BEEMANENI MAHA LAKSHMI versus GANGUMALLA APPA RAO (SINCE DEAD) BY LRS.
[2019] 7 S.C.R. 490, Supreme Court of India, 2019
Outcome: Dismissed (Dismissed)
Segment: Ratio
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SUPREME COURT REPORTS
[2019] 7 S.C.R.
BEEMANENI MAHA LAKSHMI
v.
GANGUMALLA APPA RAO (SINCE DEAD) BY LRS.
(Civil Appeal Nos. 4537-4538 of 2017)
MAY 09, 2019
[L. NAGESWARA RAO AND M. R. SHAH, JJ.]
Specific performance: Agreement to sell – Execution of, by
appellant-vendor in favour of respondent-vendee for a sale
consideration – Payment of part consideration by the respondent
and remaining amount was to be paid within three months – Appellant
agreed to execute the sale deed after measuring the suit land –
However, respondent did not supply the original sale deed as also
the order of the tribunal that appellant is holding an excess land –
Suit by respondent for decree for specific performance of the
agreement to sell and in the alternative refund of advance of sale
consideration with interest – Suit decreed by the trial court directing
the appellant to execute a sale deed in favour of the respondent –
Decree upheld by the High Court – On appeal, held: Courts below
rightly held that it was the appellant who did not perform her part
of the contract – Failure on the part of the respondent to demonstrate
that he was having sufficient money with him to pay the balance
sale consideration under the agreement by the date of his evidence
not much of consequence – Even otherwise the respondent deposited
the entire balance sale consideration as directed by the trial court
– It cannot be said that the respondent was not ready and willing to
perform his part of the
contract – It is to be considered that as and
when respondent was called upon to make the deposit, he deposited
the amount to show his bonafides or not – Furthermore, appellant
cannot be permitted to raise plea on hardship – Thus, the decree
for specific performance of the agreement to sell by the courts below,
upheld.
Dismissing the appeals, the Court
HELD: 1.1 On facts, till the land was measured and the
final amount was arrived at, there was no obligation on the part of
the vendee-plaintiff to deposit/pay the balance sale consideration.
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It is required to be considered along with the fact that all
throughout the vendee was insisting that the original sale deed
in favour of the vendor be given to the vendee and that the final
certificate issued by the tribunal be shown and given to the
vendee. It is an admitted position that copy of the sale deed was
not given to the vendee. However, it was the case on behalf of
the defendant-vendor that the plaintiff was informed that the
original sale deed is produced in the court in the proceedings
initiated by the YS predecessor-in-title and therefore, the vendee
may get the copy from that court. Nothing is on record on which
date the vendor delivered to the vendee the land ceiling papers.
The land in question was subjected to the land ceiling proceedings.
The vendor-defendant purchased the suit property by sale deed
dated 6.10.1971 from YS the husband of the sister of the vendor.
From the evidence, it appears that YS was also claiming the
ownership over the land in question. Dispute was that YS executed
the sale deed in favour of the defendant-vendor with a view to
see that the land is not declared as excess land under the Land
Ceiling Act. It has come on record that the tribunal held in favour
of the vendor and the transaction in her favour was found to be
bonafide. However, the said YS was also continued to claim the
ownership which was not accepted by the land Tribunal. That is
why, the vendee- plaintiff was insisting to deliver the land ceiling
papers. The conduct on the part of the plaintiff-vendee to insist
for the original sale deed in favour of the vendor and the delivery
of the land ceiling papers was natural. Any prudent person who
was to purchase the property would definitely insist for the title
papers, so as to be satisfied that the title is clear. Before the trial
court, the defendant did not produce any final order/certificate
issued by the land tribunal, which came to be produced for the
first time before the High Court along with the application for
additional evidence under Order 41 Rule 27 CPC. The High
Court permitted the appellant to produce the proceedings of the
tribunal. The same came to be considered by the High Court.
That on appreciation of evidence and considering the document
Ex. B1-copy of a certified copy of the order of the Land Reforms
Tribunal, the High Court has specifically observed that it cannot
positively be said that the original of Ex. B1 was available with
the vendor by the date of Ex. A1. Therefore, the High Court
BEEMANENI MAHA LAKSHMI v. GANGUMALLA APPA RAO
(SINCE DEAD) BY LRS.
