THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.1103 of 2002 Dated 23rd March, 2011 Between: Dr.Nune Ranganayakulu …..Appellant And Nune Uma Devi and others …..Respondents THIS COURT MADE THE FOLLOWING: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT NO.1103 OF 2002 JUDGMENT: The plaintiff in O.S.No.241 of 1999 on the file of the II Additional District Judge at Guntur is the appellant herein. The suit was filed for specific performance of the oral contract of sale deed. According to the case of the plaintiff, the 1st defendant is his mother, defendant Nos. 2 to 4 are brothers and defendant Nos.5 to 7 are the sisters. Their father one late Nune Mahabaleswara Rao partitioned the family properties in the year 1973 and the plaintiff got some property to his share. The plaintiff, as a doctor, gone to Jamaica and worked there for some time and during that period, he sent a sum of Rs.1,25,000/- on different occasions during the period 1973 to 1978 for the marriage expenses of the sisters and also for the family expenses. In consideration of the said amount, the father of the defendant Nos.1 to 4 has agreed to convey the items 1 to 2 of the scheduled property. The father also addressed a letter to Urban Land Ceiling Authorities on 17.2.1978. Subsequently, he died on 27.8.1979. When the plaintiff requested for execution of the registered sale deed by a letter, dated 12.10.1980 to confirm the agreement of compromise to execute the sale deed. As the defendants have not performed the contract, the suit was filed for specific performance of contract. The 1st defendant has filed written statement denying the allegations about the oral contract of sale pleaded by the plaintiff during the lifetime of his father, a promise to convey the scheduled property. The 1st defendant, as a power of attorney holder, was looking after the property and collecting rents. The plaintiff also filed a suit bearing O.S.No.481 of 1983 for rendition of accounts. She pleaded that the plaintiff therein never claimed that he has got any interest in the properties left out by her husband who executed a will in favour of the 1st defendant, dated 10.5.1979 bequeathing all his properties in her favour and also further pleaded that the plaintiff filed O.S.No.160 of 1984 by obtaining a renewal promissory note from the 1st defendant towards debt due by her husband. She pleaded that the letter written to the Urban Land Ceiling Authorities is not true and valid. The alleged promise on 12.10.1980 by all the defendants to execute the sale deed is also not true. The allegation that a sum of Rs.1,25,000/- was sent to the deceased father of the plaintiff is also disputed. The suit, as such is not maintainable and is liable to be dismissed. The 8th defendant filed a support statement, who is said to be a tenant of the premises and claimed that he was paying rents to the owner, who is the 1st defendant. The defendant Nos.8 to 13 and 15 filed a memo adapting the written statement of the 1st defendant. On the basis of the above pleadings, the following issues have been framed by the lower Court for trial. (i) Whether the suit is barred by limitation? (ii) Whether the letters dt.17.2.1978 and 12.10.1980 are forged? (iii) Whether the oral agreement is true? (iv) Whether the plaintiff is entitled to specific performance of agreement of sale? (v) Whether the plaintiff is entitled for possession? (vi) Whether the tenants are necessary parties? (vii) To what relief? On behalf of the plaintiff, P.Ws.1 to 3 are examined and marked as Ex.A-1 to A-3. On behalf of the defendants, D.Ws.1 and 2 are examined and marked as Ex.B-1 to B-9. After considering evidence on record, the learned District Judge dismissed the suit of the plaintiff and aggrieved by the said judgment, the present appeal is filed. The points that arise for consideration are: i) Whether the oral contract of sale set up by the plaintiff is true and permissible against the defendants? ii) Whether the plaintiff is entitled to specific performance of the said contract? iii) Whether the judgment and decree passed by the learned District Judge is legal and sustainable? This is being a suit filed on the basis of the oral contract of sale, the law requires that the particulars of the contract should be pleaded with precision and also should adduce conclusive evidence to establish the contract. The basis of the claim of the plaintiff is that he has sent a sum of Rs.1,25,000/- to his father during the years 1973 to 1978 and in consideration thereof, his father has agreed to sell the items 1 and 2 of the scheduled property, which was also accepted by the defendant Nos.1 to 4. Therefore, the first aspect to be proved by the plaintiff is that he has sent a sum of Rs.1,25,000/- to his father during the years 1973 to 1978. In fact, this is a disputed aspect on behalf of the 1st defendant. The father evidently was not alive to subject for cross-objection. In such circumstances, the burden is on the plaintiff to show as to when and how the sale amount of Rs.1,25,000/- was transmitted from Jamaica to Guntur. No single document is filed on behalf of the plaintiff to show that this money was sent by any draft or cheque to his father during that period. Further-more, there is also no written acknowledgment of the father about the receipt of this money. In the absence of the basic aspect of sending of money by the plaintiff being not proved, then the basis of the enforcement of the oral contract does not stand to scrutiny of law. Further-more, when an agreement of sale is pleaded orally, the time, date and also the persons in whose presence the said contract has been entered into has to be proved. The plaint is not clear as to whether this contract was entered when the plaintiff was at Jamaica or when the plaintiff has come to Guntur from Jamaica and the persons in whose presence the said contract was entered into. This is also a lacunae on the part of the plaintiff. The letter Ex.A-3, dated 17.2.1978, which is said to have been written by the father of the plaintiff, even if accepted to be true, it does not reflect that he has received Rs.1,25,000/- and as a consideration thereof he intended to convey the property to the plaintiff. The mere mention that the father wanted to give this property to the plaintiff cannot be taken as a consequence to the oral agreement of sale pleaded by the plaintiff. Further-more, the defendant Nos.1 to 4 and other family members have said to have executed a letter, dated 18.10.1988, admitting the contract and the lower Court rightly found that document is not filed. Therefore, all the allegations made by the plaintiff are not supported by any documentary evidence and the available document is not filed. Further-more, the father is said to have died in the year 1979. During that period, there is nothing to show that the plaintiff has made any demand and expressed his readiness and willingness to get the sale deed executed in his favour. Further-more, after a period of nearly 19 years, the suit was filed after the death of the father and 18 years after the letter executed by the defendants. There is absolutely no reason for long silence of the plaintiff during this period and there is nothing on record to show that he was ready and willing to perform the contract, which is essential for enforcement of relief of specific performance. Therefore, viewed from any angle, the plea of the plaintiff appears to be a speculative one and the reasons might be different because the property is said to have been conveyed to the mother by the father of the plaintiff. However, the lower Court has considered the genuineness and binding nature of the will set up by the 1st defendant, I feel that any finding on the will in the suit, is beyond the scope of the suit and as the plaintiff has failed to prove the oral contract of sale or readiness and willingness to perform the same, the suit is hopelessly barred by time. Therefore, any finding on the pleas raised by 1st defendant under the will are not necessary for consideration since even if that will is to be genuine, the contract if proved, will be binding on her and the lower Court need not have entitled to discuss on that aspect. Therefore, the finding on the will so far as this suit is concerned, is held to be not binding on the defendant. Accordingly, the appeal is dismissed. No costs. __________________________________ JUSTICE N.R.L. NAGESWARA RAO 23rd March, 2011 TJMR THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.1103 of 2002 23rd March, 2011 TJMR