THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.1939 OF 1994 JUDGMENT:- The plaintiffs in O.S.No.136 of 1987 on the file of the Court of II Additional Senior Civil Judge, Kakinada are the appellants herein. The suit one was filed for specific performance of contract of sale dated 28- 07-1985. The allegations in the plaint in brief are as follows:- One Bavisetti Abbayi alias Chinnayya has got four sons who are later B.Raja Rao, defendant No.6, defendant Nos.18 and 22 and first defendant is the wife and second defendant is the son of late B.Raja Rao. Defendant Nos.3 and 4 are the sons of second defendant and 5th defendant is the son of 4th defendant. Defendant Nos.7, 9 and 16 are the sons of defendant No.6 and defendant No.8 is the son of defendant No.7. Defendant Nos.10, 12 to 15 are the sons of defendant No.9 and defendant No.11 is the son of defendant No.10. The second defendant representing the branch of late Raja Rao and defendant No.9 representing the branch of defendant No.6, which constitutes defendant No.6 to 17 and defendant No.18 representing the branch of defendant Nos.18 to 21 approached the first plaintiff on 28-07-1985 for sale of the three shares belonging to those branches out of the total extent of Ac.4.33 cents and the rate was fixed at Rs.50,000/- per acre and an oral agreement was entered and possession of passbooks etc., were delivered. On the next day defendant No.7 and 9 also approached the first plaintiff and agreed to sell their share for a consideration and received a sum of Rs.8,000/- and executed an agreement. At the time of negotiations, it was informed that partition between the sharers but, somehow, it was later informed that the property was not divided. Subsequently, the first plaintiff informed that the second plaintiff is the person purchasing the property, who advanced Rs.8,000/- and requested them to execute the agreement by the branches of the two shareres in favour of the second plaintiff. Accordingly, on 29-08-1985 an agreement of sale was executed in favour of the second plaintiff and a sum of Rs.2,000/- was also paid on that day. At that time, defendant No.7 and 9 represented that the other two sharers would also come and execute the sale deed. Though the first plaintiff negotiated for the second plaintiff, as the document dated 29-07-1985 is in the name of the first plaintiff, he also joined as one of the plaintiffs and in spite of repeated demands and readiness and willingness on behalf of the plaintiffs, the defendants have not executed the agreement of sale. Hence the suit. Defendant Nos.20 and 21 remained ex parte and defendant Nos.2 and 7 filed a written statement, which was adopted by defendant Nos.1, 3 to 6, 8 to 17. According to the defendants, there was an agreement by the second defendant for sale of the undivided share for Rs.50,000/- but the defendant No.18 never approached the plaintiffs for selling the share. The agreement was executed by defendant No.7 and 9 and as it was ancestral property, there are no other documents of title. Defendant Nos.7 and 9 received consideration of Rs.10,000/- on behalf of their father’s branch and of late Raja Rao, but, the other defendants did not receive any consideration. The defendants expressed their willingness to execute the sale deed after full payment of balance of sale consideration. But, the plaintiffs insisted that defendant No.18 also should join in execution of the sale deed. A reply notice was given about the willingness in view of the differences between the plaintiffs and defendant No.18. The plaintiffs avoided to obtain the regular sale deed. Thereafter, the agreement was cancelled by the defendants on 23-03-1986. Therefore, the plaintiffs are not entitled for the specific performance. The defendant No.18 filed a written statement denying his intention to sell the property and that there were no negotiations and is in possession of Ac.1.15 cents, which fell to his share and also Ac.1.15 cents of his brother. Defendant Nos.23 and 24 adopted the written statement filed by defendant No.22 disputing the material allegation about the partition. On the basis of the above pleadings, necessary issues have been framed for trial and on behalf of the plaintiffs PWs.1 to 4 were examined and marked Exs.A-1 to A-14 and on behalf of the defendants Dws.1 and 2 were examined and no documents are marked. After considering the evidence on record, the learned Senior Civil Judge dismissed the suit and aggrieved by the said judgment the present appeal is filed. Now the points that arise for consideration are:- 1. Whether the plaintiffs are entitled for the specific performance of the alleged agreement of sale dated 28- 07-1985? 