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observed that the contention of the appellant that the respondent
was shown the document relating to land ceiling clearance at the
time of Ex. A1 cannot be believed or accepted. The said is the
finding recorded on appreciation of evidence. Therefore, the trial
court and the High Court specifically observed and held that the
buyer insisted on the seller producing all the documents
necessary for making out a complete chain of his/her title.
[Para 10] [502-C-H; 503-A-E]
1.2 On conjoint reading of Ex. A1 and the reply to the notice
by the defendant dated 14.04.1987 and the cross-examination of
the defendant-vendor, both the trial court and the High Court
rightly observed and held that it was the appellant-vendor that
did not perform her part of the contract. Once, the finding is
recorded that it was the appellant- vendor that did not perform
her part of the contract, thereafter as rightly observed by the
High Court, the failure on the part of the vendee to “demonstrate”
that he was having sufficient money with him to pay the balance
sale consideration under Ex. A1 by the date of his evidence is
not much of consequence and the contention of the appellant-
vendor that the respondent- vendee was not ready and willing to
perform his part of the contract cannot be believed or accepted.
The said finding was confirmed by the High Court.  Even
otherwise, it is required to be noted that the plaintiff deposited
the entire balance
sale consideration as directed by the trial court
within the extended period of time. As it was submitted on behalf
of the defendant before the trial court that the plaintiff does not
have any capacity to pay the balance sale consideration, to test
his bonafides the trial court directed the plaintiff to deposit the
balance sale consideration which the plaintiff did deposit. Merely
because the said amount was deposited out of the fund/amount
received by him by selling the property in the year 1993, by that
itself cannot be presumed and/or inferred that at the time of
execution of the agreement to sell and/or thereafter even at the
time of the notice, the plaintiff was not having sufficient fund to
pay the balance sale consideration. An agreement to sell is dated
30.12.1985 and the plaintiff was directed to deposit the amount
in the year 1993. It is not expected from the plaintiff that he would
continue to deposit the same with the bank all these years. What
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is required to be considered is as and when he is called upon to
make the deposit, he has deposited the amount to show his
bonafides or not? [Para 10] [503-F-H; 504-A-D]
1.3 The plea raised on behalf of the defendant-vendor on
hardship to be caused if the decree of specific performance of
the contract is passed against the vendor cannot be permitted to
be raised now, when no such plea was raised in the written
statement. [Para 11] [504-E-G]
A. Maria Angelena v. A.G. Balkis Bee AIR 2002 SC
2385 – relied on.
1.4 The judgment and decree passed by the trial court for
specific performance of the agreement to sell confirmed by the
High Court is upheld. [Para 13]
K.S. Vidyanadam v. Vairavan (1997) 3 SCC 1 : [1997]
1 SCR 993 ; P.R.Deb and Associates v. Sunanda Roy
(1996) 4 SCC 423 : [1996] 3 SCR 163 ; Padmakumari
v. Dasayyan (2015) 8 SCC 695 : [2015] 5 SCR 56
– distinguished.
Case Law Reference
[1997] 1 SCR 993
distinguished
Para 6.6
[1996] 3 SCR 163
distinguished
Para 6.8
[2015] 5 SCR 56
distinguished
Para 6.9
AIR 2002 SC 2385
relied on
Para 11
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4537-
4538 of 2017.
From the Judgment and Order  dated  06.08.2007 of the  High
Court of Judicature of Andhra Pradesh at Hyderabad in Appeal Suit No.
2638 of 1993 & CMP No. 7692 of 2003.
Basant R. Sr. Adv., G.V.R. Choudary, K. Shivraj Choudhuri, A.
Chandra Sekhar, Ms. Ayushi Goel, Harsh Singhal, Ms. Akshara Naidu,
Vishnu Pazhanganat, Hitesh Kumar Sharma,  Advs. for the
Appellant.
Pramod Swarup, Sr. Adv., Mrs. Anjani Aiyagari, Ram Lal Roy,
K. Ram Kumar,  Advs. for the Respondents.
BEEMANENI MAHA LAKSHMI v. GANGUMALLA APPA RAO
(SINCE DEAD) BY LRS.
