IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TENTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.559 of 2000 BETWEEN Pulipati Satyanarayana and another. …APPELLANTS AND Kapa Srinivasa Rao (died) and six others. …RESPONDENTS Counsel for the Appellants: MR. SAI GANGADHAR CHAMARTHY Counsel for the Respondents: MR. P. PRABHAKAR RAO The Court made the following: - JUDGMENT: This second appeal is by the defendants 2 and 3 against the decree for specific performance granted in favour of the respondents in O.S.No.60 of 1984 dated 26.03.1990 passed by the District Munsif, Nandigama and confirmed by the learned Senior Civil Judge, Nandigama in A.S.No.2 of 1999 by judgment and decree dated 20.04.2000. 2. The facts, in brief, are as follows: (a) The respondents/plaintiffs claim that the first defendant executed an agreement of sale, Ex.A1, dated 24.11.1980 agreeing to sell Ac.0.13½ cents, which is the plaint schedule, to the plaintiffs for a consideration of Rs.9,000/- out of which Rs.2,000/- was received as part payment. It is alleged that the suit schedule property belongs to defendants 1 and 2 and that the second defendant was a minor at the time of agreement of sale – Ex.A1. The first defendant, being the Kartha of the joint family, executed the said agreement for family necessities and the said document is in the nature of an agreement executed by the kartha, which binds the second defendant. As per Ex.A1, the sale deed had to be executed on or before 24.02.1981 and though the plaintiff was ready, the defendant did not come forward. Hence, the plaintiff issued Ex.A2 notice dated 12.02.1981 followed by the present suit for specific performance on 18.11.1983. (b) In the said suit, the third defendant – mother of the defendants 1 and 2, got herself impleaded on the ground that the property belongs to her husband, which is joint family property and as such, she has a share in the said property. In the said suit issues as follows were settled: 1. Whether the plaintiff is entitled to the specific performance of contract as prayed for? 2. To what relief? 3. During trial, the plaintiff examined himself as P.W.1 and the attestor and scribe of Ex.A1 as P.Ws.2 and 3. The first defendant though filed a written statement and admitted execution of Ex.A1, has not, thereafter, contested the suit. The second defendant, who had attained majority pending suit, filed a written statement and contested the suit. He examined himself as D.W.1 and the third defendant examined herself as D.W.2. The trial Court, on consideration of the evidence, found that though the property was found to be ancestral property, the first defendant, admittedly, acted as kartha of the joint family and the second defendant, though minor on the date of agreement, accepted that the first defendant acted as kartha and used to borrow amounts for family necessities and he pleaded ignorance about spending of the consideration for family necessities. The trial Court also found that the plaintiff was not cross-examined on the aspect of proving the family necessities and consequently, the defendants failed to discharge their burden after the plaintiff discharged his initial burden. The plaintiff, however, accepted that the third defendant would have a share in the property and agreed to accept the specific performance to the extent of defendants 1 and 2. The suit, accordingly, was decreed to that extent and on appeal by the defendants 2 and 3, the said decreed has been confirmed. Hence, this second appeal. 4. The second appeal was admitted on 11.08.200 on the following substantial questions of law. “14.(a) Whether the sale of a minor’s property without obtaining the permission from the competent court of law is binding on the minor? (b) Whether the lower court properly interpreted the recitals of Ex.A1? (c) Whether the lower court is justified in disbelieving the contents of defendant No.1’s written statement merely on the ground that he was not examined? 5. Heard the learned counsel for the appellants and the learned counsel for the respondents. 6. The fact that the respondents/plaintiffs are not seeking to press their claim in the suit so far as the third defendant is concerned shows that her share and that of her daughter’s is not the subject matter of the decree and the respondents/plaintiffs specifically conceded to that aspect. What survives for consideration, therefore, is only the specific performance decree as against defendants 1 and 2. It is also evident that the first defendant though filed a written statement, has not contested the suit and thus, only the decree so far as the second defendant is concerned, is the only area of dispute. This present second appeal filed on behalf of defendant No.3 showing as appellant No.2 is, therefore, clearly untenable and as such, this appeal is only confined to the claim of the second defendant, who is appellant No.1 herein. 7. The trial Court and the lower appellate Court have already noticed that when plaintiff was examined as P.W.1 and when he has specifically stated that Ex.A1 agreement was executed on account of family necessities by the first defendant acting as kartha, there was no cross-examination of P.W.1 by either of the defendants. Moreover, the evidence of D.W.1, which was noticed by the trial Court, is apt to be extracted hereunder: “He admitted in his cross-examination that himself and his brothers are living jointly. He deposed that his father died about 10 or 15 years age. He stated that himself and his brothers have got business in sundry articles and that since that date of their father’s death, the brother of the 1st defendant has been doing business in sundry articles on behalf of their joint family. He also further admitted that his brother, 1st defendant has been managing the affairs of the business i.e., borrowing amounts and repaying the amounts borrowed. He also deposed that his brother used to borrow the amounts from other persons for the purpose of business. He admitted that he has no personal knowledge about pending of the amount paid to the 1st defendant by the 1st defendant whether it was spent for the benefit of the joint really or not. He also submitted that he does not know the reason as to why the 1st defendant sold the property under Ex.A-1 and that the 1st defendant alone knows the reason. He admitted in his cross-examination that his brother engaged a counsel for him and filed written statement on his behalf and that his brother brought him to court on the date of his giving evidence…” 8. The above, therefore, clearly establishes that the first defendant acting as kartha of the joint family was expressly admitted by the second defendant and the fact that the first defendant did not contest the suit and projected the second defendant to contest the suit by engaging a counsel and filing a written statement on behalf of the second defendant shows that the conduct of the defendants is neither bonafide nor was found to be of any substance, as only ignorance was pleaded by the second defendant with respect to utilization of the sale consideration for the benefit of the joint family necessities. Both the Courts below, therefore, rightly decreed the suit to the extent of share of the defendants 1 and 2. Even otherwise, it is evident that the plaintiff has been ready and willing and gave Ex.A2 notice well within the time fixed under Ex.A1 and it appears that the balance sale consideration was already deposited with the trial Court. The readiness and willingness on the part of the plaintiff coupled with the facts aforesaid show that the decrees granted by both the Courts below are clearly justified and do not suffer from any infirmity and perversity. The substantial questions of law are, therefore, answered against the appellants. The second appeal is accordingly dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J February 10, 2011 DSK