*THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY + A.S.No.647 of 2006 %Dated 13-08-2009 #Smt.A.Pramoda and another … Petitioners. VERSUS $ D.Komaraiah and others … Respondents. ! Counsel for Petitioners : Sri P.Venugopal ^Counsel for Respondents : Sri D.Prakash Reddy for R.1 Sri Vedula Venkata Ramana for R.6 to R.82 <GIST: >HEAD NOTE: ? Cases referred HON'BLE SRI JUSTICE L.NARASIMHA REDDY A.S.No.647 of 2006 JUDGMENT : Defendants 5 and 6 in O.S.No.104 of 2001 on the file of the VI Additional Senior Civil Judge (Fast Tract Court), Medchal, are the appellants. They feel aggrieved by the decree passed by the trial Court in favour of the first respondent. The first respondent filed the suit for the relief of specific performance of an agreement of sale dated 29.02.2000, Ex.A.1, in respect of Ac.7-14 guntas of land situated at Mysammaguda, H/o.Gundla Pochampally village, Medchal Mandal, Ranga Reddy District, said to have been executed in his favour by respondent Nos.2 to 5 (defendant Nos.1 to 4). The relief was also claimed to the effect that the sale deeds dated 30.05.2002 (Exs.A.2 and A.5) executed in favour of the appellants herein, be declared as null and void. It was pleaded that the respondent Nos.2 to 5 inherited the suit schedule property from late Pentaiah and they have agreed to sell the same to the first respondent, for a consideration of Rs.9 lakhs. He stated that a sum of Rs.2 lakhs was paid as advance on 29.02.2000, under Ex.A.3, and on the same day, the agreement of sale, being Ex.A.1 was executed. A further sum of Rs.5 lakhs is said to have been paid on 09.04.2000, under Ex.A.4. It was alleged that inspite of repeated offers to pay the balance amount of Rs.2 lakhs and request for execution of sale deed, the respondent Nos.2 and 5 did not reciprocate. It was further averred that the respondents 2 and 3 have clandestinely and in violation of Ex.A.1, have executed sale deeds, Exs.A.2 and A.5, in favour of the appellants and that the same cannot be sustained in law. The respondents 2 to 5 remained ex parte. The appellants alone contested the suit. They pleaded that Ex.A.1 was brought into existence with the collusion between the first respondent and respondents 2 and 5 only to defeat the rights of the appellants under Exs.A.2 and A.5. It was urged that Exs.A.2 and A.5 were initially executed by respondents 2 and 3 and that respondent Nos.4 and 5 have executed deeds of ratification on 03.04.2004, Exs.B.5 and B.6. They further pleaded that ever since the date of sale, they are in possession and enjoyment of the property. After the suit was decreed, the respondents 2 to 5 have executed sale deeds in favour of the first respondent. The latter, in turn, is said to have divided the land into plots and sold the same in favour of about 75 persons. The appellants filed A.S.M.P.No.485 of 2008 under Order 1 Rule 10 of CPC with a prayer to implead them as respondents. The application was ordered and the purchasers are impleaded as respondents 6 to 82. Sri P.Venu Gopal, learned counsel for the appellants, submits that the suit presented by the plaintiffs, was not only untenable in law but also was defective. He contends that the relief of cancellation of the sale deeds in favour of the petitioners was not prayed for, and at a later point of time, it was inserted. He contends that Ex.A.1 was brought into existence only with an attempt to cast doubt upon the legality and validity of the sale deeds executed in favour of the appellants. Learned counsel submits that this is evident from the fact that no reference was made to Ex.A.1, in the notices that were exchanged between the parties. He also contends that the trial Court has drawn certain inferences, which are not at all supported by the pleadings or evidence. He further submits that Ex.A.1 is inadmissible in evidence, since it was not registered. Learned counsel has drawn the attention of this Court to certain documents such as the pattedar pass books and title deeds, presented by the first respondent, on the one hand, and appellants on the other hand, and submits that every attempt was made to defraud the appellants. Sri D.Prakash Reddy, learned counsel appearing for the first respondent, submits that the only persons, who could have disputed the execution or existence of Ex.A.6 are D.W.s 2 to 5 and they have chosen to remain ex parte. He contends that the appellants were not sure as to their case, or the manner in which they are said to have derived title. It is argued that the appellants were very much aware that respondents 2 to 5 are the joint owners of the property and still, Exs.A.2 and A.5 were obtained only from respondents 2 and 3. According to him, the alleged deeds of ratification, said to have been executed by respondents 4 and 5 hardly bring about, any change. He submits that the appellants made a vain effort to plead the existence of an agreement of sale in their favour, in respect of the suit land, anterior in by the time; and having taken a specific plea in the written statement and made a mention in the evidence, they have not filed the same into the Court. Sri Vedula Venkata Ramana, learned counsel for the respondents 6 to 82, submits that Section 99 of CPC bars grant of any relief in favour of the appellants. He contends that the appellants did not even plead that they are the bonafide purchasers without