*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY + Second Appeal No.1386 of 2011 %26.12.2011 #Jala Anjaiah ..Appellant. Vs. $Ramisetty Anjaiah ..Respondent. !Counsel for the appellant : Sri C.B.Rammohan Reddy ^Counsel for Respondent : Sri M.Venkatanarayana <Gist : >Head Note: ?Cases Referred: THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.1386 of 2011 JUDGMENT: The respondent filed O.S.No.44 of 2006 in the Court of Senior Civil Judge, Addanki, against the appellant, for the relief of specific performance of an agreement of sale, dated 06.06.2006 (marked as Ex.A.1). It was pleaded that, in his capacity as a Manager of the joint family, the appellant agreed to sell Ac.1.50 cents of land in survey No.576 of Timmayapalem Village, Prakasam District, for a consideration of Rs.1,38,000/-. It was alleged that Rs.50,000/- was paid on the date of agreement and that the appellant was under obligation to execute the sale deed with the participation of his sons by receiving balance of consideration. The respondent got issued a notice dated 22.08.2006 (marked as Ex.A.2), requiring the appellant to execute the sale deed by receiving the balance sale consideration. Alleging that the appellant has not come forward, the suit was filed for the relief of specific performance. The appellant filed a written statement in the suit. He pleaded that the agreement pleaded by the respondent was a forged one. It was also pleaded that even according to the recitals in the agreement, or notice, the suit schedule land is an ancestral property and it could not have been sold, except for the family necessities. He further alleged that the recitals in the agreement, or notice, do not support the case of the respondent. The trial Court decreed the suit through judgment, dated 30.11.2009. The appellant filed A.S.No.28 of 2010 in the Court of II Additional District Judge, Ongole. The appeal was dismissed on 15.07.2011. Hence, this second appeal. Sri C.B.Rammohan Reddy, learned counsel appearing for the appellant, submits that the trial Court and the lower Appellate Court have misunderstood and misinterpreted Exs.A.1 and A.2 and proceeded as though the suit schedule property is exclusively owned by the appellant and that it was sold for the family benefit. He contends that these contradictions cannot be reconciled, and that they are not in conformity with the recitals in Exs.A.1 and A.2. Learned counsel submits that the trial Court proceeded as though the sale was affected for the benefit of the family, whereas in Ex.A.1, it was clearly mentioned that the alleged sale was for the personal benefit of the appellant. He contends that the deposition of PW.1 - the respondent herein, was at variance with the contents of plaint, and contrary to the recitals in Exs.A.1 and A.2. Learned counsel further submits that whatever may have been the justification for not impleading the other co-parceners in the suit as defendants, at the initial stage, steps ought to have been taken to implead them, at least when it was brought to the notice of the respondent that the interests of the co-parceners are involved and Ex.A.1 itself provides for their joining in the completion of transaction. He has urged other contentions also. Sri M.Venkatanarayana, learned counsel for the respondent, on the other hand, submits that the conduct of the appellant shows that he went on changing stands, as and when suited to his convenience. He contends that at one stage, he disputed the execution of Ex.A.1, and later on, he made an attempt to fall back upon the theory of co- parcenery property, the interests of the family and non-joinder of necessary parties. Learned counsel submits that the trial Court and the lower Appellate Court were convinced that Ex.A.1 is proved and the inescapable legal consequence is that the suit be decreed. He further submits that no substantial question of law arises for consideration and that the second appeal deserves to be dismissed. The respondent filed the suit on the basis of Ex.A.1, agreement of sale, for the relief of specific performance. The appellant, apart from denying the execution of sale, has raised several objections, as to the enforceability of the agreement. The trial Court framed the following issues for its consideration: i) “Whether the suit sale agreement is true, valid and binding on the defendant? ii) If so, whether it is enforceable? iii) Whether the plaintiff is entitled to the relief of specific performance of agreement of sale as prayed for? iv) Whether the plaintiff is entitled for permanent injunction?” On behalf of the respondent, PWs.1 to 3 were examined and Exs.A.1 to A.3 were filed. The evidence on behalf of the appellant comprised just of his deposition and nothing else. On the suit being decreed, the appellant carried the matter to the lower Appellate Court and in A.S.No.28 of 2010 the following