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The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court of Judicature Andhra Pradesh at
Hyderabad dated 6.8.2007 in Appeal Suit No. 2638 of 1993 and CMP
No. 7692 of 2003, by which the High Court has dismissed the said appeal
preferred by the appellant herein – the original defendant and has
confirmed the judgment and decree of specific performance passed by
the learned trial Court, the original defendant has preferred the present
appeals.
2. The facts leading to the present appeals in nutshell are as under:
That the appellant herein – the original defendant purchased the
suit schedule property admeasuring 17 acres 39 cents situated at village
Billawaka, Thimmapuram Post, Kakinada Taluk, East Godavari District,
Andhra Pradesh by a registered sale deed dated 6.10.1971.  The land in
question was subjected to the provisions of the Andhra Pradesh Land
Reforms (Ceiling on Agricultural Holdings) Act, 1973, which came into
force in the year 1975. That vide order dated 20.11.1976, the Land
Reforms Tribunal held that the appellant is holding an excess land to the
extent of 0.0013 cents. It appears that a revision application was pending/
proceedings before the High Court at the instance of the predecessor in
title of the suit property. That the appellant herein executed an agreement
to sell in favour of the respondent herein –
the original plaintiff vide
agreement to sell dated 30.12.1985 and agreed to sell the said property
(suit property) for a sale consideration of Rs.2,45,000/-.  The respondent
herein – the original plaintiff – purchaser paid the part sale consideration
of Rs.55,000/-.  The remaining balance amount was required to be paid
within three months. According to the plaintiff, it was also agreed that
the appellant has to execute the sale deed after measuring the suit land
for arriving at the actual sale consideration payable. According to the
plaintiff, time and again, he demanded the original sale deed in favour of
the appellant dated 6.10.1971 as well as the final order passed by the
Tribunal/final certificate issued by the Agricultural Land Tribunal and
also requested the vendor to measure the land and execute the sale
deed.  However, as the vendor – the appellant did not execute the sale
deed, though according to the plaintiff he was ready and willing to pay
the balance sale consideration and perform his part of contract, nothing
further was done and therefore the purchaser – the plaintiff served a
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legal notice upon the appellant dated 6.4.1987.  The said notice was
replied by the defendant vide reply dated 14.4.1987.  That thereafter the
respondent herein – the original plaintiff instituted Original Suit No.16/
1993 in the Court of the Subordinate Judge, Pithapuram praying for a
decree for specific performance of the agreement to sell dated 30.12.1985
by directing the defendant to execute the sale deed in favour of the
plaintiff by producing the original title deed and non-surplus order in the
land ceiling case of the defendant and her vendor. In the alternative, it
was prayed to pass a decree for a sum of Rs.75,169.75 with interest
from 30.12.1985 on Rs.55,000/-.
2.1 The suit was resisted by the defendant by filing a written
statement.  It was the case on behalf of the defendant that the plaintiff
was not ready and willing to perform his part of contract as he was not
having balance of sale consideration and therefore, he could not pay the
amount and obtain the sale deed.  It was also the case on behalf of the
defendant that she purchased the land in question from one Y. Somayya
Choudary and the land thereafter held in favour of the defendant and
the Land Tribunal held that the said transaction between the defendant
and the Y. Somayya Choudary was a bona fide transaction.  According
to the defendant, the same had attained finality.  It was the case on
behalf of the defendant that the plaintiff was aware of the aforesaid
transaction and even the
order passed by the Land Tribunal.  It was also
the case on behalf of the defendant that before entering into the agreement
itself, in the beginning, the defendant informed the plaintiff that the sale
deed is filed in the land ceiling proceedings of Y. Somayya Choudary
and after termination of the proceedings the document will be obtained
and delivered to the plaintiff.  It was also the case on behalf of the
defendant that the copies of the land ceiling orders were handed over to
the plaintiff and having satisfied the plaintiff entered into the agreement
to sell.
2.2 On the basis of the pleadings of the parties, the learned Trial
Court framed the following issues:
(1) Whether the plaintiff is ready and willing to perform his part
of the contract and is entitled to seek for specific performance of
the suit agreement of sale?