knowledge, in that view of the matter, they are not entitled for any exemption under Section 19 (b) of the Specific Relief Act (for short, the Act). He also submits that the alleged ratification said to have been made by respondents 4 and 5 does not by itself create or convey a title in favour of the appellants. The first respondent filed the suit for specific performance of an agreement of sale. By the time, the suit was filed, there existed deeds of sale, in respect of the same property in favour of the appellants. One and the same item of property is claimed by the first respondent on the strength of Ex.A.1, and by the appellants, on the basis of Exs.A.2 and A.5. While the former is an agreement of sale, the latter are sale deeds. In case, the purchase made under Exs.A.2 and A.5 is bonafide for consideration and to that knowledge of existence of Ex.A1, the suit was liable to be dismissed. Taking all these aspects into account, the trial Court framed the following issues : a) whether the defendant No.5 and 6 were the bonafide purchasers for the consideration without the knowledge of the suit agreement? b) whether the suit agreement of sale dt.29.02.2000 is true, valid and binding on all the defendants? c) Whether the plaintiff is entitled for the decree of specific performance of agreement of sale dt.29.02.2000? To prove his case, the first respondent deposed as P.W.1 and examined one K.Anjaneyulu as P.W.2. He filed Exs.A.1 to A.11. It has already been mentioned that Ex.A.1 is the agreement of sale, Exs.A.2 and A.5 are sale deeds, dated 01.03.2000, in favour of the appellants, Ex.A.3 is the receipt for Rs.2 lakhs and Ex.A.4 is the receipt for Rs.5 lakhs issued by respondents 2 to 6 Exs.A.6 and A.7 are the encumbrance certificates, Ex.A.8 is the pattedar pass book, Ex.A.9 is the plan for survey No.646, Ex.A.10 is the title deed and Ex.A.11 is the certified copy of pahani for the year 1999-2000. The second appellant alone deposed as D.W.1. He filed Exs.B.1 to B.12. The pattedar pass books and title deeds for 2 bits of land covered by Exs.A2 and A5 are marked as Exs.B.1 to B.4. Exs.B.5 and B.6 are deeds of ratification, Exs.B.7 and B.8 are the encumbrance certificates, Ex.B.9 is the certified copy of pahany and Exs.B.10 and 11 are copies of legal notices. Before they executed deeds of ratification, the respondents 4 and 5 herein filed O.S.No.1116 of 2003 on the file of the V Additional Junior Civil Judge, Medchal, against their co-sharers i.e. respondents 2 and 3. The certified copy of plaint in that suit is marked as Ex.B.12. The trial court held all the issues against the appellants and decreed the suit. The learned counsel for the appellants expressed some doubt as to the correctness of the decree, insofar as it contained the relief of declaration to the effect that the sale deeds in favour of the appellants be declared as null and void. He submits that in the plaint, as originally filed, this relief was not claimed, and it was inserted subsequent to the disposal of the suit. A close scrutiny was undertaken in this regard. A perusal of the plaint discloses that the relief as regards declaration of the sale deeds in favour of the appellants was incorporated in writing. By the time it rendered judgment, the trial Court found that the Court Fee for that relief was not paid. The relief was granted subject to payment of Court Fee. The suit was decreed on 25.09.2006. In compliance with the observations made in the judgment, the first respondent paid the court fee on 29.09.2006. Had it been a case where the relief against Exs.A.2 and A.5 did not constitute the subject matter of the suit, there would not have been any mention thereof, in the judgment. The very preamble of the judgment discloses that the relief was not only as regards specific performance of an agreement of sale, but also to declare the documents executed in favour of the appellants, as null and void. Therefore, the doubt expressed by the petitioner as to accuracy of the decree, is without basis. In view of the submissions made by the learned counsel for the parties, the following points arise for consideration, viz., a) whether Ex.A.1 is proved, and if so whether it is the result of collusion between the respondent 1 on one hand and respondents 2 to 5 on the other hand, as alleged by the appellants. b) whether the sale in favour of the appellants, vide Exs.A.2 and A.5, is legal and valid and, if so, whether it is saved by section 19 (b) of the Act; and c) Whether the bar contained in Section 99 of CPC operates in the instant case? Points (a) and (b) are interrelated. The gist of the pleadings of the respective parties and the evidence adduced on their behalf has been summarized in the preceding paragraphs. The first respondent based his claim on the agreement of sale, Ex.A.1, and the amounts paid in pursuance thereof, are evidenced through Exs.A.3 and A.4. In suits for specific performance, the proof of agreement of sale assumes significance. The best persons to speak about the same are those, who executed the agreement of sale, promising to sell the property. It is not in dispute that respondents 2 to 5 are the joint owners of the property, being the legal heirs of late Pentaiah. For the reasons best known to them, they remained ex parte. No legal bar for execution of Ex.A.1 was pleaded by any one, including the