2. Whether the judgment and decree passed by the learned Senior Civil Judge is legal and tenable? POINTS:- In this case, so far as the rights of the defendants in four branches is not in dispute. In fact, except defendant No.18, the other defendants’ claim that an agreement of sale has been entered into for undivided shares but not a divided portion but, however, the plaintiffs were not ready and willing to perform the contract, as such, it was cancelled. In this case, this being a suit for specific performance, the burden is on the plaintiffs to prove the agreement as claimed and also its enforceability. The specific case of the defendant Nos.18 to 21 is that they have entered into an agreement for sale of the property. But, the claim of the plaintiff is that defendant No.18 representing his branch approached the first plaintiff through the second plaintiff’s husband and negotiated for selling away three shares belonging to defendant Nos.1 to 5, 6 to 17 and 18 to 21 out of the total extent. The allegations in the plaint, therefore, clearly goes to show that it is the defendant No.18 who has initiated the oral agreement which was subsequently reduced into writing under an agreement of sale dated 28-07-1985 under Ex.A-6 when it was reduced into writing by defendant No.7 and 9 in favour of the first plaintiff. But, subsequently, another agreement Ex.A-7 is said to have been entered into by defendant Nos.7 to 17 in favour of the second plaintiff. Therefore, from the allegations in the plaint an oral agreement has preceded the agreements Exs.A-6 and 7 and it was on 28-07-1985. The origin of the suit agreement is the agreement dated.28-07-1985 which is oral. When the plaintiffs want to rely upon such an oral agreement, it is for them to prove the factum of the agreement and also the terms of the agreement. Merely because some of the parties admit the transaction, it does not mean that it is binding on all the other defendants. In fact, if the plea of the plaintiffs about the nature of the agreement is found to be false, naturally, the relief of specific performance cannot be granted. Evidently, under Ex.A-6 agreement, defendant Nos.7 and 9 claims to have entered into the agreement representing the defendant No.18 branch also, for which there is no authorization. In fact, second defendant denied the oral agreement dated 28-07-1985 when he was examined as DW.1. Evidently, second plaintiff who is the beneficiary under the agreement died and third plaintiff was brought on record and he has no knowledge of the oral agreement or the transaction under Exs.A-6 and 7. It may not be very much material as rightly contended by the counsel for the plaintiffs to prove all the terms of the agreement when Ex.A-6 was evidently executed on the next day. But, however, when part of the plea of the plaintiffs that defendant No.8 also participated in the agreement and also defendant Nos.2,7 and 9 were authorized by defendant No.18 to enter into the agreement is not proved, then it is a clear case where the plaintiffs have not come to the court with clean hands. Merely because the passbook was given and was in custody of the plaintiffs, it is no reason to accept that defendant No.16 also participated in the negotiations. Defendant No.18 was examined as DW.2 and he specifically denied the transaction as pleaded by the plaintiffs. Evidently, the strength of the enforcement of the contract is on Ex.A-7 and the persons associated with it are not examined. As per Ex.A-7, the balance of sale consideration has to be paid within one month and the measurements are to be taken. Evidently, no notice was given immediately within one month about the readiness and willingness to pay the balance sale consideration and obtain the sale deed. In fact, after the notice by the defendants also calling for the performance of the contract, the plaintiffs have not acted. Evidently, from the evidence on record, the plaintiffs insisted for performance of the contract as against the terms in Ex.A-7, having failed to prove the earlier agreement about the binding nature on defendant No.18. The legal notices Exs.A-11 and 13 clearly show as to how the plaintiffs have committed the breach of agreement. It is true that receipt of the consideration of Rs.10,000/- was admitted by some of the defendants, but, there was no plea for refund of the balance of sale consideration and in view of the above circumstances, no alternative relief for refund of Rs.10,000/- can be granted. Therefore, when the matter on record the terms of the contract are vague and the plaintiffs have not put forth the claim for specific performance in a right manner and insisting for performance of the contract as against the terms in the written contract and when once it is found that the property is the joint property, which is not divided, it will not be feasible to pass a decree even to the extent of admitted shares of the persons who agreed the agreement. Therefore, for all the above reasons, I find no merits in the appeal and equitable relief of specific performance cannot be granted. Accordingly, the points are answered. Accordingly, the Appeal Suit is dismissed. No costs. _______________________ N.R.L. NĀGESWARA RĀO,J 18-10-2011 TSNR