(2) Whether the plaintiff is entitled for the alternative relief of
refund of advance of sale consideration with interest as claimed?
BEEMANENI MAHA LAKSHMI v. GANGUMALLA APPA RAO
(SINCE DEAD) BY LRS. [M. R. SHAH, J.]
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(3) To what relief?
2.3 The plaintiff examined himself as PW1 and marked Exhibits
A1 to A4.  The defendant examined 5 witnesses including herself as
DW1 and marked Exhibit X1 through DW3.  It appears that during the
course of trial, as it was the case on behalf of the defendant that the
plaintiff had no money to pay the balance sale consideration and therefore
the learned trial Court directed the plaintiff to deposit the balance of the
sale consideration into the Court to verify his bona fides.  That the plaintiff
deposited the balance sale consideration within the extended time granted
to him on a petition.
3. That thereafter on appreciation of evidence and considering
the entire material on record including the deposition of DW1 and even
reply to the notice by DW1, the learned trial Court decreed the suit by
directing the defendant to execute a sale deed in favour of the plaintiff.
While decreeing the suit, the learned trial Court specifically observed
and held that it was the defendant who committed the breach of contract.
On appreciation of evidence, the learned trial Court also found that the
plaintiff was always ready and willing to perform his part of the contract
and it was the defendant who committed the breach of contract and
therefore the plaintiff is entitled for the relief of specific performance.
4. Feeling aggrieved and dissatisfied with the judgment and decree
passed by the learned trial Court, the
defendant preferred appeal before
the High Court.  The defendant – the appellant herein also filed an
application for additional evidence under Order 41 Rule 27 of the CPC.
That the High Court allowed the said application for additional evidence
partly. That thereafter on appreciation/re-appreciation of the entire
evidence on record, by the impugned judgment and order, the High Court
has dismissed the appeal preferred by the appellant herein – the original
defendant and has confirmed the judgment and decree of specific
performance of the agreement to sell dated 30.12.1985 passed by the
learned trial Court.
5. Challenging the impugned judgment and order passed by the
High Court in dismissing the appeal and confirming the judgment and
decree of specific performance passed by the learned trial Court and in
partly rejecting the application for additional evidence under Order 41
Rule 27 of the CPC, the original defendant – the appellant before the
High Court has preferred the present appeals.
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6. Shri Basant R, learned Senior Advocate has appeared on behalf
of the appellant – the original defendant and Shri Pramod Swarup, learned
Senior Advocate has appeared on behalf of the respondent – the original
plaintiff (since dead and now represented by his legal heirs).
6.1 Shri Basant R, learned Senior Advocate appearing on behalf
of the appellant has vehemently submitted that in the facts and
circumstances of the case, both the courts below have materially erred
in decreeing the suit and passing the decree of specific performance of
the agreement to sell dated 30.12.1985.
6.2 It is further submitted by the learned Senior Advocate appearing
on behalf of the appellant that both the courts below have materially
erred in holding that it was the defendant who committed the breach of
the terms of the contract/agreement to sell.
6.3 It is further submitted by the learned Senior Advocate appearing
on behalf of the appellant that it was the case on behalf of the defendant
from the very beginning that the plaintiff had no capacity to pay the
balance sale consideration.  It is submitted that even the plaintiff could
not deposit the balance sale consideration at the first instance as directed
by the learned trial Court by which the learned trial Court directed the
plaintiff to deposit the balance sale consideration to show his bonafides.
It is submitted that in fact the plaintiff could deposit the balance sale
consideration within the extended period of time out
of the amount received
from the property sold by him in the year 1993.  It is submitted that
therefore when the plaintiff was not having sufficient fund to pay the
balance sale consideration, both the courts below have materially erred
in passing the decree of specific performance of the agreement to sell
dated 30.12.1985.  It is submitted that as such the plaintiff in the cross-
examination has specifically admitted that he paid the balance sale
consideration as directed by the learned trial Court from the amount
received by him on sale of the property in the year 1993.
6.4 It is further submitted by the learned Senior Advocate appearing
on behalf of the appellant that in the agreement to sell there was no
condition that the sale deed to be executed only after the property is
measured. It is vehemently submitted by the learned Senior Advocate
appearing on behalf of the appellant that both the courts below have
materially erred in giving much importance to the admission of defendant
no.1 who is an illiterate   widow that before execution of the sale deed
the land was to be measured.
