwise. There was no separate passage and facility to this land and the plaintiff did not and could not cultivate the land at any time. It is at the insistence of the mediators that 1st defendant did not commence necessary agricultural operations in time and consequently the land was left fallow and uncultivated. Meanwhile it was learnt that the plaintiff and the said Appa Rao were making efforts to bring into existence evidence of alleged possession in pursuance and submit to the suit contract. The plaintiff might have paid some tax in one year purposely to create evidence of his alleged possession. The 1st defendant was paying taxes in respect of the suit land as usual on demand. The very fact that the land was kept fallow clearly negatives the untrue contention of the plaintiff of his being in possession. It is admitted that a notice was given on behalf of the plaintiff to which a proper reply was given by the Advocate on behalf of the 1st defendant and in spite of specific averments made in the reply notice the plaintiff did not perform his alleged part of the contract nor paid the balance of consideration even according to his contention nor even tried to send a copy of the contract as requested by the 1st defendant. Suspecting that the said Appa Rao or the plaintiff for his benefit might take undue advantage of various documents and papers obtained from the 1st defendant might rush to the Court and try to obtain some urgent orders, the 1st defendant filed a caveat in the Subordinate Judge’s Court, Machilipatnam. The said Appa Rao and the plaintiff kept quiet and after expiry of the period during which the caveat was in force filed the suit and with untrue allegations and misrepresentations obtained an exparte interim injunction in respect of the land as if the plaintiff was put in possession of the suit property as a result of which in view of the order by the Court and even though the 1st defendant is actually in possession of the land till today, he desisted from commencing agricultural operations in the land. Unless the injunction order is set aside, it will result in great hardship to the 1st defendant who is in actual possession and enjoyment of the suit land. It was also further pleaded that the 1st defendant denies that he ever executed any contract in favour of the plaintiff nor had any dealings with the plaintiff in respect of the suit land. The 1st defendant did not voluntarily or consciously entered into any contract or agreement of sale in favour of the plaintiff and the circumstances under which the signatures of the 1st defendant were taken and he was made to write certain pronotes and documents etc., mentioned earlier. The alleged suit contract is neither true nor valid or binding on the 1st defendant or the members of the family particularly the shares of minor sons – defendants 2 and 3 also. There is no debt in favour of the said Appa Rao or liability in favour of the plaintiff and there is no payment as alleged in discharge of any debt and muchless legally due from the 1st defendant. There is in fact no consideration for the alleged contract and the plaintiff is not entitled to any relief in respect of the same. The 1st defendant believes that the suit had been filed speculatively for the purpose of getting at the property and alternatively for obtaining a decree for some amount which is not due at all. The plaintiff is not entitled to the alternative relief prayed or any of the reliefs prayed for. It was also further pleaded that it is not clear how the 1st defendant is liable for damages claimed nor for the interest claimed in the alternative relief particularly in the face of the untrue allegation regarding possession of the suit land. The alleged liability under the suit contract or for damages or for the alternative amount to any extent or for the interest claimed had been denied. The 1st defendant reserved his right to state his objections in full as and when the particulars and the basis of the claim of the plaintiff are made known. Further, all the allegations made in the plaint in support of the false claim of the plaintiff had been denied. The 1st defendant further denied the suit transaction or that the plaintiff was ready and willing to perform his part of the alleged contract or that he had taken all necessary steps to specify the requirements of the completion of the contract. It is significant that the plaintiff kept quiet after the notice on behalf of the stated that defendant and did not even care to send a copy of the contract and at the last minute rushed to the Court with untrue allegations for putting pressure on the 1st defendant and obtain wrongful gain at his expense. The 1st defendant denied that the alleged suit contract is binding on him or the consideration or the adequacy of the consideration or the alleged purpose for which the transaction had been entered into or the binding nature against the shares of the defendants and even in respect of the share of the 1st defendant in the suit land. It was further pleaded that the 1st defendant does not admit any of the allegations in the plaint that are not specifically traversed in the written statement and prayed for dismissal of the suit with costs. Averments made in the written statement of defendants 2 and 3 : In the written statement filed on behalf of defendants 2 and 3 it was pleaded that the material allegations in the plaint are not true and the suit is not maintainable according to law. It was further pleaded that the plaintiff is not entitled to any of the reliefs prayed for against defendants 2 and 3 or in respect of their shares in the suit property or any part of the joint family property either in equity or under law. The plaintiff is not entitled to specific performance of the alleged suit contract dated 25-7-1982 or damages or any amount as alternative relief or interest claimed thereunder. It was also further pleaded that the 1st defendant is a weak minded and gullible person and addicted to bad ways and was under the influence of evil companions and unscrupulous persons taking undue advantage of him. The defendants 2 and 3 learnt that he had fallen into the clutches of evil companions and advisers and one C.Appa Rao, a money lender, accustomed to fleece others and obtain wrongful and illegal gain for himself at their expenses. The 1st defendant had absolutely no necessity to contract any debt and much less for the purpose and benefit of the family. It was further pleaded that the suit property is ancestral joint Hindu family property obtained by the 1st defendant in a division with his father and in which these defendants have a right by birth. There is no necessity to sell the joint family property and no debts were and could have been contracted and much less for the purpose of the family. The defendants 2 and 3 and the other members of the family had obtained no benefit from any of the suit transactions or alleged debts said to have been incurred for the purpose of the family. The defendants 2 and 3 are not aware of the alleged suit contract dated 25-7-1982 and they deny the truth, validity and binding nature of the same. It was further denied that there were any dealings between the plaintiff and others on the one hand and the 1st defendant on the other. It was categorically denied that the alleged debts in discharge of which valuable joint family property is said to have been agreed to be sold to the plaintiff. There was in fact no sale in favour of the plaintiff or any other person in respect of the suit land and the suit property continues to be in peaceful and lawful possession of the members of the joint family including the defendants 2 and 3 and there is no delivery of the same to the plaintiff or any third party. The alleged suit contract even if true is a collusive, nominal and fraudulent transaction devoid of any consideration or purpose and is not valid to any extent including the share of the 1st defendant. The recitals if any to the said effect in the alleged suit contract are false and are improvised solely for the purpose of buttressing false claim of the plaintiff and that of the said C.Appa Rao who is the real beneficiary in the matter. The defendants 2 and 3 are not aware of the various transactions mentioned in the plaint or in the alleged contract and crave the leave to take their objections in full as and when they are disclosed. The defendants 2 and 3 believe that they are bogus and make believe transactions brought into existence taking undue advantage of