appellants. Therefore, Exs.A.2, A.3 and A.4 stood proved, may be more on account of absence of evidence to the contrary. That, however, would not make much of difference, as to the nature of the legal consequences, that flow from the said document. The immediately effected parties, in the event of the suit being decreed, are the appellants. It is not a case where they claimed or derived title in the suit schedule property from a different source. They too admitted that respondents 2 to 5 are the owners of the property. Therefore, even though respondents 2 to 5 remained ex parte, the appellants ought to have secured their presence and elicited necessary information as to truth or otherwise of Exs.A.1, A.3 and A.4. No such steps were taken. An inference deserves to be drawn to the effect that, had the appellants procured the presence of respondents 2 to 5 as witnesses, they would have spoken against them, i.e. the appellants. Speaking as P.W.1, the first respondent, narrated the manner in which Ex.A.1 came to be executed and the amounts mentioned in Exs.A.3 and A.4 were paid. P.W.2 stated that he acted as a mediator and arranged for the transaction between the first respondent and respondents 2 to 4. He stated that Ex.A.1 was executed and the amounts mentioned in Exs.A.3 and A.4 were paid in his presence. Nothing was elicited from this witness, to doubt his presence or participation in the transaction. Therefore, the agreement of sale, Ex.A.1, and the receipts, Exs.A.3 and A.4, have to be held proved and the finding recorded by the trial Court in this regard deserves to be upheld. In case, the appellants were not aware of Ex.A.1, and the purchase of the property made by them is bonafide, and for consideration, they could have successfully resisted the grant of any relief to the first respondent notwithstanding the proof of Ex.A1. No where, in their written statement, the appellants pleaded that they are not aware of the agreement, Ex.A.1, or that they are the bonafide purchasers. On the other hand, their plea was that Ex.A.1 was brought into existence, with the collusion between respondents 1 and 2 to 5. In an attempt to over come Ex.A.1, the appellants pleaded that there existed an agreement of sale, anterior in point of time in favour of late Narayana, the husband of the first respondent, and father of the second appellant. In para 7 of the written statement, they pleaded additional facts. The relevant sentence in this regard reads as under : “ The respondents 1 to 4 also executed agreementof sale long ago in favour of late A.Narayana (husband of D.5 and father of D.6) in respect of the suit property along with others.” In his cross examination as D.W.1, the second appellant stated as under: “ During the life time my father had dealt with the subject matter pertaining the suit scheduled land. I do not know for how much sale consideration that my father purchased the suit schedule land. During the life time my father dealt the sale transaction with a person by name Chintala Pentaiah. By the time of purchasing this land by my late father that there was no litigation pending on the suit schedule land. I do not know in which year and from whom and for how much sale consideration that my father purchased this land. There are no papers or documents pertaining this land in my custody. The witness again says that his father agreement papers are not there in his custody.” This clearly shows that the appellants either have taken a plea, which is not true, or were not able to substantiate the one taken by them. Either way, their failure would seriously tell upon the circumstances under which Exs.A.2 and A.5 came to be executed. Section 19 of the Act identifies the parties and persons against whom the relief of specific performance of a contract can be claimed. It reads as follows : Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against- (a) either party thereto; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract; (c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant; (d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation; (e) when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company: Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract. The Section enables a plaintiff in a suit for specific performance to claim the relief against transferee, subsequent to the suit contract. There is an exception if the subsequent transaction is for value, in good faith and without notice of the original contract. The appellants could have availed the benefit under Sec.19(b), had they established the necessary ingredients. An important element in this regard is knowledge of the agreement of sale, covered by Ex.A.1. They may be entitled for some latitude in this behalf, since a negative fact cannot be proved with the same amount of certainty. An important facet of this very question is that the appellants pleaded collusion between the first respondent and respondents 2 to 4. In the written statement as well as the deposition of P.W.1, at more places than one, it was mentioned that Exs.A.2 and A.5 were executed by respondents 2 and 3 alone, about 3 to 4 years later, that too during the pendency of the suit, respondents 4 and 5 have executed Exs.B.5 and B.6, ratification deeds. This itself is sufficient to belie the contention as to collusion between first respondent and