BEEMANENI MAHA LAKSHMI v. GANGUMALLA APPA RAO
(SINCE DEAD) BY LRS. [M. R. SHAH, J.]
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6.5 It is further submitted by the learned Senior Advocate appearing
on behalf of the appellant that both the courts below have materially
erred in not appreciating the fact that prior to the entering into the
agreement of sale, the plaintiff was aware of the defendant having
purchased the property from Y. Somayya Choudary and also was aware
of the land ceiling proceedings.  It is submitted that even before entering
into the agreement itself in the beginning the defendant informed the
plaintiff that the sale deed is filed in the land ceiling proceedings of Y.
Somayya Choudary and after termination of the proceedings the
document will be obtained and delivered to the plaintiff.  It is submitted
that in the reply to the notice by the defendant, the plaintiff was specifically
informed/told that the sale deed is in the court file of the land ceiling
proceedings of Y. Somayya Choudary and the plaintiff can obtain a copy
of the same from the concerned court. It is submitted that therefore
both the courts below have materially erred in holding that it was the
defendant who committed the breach of the terms of the contract/
agreement to sell. It is further submitted that both the courts below have
materially erred in holding that the plaintiff was always ready and willing
to perform his part of the contract/agreement to sell.
6.6 It is further submitted by the learned Senior Advocate appearing
on behalf of the appellant that
even otherwise decree for specific
performance of a contract is a discretionary relief and in the facts and
circumstances of the case, more particularly when the plaintiff did not
come with clean hands, as though was not in possession but stated that
he is in possession, both the courts below ought not to have granted the
discretionary relief and ought not to have passed a decree for specific
performance of the agreement/agreement to sell.  In support of his above
submission, Shri Basant R, learned Senior Advocate has heavily relied
upon the decision of this Court in the case of K.S. Vidyanadam v.
Vairavan, reported in (1997) 3 SCC 1.
6.7 It is further submitted by the learned Senior Advocate appearing
on behalf of the appellant that even the High Court has materially erred
in dismissing the application for additional evidence under Order 41 Rule
27 of the CPC by not permitting the appellant to produce the xerox
copies of the certified copies of the agreement of sale dated 30.08.1993
executed by the plaintiff in favour of one Vegisina Venkata Satya Ananda
Gajapathi Raju and the deposition of the plaintiff in O.S. No. 236 of 1994
on the file of the Principal Senior Civil Judge, Kakinada.  It is submitted
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that if both the aforesaid documents would have been permitted to
produce on record as an additional evidence, it can be seen that the
plaintiff was not having sufficient fund to pay the balance sale
consideration.
6.8 Shri Basant R, learned Senior Advocate appearing on behalf
of the appellant has submitted that even otherwise in the facts and
circumstances of the case, the courts below have materially erred in
passing the decree for specific performance of the contract for sale of
immovable property which was after number of years and would cause
undue hardship to the defendant.  It is submitted that in the present case
the plaintiff waited till the period of limitation to come to an end and even
did not file the suit for specific performance immediately.    It is submitted
that therefore the grant of decree for specific performance in the
circumstances would amount to an instrument of oppression giving unfair
advantage to the vendee. In support of his above submission, learned
Senior Advocate has heavily relied upon the decision of this Court in the
case of P.R.Deb and Associates v. Sunanda Roy, reported in (1996)
4 SCC 423.
6.9 It is further submitted by the learned Senior Advocate appearing
on behalf of the appellant that in the present case in the agreement to
sell, it was specifically mentioned that the balance sale consideration
was to be paid within a period of three months from the date of execution
of the agreement to sell.  It is submitted that
admittedly the plaintiff did
not pay the balance sale consideration within three months from the
date of execution of the agreement to sell and therefore the said failure
disentitled the plaintiff to obtain decree of specific performance.  In
support of his above submission, learned Senior Advocate has heavily
relied upon the decision of this Court in the case of   Padmakumari v.
Dasayyan, reported in (2015) 8 SCC 695.
6.10. Making the above submissions and relying upon the above
decisions, it is prayed to allow the present appeals.