points were framed for consideration: i) “Whether the plaintiff proved that the defendant executed the suit agreement of sale, dated 06.06.2006 in his favour in respect of the schedule property? ii) If so, whether the trial Court committed any error in decreeing the suit of the plaintiff?” The appeal was dismissed. At the threshold of the plaint itself, it was pleaded that the appellant is the Karta of the joint family and that he executed Ex.A.1 for sale of an item of immovable property for the family necessity. However, a perusal of Ex.A.1 presents a different picture. In that document, it was mentioned that the property is the one, that has accrued to the appellant from his ancestors and that the sale is being affected to meet “his own expenses”. Added to this, in Ex.A.2 also the respondent mentioned that the appellant is the manager of the joint family and for the benefit of joint family necessities, he offered to sell the property. Obviously realising this, the respondent, as PW.1, made an effort to convince the Court that though the property is described as an ancestral one, it is in fact the self-acquired property of the appellant. In the cross-examination, the following was elicited from him “I made a pleading in the plaint (that) the suit property is ancestral property of the defendant, but, actually the said property is his own property of the defendant.” When there is a serious dispute as to the very character of the property, the enforceability of the transaction, suffers corresponding weakness. Even if it is to be assumed that the property in question was part of the assets of the co-parcenerary or joint family, it is possible for a karta, which, the appellant indeed is, to alienate the property for the family necessity. The right of the karta of a Hindu Joint Family, in this regard, is almost unquestioned. The only rider is that the co- parceners can challenge the sale so made, at a later point of time, by pleading that there did not exist any genuine family necessity, warranting the sale of the property. In the instant case, had the appellant made the respondent to believe that the transaction is for the benefit of the joint family, and the same was mentioned in Ex.A.1, things would have been different altogether. In Ex.A.1, it was clearly mentioned that the proposed sale was being effected for the purpose of “his own expenses”. In Ex.A.2, the respondent came forward with a different version indicating that the sale was for the benefit of the joint family. The specific recital in Ex.A.1 was completely ignored. Unfortunately the trial Court also proceeded on the assumption that the sale was being effected for the expenses of the family. There is a clear misreading of evidence and that constituted the basis for arriving at a wrong conclusion. Another aspect of the matter is that in Ex.A.1 itself there is a recital to the effect that the transaction shall be completed with the participation of two sons of the appellant. In Ex.A.2, this aspect of it was repeated. In his cross-examination, the respondent stated as under: ”I demanded the defendant to get the sons and daughters be joined in registration of the sale deed for the suit property. But the defendant says that there is no need of joining of co-executants.” In case the appellant accepted the demand of the respondent, the transaction could have certainly been completed. However, he raised an objection to the effect that the property belongs to joint family, and that in the absence of his sons and other co-parceners, it cannot be completed. The respondent was under obligation to implead the other co-parceners. As a matter of fact, Ex.A.1, itself provides for that. In spite of these facts, the respondent did not take steps to implead the other co-parceners. Therefore, the following substantial questions of law arise for consideration, viz., a) “Whether in a suit for specific performance of an agreement of sale, there can be a pleading contrary to the very agreement of sale, or as to the character of the property and the purpose of sale by the karta of the joint family; b) Whether oral evidence can be adduced contrary to the written agreement that existed between parties to the suit; and c) Whether a suit for specific performance of an agreement of sale in respect of an item held by the joint family is not bad for necessary parties if other co-parceners are not included, though provided for in the agreement of sale and insisted by the defendant in a suit.” All these questions invariably stand answered in favour of the appellant, in view of the discussion undertaken in the preceding paragraphs. The second appeal is accordingly allowed and the decree passed by the trial Court and affirmed by the lower Appellate Court is set aside. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY, J Dt:26.12.2011 Note: L.R. copy to be marked. GJ