respondents 2 to 5. On the other hand, collusion, if at all, was between the appellants and respondents 4 and 5. The following information was extracted in the cross examination of D.W.1 “ It is true I have pleaded in my written statement stating that the plaintiff and the defendant Nos.1 to 4 colluded with each other and fabricated the Ex.A.1, A.3 and A.4. It is true after filing the present suit that we and the defendants No.1 to 4 are having the contacts with each other. It is true I have informed about the details and pendency of the present suit to the defendants No.1 to 4 after filing the suit. That means myself and defendants No.1 to 4 did not file any criminal cases and that we did not take any steps against the plaintiff by making the allegation that the plaintiff and the defendants colluded together and created the false documents for the purpose of filing the present suit though myself and defendant Nos.1 to 4 are cordial with each other. ” From this it becomes clear that the sale in favour of the appellants is not protected under second limb of Section 19 (b) of the Act. As a part of these very questions, the effect of ratification made by respondents 4 and 5 in favour of the appellants through Exs.B.5 and B.6 needs to be examined. Hardly there existed any doubt that the suit schedule property was jointly owned by respondents 2 to 5 and no partition has taken place among them. The sale deeds Exs.A.2 and A.5 were executed by respondents 2 and 3 alone. The documents cover the entire extent of 7 acres and not undivided share of vendors therein. A plea was taken in the written statement that the 4th respondent promised to join as vendor, but did not attend the Registration office. Even, this vague and weak plea was not taken in respect of respondent No.5. During the pendency of the suit, respondents 4 and 5 have executed the deeds of ratification. On the strength of the same, the appellants pleaded that the sale in their favour has become complete and perfect. Ratification is a phenomenon, through which the person accords his approval for a thing, which is required to take place with his consent and participation. The synonyms of the word ratify are; approve, bind, confirm, corroborate, endorse, establish, sanction, settle, validate etc. It is not uncommon that wherever a person, who is conferred with the right, power and jurisdiction to dictate or bring about, a particular state of affairs, is not immediately available, certain steps, in anticipation of his approval are taken. Such things can be in the field of administration or in certain cases or in the realm or private affairs or transactions. Whether or not a particular act or omission can be ratified, would depend upon their respective nature. If law requires or permits that a particular transaction can be brought into existence through a prescribed procedure, a procedure different from what is prescribed can never bring the same result. Ratification can never be resorted to, for adding legality to a transaction, which does not exist, or the one which has not taken in accordance with law. We are immediately concerned with the transaction of sale. A sale can take place only with the participation of vendor either personally or through agent. There cannot be expost facto approval of sale. Admittedly, respondents 4 and 5 did not execute any sale deed in favour of the appellants. A person other than the one, who is vested with the right to transfer, cannot execute the sale deed, acting on behalf of the others. Respondents 4 and 5 did not authorize any one to execute the sale deeds on their behalf. The only possibility to import the theory of ratification, in case of sale transaction is where deeds are executed by a power of attorney and the principal puts a seal of approval for it by way of ratification, if any doubt was expressed about the authorization. For all practical purposes, there did not exist anything for respondents 4 and 5 to ratify. Therefore, Exs.B.5 and B.6 are of no legal consequence. The result of the above discussion is that the sale in favour of the appellants is not saved by law. Accordingly, points (a) and (b) are answered. Now remains the last question. This, in a way, is referable to the complaint made by the appellants, as regards the form of a suit and alleged failure on the part of the first respondent to plead the relief vis- a-vis the transactions covered by Exs.A.2 and A.5. In view of the answer to point (a), this becomes either redundant, or stands answered. All the same, the bar contained under Section 99 of the Code operates. This provision galvanizes the judgments and decrees rendered by a trial Court from being interfered on technical and formal grounds, as long as the defects do not effect the merits of the matter. In the case on hand, no formal defect, as such, is noticed. Even assuming that the prayer in relation to Exs.A.2 and A.5 was defective, it cannot be a ground for interference at the stage of appeal. The trial Court has framed an issue, touching the controversy. The parties adduced evidence in relation thereto, and a specific finding was recorded. The alleged defect did not effect the merits of the matter. For the foregoing reasons, the appeal is dismissed. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY,J 13th August, 2009 sur Note : L.R. Copy to be marked. B/o. SUR