7. The present appeals are vehemently opposed by Shri Pramod
Swarup, learned Senior Advocate appearing on behalf of the
respondent – the original plaintiff.
7.1 It is submitted by the learned Senior Advocate appearing on
behalf of the respondent that in the present case there are concurrent
findings recorded by both the courts below that there was a failure on
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the part of the defendant – vendor to perform her part of the terms of
the contract and that the plaintiff was always ready and willing to pay
the balance sale consideration.  It is submitted that the aforesaid findings
of fact recorded by the learned trial Court as well as the High Court are
on appreciation of evidence and therefore the same may not be interfered
with by this Court.  It is submitted that in view of the aforesaid findings
of fact recorded by the trial Court, confirmed by the High Court, it cannot
be said that the learned trial Court and the High Court committed an
error in passing a decree for specific performance.
7.2 It is vehemently submitted by the learned Senior Advocate
appearing on behalf of the respondent that in fact the defendant in reply
to the notice – A3 as well as in her deposition has specifically admitted
that the land was to be measured and only thereafter the sale deed was
to be executed.  It is submitted that as admitted the land was not measured
and therefore there was no occasion on the part of the plaintiff to pay
the balance sale consideration at the relevant time.  It is submitted that
even the defendant – vendor did not give the sale deed in her favour
executed by Y. Somayya Choudary.  It is submitted that Y. Somayya
Choudary was the husband of the sister of the defendant and only with
a view to save the property from the Agricultural Land Ceiling Act, he
executed the sale
deed in favour of the defendant.  It is submitted that
the plaintiff insisted for the final certificate issued by the Land Tribunal
so as to see that there is a clear title in favour of the defendant – vendor.
It is submitted that there was a necessity to have the land measured.  It
is submitted that therefore when the vendor neither gave the sale deed
in her favour nor gave the final certificate/order issued by the Land
Tribunal nor even got the land measured, there was a cloud on the title
which was required to be removed by the defendant as vendor, before
the plaintiff makes the payment of balance sale consideration. It is
submitted that as the defendant – vendor failed to clear the cloud by not
giving the copy of the sale deed in her favour; by not producing the final
certificate/order issued by the Land Tribunal and by not measuring the
land till then there was no question of any payment of balance sale
consideration by the plaintiff.  It is submitted that from the very beginning,
it was the case on behalf of the plaintiff that the plaintiff was always
ready and willing to pay the balance sale consideration, subject to the
defendant’s fulfilling her part of the contract.
7.3 It is further submitted by the learned Senior Advocate appearing
on behalf of the respondent that unless and until the defendant – vendor
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complied with her terms and conditions of the agreement by fulfilling her
part of the contract, the plaintiff was not required to deposit any amount
either in the bank or with the Court.  It is submitted that as soon as the
learned trial Court directed to deposit, the plaintiff deposited the balance
sale consideration to show his bonafides.  It is submitted that merely
because in the year 1993 when the amount was deposited the plaintiff
might have deposited the said amount out of the fund received by selling
the property in the year 1993 by that itself cannot be said that prior
thereto the plaintiff was unable to pay the balance sale consideration.
7.4 Making the above submissions and relying upon the decision
of this Court in the case of Narinderjit Singh v. North Star Estate
Promoters Limited, reported in AIR 2012 SC 2035, it is prayed to
dismiss the present appeals.
8. We have heard the learned Senior Counsel for the respective
parties at length.
9. We have perused and considered in depth the impugned
judgment and order passed by the High Court as well as the judgment
and decree passed by the learned trial Court.  At the outset, it is required
to be noted that as such there are concurrent findings of fact by both,
the learned trial Court as well as the High Court that it was the appellant
– vendor who did not perform her part of the contract.  The learned trial
Court also observed and held that as the respondent – vendee deposited
into Court the amount
payable by him as per Ex. A1, which was as per
the order of the trial Court, and therefore his failure to “demonstrate”
that he was having sufficient money with him to pay the balance sale
consideration under Ex. A1 by the date of his evidence is not much of
consequence and the contention of the appellant – vendor that the
respondent – vendee was not ready and willing to perform his part of
the contract cannot be believed or accepted.  The aforesaid finding has
been confirmed by the High Court.
