*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY + Second Appeal No.599 of 2010 %07-03-2011 # S. Kondaiah ..Appellant And $ C. Sreenivasa Rao & others ..Respondents !Counsel for the appellant: Sri K. Buchi Babu ^Counsel for respondents . : Sri O. Manohar Reddy < Gist: > Head Note: Citations: THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.599 of 2010 JUDGMENT: The appellant filed O.S.No.537 of 2005 in the Court of Principal Junior Civil Judge, Kurnool, against the respondents for the relief of specific performance of an agreement of sale, dated 01-06-2004. The parties are also related, in that, the father of the appellant and the father of the respondents are brothers. It was pleaded that the 1st respondent was in need of the money for the purpose of joint family and proposed to sell the suit schedule property for a consideration of Rs.1 lakh, and being the immediate neighbour, the appellant has agreed to purchase it. A sum of Rs.30,000/- is said to have been paid on the date of agreement. Possession is said to have been delivered on the same date. According to the appellant, the 1st respondent represented that the whereabouts of the 2nd respondent are not known and that the 3rd respondent had expressed his consent by figuring as an attestor/witness to the agreement. It was alleged that, in spite of repeated demands by the appellant, the 1st respondent did not execute the sale deed, by stating that there are certain disputes among his brothers. The 1st respondent alone filed the written-statement and respondents 2 and 3 adopted the same. The execution of the agreement of sale was admitted. It was pleaded that the appellant did not pay the balance of consideration of Rs.70,000/- in spite of demands, before the stipulated date. As regards the possession, it is stated that though it was not delivered voluntarily, the appellant had trespassed into it, taking advantage of the absence of the respondents. The trial Court dismissed the suit, through its judgment dated 26-02-2008. It however directed that the advance of Rs.30,000/-be refunded by the 1st respondent with interest at 12% per annum. Aggrieved by the same, the respondents filed A.S.No.35 of 2008 in the Court of Principal District Judge, Kurnool. The appeal was dismissed, through judgment dated 17-12-2009 and the decree in the suit was affirmed. Hence, this Second Appeal. Sri K. Buchi Babu, learned counsel for the appellant submits that the execution of the agreement, Ex.A-1 was admitted by the 1st respondent, as PW-1, and that the same was sufficient for the Courts to decree the suit. He contends that though the suit schedule property was purchased by the respondents, jointly, the agreement was executed by the 1st respondent, in which the 3rd respondent and the wife of the 2nd respondent have figured as witnesses. Sri O. Manohar Reddy, learned counsel for the respondents, on the other hand, submits that, once the property was purchased, jointly by the respondents, the 1st respondent did not have the right or power to execute the agreement of sale, by himself. He contends that the Courts below have recorded a finding to the effect that Ex.A-1 was executed by the 1st respondent, in his individual capacity, and that the same is not binding upon respondents 2 and 3. Learned counsel further submits that the appellant failed to perform his part of the contract, and in fact, the agreement was cancelled by the 1st respondent, through legal notice. On the basis of the issues, before it, the trial Court framed only one issue, viz., Whether the appellant is entitled for the relief of specific performance of agreement of sale? On behalf of the appellant, PWs 1 to 3 were examined, and Exs.A-1 to A-5 were filed. On behalf of the respondents, DWs 1 to 3 were examined, and Exs.B-1 to B-5 were filed. The suit was dismissed. However, the relief of refund of advance amount, with interest at 12% per annum, was granted. In the appeal preferred by the appellant herein, the lower Appellate Court framed two points for consideration, viz., 1. “Whether the plaintiff is entitled for the relief of specific performance, thereby to obtain regular sale deed from the defendants? 2. Whether there are any grounds to set aside the judgment and decree of the trial Court?” The lower Appellate Court confirmed the decree passed by the trial Court, as it is. The relief of specific performance of an agreement of sale is discretionary in nature. The trial Court as well as the lower Appellate Court have noted the principles, that govern the exercise of discretion, enshrined in the Specific Relief Act. The undisputed facts are that the suit schedule property was purchased, through Ex.B-2, dated 24-02-1997, jointly by the respondents, who are, no doubt, brothers. It is not an item of property, which has devolved upon them, by way of succession. Had it been a case, where the property has fallen into the hotch pot of the joint family, and that the 1st respondent is the kartha thereof, there would have been justification for the 1st respondent in proposing to sell the property for the benefit of the family, as a whole. The recitals in Ex.A-1, however, suggest that he executed the agreement in his individual capacity, and not by treating the property as jointly held by himself, and respondents 2 and 3. The appellant tried to overcome the situation by pleading that the 3rd respondent figured as a witness, and since the whereabouts of the 2nd respondent were not known, as on the date of the agreement, his wife too joined as a witness. It does not need any effort to maintain the distinction between an executant on the one hand, and the witness, on the other hand. The terms of the agreement are binding on the executant, and none else. The role played by the witness is nothing, but the one, connoting his or her presence at the time of the transaction. At the most, one can attribute knowledge of the transaction, to the witness. The terms of a contract are not binding on every one who knows the transaction. By no stretch of imagination, a witness can be treated, or become a party to the transaction, nor would he be bound by the terms of the contract. It is only when the executant of an agreement pleads that he has the consent of the persons, who figured as witnesses, that a situation may emerge, where the witnesses need to explain their stand. In the instant case, the specific plea of the 1st respondent was that he intended to sell his share of the property, and not the entire property, covered by Ex.B-2. There did not exist any necessity for the respondents 2 and 3, to extricate themselves from the transaction, because they were never party to it. Another aspect of the matter is that the appellant failed to ensure that the sale deed is executed within the stipulated time. Even if the principle of time being the essence of the contract does not get attracted, the fact that the appellant did not evince the required amount of interest would certainly weigh with the Court, in exercise of its discretion. Much before the appellant started his efforts, the 1st respondent got issued a notice, terminating the agreement. The trial Court and the lower Appellate Court have exercised their discretion in a proper manner, and have in fact protected the interests of the appellant also. This Court does not find any basis to interfere with the concurrent judgments rendered by the trial Court and the lower Appellate Court, and that no substantial question of law arises for consideration. The Second Appeal is accordingly dismissed. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.07-03-2011. Note: L.R copy to be marked. (B/O) KO