10. It is true that in Ex.A1, it was not specifically mentioned that
vendor has to first get the land measured and only thereafter the vendee
has to pay the balance sale consideration.  It is also true that as per Ex.
A1 – agreement to sell the vendee was required to deposit the balance
sale consideration within a period of three months from the date of
execution of the agreement.  However, at the same time, it was the
specific case on behalf of the plaintiff – vendee that it was also agreed
that the vendor has to execute the sale deed after measuring the suit
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land.  The aforesaid is as such admitted by the vendor – the defendant,
not only in reply to the notice dated 14.04.1987 but as well in her
deposition.  In the reply to the notice on 14.04.1987, the defendant has
specifically admitted that the sale deed should be executed after
measuring he land and after arriving at the consideration for the land
that was arrived at on measurement.  Even in the cross-examination,
the defendant – vendor who has been examined as DW1 has specifically
admitted that at the time of execution of the agreement, it was settled to
get the land measured and to arrive at the consideration and to deliver
the original sale deed.  It has also come on record that no measurement
was carried out at any point of time, more particularly after the execution
of the agreement to sell.  Thus, till the land was measured and the final
amount was arrived at, there was no obligation on the part of the vendee
– the plaintiff to deposit/pay the balance sale consideration.  It is required
to be considered along with the fact that all throughout the vendee was
insisting that the original sale deed in favour of the vendor be given to
the vendee and that the final certificate issued by the Land Tribunal be
shown and given to the vendee.  It is an admitted position that copy of
the sale deed was not given to the vendee. However, it was the case on
behalf of the defendant – vendor that the plaintiff was informed that
the
original sale deed is produced in the court in the proceedings initiated by
Y.Somayya Choudary – predecessor in title and therefore the vendee
may get the copy from that court.  Nothing is on record on which date
the vendor delivered to the vendee the land ceiling papers.  At this stage,
it is required to be noted that the land in question was subjected to the
land ceiling proceedings.  It has come on record that the vendor –
defendant purchased the suit property by sale deed dated 6.10.1971
from one Y. Somayya Choudary – the husband of the sister of the vendor.
From the evidence, it appears that Y. Somayya Choudary was also
claiming the ownership over the land in question.  Dispute was that Y.
Somayya Choudary executed the sale deed in favour of the defendant –
vendor with a view to see that the land is not declared as excess land
under the Land Ceiling Act.  It has come on record that the Land Tribunal
held in favour of the vendor and the transaction in her favour was found
to be bonafide.  However, the said Y. Somayya Choudary was also
continued to claim the ownership which was not accepted by the land
Tribunal. That is why, the vendee – the plaintiff was insisting to deliver
the land ceiling papers.  The conduct on the part of the plaintiff – vendee
to insist for the original sale deed in favour of the vendor and the delivery
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of the land ceiling papers was natural. Any prudent person who was to
purchase the property would definitely insist for the title papers, so as to
be satisfied that the title is clear.  Before the learned trial Court, the
defendant did not produce any final order/certificate issued by the Land
Tribunal, which came to be produced for the first time before the High
Court along with the application for additional evidence under Order 41
Rule 27 of the CPC.  The High Court permitted the appellant to produce
the proceedings of the Land Reforms Tribunal dated 20.11.1976.  The
same came to be considered by the High Court and observed that Ex.
B1 is a xerox copy of a certified copy of the order dated 20.11.1976 of
the Land Reforms Tribunal.  The High Court has also observed that the
relevant portion of the certified copy (Ex. B1) which contain the details
relating to the date when the copy application was filed; when the stamps
were called for and when the copy was made ready are not available in
Ex. B1.  The High Court has also observed that if they are available, the
date on which the copy application was made would have known.  That
on appreciation of evidence and considering the document Ex. B1, the
High Court has specifically observed that it cannot positively be said
that the original of Ex. B1 was available with the vendor by the date of
Ex. A1.  Therefore, the High Court observed that the contention of the
appellant that the respondent was shown the
document relating to land
ceiling clearance at the time of Ex. A1 cannot be believed or accepted.
The aforesaid is the finding recorded on appreciation of evidence.
Therefore, the learned trial Court and the High Court have specifically
observed and held that the buyer insisted on the seller producing all the
documents necessary for making out a complete chain of his/her title.
Therefore, on conjoint reading of Ex. A1 and the reply to the
notice by the defendant dated 14.04.1987 and the cross-examination of
the defendant – vendor, both the learned trial Court and the High Court
have rightly observed and held that it was the appellant – vendor that did
not perform her part of the contract.  Once, the finding is recorded that
it was the appellant – vendor that did not perform her part of the contract,
thereafter as rightly observed by the High Court, the failure on the part
of the vendee to “demonstrate” that he was having sufficient money
with him to pay the balance sale consideration under Ex. A1 by the date
of his evidence is not much of consequence.  Even otherwise, it is required
to be noted that the plaintiff deposited the entire balance sale consideration
as directed by the learned trial Court within the extended period of time.
It is required to be noted that as it was submitted on behalf of the
BEEMANENI MAHA LAKSHMI v. GANGUMALLA APPA RAO
(SINCE DEAD) BY LRS. [M. R. SHAH, J.]
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SUPREME COURT REPORTS
[2019] 7 S.C.R.
defendant before the learned trial Court that the plaintiff does not have
any capacity to pay the balance sale consideration, to test his bonafides
the learned trial Court directed the plaintiff to deposit the balance sale
consideration which the plaintiff did deposit.  Merely because the said
amount was deposited out of the fund/amount received by him by selling
the property in the year 1993, by that itself cannot be presumed and/or
inferred that at the time of execution of the agreement to sell and/or
thereafter even at the time of the notice, the plaintiff was not having
sufficient fund to pay the balance sale consideration.  It is required to be
noted that an agreement to sell is dated 30.12.1985 and the plaintiff was
directed to deposit the amount in the year 1993.  It is not expected from
the plaintiff that he would continue to deposit the same with the bank all
these years. What is required to be considered is as and when he is
called upon to make the deposit, he has deposited the amount to show
his bonafides or not?  Therefore, as such, both the learned trial Court as
well as the High Court have rightly passed a decree for specific
performance.
11. Now so far as the submission on behalf of the appellant that if
the decree for specific performance of the contract is passed after number
of years, it would cause undue hardship to the defendant – vendor and
the reliance placed upon the decision of this Court in
the case of P.R.Deb
(supra) is concerned, it is required to be noted that in the written statement
the defendant has not pleaded any hardship to be caused if the decree of
specific performance of the contract is passed against the defendant –
vendor.  At this stage, the decision of this Court in the case of A. Maria
Angelena v. A.G. Balkis Bee, reported in AIR 2002 SC 2385 is required
to be referred to.  In the aforesaid case, the vendor sought to raise the
plea of hardship for the first time before this Court and this Court did not
permit the vendor to raise such a plea of hardship by observing that as
no plea as to hardship if relief for specific performance is granted was
raised by the defendant – vendor in written statement nor any issue was
framed that the plaintiff – purchaser could be compensated in terms of
the money in lieu of decree for specific performance, such plea cannot
be entertained for the first time in appeal by way of SLP, more so, when
there are concurrent findings that the plaintiff was ready and willing to
perform his part of the contract has been recorded by the lower courts.
Therefore, the plea raised on behalf of the vendor on hardship cannot be
permitted to be raised now, more particularly when no such plea was
raised/taken in the written statement.
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12. Now so far as the reliance placed upon the decisions of this
Court by the learned Senior Advocate appearing on behalf of the appellant,
referred to hereinabove, are concerned, none of the decisions shall be
applicable to the facts of the case on hand and more particularly the
findings recorded by the learned trial Court, confirmed by the High Court,
which we also confirm.
13. In view of the above and for the reasons stated above, the
present appeals fail and deserve to be dismissed and are accordingly
dismissed.  We confirm the judgment and decree passed by the learned
trial Court for specific performance of the agreement to sell dated
30.12.1985, confirmed by the High Court.  However, in the facts and
circumstances of the case, there shall be no order as to costs.
Nidhi Jain
Appeals dismissed.
BEEMANENI MAHA LAKSHMI v. GANGUMALLA APPA RAO
(SINCE DEAD) BY LRS. [M. R. SHAH, J.]